Page 6206 TITLE 42—THE PUBLIC HEALTH AND WELFARE

Section 7386d related to fund transfer authority. Section 7386e related to conceptual and construction design. Section 7386f related to authority for emergency planning, design, and construction activities. Section 7386g related to scope of authority to carry out plant projects. Section 7386h related to availability of funds. Section 7386i related to transfer of defense environ

mental management funds. Section 7386j related to transfer of weapons activities funds. Section 7386k related to funds available for all na

tional security programs of the Department of Energy.

CHAPTER 85—AIR POLLUTION PREVENTION

AND CONTROL

SUBCHAPTER I—PROGRAMS AND ACTIVITIES

P ART A—A IR Q UALITY AND E MISSION L IMITATIONS

Sec. 7401. Congressional findings and declaration of pur

pose. 7402. Cooperative activities. 7403. Research, investigation, training, and other

activities. 7404. Research relating to fuels and vehicles. 7405. Grants for support of air pollution planning

and control programs. 7406. Interstate air quality agencies; program cost

limitations. 7407. Air quality control regions. 7408. Air quality criteria and control techniques. 7409. National primary and secondary ambient air

quality standards. 7410. State implementation plans for national pri

mary and secondary ambient air quality standards. 7411. Standards of performance for new stationary

sources. 7412. Hazardous air pollutants. 7413. Federal enforcement. 7414. Recordkeeping, inspections, monitoring, and

entry. 7415. International air pollution. 7416. Retention of State authority. 7417. Advisory committees. 7418. Control of pollution from Federal facilities. 7419. Primary nonferrous smelter orders. 7420. Noncompliance penalty. 7421. Consultation. 7422. Listing of certain unregulated pollutants. 7423. Stack heights. 7424. Assurance of adequacy of State plans. 7425. Measures to prevent economic disruption or

unemployment. 7426. Interstate pollution abatement. 7427. Public notification. 7428. State boards. 7429. Solid waste combustion. 7430. Emission factors. 7431. Land use authority.

P ART B—O ZONE P ROTECTION 7450 to 7459. Repealed.

P ART C—P REVENTION OF S IGNIFICANT D ETERIORATION OF A IR Q UALITY

SUBPART I

— CLEAN AIR
7470. Congressional declaration of purpose. 7471. Plan requirements. 7472. Initial classifications. 7473. Increments and ceilings. 7474. Area redesignation. 7475. Preconstruction requirements. 7476. Other pollutants. 7477. Enforcement. Sec. 7478. Period before plan approval. 7479. Definitions.

SUBPART II

— VISIBILITY PROTECTION
7491. Visibility protection for Federal class I areas. 7492. Visibility.

P ART D—P LAN R EQUIREMENTS FOR N ONATTAINMENT A REAS

SUBPART 1

— NONATTAINMENT AREAS IN GENERAL
7501. Definitions. 7502. Nonattainment plan provisions in general. 7503. Permit requirements. 7504. Planning procedures. 7505. Environmental Protection Agency grants. 7505a. Maintenance plans. 7506. Limitations on certain Federal assistance. 7506a. Interstate transport commissions. 7507. New motor vehicle emission standards in non

attainment areas. 7508. Guidance documents. 7509. Sanctions and consequences of failure to at

tain. 7509a. International border areas.

SUBPART 2

— ADDITIONAL PROVISIONS FOR OZONE

NONATTAINMENT AREAS
7511. Classifications and attainment dates. 7511a. Plan submissions and requirements. 7511b. Federal ozone measures. 7511c. Control of interstate ozone air pollution. 7511d. Enforcement for Severe and Extreme ozone

nonattainment areas for failure to attain. 7511e. Transitional areas. 7511f. NO x and VOC study.

SUBPART 3

— ADDITIONAL PROVISIONS FOR CARBON

MONOXIDE NONATTAINMENT AREAS
7512. Classification and attainment dates. 7512a. Plan submissions and requirements.

SUBPART 4

— ADDITIONAL PROVISIONS FOR PARTICULATE

MATTER NONATTAINMENT AREAS
7513. Classifications and attainment dates. 7513a. Plan provisions and schedules for plan sub

missions. 7513b. Issuance of RACM and BACM guidance.

SUBPART 5

— ADDITIONAL PROVISIONS FOR AREAS DES

IGNATED NONATTAINMENT FOR SULFUR OXIDES , NITRO

GEN DIOXIDE , OR LEAD
7514. Plan submission deadlines. 7514a. Attainment dates.

SUBPART 6

— SAVINGS PROVISIONS
7515. General savings clause.

SUBCHAPTER II—EMISSION STANDARDS FOR

MOVING SOURCES

P ART A—M OTOR V EHICLE E MISSION AND F UEL

S TANDARDS
7521. Emission standards for new motor vehicles or

new motor vehicle engines. 7522. Prohibited acts. 7523. Actions to restrain violations. 7524. Civil penalties. 7525. Motor vehicle and motor vehicle engine com

pliance testing and certification. 7541. Compliance by vehicles and engines in actual

use. 7542. Information collection. 7543. State standards. 7544. State grants. 7545. Regulation of fuels. 7546. Renewable fuel. 7547. Nonroad engines and vehicles.Page 6207 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7401

Sec. 7548. Study of particulate emissions from motor

vehicles. 7549. High altitude performance adjustments. 7550. Definitions. 7551. Omitted. 7552. Motor vehicle compliance program fees. 7553. Prohibition on production of engines requir

ing leaded gasoline. 7554. Urban bus standards.

P ART B—A IRCRAFT E MISSION S TANDARDS
7571. Establishment of standards. 7572. Enforcement of standards. 7573. State standards and controls. 7574. Definitions.

P ART C—C LEAN F UEL V EHICLES
7581. Definitions. 7582. Requirements applicable to clean-fuel vehi

cles. 7583. Standards for light-duty clean-fuel vehicles. 7584. Administration and enforcement as per Cali

fornia standards. 7585. Standards for heavy-duty clean-fuel vehicles

(GVWR above 8,500 up to 26,000 lbs.). 7586. Centrally fueled fleets. 7587. Vehicle conversions. 7588. Federal agency fleets. 7589. California pilot test program. 7590. General provisions.

SUBCHAPTER III—GENERAL PROVISIONS

7601. Administration. 7602. Definitions. 7603. Emergency powers. 7604. Citizen suits. 7605. Representation in litigation. 7606. Federal procurement. 7607. Administrative proceedings and judicial re

view. 7608. Mandatory licensing. 7609. Policy review. 7610. Other authority. 7611. Records and audit. 7612. Economic impact analyses. 7613. Repealed. 7614. Labor standards. 7615. Separability. 7616. Sewage treatment grants. 7617. Economic impact assessment. 7618. Repealed. 7619. Air quality monitoring. 7620. Standardized air quality modeling. 7621. Employment effects. 7622. Employee protection. 7623. Repealed. 7624. Cost of vapor recovery equipment. 7625. Vapor recovery for small business marketers

of petroleum products. 7625–1. Exemptions for certain territories. 7625a. Statutory construction. 7626. Authorization of appropriations. 7627. Air pollution from Outer Continental Shelf

activities. 7628. Demonstration grant program for local gov

ernments.

SUBCHAPTER IV—NOISE POLLUTION

7641. Noise abatement. 7642. Authorization of appropriations.

SUBCHAPTER IV–A—ACID DEPOSITION CONTROL

7651. Findings and purposes. 7651a. Definitions. 7651b. Sulfur dioxide allowance program for existing

and new units. 7651c. Phase I sulfur dioxide requirements. 7651d. Phase II sulfur dioxide requirements. Sec. 7651e. Allowances for States with emissions rates at

or below 0.80 lbs/mmBtu. 7651f. Nitrogen oxides emission reduction program. 7651g. Permits and compliance plans. 7651h. Repowered sources. 7651i. Election for additional sources. 7651j. Excess emissions penalty. 7651k. Monitoring, reporting, and recordkeeping re

quirements. 7651 l. General compliance with other provisions. 7651m. Enforcement. 7651n. Clean coal technology regulatory incentives. 7651 o. Contingency guarantee, auctions, reserve.

SUBCHAPTER V—PERMITS

7661. Definitions. 7661a. Permit programs. 7661b. Permit applications. 7661c. Permit requirements and conditions. 7661d. Notification to Administrator and contiguous

States. 7661e. Other authorities. 7661f. Small business stationary source technical

and environmental compliance assistance
program. SUBCHAPTER VI—STRATOSPHERIC OZONE

PROTECTION

7671. Definitions. 7671a. Listing of class I and class II substances. 7671b. Monitoring and reporting requirements. 7671c. Phase-out of production and consumption of

class I substances. 7671d. Phase-out of production and consumption of

class II substances. 7671e. Accelerated schedule. 7671f. Exchange authority. 7671g. National recycling and emission reduction

program. 7671h. Servicing of motor vehicle air conditioners. 7671i. Nonessential products containing chloro

fluorocarbons. 7671j. Labeling. 7671k. Safe alternatives policy. 7671 l. Federal procurement. 7671m. Relationship to other laws. 7671n. Authority of Administrator. 7671 o. Transfers among Parties to Montreal Proto

col. 7671p. International cooperation. 7671q. Miscellaneous provisions.

C ODIFICATION Act July 14, 1955, ch. 360, 69 Stat. 322, as amended, known as the Clean Air Act, which was formerly classi

fied to chapter 15B (§1857 et seq.) of this title, was com

pletely revised by Pub. L. 95–95, Aug. 7, 1977, 91 Stat. 685, and was reclassified to this chapter.

SUBCHAPTER I—PROGRAMS AND

ACTIVITIES

P ART A—A IR Q UALITY AND E MISSION

L IMITATIONS

A MENDMENTS 1977—Pub. L. 95–95, title I, §117(a), Aug. 7, 1977, 91 Stat. 712, designated sections 7401 to 7428 of this title as part A. § 7401. Congressional findings and declaration of
purpose (a) Findings The Congress finds— (1) that the predominant part of the Nation’s population is located in its rapidly expanding metropolitan and other urban areas, whichPage 6208 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7401

generally cross the boundary lines of local ju

risdictions and often extend into two or more States; (2) that the growth in the amount and com

plexity of air pollution brought about by ur

banization, industrial development, and the increasing use of motor vehicles, has resulted in mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and the deteriora

tion of property, and hazards to air and ground transportation; (3) that air pollution prevention (that is, the reduction or elimination, through any meas

ures, of the amount of pollutants produced or created at the source) and air pollution con

trol at its source is the primary responsibility of States and local governments; and (4) that Federal financial assistance and leadership is essential for the development of cooperative Federal, State, regional, and local programs to prevent and control air pollution. (b) Declaration The purposes of this subchapter are— (1) to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population; (2) to initiate and accelerate a national re

search and development program to achieve the prevention and control of air pollution; (3) to provide technical and financial assist

ance to State and local governments in con

nection with the development and execution of their air pollution prevention and control pro

grams; and (4) to encourage and assist the development and operation of regional air pollution preven

tion and control programs. (c) Pollution prevention A primary goal of this chapter is to encourage or otherwise promote reasonable Federal, State, and local governmental actions, consistent with the provisions of this chapter, for pollution pre

vention. (July 14, 1955, ch. 360, title I, §101, formerly §1, as added Pub. L. 88–206, §1, Dec. 17, 1963, 77 Stat. 392; renumbered §101 and amended Pub. L. 89–272, title I, §101(2), (3), Oct. 20, 1965, 79 Stat. 992; Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 485; Pub. L. 101–549, title I, §108(k), Nov. 15, 1990, 104 Stat. 2468.)

C ODIFICATION Section was formerly classified to section 1857 of this title.

P RIOR P ROVISIONS
Provisions similar to those in this section were con

tained in a prior section 1857 of this title, act of July 14, 1955, ch. 360, §1, 69 Stat. 322, prior to the general amendment of this chapter by Pub. L. 88–206.

A MENDMENTS 1990—Subsec. (a)(3). Pub. L. 101–549, §108(k)(1), amend

ed par. (3) generally. Prior to amendment, par. (3) read as follows: ‘‘that the prevention and control of air pol

lution at its source is the primary responsibility of States and local governments; and’’. Subsec. (b)(4). Pub. L. 101–549, §108(k)(2), inserted ‘‘prevention and’’ after ‘‘pollution’’. Subsec. (c). Pub. L. 101–549, §108(k)(3), added subsec. (c). 1967—Subsec. (b)(1). Pub. L. 90–148 inserted ‘‘and en

hance the quality of’’ after ‘‘to protect’’. 1965—Subsec. (b). Pub. L. 89–272 substituted ‘‘this title’’ for ‘‘this Act’’, which for purposes of codification has been changed to ‘‘this subchapter’’.

E FFECTIVE D ATE OF 1990 A MENDMENT Section 711(b) of Pub. L. 101–549 provided that: ‘‘(1) Except as otherwise expressly provided, the amendments made by this Act [see Tables for classi

fication] shall be effective on the date of enactment of this Act [Nov. 15, 1990]. ‘‘(2) The Administrator’s authority to assess civil penalties under section 205(c) of the Clean Air Act [42 U.S.C. 7524(c)], as amended by this Act, shall apply to violations that occur or continue on or after the date of enactment of this Act. Civil penalties for violations that occur prior to such date and do not continue after such date shall be assessed in accordance with the pro

visions of the Clean Air Act [42 U.S.C. 7401 et seq.] in effect immediately prior to the date of enactment of this Act. ‘‘(3) The civil penalties prescribed under sections 205(a) and 211(d)(1) of the Clean Air Act [42 U.S.C. 7524(a), 7545(d)(1)], as amended by this Act, shall apply to violations that occur on or after the date of enact

ment of this Act. Violations that occur prior to such date shall be subject to the civil penalty provisions pre

scribed in sections 205(a) and 211(d) of the Clean Air Act in effect immediately prior to the enactment of this Act. The injunctive authority prescribed under section 211(d)(2) of the Clean Air Act, as amended by this Act, shall apply to violations that occur or continue on or after the date of enactment of this Act. ‘‘(4) For purposes of paragraphs (2) and (3), where the date of a violation cannot be determined it will be as

sumed to be the date on which the violation is discov

ered.’’

E FFECTIVE D ATE OF 1977 A MENDMENT ; P ENDING A C

TIONS ; C ONTINUATION OF R ULES , C ONTRACTS , A UTHOR

IZATIONS , E TC .; I MPLEMENTATION P LANS Section 406 of Pub. L. 95–95, as amended by Pub. L. 95–190, §14(b)(6), Nov. 16, 1977, 91 Stat. 1405, provided that: ‘‘(a) No suit, action, or other proceeding lawfully commenced by or against the Administrator or any other officer or employee of the United States in his of

ficial capacity or in relation to the discharge of his of

ficial duties under the Clean Air Act [this chapter], as in effect immediately prior to the date of enactment of this Act [Aug. 7, 1977] shall abate by reason of the tak

ing effect of the amendments made by this Act [see Short Title of 1977 Amendment note below]. The court may, on its own motion or that of any party made at any time within twelve months after such taking ef

fect, allow the same to be maintained by or against the Administrator or such officer or employee. ‘‘(b) All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pur

suant to the Clean Air Act [this chapter], as in effect immediately prior to the date of enactment of this Act [Aug. 7, 1977], and pertaining to any functions, powers, requirements, and duties under the Clean Air Act, as in effect immediately prior to the date of enactment of this Act, and not suspended by the Administrator or the courts, shall continue in full force and effect after the date of enactment of this Act until modified or re

scinded in accordance with the Clean Air Act as amend

ed by this Act [see Short Title of 1977 Amendment note below]. ‘‘(c) Nothing in this Act [see Short Title of 1977 Amendment note below] nor any action taken pursuant to this Act shall in any way affect any requirement of an approved implementation plan in effect under sec

tion 110 of the Clean Air Act [section 7410 of this title]Page 6209 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7401

or any other provision of the Act in effect under the Clean Air Act before the date of enactment of this sec

tion [Aug. 7, 1977] until modified or rescinded in accord

ance with the Clean Air Act [this chapter] as amended by this Act [see Short Title of 1977 Amendment note below]. ‘‘(d)(1) Except as otherwise expressly provided, the amendments made by this Act [see Short Title of 1977 Amendment note below] shall be effective on date of enactment [Aug. 7, 1977]. ‘‘(2) Except as otherwise expressly provided, each State required to revise its applicable implementation plan by reason of any amendment made by this Act [see Short Title of 1977 Amendment note below] shall adopt and submit to the Administrator of the Environmental Protection Administration such plan revision before the later of the date— ‘‘(A) one year after the date of enactment of this Act [Aug. 7, 1977], or ‘‘(B) nine months after the date of promulgation by the Administrator of the Environmental Protection Administration of any regulations under an amend

ment made by this Act which are necessary for the approval of such plan revision.’’

S HORT T ITLE OF 1999 A MENDMENT Pub. L. 106–40, §1, Aug. 5, 1999, 113 Stat. 207, provided that: ‘‘This Act [amending section 7412 of this title and enacting provisions set out as notes under section 7412 of this title] may be cited as the ‘Chemical Safety In

formation, Site Security and Fuels Regulatory Relief Act’.’’

S HORT T ITLE OF 1998 A MENDMENT Pub. L. 105–286, §1, Oct. 27, 1998, 112 Stat. 2773, pro

vided that: ‘‘This Act [amending section 7511b of this title and enacting provisions set out as a note under section 7511b of this title] may be cited as the ‘Border Smog Reduction Act of 1998’.’’

S HORT T ITLE OF 1990 A MENDMENT Pub. L. 101–549, Nov. 15, 1990, 104 Stat. 2399, is popu

larly known as the ‘‘Clean Air Act Amendments of 1990’’. See Tables for classification.

S HORT T ITLE OF 1981 A MENDMENT Pub. L. 97–23, §1, July 17, 1981, 95 Stat. 139, provided: ‘‘That this Act [amending sections 7410 and 7413 of this title] may be cited as the ‘Steel Industry Compliance Extension Act of 1981’.’’

S HORT T ITLE OF 1977 A MENDMENT Pub. L. 95–95, §1, Aug. 7, 1977, 91 Stat. 685, provided that: ‘‘This Act [enacting sections 4362, 7419 to 7428, 7450 to 7459, 7470 to 7479, 7491, 7501 to 7508, 7548, 7549, 7551, 7617 to 7625, and 7626 of this title, amending sections 7403, 7405, 7407 to 7415, 7417, 7418, 7521 to 7525, 7541, 7543, 7544, 7545, 7550, 7571, 7601 to 7605, 7607, 7612, 7613, and 7616 of this title, repealing section 1857c–10 of this title, and enacting provisions set out as notes under this section, sections 7403, 7422, 7470, 7479, 7502, 7521, 7548, and 7621 of this title, and section 792 of Title 15, Commerce and Trade] may be cited as the ‘Clean Air Act Amendments of 1977’.’’

S HORT T ITLE OF 1970 A MENDMENT Pub. L. 91–604, §1, Dec. 31, 1970, 84 Stat. 1676, provided: ‘‘That this Act [amending this chapter generally] may be cited as the ‘Clean Air Amendments of 1970’.’’

S HORT T ITLE OF 1967 A MENDMENT Section 1 of Pub. L. 90–148 provided: ‘‘That this Act [amending this chapter generally] may be cited as the ‘Air Quality Act of 1967’.’’

S HORT T ITLE OF 1966 A MENDMENT Pub. L. 89–675, §1, Oct. 15, 1966, 80 Stat. 954, provided: ‘‘That this Act [amending sections 7405 and 7616 of this title and repealing section 1857f–8 of this title] may be cited as the ‘Clean Air Act Amendments of 1966’.’’

S HORT T ITLE Section 317, formerly section 14, of act July 14, 1955, as added by section 1 of Pub. L. 88–206, renumbered sec

tion 307 by section 101(4) of Pub. L. 89–272, renumbered section 310 by section 2 of Pub. L. 90–148, and renum

bered section 317 by Pub. L. 91–604, §12(a), Dec. 31, 1970, 84 Stat. 1705, provided that: ‘‘This Act [enacting this chapter] may be cited as the ‘Clean Air Act’.’’ Section 201 of title II of act July 14, 1955, as added by Pub. L. 89–272, title I, §101(8), Oct. 20, 1965, 79 Stat. 992, and amended by Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 499, provided that: ‘‘This title [enacting subchapter II of this chapter] may be cited as the ‘National Emission Standards Act’.’’ Prior to its amendment by Pub. L. 90–148, title II of act June 14, 1955, was known as the ‘‘Motor Vehicle Air Pollution Control Act’’. Section 401 of title IV of act July 14, 1955, as added Dec. 31, 1970, Pub. L. 91–604, §14, 84 Stat. 1709, provided that: ‘‘This title [enacting subchapter IV of this chap

ter] may be cited as the ‘Noise Pollution and Abate

ment Act of 1970’.’’

S AVINGS P ROVISION Section 711(a) of Pub. L. 101–549 provided that: ‘‘Ex

cept as otherwise expressly provided in this Act [see Tables for classification], no suit, action, or other pro

ceeding lawfully commenced by the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under the Clean Air Act [42 U.S.C. 7401 et seq.], as in effect immediately prior to the date of enactment of this Act [Nov. 15, 1990], shall abate by reason of the taking effect of the amendments made by this Act.’’

T RANSFER OF F UNCTIONS Reorg. Plan No. 3 of 1970, §2(a)(3), eff. Dec. 2, 1970, 35 F.R. 15623, 84 Stat. 2086, transferred to Administrator of Environmental Protection Agency functions vested by law in Secretary of Health, Education, and Welfare or in Department of Health, Education, and Welfare which are administered through Environmental Health Serv

ice, including functions exercised by National Air Pol

lution Control Administration, and Environmental Control Administration’s Bureau of Solid Waste Man

agement, Bureau of Water Hygiene, and Bureau of Ra

diological Health, except insofar as functions carried out by Bureau of Radiological Health pertain to regula

tion of radiation from consumer products, including electronic product radiation, radiation as used in heal

ing arts, occupational exposure to radiation, and re

search, technical assistance, and training related to ra

diation from consumer products, radiation as used in healing arts, and occupational exposure to radiation.

I MPACT ON S MALL C OMMUNITIES Section 810 of Pub. L. 101–549 provided that: ‘‘Before implementing a provision of this Act [see Tables for classification], the Administrator of the Environ

mental Protection Agency shall consult with the Small Communities Coordinator of the Environmental Pro

tection Agency to determine the impact of such provi

sion on small communities, including the estimated cost of compliance with such provision.’’

R ADON A SSESSMENT AND M ITIGATION Pub. L. 99–499, title I, §118(k), Oct. 17, 1986, 100 Stat. 1659, as amended by Pub. L. 105–362, title V, §501(i), Nov. 10, 1998, 112 Stat. 3284, provided that: ‘‘(1) N ATIONAL ASSESSMENT OF RADON GAS .—No later than one year after the enactment of this Act [Oct. 17, 1986], the Administrator shall submit to the Congress a report which shall, to the extent possible— ‘‘(A) identify the locations in the United States where radon is found in structures where people nor

mally live or work, including educational institu

tions;Page 6210 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7401

‘‘(B) assess the levels of radon gas that are present in such structures; ‘‘(C) determine the level of radon gas and radon daughters which poses a threat to human health and assess for each location identified under subpara

graph (A) the extent of the threat to human health; ‘‘(D) determine methods of reducing or eliminating the threat to human health of radon gas and radon daughters; and ‘‘(E) include guidance and public information mate

rials based on the findings or research of mitigating radon. ‘‘(2) R ADON MITIGATION DEMONSTRATION PROGRAM .— ‘‘(A) D EMONSTRATION PROGRAM .—The Administrator shall conduct a demonstration program to test meth

ods and technologies of reducing or eliminating radon gas and radon daughters where it poses a threat to human health. The Administrator shall take into consideration any demonstration program underway in the Reading Prong of Pennsylvania, New Jersey, and New York and at other sites prior to enactment. The demonstration program under this section shall be conducted in the Reading Prong, and at such other sites as the Administrator considers appropriate. ‘‘(B) L IABILITY .—Liability, if any, for persons undertaking activities pursuant to the radon mitiga

tion demonstration program authorized under this subsection shall be determined under principles of ex

isting law. ‘‘(3) C ONSTRUCTION OF SECTION .—Nothing in this sub

section shall be construed to authorize the Adminis

trator to carry out any regulatory program or any ac

tivity other than research, development, and related reporting, information dissemination, and coordination activities specified in this subsection. Nothing in para

graph (1) or (2) shall be construed to limit the author

ity of the Administrator or of any other agency or in

strumentality of the United States under any other au

thority of law.’’

S PILL C ONTROL T ECHNOLOGY Pub. L. 99–499, title I, §118(n), Oct. 17, 1986, 100 Stat. 1660, provided that: ‘‘(1) E STABLISHMENT OF PROGRAM .—Within 180 days of enactment of this subsection [Oct. 17, 1986], the Sec

retary of the United States Department of Energy is di

rected to carry out a program of testing and evaluation of technologies which may be utilized in responding to liquefied gaseous and other hazardous substance spills at the Liquefied Gaseous Fuels Spill Test Facility that threaten public health or the environment. ‘‘(2) T ECHNOLOGY TRANSFER .—In carrying out the pro

gram established under this subsection, the Secretary shall conduct a technology transfer program that, at a minimum— ‘‘(A) documents and archives spill control tech

nology; ‘‘(B) investigates and analyzes significant hazard

ous spill incidents; ‘‘(C) develops and provides generic emergency ac

tion plans; ‘‘(D) documents and archives spill test results; ‘‘(E) develops emergency action plans to respond to spills; ‘‘(F) conducts training of spill response personnel; and ‘‘(G) establishes safety standards for personnel en

gaged in spill response activities. ‘‘(3) C ONTRACTS AND GRANTS .—The Secretary is di

rected to enter into contracts and grants with a non

profit organization in Albany County, Wyoming, that is capable of providing the necessary technical support and which is involved in environmental activities relat

ed to such hazardous substance related emergencies. ‘‘(4) U SE OF SITE .—The Secretary shall arrange for the use of the Liquefied Gaseous Fuels Spill Test Facility to carry out the provisions of this subsection.’’

R ADON G AS AND I NDOOR A IR Q UALITY R ESEARCH Pub. L. 99–499, title IV, Oct. 17, 1986, 100 Stat. 1758, provided that: ‘‘SEC. 401. SHORT TITLE. ‘‘This title may be cited as the ‘Radon Gas and Indoor Air Quality Research Act of 1986’.

‘‘SEC. 402. FINDINGS. ‘‘The Congress finds that: ‘‘(1) High levels of radon gas pose a serious health threat in structures in certain areas of the country. ‘‘(2) Various scientific studies have suggested that exposure to radon, including exposure to naturally occurring radon and indoor air pollutants, poses a public health risk. ‘‘(3) Existing Federal radon and indoor air pollutant research programs are fragmented and underfunded. ‘‘(4) An adequate information base concerning expo

sure to radon and indoor air pollutants should be de

veloped by the appropriate Federal agencies. ‘‘SEC. 403. RADON GAS AND INDOOR AIR QUALITY RESEARCH PROGRAM. ‘‘(a) D ESIGN OF P ROGRAM .—The Administrator of the Environmental Protection Agency shall establish a re

search program with respect to radon gas and indoor air quality. Such program shall be designed to— ‘‘(1) gather data and information on all aspects of indoor air quality in order to contribute to the under

standing of health problems associated with the ex

istence of air pollutants in the indoor environment; ‘‘(2) coordinate Federal, State, local, and private research and development efforts relating to the im

provement of indoor air quality; and ‘‘(3) assess appropriate Federal Government actions to mitigate the environmental and health risks asso

ciated with indoor air quality problems. ‘‘(b) P ROGRAM R EQUIREMENTS .—The research program required under this section shall include— ‘‘(1) research and development concerning the iden

tification, characterization, and monitoring of the sources and levels of indoor air pollution, including radon, which includes research and development re

lating to— ‘‘(A) the measurement of various pollutant con

centrations and their strengths and sources, ‘‘(B) high-risk building types, and ‘‘(C) instruments for indoor air quality data col

lection; ‘‘(2) research relating to the effects of indoor air pollution and radon on human health; ‘‘(3) research and development relating to control technologies or other mitigation measures to prevent or abate indoor air pollution (including the develop

ment, evaluation, and testing of individual and ge

neric control devices and systems); ‘‘(4) demonstration of methods for reducing or eliminating indoor air pollution and radon, including sealing, venting, and other methods that the Admin

istrator determines may be effective; ‘‘(5) research, to be carried out in conjunction with the Secretary of Housing and Urban Development, for the purpose of developing— ‘‘(A) methods for assessing the potential for radon contamination of new construction, including (but not limited to) consideration of the moisture con

tent of soil, porosity of soil, and radon content of soil; and ‘‘(B) design measures to avoid indoor air pollu

tion; and ‘‘(6) the dissemination of information to assure the public availability of the findings of the activities under this section. ‘‘(c) A DVISORY C OMMITTEES .—The Administrator shall establish a committee comprised of individuals rep

resenting Federal agencies concerned with various as

pects of indoor air quality and an advisory group com

prised of individuals representing the States, the sci

entific community, industry, and public interest orga

nizations to assist him in carrying out the research program for radon gas and indoor air quality. ‘‘(d) I MPLEMENTATION P LAN .—Not later than 90 days after the enactment of this Act [Oct. 17, 1986], the Ad

-Page 6211 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7402

ministrator shall submit to the Congress a plan for im

plementation of the research program under this sec

tion. Such plan shall also be submitted to the EPA Science Advisory Board, which shall, within a reason

able period of time, submit its comments on such plan to Congress. ‘‘(e) R EPORT .—Not later than 2 years after the enact

ment of this Act [Oct. 17, 1986], the Administrator shall submit to Congress a report respecting his activities under this section and making such recommendations as appropriate.
‘‘SEC. 404. CONSTRUCTION OF TITLE. ‘‘Nothing in this title shall be construed to authorize the Administrator to carry out any regulatory program or any activity other than research, development, and related reporting, information dissemination, and co

ordination activities specified in this title. Nothing in this title shall be construed to limit the authority of the Administrator or of any other agency or instru

mentality of the United States under any other author

ity of law.
‘‘SEC. 405. AUTHORIZATIONS. ‘‘There are authorized to be appropriated to carry out the activities under this title and under section 118(k) of the Superfund Amendments and Reauthorization Act of 1986 (relating to radon gas assessment and dem

onstration program) [section 118(k) of Pub. L. 99–499, set out as a note above] not to exceed $5,000,000 for each of the fiscal years 1987, 1988, and 1989. Of such sums ap

propriated in fiscal years 1987 and 1988, two-fifths shall be reserved for the implementation of section 118(k)(2).’’

S TUDY OF O DORS AND O DOROUS E MISSIONS Pub. L. 95–95, title IV, §403(b), Aug. 7, 1977, 91 Stat. 792, directed Administrator of Environmental Protec

tion Agency to conduct a study and report to Congress not later than Jan. 1, 1979, on effects on public health and welfare of odors and odorous emissions, source of such emissions, technology or other measures available for control of such emissions and costs of such tech

nology or measures, and costs and benefits of alter

native measures or strategies to abate such emissions.

L IST OF C HEMICAL C ONTAMINANTS F ROM E NVIRONMENTAL P OLLUTION F OUND IN H UMAN T ISSUE Pub. L. 95–95, title IV, §403(c), Aug. 7, 1977, 91 Stat. 792, directed Administrator of EPA, not later than twelve months after Aug. 7, 1977, to publish throughout the United States a list of all known chemical contami

nants resulting from environmental pollution which have been found in human tissue including blood, urine, breast milk, and all other human tissue, such list to be prepared for the United States and to indicate approxi

mate number of cases, range of levels found, and mean levels found, directed Administrator, not later than eighteen months after Aug. 7, 1977, to publish in same manner an explanation of what is known about the manner in which chemicals entered the environment and thereafter human tissue, and directed Adminis

trator, in consultation with National Institutes of Health, the National Center for Health Statistics, and the National Center for Health Services Research and Development, to, if feasible, conduct an epidemiolog

ical study to demonstrate the relationship between lev

els of chemicals in the environment and in human tis

sue, such study to be made in appropriate regions or areas of the United States in order to determine any different results in such regions or areas, and the re

sults of such study to be reported, as soon as prac

ticable, to appropriate committee of Congress.

S TUDY ON R EGIONAL A IR Q UALITY Pub. L. 95–95, title IV, §403(d), Aug. 7, 1977, 91 Stat. 793, directed Administrator of EPA to conduct a study of air quality in various areas throughout the country including the gulf coast region, such study to include analysis of liquid and solid aerosols and other fine par

ticulate matter and contribution of such substances to visibility and public health problems in such areas, with Administrator to use environmental health ex

perts from the National Institutes of Health and other outside agencies and organizations.

R AILROAD E MISSION S TUDY Pub. L. 95–95, title IV, §404, Aug. 7, 1977, 91 Stat. 793, as amended by H. Res. 549, Mar. 25, 1980, directed Ad

ministrator of EPA to conduct a study and investiga

tion of emissions of air pollutants from railroad loco

motives, locomotive engines, and secondary power sources on railroad rolling stock, in order to determine extent to which such emissions affect air quality in air quality control regions throughout the United States, technological feasibility and current state of tech

nology for controlling such emissions, and status and effect of current and proposed State and local regula

tions affecting such emissions, and within one hundred and eighty days after commencing such study and in

vestigation, Administrator to submit a report of such study and investigation, together with recommenda

tions for appropriate legislation, to Senate Committee on Environment and Public Works and House Commit

tee on Energy and Commerce.

S TUDY AND R EPORT C ONCERNING E CONOMIC A PPROACHES TO C ONTROLLING A IR P OLLUTION Pub. L. 95–95, title IV, §405, Aug. 7, 1977, 91 Stat. 794, directed Administrator, in conjunction with Council of Economic Advisors, to undertake a study and assess

ment of economic measures for control of air pollution which could strengthen effectiveness of existing meth

ods of controlling air pollution, provide incentives to abate air pollution greater than that required by Clean Air Act, and serve as primary incentive for controlling air pollution problems not addressed by Clean Air Act, and directed that not later than 2 years after Aug. 7, 1977, Administrator and Council conclude study and submit a report to President and Congress.

N ATIONAL I NDUSTRIAL P OLLUTION C ONTROL C OUNCIL For provisions relating to establishment of National Industrial Pollution Control Council, see Ex. Ord. No. 11523, Apr. 9, 1970, 35 F.R. 5993, set out as a note under section 4321 of this title.

F EDERAL C OMPLIANCE W ITH P OLLUTION C ONTROL

S TANDARDS For provisions relating to responsibility of head of each Executive agency for compliance with applicable pollution control standards, see Ex. Ord. No. 12088, Oct. 13, 1978, 43 F.R. 47707, set out as a note under section 4321 of this title.

E XECUTIVE O RDER N O . 10779
Ex. Ord. No. 10779, Aug. 21, 1958, 23 F.R. 6487, which re

lated to cooperation of Federal agencies with State and local authorities, was superseded by Ex. Ord. No. 11282, May 26, 1966, 31 F.R. 7663, formerly set out under sec

tion 7418 of this title.

E XECUTIVE O RDER N O . 11507
Ex. Ord. No. 11507, Feb. 4, 1970, 35 F.R. 2573, which pro

vided for prevention, control, and abatement of air pol

lution at Federal facilities, was superseded by Ex. Ord. No. 11752, Dec. 17, 1973, 38 F.R. 34793, formerly set out as a note under section 4331 of this title. § 7402. Cooperative activities (a) Interstate cooperation; uniform State laws; State compacts The Administrator shall encourage coopera

tive activities by the States and local govern

ments for the prevention and control of air pol

lution; encourage the enactment of improved and, so far as practicable in the light of varyingPage 6212 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7403

conditions and needs, uniform State and local laws relating to the prevention and control of air pollution; and encourage the making of agreements and compacts between States for the prevention and control of air pollution.

(b) Federal cooperation The Administrator shall cooperate with and encourage cooperative activities by all Federal departments and agencies having functions re

lating to the prevention and control of air pollu

tion, so as to assure the utilization in the Fed

eral air pollution control program of all appro

priate and available facilities and resources within the Federal Government.

(c) Consent of Congress to compacts The consent of the Congress is hereby given to two or more States to negotiate and enter into agreements or compacts, not in conflict with any law or treaty of the United States, for (1) cooperative effort and mutual assistance for the prevention and control of air pollution and the enforcement of their respective laws relating thereto, and (2) the establishment of such agen

cies, joint or otherwise, as they may deem desir

able for making effective such agreements or compacts. No such agreement or compact shall be binding or obligatory upon any State a party thereto unless and until it has been approved by Congress. It is the intent of Congress that no agreement or compact entered into between States after November 21, 1967, which relates to the control and abatement of air pollution in an air quality control region, shall provide for par

ticipation by a State which is not included (in whole or in part) in such air quality control re

gion.
(July 14, 1955, ch. 360, title I, §102, formerly §2, as added Pub. L. 88–206, §1, Dec. 17, 1963, 77 Stat. 393; renumbered §102, Pub. L. 89–272, title I, §101(3), Oct. 20, 1965, 79 Stat. 992; amended Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 485; Pub. L. 91–604, §15(c)(2), Dec. 31, 1970, 84 Stat. 1713.)

C ODIFICATION Section was formerly classified to section 1857a of this title.

P RIOR P ROVISIONS

Provisions similar to those in the first clause of sub

sec. (a) of this section were contained in subsec. (b)(1) of a prior section 1857a, of this title, act July 14, 1955, ch. 360, §2, 69 Stat. 322, prior to the general amendment of this chapter by Pub. L. 88–206.

A MENDMENTS 1970—Subsecs. (a), (b). Pub. L. 91–604 substituted ‘‘Ad

ministrator’’ for ‘‘Secretary’’ wherever appearing. 1967—Subsec. (c). Pub. L. 90–148 inserted declaration that it is the intent of Congress that no agreement or compact entered into between States after the date of enactment of the Air Quality Act of 1967, which for pur

poses of codification was changed to November 21, 1967, the date of approval of such Act, relating to the control and abatement of air pollution in an air quality control region, shall provide for participation by a State which is not included (in whole or in part) in such air quality control region. § 7403. Research, investigation, training, and other activities (a) Research and development program for pre

vention and control of air pollution
The Administrator shall establish a national research and development program for the pre

vention and control of air pollution and as part of such program shall— (1) conduct, and promote the coordination and acceleration of, research, investigations, experiments, demonstrations, surveys, and studies relating to the causes, effects (includ

ing health and welfare effects), extent, preven

tion, and control of air pollution; (2) encourage, cooperate with, and render technical services and provide financial assist

ance to air pollution control agencies and other appropriate public or private agencies, institutions, and organizations, and individ

uals in the conduct of such activities; (3) conduct investigations and research and make surveys concerning any specific problem of air pollution in cooperation with any air pollution control agency with a view to rec

ommending a solution of such problem, if he is requested to do so by such agency or if, in his judgment, such problem may affect any com

munity or communities in a State other than that in which the source of the matter causing or contributing to the pollution is located; (4) establish technical advisory committees composed of recognized experts in various as

pects of air pollution to assist in the examina

tion and evaluation of research progress and proposals and to avoid duplication of research; and (5) conduct and promote coordination and acceleration of training for individuals relat

ing to the causes, effects, extent, prevention, and control of air pollution. (b) Authorized activities of Administrator in es

tablishing research and development pro

gram In carrying out the provisions of the preceding subsection the Administrator is authorized to— (1) collect and make available, through pub

lications and other appropriate means, the re

sults of and other information, including ap

propriate recommendations by him in connec

tion therewith, pertaining to such research and other activities; (2) cooperate with other Federal depart

ments and agencies, with air pollution control agencies, with other public and private agen

cies, institutions, and organizations, and with any industries involved, in the preparation and conduct of such research and other activi

ties; (3) make grants to air pollution control agencies, to other public or nonprofit private agencies, institutions, and organizations, and to individuals, for purposes stated in sub

section (a)(1) of this section; (4) contract with public or private agencies, institutions, and organizations, and with indi

viduals, without regard to section 3324(a) and (b) of title 31 and section 6101 of title 41; (5) establish and maintain research fellow

ships, in the Environmental Protection Agen

-Page 6213 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7403

1 So in original. Probably should be ‘‘precursors,’’. cy and at public or nonprofit private edu

cational institutions or research organiza

tions; (6) collect and disseminate, in cooperation with other Federal departments and agencies, and with other public or private agencies, in

stitutions, and organizations having related responsibilities, basic data on chemical, phys

ical, and biological effects of varying air qual

ity and other information pertaining to air pollution and the prevention and control thereof; (7) develop effective and practical processes, methods, and prototype devices for the preven

tion or control of air pollution; and (8) construct facilities, provide equipment, and employ staff as necessary to carry out this chapter. In carrying out the provisions of subsection (a) of this section, the Administrator shall provide training for, and make training grants to, per

sonnel of air pollution control agencies and other persons with suitable qualifications and make grants to such agencies, to other public or nonprofit private agencies, institutions, and or

ganizations for the purposes stated in subsection (a)(5) of this section. Reasonable fees may be charged for such training provided to persons other than personnel of air pollution control agencies but such training shall be provided to such personnel of air pollution control agencies without charge. (c) Air pollutant monitoring, analysis, modeling, and inventory research In carrying out subsection (a) of this section, the Administrator shall conduct a program of research, testing, and development of methods for sampling, measurement, monitoring, analy

sis, and modeling of air pollutants. Such pro

gram shall include the following elements: (1) Consideration of individual, as well as complex mixtures of, air pollutants and their chemical transformations in the atmosphere. (2) Establishment of a national network to monitor, collect, and compile data with quan

tification of certainty in the status and trends of air emissions, deposition, air quality, sur

face water quality, forest condition, and visi

bility impairment, and to ensure the com

parability of air quality data collected in dif

ferent States and obtained from different na

tions. (3) Development of improved methods and technologies for sampling, measurement, mon

itoring, analysis, and modeling to increase understanding of the sources of ozone
percursors, 1 ozone formation, ozone transport, regional influences on urban ozone, regional ozone trends, and interactions of ozone with other pollutants. Emphasis shall be placed on those techniques which— (A) improve the ability to inventory emis

sions of volatile organic compounds and ni

trogen oxides that contribute to urban air pollution, including anthropogenic and natu

ral sources; (B) improve the understanding of the mechanism through which anthropogenic and biogenic volatile organic compounds react to form ozone and other oxidants; and (C) improve the ability to identify and evaluate region-specific prevention and con

trol options for ozone pollution. (4) Submission of periodic reports to the Congress, not less than once every 5 years, which evaluate and assess the effectiveness of air pollution control regulations and programs using monitoring and modeling data obtained pursuant to this subsection. (d) Environmental health effects research (1) The Administrator, in consultation with the Secretary of Health and Human Services,shall conduct a research program on the shortterm and long-term effects of air pollutants, in

cluding wood smoke, on human health. In con

ducting such research program the Adminis

trator— (A) shall conduct studies, including epide

miological, clinical, and laboratory and field studies, as necessary to identify and evaluate exposure to and effects of air pollutants on human health; (B) may utilize, on a reimbursable basis, the facilities of existing Federal scientific labora

tories and research centers; and (C) shall consult with other Federal agencies to ensure that similar research being con

ducted in other agencies is coordinated to avoid duplication. (2) In conducting the research program under this subsection, the Administrator shall develop methods and techniques necessary to identify and assess the risks to human health from both routine and accidental exposures to individual air pollutants and combinations thereof. Such research program shall include the following elements: (A) The creation of an Interagency Task Force to coordinate such program. The Task Force shall include representatives of the Na

tional Institute for Environmental Health Sci

ences, the Environmental Protection Agency, the Agency for Toxic Substances and Disease Registry, the National Toxicology Program, the National Institute of Standards and Tech

nology, the National Science Foundation, the Surgeon General, and the Department of En

ergy. This Interagency Task Force shall be chaired by a representative of the Environ

mental Protection Agency and shall convene its first meeting within 60 days after Novem

ber 15, 1990. (B) An evaluation, within 12 months after November 15, 1990, of each of the hazardous air pollutants listed under section 7412(b) of this title, to decide, on the basis of available infor

mation, their relative priority for preparation of environmental health assessments pursuant to subparagraph (C). The evaluation shall be based on reasonably anticipated toxicity to humans and exposure factors such as fre

quency of occurrence as an air pollutant and volume of emissions in populated areas. Such evaluation shall be reviewed by the Inter

agency Task Force established pursuant to subparagraph (A). (C) Preparation of environmental health as

sessments for each of the hazardous air pollut

-Page 6214 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7403

ants referred to in subparagraph (B), begin

ning 6 months after the first meeting of the Interagency Task Force and to be completed within 96 months thereafter. No fewer than 24 assessments shall be completed and published annually. The assessments shall be prepared in accordance with guidelines developed by the Administrator in consultation with the Inter

agency Task Force and the Science Advisory Board of the Environmental Protection Agen

cy. Each such assessment shall include— (i) an examination, summary, and evalua

tion of available toxicological and epidemio

logical information for the pollutant to as

certain the levels of human exposure which pose a significant threat to human health and the associated acute, subacute, and chronic adverse health effects; (ii) a determination of gaps in available in

formation related to human health effects and exposure levels; and (iii) where appropriate, an identification of additional activities, including toxicological and inhalation testing, needed to identify the types or levels of exposure which may present significant risk of adverse health ef

fects in humans.
(e) Ecosystem research In carrying out subsection (a) of this section, the Administrator, in cooperation, where appro

priate, with the Under Secretary of Commerce for Oceans and Atmosphere, the Director of the Fish and Wildlife Service, and the Secretary of Agriculture, shall conduct a research program to improve understanding of the short-term and long-term causes, effects, and trends of eco

systems damage from air pollutants on eco

systems. Such program shall include the follow

ing elements: (1) Identification of regionally representa

tive and critical ecosystems for research. (2) Evaluation of risks to ecosystems ex

posed to air pollutants, including character

ization of the causes and effects of chronic and episodic exposures to air pollutants and deter

mination of the reversibility of those effects. (3) Development of improved atmospheric dispersion models and monitoring systems and networks for evaluating and quantifying expo

sure to and effects of multiple environmental stresses associated with air pollution. (4) Evaluation of the effects of air pollution on water quality, including assessments of the short-term and long-term ecological effects of acid deposition and other atmospherically de

rived pollutants on surface water (including wetlands and estuaries) and groundwater. (5) Evaluation of the effects of air pollution on forests, materials, crops, biological diver

sity, soils, and other terrestrial and aquatic systems exposed to air pollutants. (6) Estimation of the associated economic costs of ecological damage which have oc

curred as a result of exposure to air pollut

ants. Consistent with the purpose of this program, the Administrator may use the estuarine research reserves established pursuant to section 1461 of title 16 to carry out this research. (f) Liquefied Gaseous Fuels Spill Test Facility (1) The Administrator, in consultation with the Secretary of Energy and the Federal Coordi

nating Council for Science, Engineering, and Technology, shall oversee an experimental and analytical research effort, with the experi

mental research to be carried out at the Lique

fied Gaseous Fuels Spill Test Facility. In con

sultation with the Secretary of Energy, the Ad

ministrator shall develop a list of chemicals and a schedule for field testing at the Facility. Analysis of a minimum of 10 chemicals per year shall be carried out, with the selection of a min

imum of 2 chemicals for field testing each year. Highest priority shall be given to those chemi

cals that would present the greatest potential risk to human health as a result of an acciden

tal release— (A) from a fixed site; or (B) related to the transport of such chemi

cals. (2) The purpose of such research shall be to— (A) develop improved predictive models for atmospheric dispersion which at a minimum— (i) describe dense gas releases in complex terrain including man-made structures or obstacles with variable winds; (ii) improve understanding of the effects of turbulence on dispersion patterns; and (iii) consider realistic behavior of aerosols by including physicochemical reactions with water vapor, ground deposition, and removal by water spray; (B) evaluate existing and future atmospheric dispersion models by— (i) the development of a rigorous, stand

ardized methodology for dense gas models; and (ii) the application of such methodology to current dense gas dispersion models using data generated from field experiments; and (C) evaluate the effectiveness of hazard miti

gation and emergency response technology for fixed site and transportation related acciden

tal releases of toxic chemicals. Models pertaining to accidental release shall be evaluated and improved periodically for their utility in planning and implementing evacua

tion procedures and other mitigative strategies designed to minimize human exposure to hazard

ous air pollutants released accidentally. (3) The Secretary of Energy shall make avail

able to interested persons (including other Fed

eral agencies and businesses) the use of the Liq

uefied Gaseous Fuels Spill Test Facility to con

duct research and other activities in connection with the activities described in this subsection. (g) Pollution prevention and emissions control In carrying out subsection (a) of this section, the Administrator shall conduct a basic engi

neering research and technology program to de

velop, evaluate, and demonstrate nonregulatory strategies and technologies for air pollution pre

vention. Such strategies and technologies shall be developed with priority on those pollutants which pose a significant risk to human health and the environment, and with opportunities for participation by industry, public interestPage 6215 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7403

groups, scientists, and other interested persons in the development of such strategies and tech

nologies. Such program shall include the follow

ing elements: (1) Improvements in nonregulatory strate

gies and technologies for preventing or reduc

ing multiple air pollutants, including sulfur oxides, nitrogen oxides, heavy metals, PM–10 (particulate matter), carbon monoxide, and carbon dioxide, from stationary sources, in

cluding fossil fuel power plants. Such strate

gies and technologies shall include improve

ments in the relative cost effectiveness and long-range implications of various air pollut

ant reduction and nonregulatory control strat

egies such as energy conservation, including end-use efficiency, and fuel-switching to cleaner fuels. Such strategies and technologies shall be considered for existing and new facili

ties. (2) Improvements in nonregulatory strate

gies and technologies for reducing air emis

sions from area sources. (3) Improvements in nonregulatory strate

gies and technologies for preventing, detect

ing, and correcting accidental releases of haz

ardous air pollutants. (4) Improvements in nonregulatory strate

gies and technologies that dispose of tires in ways that avoid adverse air quality impacts. Nothing in this subsection shall be construed to authorize the imposition on any person of air pollution control requirements. The Adminis

trator shall consult with other appropriate Fed

eral agencies to ensure coordination and to avoid duplication of activities authorized under this subsection. (h) NIEHS studies (1) The Director of the National Institute of Environmental Health Sciences may conduct a program of basic research to identify, character

ize, and quantify risks to human health from air pollutants. Such research shall be conducted primarily through a combination of university and medical school-based grants, as well as through intramural studies and contracts. (2) The Director of the National Institute of Environmental Health Sciences shall conduct a program for the education and training of physi

cians in environmental health. (3) The Director shall assure that such pro

grams shall not conflict with research under

taken by the Administrator. (4) There are authorized to be appropriated to the National Institute of Environmental Health Sciences such sums as may be necessary to carry out the purposes of this subsection. (i) Coordination of research The Administrator shall develop and imple

ment a plan for identifying areas in which ac

tivities authorized under this section can be car

ried out in conjunction with other Federal eco

logical and air pollution research efforts. The plan, which shall be submitted to Congress with

in 6 months after November 15, 1990, shall in

clude— (1) an assessment of ambient monitoring sta

tions and networks to determine cost effective ways to expand monitoring capabilities in both urban and rural environments; (2) a consideration of the extent of the fea

sibility and scientific value of conducting the research program under subsection (e) of this section to include consideration of the effects of atmospheric processes and air pollution ef

fects; and (3) a methodology for evaluating and rank

ing pollution prevention technologies, such as those developed under subsection (g) of this section, in terms of their ability to reduce cost effectively the emissions of air pollutants and other airborne chemicals of concern. Not later than 2 years after November 15, 1990, and every 4 years thereafter, the Administrator shall report to Congress on the progress made in implementing the plan developed under this sub

section, and shall include in such report any re

visions of the plan. (j) Continuation of national acid precipitation assessment program (1) The acid precipitation research program set forth in the Acid Precipitation Act of 1980 [42 U.S.C. 8901 et seq.] shall be continued with modi

fications pursuant to this subsection. (2) The Acid Precipitation Task Force shall consist of the Administrator of the Environ

mental Protection Agency, the Secretary of En

ergy, the Secretary of the Interior, the Sec

retary of Agriculture, the Administrator of the National Oceanic and Atmospheric Administra

tion, the Administrator of the National Aero

nautics and Space Administration, and such ad

ditional members as the President may select. The President shall appoint a chairman for the Task Force from among its members within 30 days after November 15, 1990. (3) The responsibilities of the Task Force shall include the following: (A) Review of the status of research activi

ties conducted to date under the comprehen

sive research plan developed pursuant to the Acid Precipitation Act of 1980 [42 U.S.C. 8901 et seq.], and development of a revised plan that identifies significant research gaps and estab

lishes a coordinated program to address cur

rent and future research priorities. A draft of the revised plan shall be submitted by the Task Force to Congress within 6 months after November 15, 1990. The plan shall be available for public comment during the 60 day period after its submission, and a final plan shall be submitted by the President to the Congress within 45 days after the close of the comment period. (B) Coordination with participating Federal agencies, augmenting the agencies’ research and monitoring efforts and sponsoring addi

tional research in the scientific community as necessary to ensure the availability and qual

ity of data and methodologies needed to evalu

ate the status and effectiveness of the acid deposition control program. Such research and monitoring efforts shall include, but not be limited to— (i) continuous monitoring of emissions of precursors of acid deposition; (ii) maintenance, upgrading, and applica

tion of models, such as the Regional Acid Deposition Model, that describe the inter

actions of emissions with the atmosphere,Page 6216 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7403

2 So in original. Probably should be ‘‘precursors’’. and models that describe the response of ecosystems to acid deposition; and (iii) analysis of the costs, benefits, and ef

fectiveness of the acid deposition control
program. (C) Publication and maintenance of a Na

tional Acid Lakes Registry that tracks the condition and change over time of a statis

tically representative sample of lakes in re

gions that are known to be sensitive to surface water acidification. (D) Submission every two years of a unified budget recommendation to the President for activities of the Federal Government in con

nection with the research program described in this subsection. (E) Beginning in 1992 and biennially there

after, submission of a report to Congress de

scribing the results of its investigations and analyses. The reporting of technical informa

tion about acid deposition shall be provided in a format that facilitates communication with policymakers and the public. The report shall include— (i) actual and projected emissions and acid deposition trends; (ii) average ambient concentrations of acid deposition percursors 2 and their trans

formation products; (iii) the status of ecosystems (including forests and surface waters), materials, and visibility affected by acid deposition; (iv) the causes and effects of such deposi

tion, including changes in surface water quality and forest and soil conditions; (v) the occurrence and effects of episodic acidification, particularly with respect to high elevation watersheds; and (vi) the confidence level associated with each conclusion to aid policymakers in use of the information. (F) Beginning in 1996, and every 4 years thereafter, the report under subparagraph (E) shall include— (i) the reduction in deposition rates that must be achieved in order to prevent adverse ecological effects; and (ii) the costs and benefits of the acid depo

sition control program created by sub

chapter IV–A of this chapter. (k) Air pollution conferences If, in the judgment of the Administrator, an air pollution problem of substantial significance may result from discharge or discharges into the atmosphere, the Administrator may call a con

ference concerning this potential air pollution problem to be held in or near one or more of the places where such discharge or discharges are occurring or will occur. All interested persons shall be given an opportunity to be heard at such conference, either orally or in writing, and shall be permitted to appear in person or by rep

resentative in accordance with procedures pre

scribed by the Administrator. If the Adminis

trator finds, on the basis of the evidence pre

sented at such conference, that the discharge or discharges if permitted to take place or con

tinue are likely to cause or contribute to air pollution subject to abatement under this part, the Administrator shall send such findings, to

gether with recommendations concerning the measures which the Administrator finds reason

able and suitable to prevent such pollution, to the person or persons whose actions will result in the discharge or discharges involved; to air pollution agencies of the State or States and of the municipality or municipalities where such discharge or discharges will originate; and to the interstate air pollution control agency, if any, in the jurisdictional area of which any such municipality is located. Such findings and rec

ommendations shall be advisory only, but shall be admitted together with the record of the con

ference, as part of the proceedings under sub

sections (b), (c), (d), (e), and (f) of section 7408 of this title. (July 14, 1955, ch. 360, title I, §103, formerly §3, as added Pub. L. 88–206, §1, Dec. 17, 1963, 77 Stat. 394; renumbered §103 and amended Pub. L. 89–272, title I, §§101(3), 103, Oct. 20, 1965, 79 Stat. 992, 996; Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 486; Pub. L. 91–604, §§2(a), 4(2), 15(a)(2), (c)(2), Dec. 31, 1970, 84 Stat. 1676, 1689, 1710, 1713; Pub. L. 95–95, title I, §101(a), (b), Aug. 7, 1977, 91 Stat. 686, 687; Pub. L. 101–549, title IX, §901(a)–(c), Nov. 15, 1990, 104 Stat. 2700–2703.)

R EFERENCES IN T EXT The Acid Precipitation Act of 1980, referred to in sub

sec. (j)(1), (3)(A), is title VII of Pub. L. 96–294, June 30, 1980, 94 Stat. 770, which is classified generally to chap

ter 97 (§8901 et seq.) of this title. For complete classi

fication of this Act to the Code, see Short Title note set out under section 8901 of this title and Tables.

C ODIFICATION In subsec. (b)(4), ‘‘section 3324(a) and (b) of title 31 and section 6101 of title 41’’ substituted for ‘‘sections 3648 and 3709 of the Revised Statutes (31 U.S.C. 529; 41 U.S.C. 5)’’ on authority of Pub. L. 97–258, §4(b), Sept. 13, 1982, 96 Stat. 1067, which Act enacted Title 31, Money and Finance, and Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Con

tracts. Section was formerly classified to section 1857b of this title.

P RIOR P ROVISIONS Provisions similar to those in subsec. (a)(3) of this section were contained in subsec. (a) of a prior section 1857b of this title, act July 14, 1955, ch. 360, §3, 69 Stat. 322, as amended Oct. 9, 1962, Pub. L. 87–761, §2, 76 Stat. 760, prior to the general amendment of this chapter by Pub. L. 88–206. Provisions similar to those in this section were con

tained in prior sections 1857a to 1857d of this title, act July 14, 1955, ch. 360, §§2 to 5, 69 Stat. 322 (section 1857b as amended Oct. 9, 1962, Pub. L. 87–761, §2, 76 Stat. 760; section 1857d as amended Sept. 22, 1959, Pub. L. 86–365, §1, 73 Stat. 646 and Oct. 9, 1962, Pub. L. 87–761, §1, 76 Stat. 760), prior to the general amendment of this chap

ter by Pub. L. 88–206.

A MENDMENTS 1990—Subsec. (a)(1). Pub. L. 101–549, §901(a)(1), in

serted ‘‘(including health and welfare effects)’’ after ‘‘effects’’. Subsec. (b)(8). Pub. L. 101–549, §901(a)(2), which di

rected amendment of subsec. (b) by adding par. (8) at end, was executed by adding par. (8) after par. (7) to re

flect the probable intent of Congress. Subsecs. (c) to (f). Pub. L. 101–549, §901(b), amended subsecs. (c) to (f) generally, substituting present provi

-Page 6217 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7403

sions for provisions which related to: in subsec. (c), re

sults of other scientific studies; in subsec. (d), construc

tion of facilities; in subsec. (e), potential air pollution problems, conferences, and findings and recommenda

tions of the Administrator; and, in subsec. (f), acceler

ated research programs. Subsecs. (g) to (k). Pub. L. 101–549, §901(c), added sub

secs. (g) to (k). 1977—Subsec. (a). Pub. L. 95–95, §101(b), struck out reference to ‘‘training’’ in par. (1) and added par. (5). Subsec. (b). Pub. L. 95–95, §101(a), struck out par. (5) which provided for training and training grants to per

sonnel of air pollution control agencies and other per

sons with suitable qualifications, redesignated pars. (6), (7), and (8) as (5), (6), and (7), respectively, and, follow

ing par. (7) as so redesignated, inserted provisions di

recting the Administrator, in carrying out subsec. (a), to provide training for, and make training grants to, personnel of air pollution control agencies and other persons with suitable qualifications and to make grants to such agencies, to other public or nonprofit private agencies, institutions, and organizations for the pur

poses stated in subsec. (a)(5) and allowing reasonable fees to be charged for such training provided to persons other than personnel of air pollution control agencies but requiring that such training be provided to such personnel of air pollution control agencies without charge. 1970—Subsec. (a). Pub. L. 91–604, §15(c)(2), substituted ‘‘Administrator’’ for ‘‘Secretary’’. Subsec. (b). Pub. L. 91–604, §15(c)(2), substituted ‘‘Ad

ministrator’’ for ‘‘Secretary’’ and ‘‘Environmental Pro

tection Agency’’ for ‘‘Department of Health, Education, and Welfare’’. Subsec. (c). Pub. L. 91–604, §15(a)(2), (c)(2), substituted ‘‘Administrator’’ for ‘‘Secretary’’ and ‘‘air pollutants’’ for ‘‘air pollution agents (or combinations of agents)’’. Subsec. (d). Pub. L. 91–604, §15(c)(2), substituted ‘‘Ad

ministrator’’ for ‘‘Secretary’’. Subsec. (e). Pub. L. 91–604, §15(c)(2), substituted ‘‘Ad

ministrator’’ for ‘‘Secretary’’ wherever appearing, sub

stituted ‘‘7415’’ for ‘‘7415(a)’’, and inserted references to subsecs. (b) and (c) of section 7415 of this title. Subsec. (f). Pub. L. 91–604, §2(a), added subsec. (f). 1967—Subsec. (a). Pub. L. 90–148 substituted ‘‘estab

lish technical advisory committees composed of recog

nized experts in various aspects of air pollution to as

sist in the examination and evaluation of research progress and proposals and to avoid duplication of re

search’’ for ‘‘initiate and conduct a program of research directed toward the development of improved, low-cost techniques for extracting sulfur from fuels’’ as cl. (4) and struck out cl. (5) which related to research pro

grams relating to the control of hydrocarbon emissions from evaporation of gasoline and nitrogen and aldehyde oxide emission from gasoline and diesel powered vehi

cles and relating to the development of improved lowcost techniques to reduce emissions of oxides of sulfur produced by the combustion of sulfur-containing fuels. Subsec. (c). Pub. L. 90–148 struck out provision for promulgation of criteria in the case of particular air pollution agents present in the air in certain quantities reflecting the latest scientific knowledge and allowing for availability and revision and provided for recom

mendation by Secretary of air quality criteria. Subsec. (e). Pub. L. 90–148 substituted references to subsections (d), (e), and (f) of section 7415 of this title for references to subsections (c), (d), and (e) of section 7415 of this title in provision for admission of advisory findings and recommendations together with the record of the conference and made such findings and recom

mendations part of the proceedings of the conference, not merely part of the record of proceedings. 1965—Subsec. (a)(5). Pub. L. 89–272, §103(3), added par. (5). Subsecs. (d), (e). Pub. L. 89–272, §103(4), added subsecs. (d) and (e).

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

T ERMINATION OF R EPORTING R EQUIREMENTS For termination, effective May 15, 2000, of provisions in subsec. (i) of this section requiring quadrennial re

ports to Congress and of reporting provisions in subsec. (j)(3)(E) and (F) of this section, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and the 7th and 8th items on page 163 of House Document No. 103–7.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

T ERMINATION OF A DVISORY C OMMITTEES Advisory committees in existence on Jan. 5, 1973, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2- year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. See section 14 of Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 776, set out in the Appendix to Title 5, Govern

ment Organization and Employees.

P ILOT D ESIGN P ROGRAMS Pub. L. 106–246, div. B, title II, §2603, July 13, 2000, 114 Stat. 558, required the Administrator of the Environ

mental Protection Agency to make grants to carry out a 2-year program to implement in five metropolitan areas pilot design programs and report to Congress on the results not later than 360 days from first day of the second year of the 2-year program.

N ATIONAL A CID L AKES R EGISTRY Section 405 of Pub. L. 101–549 provided that: ‘‘The Ad

ministrator of the Environmental Protection Agency shall create a National Acid Lakes Registry that shall list, to the extent practical, all lakes that are known to be acidified due to acid deposition, and shall publish such list within one year of the enactment of this Act [Nov. 15, 1990]. Lakes shall be added to the registry as they become acidic or as data becomes available to show they are acidic. Lakes shall be deleted from the registry as they become nonacidic.’’

A SSESSMENT OF I NTERNATIONAL A IR P OLLUTION

C ONTROL T ECHNOLOGIES Section 901(e) of Pub. L. 101–549 directed Adminis

trator of Environmental Protection Agency to conduct a study that compares international air pollution con

trol technologies of selected industrialized countries to determine if there exist air pollution control tech

nologies in countries outside the United States that may have beneficial applications to this Nation’s air pollution control efforts, including, with respect to each country studied, the topics of urban air quality, motor vehicle emissions, toxic air emissions, and acid deposition, and within 2 years after Nov. 15, 1990, sub

mit to Congress a report detailing the results of such study.

W ESTERN S TATES A CID D EPOSITION R ESEARCH Section 901(g) of Pub. L. 101–549 provided that:Page 6218 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7404

1 So in original. The period probably should be a semicolon.

2 So in original. The word ‘‘and’’ probably should appear. ‘‘(1) The Administrator of the Environmental Protec

tion Agency shall sponsor monitoring and research and submit to Congress annual and periodic assessment re

ports on— ‘‘(A) the occurrence and effects of acid deposition on surface waters located in that part of the United States west of the Mississippi River; ‘‘(B) the occurrence and effects of acid deposition on high elevation ecosystems (including forests, and surface waters); and ‘‘(C) the occurrence and effects of episodic acidifi

cation, particularly with respect to high elevation watersheds. ‘‘(2) The Administrator of the Environmental Protec

tion Agency shall analyze data generated from the studies conducted under paragraph (1), data from the Western Lakes Survey, and other appropriate research and utilize predictive modeling techniques that take into account the unique geographic, climatological, and atmospheric conditions which exist in the western United States to determine the potential occurrence and effects of acid deposition due to any projected in

creases in the emission of sulfur dioxide and nitrogen oxides in that part of the United States located west of the Mississippi River. The Administrator shall include the results of the project conducted under this para

graph in the reports issued to Congress under para

graph (1).’’

C ONSULTATION W ITH AND T RANSMISSION OF R EPORTS
AND S TUDIES TO C ONGRESSIONAL C OMMITTEE Pub. L. 95–95, title I, §101(c), Aug. 7, 1977, 91 Stat. 687, provided that: ‘‘The Administrator of the Environ

mental Protection Agency shall consult with the House Committee on Science and Technology [now Commit

tee on Science, Space, and Technology] on the environ

mental and atmospheric research, development, and demonstration aspects of this Act [see Short Title of 1977 Amendment note set out under section 7401 of this title]. In addition, the reports and studies required by this Act that relate to research, development, and dem

onstration issues shall be transmitted to the Commit

tee on Science and Technology [now Committee on Science, Space, and Technology] at the same time they are made available to other committees of the Con

gress.’’

S TUDY OF S UBSTANCES D ISCHARGED F ROM E XHAUSTS OF M OTOR V EHICLES Pub. L. 86–493, June 8, 1960, 74 Stat. 162, directed Sur

geon General of Public Health Service to conduct a thorough study for purposes of determining, with re

spect to the various substances discharged from ex

hausts of motor vehicles, the amounts and kinds of such substances which, from the standpoint of human health, it is safe for motor vehicles to discharge into the atmosphere under the various conditions under which such vehicles may operate, and, not later than two years after June 8, 1960, submit to Congress a re

port on results of the study, together with such recom

mendations, if any, based upon the findings made in such study, as he deemed necessary for the protection of the public health. § 7404. Research relating to fuels and vehicles (a) Research programs; grants; contracts; pilot and demonstration plants; byproducts re

search The Administrator shall give special emphasis to research and development into new and im

proved methods, having industry-wide applica

tion, for the prevention and control of air pollu

tion resulting from the combustion of fuels. In furtherance of such research and development he shall— (1) conduct and accelerate research pro

grams directed toward development of im

proved, cost-effective techniques for— (A) control of combustion byproducts of fuels, (B) removal of potential air pollutants from fuels prior to combustion, (C) control of emissions from the evapo

ration of fuels, (D) improving the efficiency of fuels com

bustion so as to decrease atmospheric emis

sions, and (E) producing synthetic or new fuels which, when used, result in decreased atmos

pheric emissions. 1 (2) provide for Federal grants to public or nonprofit agencies, institutions, and organiza

tions and to individuals, and contracts with public or private agencies, institutions, or per

sons, for payment of (A) part of the cost of ac

quiring, constructing, or otherwise securing for research and development purposes, new or improved devices or methods having industry

wide application of preventing or controlling discharges into the air of various types of pol

lutants; (B) part of the cost of programs to de

velop low emission alternatives to the present internal combustion engine; (C) the cost to purchase vehicles and vehicle engines, or por

tions thereof, for research, development, and testing purposes; and (D) carrying out the other provisions of this section, without re

gard to section 3324(a) and (b) of title 31 and section 6101 of title 41: Provided , That research or demonstration contracts awarded pursuant to this subsection (including contracts for construction) may be made in accordance with, and subject to the limitations provided with respect to research contracts of the mili

tary departments in, section 2353 of title 10, except that the determination, approval, and certification required thereby shall be made by the Administrator; Provided further , That no grant may be made under this paragraph in excess of $1,500,000; (3) determine, by laboratory and pilot plant testing, the results of air pollution research and studies in order to develop new or im

proved processes and plant designs to the point where they can be demonstrated on a large and practical scale; (4) construct, operate, and maintain, or as

sist in meeting the cost of the construction, operation, and maintenance of new or im

proved demonstration plants or processes which have promise of accomplishing the pur

poses of this chapter; 2 (5) study new or improved methods for the recovery and marketing of commercially valu

able byproducts resulting from the removal of pollutants. (b) Powers of Administrator in establishing re

search and development programs In carrying out the provisions of this section, the Administrator may— (1) conduct and accelerate research and de

velopment of cost-effective instrumentation techniques to facilitate determination of quantity and quality of air pollutant emis

sions, including, but not limited to, auto

motive emissions;Page 6219 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7405

(2) utilize, on a reimbursable basis, the fa

cilities of existing Federal scientific labora

tories; (3) establish and operate necessary facilities and test sites at which to carry on the re

search, testing, development, and program

ming necessary to effectuate the purposes of this section; (4) acquire secret processes, technical data, inventions, patent applications, patents, li

censes, and an interest in lands, plants, and fa

cilities, and other property or rights by pur

chase, license, lease, or donation; and (5) cause on-site inspections to be made of promising domestic and foreign projects, and cooperate and participate in their develop

ment in instances in which the purposes of the chapter will be served thereby. (c) Clean alternative fuels
The Administrator shall conduct a research program to identify, characterize, and predict air emissions related to the production, dis

tribution, storage, and use of clean alternative fuels to determine the risks and benefits to human health and the environment relative to those from using conventional gasoline and die

sel fuels. The Administrator shall consult with other Federal agencies to ensure coordination and to avoid duplication of activities authorized under this subsection. (July 14, 1955, ch. 360, title I, §104, as added Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 487; amended Pub. L. 91–137, Dec. 5, 1969, 83 Stat. 283; Pub. L. 91–604, §§2(b), (c), 13(a), 15(c)(2), Dec. 31, 1970, 84 Stat. 1676, 1677, 1709, 1713; Pub. L. 93–15, §1(a), Apr. 9, 1973, 87 Stat. 11; Pub. L. 93–319, §13(a), June 22, 1974, 88 Stat. 265; Pub. L. 101–549, title IX, §901(d), Nov. 15, 1990, 104 Stat. 2706.)

C ODIFICATION In subsec. (a)(2)(D), ‘‘section 3324(a) and (b) of title 31 and section 6101 of title 41’’ substituted for ‘‘sections 3648 and 3709 of the Revised Statutes (31 U.S.C. 529; 41 U.S.C. 5)’’ on authority of Pub. L. 97–258, §4(b), Sept. 13, 1982, 96 Stat. 1067, which Act enacted Title 31, Money and Finance, and Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Con

tracts. Section was formerly classified to section 1857b–1 of this title.

P RIOR P ROVISIONS A prior section 104 of act July 14, 1955, was renum

bered section 105 by Pub. L. 90–148 and is classified to section 7405 of this title.

A MENDMENTS 1990—Subsecs. (a)(1), (b)(1). Pub. L. 101–549, §901(d)(1), substituted ‘‘cost-effective’’ for ‘‘low-cost’’. Subsec. (c). Pub. L. 101–549, §901(d)(2), amended sub

sec. (c) generally. Prior to amendment, subsec. (c) read as follows: ‘‘For the purposes of this section there are authorized to be appropriated $75,000,000 for the fiscal year ending June 30, 1971, $125,000,000 for the fiscal year ending June 30, 1972, $150,000,000 for the fiscal year end

ing June 30, 1973, and $150,000,000 for the fiscal year end

ing June 30, 1974, and $150,000,000 for the fiscal year end

ing June 30, 1975. Amounts appropriated pursuant to this subsection shall remain available until expended.’’ 1974—Subsec. (c). Pub. L. 93–319 authorized appropria

tion of $150,000,000 for fiscal year ending June 30, 1975. 1973—Subsec. (c). Pub. L. 93–15 authorized appropria

tion of $150,000,000 for fiscal year ending June 30, 1974. 1970—Subsec. (a). Pub. L. 91–604, §15(c)(2), substituted ‘‘Administrator’’ for ‘‘Secretary’’. Subsec. (a)(1). Pub. L. 91–604, §2(b), inserted provi

sions authorizing research programs directed toward development of techniques for improving the efficiency of fuels combustion so as to decrease atmospheric emis

sions, and producing synthetic or new fuels which re

sult in decreased atmospheric emissions. Subsec. (a)(2). Pub. L. 91–604, §2(c), added cls. (B) and (C) and redesignated former cl. (B) as (D). Subsec. (b). Pub. L. 91–604, §15(c)(2), substituted ‘‘Ad

ministrator’’ for ‘‘Secretary’’. Subsec. (c). Pub. L. 91–604, §13(a), substituted provi

sions authorizing appropriations for fiscal years ending June 30, 1971, 1972, and 1973, for provisions authorizing appropriations for fiscal years ending June 30, 1968 and 1969. 1969—Subsec. (c). Pub. L. 91–137 authorized appropria

tion of $45,000,000 for fiscal year ending June 30, 1970.

H YDROGEN F UEL C ELL V EHICLE S TUDY AND T EST P ROGRAM Section 807 of Pub. L. 101–549 provided that: ‘‘The Ad

ministrator of the Environmental Protection Agency, in conjunction with the National Aeronautics and Space Administration and the Department of Energy, shall conduct a study and test program on the develop

ment of a hydrogen fuel cell electric vehicle. The study and test program shall determine how best to transfer existing NASA hydrogen fuel cell technology into the form of a mass-producible, cost effective hydrogen fuel cell vehicle. Such study and test program shall include at a minimum a feasibility-design study, the construc

tion of a prototype, and a demonstration. This study and test program should be completed and a report sub

mitted to Congress within 3 years after the enactment of the Clean Air Act Amendments of 1990 [Nov. 15, 1990]. This study and test program should be performed in the university or universities which are best exhibiting the facilities and expertise to develop such a fuel cell vehi

cle.’’

C OMBUSTION OF C ONTAMINATED U SED O IL IN S HIPS Section 813 of Pub. L. 101–549 provided that: ‘‘Within 2 years after the enactment of the Clean Air Act Amendments of 1990 [Nov. 15, 1990], the Administrator of the Environmental Protection Agency shall com

plete a study and submit a report to Congress evaluat

ing the health and environmental impacts of the com

bustion of contaminated used oil in ships, the reasons for using such oil for such purposes, the alternatives to such use, the costs of such alternatives, and other rel

evant factors and impacts. In preparing such study, the Administrator shall obtain the view and comments of all interested persons and shall consult with the Sec

retary of Transportation and the Secretary of the de

partment in which the Coast Guard is operating.’’

E XTENSION TO A UG . 31, 1970 OF A UTHORIZATION P ERIOD FOR F ISCAL Y EAR 1970
Pub. L. 91–316, July 10, 1970, 84 Stat. 416, provided in part that the authorization contained in section 104(c) of the Clean Air Act [subsec. (c) of this section] for the fiscal year ending June 30, 1970, should remain avail

able through Aug. 31, 1970, notwithstanding any provi

sions of this section. § 7405. Grants for support of air pollution plan

ning and control programs (a) Amounts; limitations; assurances of plan de

velopment capability (1)(A) The Administrator may make grants to air pollution control agencies, within the mean

ing of paragraph (1), (2), (3), (4), or (5) of section 7602 of this title, in an amount up to three-fifths of the cost of implementing programs for the prevention and control of air pollution or imple

-Page 6220 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7405

1 So in original. Probably should be paragraph ‘‘(1)’’. mentation of national primary and secondary ambient air quality standards. For the purpose of this section, ‘‘implementing’’ means any ac

tivity related to the planning, developing, estab

lishing, carrying-out, improving, or maintaining of such programs. (B) Subject to subsections (b) and (c) of this section, an air pollution control agency which receives a grant under subparagraph (A) andwhich contributes less than the required twofifths minimum shall have 3 years following No

vember 15, 1990, in which to contribute such amount. If such an agency fails to meet and maintain this required level, the Administrator shall reduce the amount of the Federal contribu

tion accordingly. (C) With respect to any air quality control re

gion or portion thereof for which there is an ap

plicable implementation plan under section 7410 of this title, grants under subparagraph (A) may be made only to air pollution control agencies which have substantial responsibilities for car

rying out such applicable implementation plan. (2) Before approving any grant under this sub

section to any air pollution control agency within the meaning of sections 7602(b)(2) and 7602(b)(4) of this title, the Administrator shall receive assurances that such agency provides for adequate representation of appropriate State, interstate, local, and (when appropriate) inter

national, interests in the air quality control re

gion. (3) Before approving any planning grant under this subsection to any air pollution control agency within the meaning of sections 7602(b)(2) and 7602(b)(4) of this title, the Administrator shall receive assurances that such agency has the capability of developing a comprehensive air quality plan for the air quality control region, which plan shall include (when appropriate) a recommended system of alerts to avert and re

duce the risk of situations in which there may be imminent and serious danger to the public health or welfare from air pollutants and the various aspects relevant to the establishment of air quality standards for such air quality con

trol region, including the concentration of in

dustries, other commercial establishments, pop

ulation and naturally occurring factors which shall affect such standards. (b) Terms and conditions; regulations; factors for consideration; State expenditure limitations (1) From the sums available for the purposes of subsection (a) of this section for any fiscal year, the Administrator shall from time to time make grants to air pollution control agencies upon such terms and conditions as the Adminis

trator may find necessary to carry out the pur

pose of this section. In establishing regulations for the granting of such funds the Administrator shall, so far as practicable, give due consider

ation to (A) the population, (B) the extent of the actual or potential air pollution problem, and (C) the financial need of the respective agencies. (2) Not more than 10 per centum of the total of funds appropriated or allocated for the purposes of subsection (a) of this section shall be granted for air pollution control programs in any one State. In the case of a grant for a program in an area crossing State boundaries, the Adminis

trator shall determine the portion of such grant that is chargeable to the percentage limitation under this subsection for each State into which such area extends. Subject to the provisions of paragraph (1) of this subsection, no State shall have made available to it for application less than one-half of 1 per centum of the annual ap

propriation for grants under this section for grants to agencies within such State. (c) Maintenance of effort (1) No agency shall receive any grant under this section during any fiscal year when its ex

penditures of non-Federal funds for recurrent expenditures for air pollution control programs will be less than its expenditures were for such programs during the preceding fiscal year. In order for the Administrator to award grants under this section in a timely manner each fis

cal year, the Administrator shall compare an agency’s prospective expenditure level to that of its second preceding fiscal year. The Adminis

trator shall revise the current regulations which define applicable nonrecurrent and recurrent ex

penditures, and in so doing, give due consider

ation to exempting an agency from the limita

tions of this paragraph and subsection (a) of this section due to periodic increases experienced by that agency from time to time in its annual ex

penditures for purposes acceptable to the Ad

ministrator for that fiscal year. (2) The Administrator may still award a grant to an agency not meeting the requirements of paragraph ( l ) 1 of this subsection if the Adminis

trator, after notice and opportunity for public hearing, determines that a reduction in expendi

tures is attributable to a non-selective reduc

tion in the expenditures in the programs of all Executive branch agencies of the applicable unit of Government. No agency shall receive any grant under this section with respect to the maintenance of a program for the prevention and control of air pollution unless the Adminis

trator is satisfied that such a grant will be so used to supplement and, to the extent prac

ticable, increase the level of State, local, or other non-Federal funds. No grants shall be made under this section until the Administrator has consulted with the appropriate official as designated by the Governor or Governors of the State or States affected. (d) Reduction of payments; availability of re

duced amounts; reduced amount as deemed paid to agency for purpose of determining amount of grant The Administrator, with the concurrence of any recipient of a grant under this section, may reduce the payments to such recipient by the amount of the pay, allowances, traveling ex

penses, and any other costs in connection with the detail of any officer or employee to the re

cipient under section 7601 of this title, when such detail is for the convenience of, and at the request of, such recipient and for the purpose of carrying out the provisions of this chapter. The amount by which such payments have been re

duced shall be available for payment of such costs by the Administrator, but shall, for the purpose of determining the amount of any grantPage 6221 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7405

to a recipient under subsection (a) of this sec

tion, be deemed to have been paid to such agen

cy. (e) Notice and opportunity for hearing when af

fected by adverse action No application by a State for a grant under this section may be disapproved by the Adminis

trator without prior notice and opportunity for a public hearing in the affected State, and no commitment or obligation of any funds under any such grant may be revoked or reduced with

out prior notice and opportunity for a public hearing in the affected State (or in one of the af

fected States if more than one State is affected). (July 14, 1955, ch. 360, title I, §105, formerly §4, as added Pub. L. 88–206, §1, Dec. 17, 1963, 77 Stat. 395; renumbered §104 and amended Pub. L. 89–272, title I, §101(2)–(4), Oct. 20, 1965, 79 Stat. 992; Pub. L. 89–675, §3, Oct. 15, 1966, 80 Stat. 954; renumbered §105 and amended Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 489; Pub. L. 91–604, §§3(a), (b)(1), 15(c)(2), Dec. 31, 1970, 84 Stat. 1677, 1713; Pub. L. 95–95, title I, §102, title III, §305(b), Aug. 7, 1977, 91 Stat. 687, 776; Pub. L. 101–549, title VIII, §802(a)–(e), Nov. 15, 1990, 104 Stat. 2687, 2688.)

C ODIFICATION Section was formerly classified to section 1857c of this title.

P RIOR P ROVISIONS A prior section 105 of act July 14, 1955, was renum

bered section 108 by Pub. L. 90–148 and is classified to section 7415 of this title. Provisions similar to those in subsecs. (a) and (b) of this section were contained in a prior section 1857d of this title, act July 14, 1955, ch. 360, §5, 69 Stat. 322, as amended Sept. 22, 1959, Pub. L. 86–365, §1, 73 Stat. 646; Oct. 9, 1962, Pub. L. 87–761, §1, 76 Stat. 760, prior to the general amendment by Pub. L. 88–206.

A MENDMENTS 1990—Subsec. (a)(1)(A), (B). Pub. L. 101–549, §802(a), amended subpars. (A) and (B) generally. Prior to amendment, subpars. (A) and (B) read as follows: ‘‘(A) The Administrator may make grants to air pol

lution control agencies in an amount up to two-thirds of the cost of planning, developing, establishing, or im

proving, and up to one-half of the cost of maintaining, programs for the prevention and control of air pollu

tion or implementation of national primary and secondry [sic] ambient air quality standards. ‘‘(B) Subject to subparagraph (C), the Administrator may make grants to air pollution control agencies within the meaning of paragraph (1), (2), or (4) of sec

tion 7602(b) of this title in an amount up to threefourths of the cost of planning, developing, establish

ing, or improving, and up to three-fifths of the cost of maintaining, any program for the prevention and con

trol of air pollution or implementation of national pri

mary and secondary ambient air quality standards in an area that includes two or more municipalities, whether in the same or different States.’’ Subsec. (a)(1)(C). Pub. L. 101–549, §802(b), substituted ‘‘subparagraph (A)’’ for ‘‘subparagraph (B)’’. Subsec. (b)(1). Pub. L. 101–549, §802(c), designated ex

isting provisions of subsec. (b) as par. (1), redesignated former cls. (1) to (3) as cls. (A) to (C), respectively, and struck out at end ‘‘No agency shall receive any grant under this section during any fiscal year when its ex

penditures of non-Federal funds for other than non

recurrent expenditures for air pollution control pro

grams will be less than its expenditures were for such programs during the preceding fiscal year, unless the Administrator, after notice and opportunity for public hearing, determines that a reduction in expenditures is attributable to a nonselective reduction in expendi

tures in the programs of all executive branch agencies of the applicable unit of Government; and no agency shall receive any grant under this section with respect to the maintenance of a program for the prevention and control of air pollution unless the Administrator is sat

isfied that such grant will be so used to supplement and, to the extent practicable, increase the level of State, local, or other non-Federal funds that would in the absence of such grant be made available for the maintenance of such program, and will in no event sup

plant such State, local, or other non-Federal funds. No grant shall be made under this section until the Admin

istrator has consulted with the appropriate official as designated by the Governor or Governors of the State or States affected.’’ Subsec. (b)(2). Pub. L. 101–549, §802(d), redesignated subsec. (c) as subsec. (b)(2) and substituted ‘‘Subject to the provisions of paragraph (1) of this subsection, no State shall have made available to it for application less than one-half of 1 per centum of the annual appro

priation for grants under this section for grants to agencies within such State.’’ for ‘‘In fiscal year 1978 and subsequent fiscal years, subject to the provisions of subsection (b) of this section, no State shall receive less than one-half of 1 per centum of the annual appro

priation for grants under this section for grants to agencies within such State.’’ Subsec. (c). Pub. L. 101–549, §802(e), added subsec. (c). Former subsec. (c) redesignated (b)(2). 1977—Subsec. (b). Pub. L. 95–95, §102(a), inserted ‘‘, unless the Administrator, after notice and oppor

tunity for hearing, determines that a reduction in ex

penditures is attributable to a nonselective reduction in expenditures in the programs of all executive branch agencies of the applicable unit of Government’’ after ‘‘will be less than its expenditures were for such pro

grams during the preceding fiscal year’’. Subsec. (c). Pub. L. 95–95, §102(b), provided that in fis

cal year 1978 and subsequent fiscal years, subject to provisions of subsec. (b) of this section, no State shall receive less than one-half of 1 per centum of the annual appropriation for grants under this section for grants to agencies within such State. Subsec. (e). Pub. L. 95–95, §305(b), added subsec. (e). 1970—Subsec. (a)(1). Pub. L. 91–604, §3(a), substituted provisions authorizing the Administrator to make grants, for provisions authorizing the Secretary to make grants, and provisions authorizing grants for pro

grams implementing national primary and secondary ambient air quality standards, for provisions authoriz

ing grants for programs implementing air quality standards authorized by this subchapter, and inserted the provision requiring grants to air pollution control agencies be made to agencies having substantial re

sponsibilities for carrying out the applicable implemen

tation plan with respect to the air quality control re

gion or portion thereof. Subsecs. (a)(2), (3), (b), (c). Pub. L. 91–604, §15(c)(2), substituted ‘‘Administrator’’ for ‘‘Secretary’’ wherever appearing. Subsec. (d). Pub. L. 91–604, §3(b)(1), added subsec. (d). 1967—Subsec. (a). Pub. L. 90–148 designated existing provisions as par. (1), substituted ‘‘regional air quality control program’’ for ‘‘regional air pollution control program,’’ added planning to list of authorized activi

ties, and added programs for implementation of air quality standards authorized by this chapter to list of authorized programs, and added pars. (2) and (3). Subsec. (b). Pub. L. 90–148 made minor changes in the order of provisions. Subsec. (c). Pub. L. 90–148 reduced percentage limita

tion on portion of total funds which might be granted for air pollution control programs in any one State from 12 1

⁄ 2 per centum to 10 per centum. 1966—Subsec. (a). Pub. L. 89–675, §3(a)(1), struck out provisions limiting available funds to 20 per centum of sums appropriated annually for purpose of this sub

-Page 6222 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7406

chapter, inserted provisions allowing grants to air pol

lution control agencies up to one-half of cost of main

taining programs for prevention and control of air pol

lution, and authorized Secretary to make grants of up to three-fifths of cost of maintaining regional air pollu

tion control programs. Subsec. (b). Pub. L. 89–675, §3(a)(2), substituted ‘‘for the purpose of’’ for ‘‘under’’, permitted grantees to re

duce annual expenditures to the extent that nonrecur

rent costs are involved for purposes of application of the provision that no agency may receive grants during any fiscal year when its expenditures of non-Federal funds for air pollution control programs are less than its expenditures for such programs during the preced

ing year, and inserted provisions insuring that Federal funds will in no event be used to supplant State or local government funds in maintaining air pollution control
programs. Subsec. (c). Pub. L. 89–675, §3(b), substituted ‘‘total of funds appropriated or allocated for the purposes of sub

section (a) of this section shall be granted for air pollu

tion control programs’’ for ‘‘grant funds available under subsection (a) of this section shall be expended’’ and authorized the Secretary to determine the portion of grants to interstate agencies to be charged against the twelve and one-half percent limitation of grant funds to any one State. 1965—Subsec. (a). Pub. L. 89–272 substituted ‘‘this title’’ for ‘‘this Act’’, which for purposes of codification has been changed to ‘‘this subchapter’’, and ‘‘section 302(b)(2) and (4)’’ for ‘‘section 9(b)(2) and (4)’’, which for purposes of codification has been changed to ‘‘section 7602(b)(2) and (4) of this title’’.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.
§ 7406. Interstate air quality agencies; program cost limitations
For the purpose of developing implementation plans for any interstate air quality control re

gion designated pursuant to section 7407 of this title or of implementing section 7506a of this title (relating to control of interstate air pollu

tion) or section 7511c of this title (relating to control of interstate ozone pollution), the Ad

ministrator is authorized to pay, for two years, up to 100 per centum of the air quality planning program costs of any commission established under section 7506a of this title (relating to con

trol of interstate air pollution) or section 7511c of this title (relating to control of interstate ozone pollution) or any agency designated by the Governors of the affected States, which agency shall be capable of recommending to the Governors plans for implementation of national primary and secondary ambient air quality standards and shall include representation from the States and appropriate political subdivisions within the air quality control region. After the initial two-year period the Administrator is au

thorized to make grants to such agency or such commission in an amount up to three-fifths of the air quality implementation program costs of such agency or commission. (July 14, 1955, ch. 360, title I, §106, as added Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 490; amended Pub. L. 91–604, §3(c), Dec. 31, 1970, 84 Stat. 1677; Pub. L. 101–549, title I, §102(f)(2), title VIII, §802(f), Nov. 15, 1990, 104 Stat. 2420, 2688.)

C ODIFICATION Section was formerly classified to section 1857c–1 of this title.

P RIOR P ROVISIONS A prior section 106 of act July 14, 1955, was renum

bered section 117 by Pub. L. 91–604 and is classified to section 7417 of this title.

A MENDMENTS 1990—Pub. L. 101–549, §102(f)(2)(A), inserted ‘‘or of im

plementing section 7506a of this title (relating to con

trol of interstate air pollution) or section 7511c of this title (relating to control of interstate ozone pollution)’’ after ‘‘section 7407 of this title’’. Pub. L. 101–549, §102(f)(2)(B), which directed insertion of ‘‘any commission established under section 7506a of this title (relating to control of interstate air pollu

tion) or section 7511c of this title (relating to control of interstate ozone pollution) or’’ after ‘‘program costs of’’, was executed by making the insertion after that phrase the first place it appeared to reflect the prob

able intent of Congress. Pub. L. 101–549, §102(f)(2)(C), which directed insertion of ‘‘or such commission’’ after ‘‘such agency’’ in last sentence, was executed by making insertion after ‘‘such agency’’ the first place it appeared in the last sentence to reflect the probable intent of Congress. Pub. L. 101–549, §§102(f)(2)(D), 802(f), substituted ‘‘three-fifths of the air quality implementation pro

gram costs of such agency or commission’’ for ‘‘threefourths of the air quality planning program costs of such agency’’. 1970—Pub. L. 91–604 struck out designation ‘‘(a)’’, sub

stituted provisions authorizing Federal grants for the purpose of developing implementation plans and provi

sions requiring the designated State agency to be capa

ble of recommending plans for implementation of na

tional primary and secondary ambient air quality standards, for provisions authorizing Federal grants for the purpose of expediting the establishment of air qual

ity standards and provisions requiring the designated State agency to be capable of recommending standards of air quality and plans for implementation thereof, re

spectively, and struck out subsec. (b) which authorized establishment of air quality planning commissions. § 7407. Air quality control regions (a) Responsibility of each State for air quality; submission of implementation plan Each State shall have the primary responsibil

ity for assuring air quality within the entire ge

ographic area comprising such State by submit

ting an implementation plan for such State which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained with

in each air quality control region in such State. (b) Designated regions For purposes of developing and carrying out implementation plans under section 7410 of this title—Page 6223 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7407

(1) an air quality control region designated under this section before December 31, 1970, or a region designated after such date under sub

section (c) of this section, shall be an air qual

ity control region; and (2) the portion of such State which is not part of any such designated region shall be an air quality control region, but such portion may be subdivided by the State into two or more air quality control regions with the ap

proval of the Administrator. (c) Authority of Administrator to designate re

gions; notification of Governors of affected States The Administrator shall, within 90 days after December 31, 1970, after consultation with ap

propriate State and local authorities, designate as an air quality control region any interstate area or major intrastate area which he deems necessary or appropriate for the attainment and maintenance of ambient air quality standards. The Administrator shall immediately notify the Governors of the affected States of any designa

tion made under this subsection. (d) Designations (1) Designations generally (A) Submission by Governors of initial des

ignations following promulgation of new or revised standards By such date as the Administrator may reasonably require, but not later than 1 year after promulgation of a new or revised na

tional ambient air quality standard for any pollutant under section 7409 of this title, the Governor of each State shall (and at any other time the Governor of a State deems appropriate the Governor may) submit to the Administrator a list of all areas (or por

tions thereof) in the State, designating as— (i) nonattainment, any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pol

lutant, (ii) attainment, any area (other than an area identified in clause (i)) that meets the national primary or secondary ambient air quality standard for the pollutant, or (iii) unclassifiable, any area that cannot be classified on the basis of available infor

mation as meeting or not meeting the na

tional primary or secondary ambient air quality standard for the pollutant. The Administrator may not require the Gov

ernor to submit the required list sooner than 120 days after promulgating a new or revised national ambient air quality standard. (B) Promulgation by EPA of designations (i) Upon promulgation or revision of a na

tional ambient air quality standard, the Ad

ministrator shall promulgate the designa

tions of all areas (or portions thereof) sub

mitted under subparagraph (A) as expedi

tiously as practicable, but in no case later than 2 years from the date of promulgation of the new or revised national ambient air quality standard. Such period may be ex

tended for up to one year in the event the Administrator has insufficient information to promulgate the designations. (ii) In making the promulgations required under clause (i), the Administrator may make such modifications as the Adminis

trator deems necessary to the designations of the areas (or portions thereof) submitted under subparagraph (A) (including to the boundaries of such areas or portions there

of). Whenever the Administrator intends to make a modification, the Administrator shall notify the State and provide such State with an opportunity to demonstrate why any proposed modification is inappropriate. The Administrator shall give such notifica

tion no later than 120 days before the date the Administrator promulgates the designa

tion, including any modification thereto. If the Governor fails to submit the list in whole or in part, as required under subpara

graph (A), the Administrator shall promul

gate the designation that the Administrator deems appropriate for any area (or portion thereof) not designated by the State. (iii) If the Governor of any State, on the Governor’s own motion, under subparagraph (A), submits a list of areas (or portions thereof) in the State designated as non

attainment, attainment, or unclassifiable, the Administrator shall act on such designa

tions in accordance with the procedures under paragraph (3) (relating to redesigna

tion). (iv) A designation for an area (or portion thereof) made pursuant to this subsection shall remain in effect until the area (or por

tion thereof) is redesignated pursuant to paragraph (3) or (4). (C) Designations by operation of law (i) Any area designated with respect to any air pollutant under the provisions of para

graph (1)(A), (B), or (C) of this subsection (as in effect immediately before November 15, 1990) is designated, by operation of law, as a nonattainment area for such pollutant with

in the meaning of subparagraph (A)(i). (ii) Any area designated with respect to any air pollutant under the provisions of paragraph (1)(E) (as in effect immediately before November 15, 1990) is designated by operation of law, as an attainment area for such pollutant within the meaning of sub

paragraph (A)(ii). (iii) Any area designated with respect to any air pollutant under the provisions of paragraph (1)(D) (as in effect immediately before November 15, 1990) is designated, by operation of law, as an unclassifiable area for such pollutant within the meaning of subparagraph (A)(iii). (2) Publication of designations and redesigna

tions (A) The Administrator shall publish a notice in the Federal Register promulgating any des

ignation under paragraph (1) or (5), or an

nouncing any designation under paragraph (4), or promulgating any redesignation under paragraph (3). (B) Promulgation or announcement of a des

ignation under paragraph (1), (4) or (5) shallPage 6224 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7407

not be subject to the provisions of sections 553 through 557 of title 5 (relating to notice and comment), except nothing herein shall be con

strued as precluding such public notice and comment whenever possible. (3) Redesignation (A) Subject to the requirements of subpara

graph (E), and on the basis of air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate, the Admin

istrator may at any time notify the Governor of any State that available information indi

cates that the designation of any area or por

tion of an area within the State or interstate area should be revised. In issuing such notifi

cation, which shall be public, to the Governor, the Administrator shall provide such informa

tion as the Administrator may have available explaining the basis for the notice. (B) No later than 120 days after receiving a notification under subparagraph (A), the Gov

ernor shall submit to the Administrator such redesignation, if any, of the appropriate area (or areas) or portion thereof within the State or interstate area, as the Governor considers appropriate. (C) No later than 120 days after the date de

scribed in subparagraph (B) (or paragraph (1)(B)(iii)), the Administrator shall promul

gate the redesignation, if any, of the area or portion thereof, submitted by the Governor in accordance with subparagraph (B), making such modifications as the Administrator may deem necessary, in the same manner and under the same procedure as is applicable under clause (ii) of paragraph (1)(B), except that the phrase ‘‘60 days’’ shall be substituted for the phrase ‘‘120 days’’ in that clause. If the Governor does not submit, in accordance with subparagraph (B), a redesignation for an area (or portion thereof) identified by the Adminis

trator under subparagraph (A), the Adminis

trator shall promulgate such redesignation, if any, that the Administrator deems appro

priate. (D) The Governor of any State may, on the Governor’s own motion, submit to the Admin

istrator a revised designation of any area or portion thereof within the State. Within 18 months of receipt of a complete State redesig

nation submittal, the Administrator shall ap

prove or deny such redesignation. The submis

sion of a redesignation by a Governor shall not affect the effectiveness or enforceability of the applicable implementation plan for the State. (E) The Administrator may not promulgate a redesignation of a nonattainment area (or portion thereof) to attainment unless— (i) the Administrator determines that the area has attained the national ambient air quality standard; (ii) the Administrator has fully approved the applicable implementation plan for the area under section 7410(k) of this title; (iii) the Administrator determines that the improvement in air quality is due to per

manent and enforceable reductions in emis

sions resulting from implementation of the applicable implementation plan and applica

ble Federal air pollutant control regulations and other permanent and enforceable reduc

tions; (iv) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 7505a of this title; and (v) the State containing such area has met all requirements applicable to the area under section 7410 of this title and part D of this subchapter. (F) The Administrator shall not promulgate any redesignation of any area (or portion thereof) from nonattainment to unclassifiable. (4) Nonattainment designations for ozone, car

bon monoxide and particulate matter (PM–10) (A) Ozone and carbon monoxide (i) Within 120 days after November 15, 1990, each Governor of each State shall submit to the Administrator a list that designates, af

firms or reaffirms the designation of, or re

designates (as the case may be), all areas (or portions thereof) of the Governor’s State as attainment, nonattainment, or unclassifi

able with respect to the national ambient air quality standards for ozone and carbon monoxide. (ii) No later than 120 days after the date the Governor is required to submit the list of areas (or portions thereof) required under clause (i) of this subparagraph, the Adminis

trator shall promulgate such designations, making such modifications as the Adminis

trator may deem necessary, in the same manner, and under the same procedure, as is applicable under clause (ii) of paragraph (1)(B), except that the phrase ‘‘60 days’’ shall be substituted for the phrase ‘‘120 days’’ in that clause. If the Governor does not submit, in accordance with clause (i) of this subpara

graph, a designation for an area (or portion thereof), the Administrator shall promul

gate the designation that the Administrator deems appropriate. (iii) No nonattainment area may be redes

ignated as an attainment area under this subparagraph. (iv) Notwithstanding paragraph (1)(C)(ii) of this subsection, if an ozone or carbon mon

oxide nonattainment area located within a metropolitan statistical area or consolidated metropolitan statistical area (as established by the Bureau of the Census) is classified under part D of this subchapter as a Serious, Severe, or Extreme Area, the boundaries of such area are hereby revised (on the date 45 days after such classification) by operation of law to include the entire metropolitan statistical area or consolidated metropolitan statistical area, as the case may be, unless within such 45-day period the Governor (in consultation with State and local air pollu

tion control agencies) notifies the Adminis

trator that additional time is necessary to evaluate the application of clause (v). When

ever a Governor has submitted such a notice to the Administrator, such boundary revi

sion shall occur on the later of the date 8 months after such classification or 14Page 6225 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7407

months after November 15, 1990, unless the Governor makes the finding referred to in clause (v), and the Administrator concurs in such finding, within such period. Except as otherwise provided in this paragraph, a boundary revision under this clause or clause (v) shall apply for purposes of any State implementation plan revision required to be submitted after November 15, 1990. (v) Whenever the Governor of a State has submitted a notice under clause (iv), the Governor, in consultation with State and local air pollution control agencies, shall undertake a study to evaluate whether the entire metropolitan statistical area or con

solidated metropolitan statistical area should be included within the nonattain

ment area. Whenever a Governor finds and demonstrates to the satisfaction of the Ad

ministrator, and the Administrator concurs in such finding, that with respect to a por

tion of a metropolitan statistical area or consolidated metropolitan statistical area, sources in the portion do not contribute sig

nificantly to violation of the national ambi

ent air quality standard, the Administrator shall approve the Governor’s request to ex

clude such portion from the nonattainment area. In making such finding, the Governor and the Administrator shall consider factors such as population density, traffic conges

tion, commercial development, industrial development, meteorological conditions, and pollution transport. (B) PM–10 designations By operation of law, until redesignation by the Administrator pursuant to paragraph (3)— (i) each area identified in 52 Federal Reg

ister 29383 (Aug. 7, 1987) as a Group I area (except to the extent that such identifica

tion was modified by the Administrator before November 15, 1990) is designated nonattainment for PM–10; (ii) any area containing a site for which air quality monitoring data show a viola

tion of the national ambient air quality standard for PM–10 before January 1, 1989 (as determined under part 50, appendix K of title 40 of the Code of Federal Regula

tions) is hereby designated nonattainment for PM–10; and (iii) each area not described in clause (i) or (ii) is hereby designated unclassifiable for PM–10. Any designation for particulate matter (measured in terms of total suspended par

ticulates) that the Administrator promul

gated pursuant to this subsection (as in ef

fect immediately before November 15, 1990) shall remain in effect for purposes of imple

menting the maximum allowable increases in concentrations of particulate matter (measured in terms of total suspended par

ticulates) pursuant to section 7473(b) of this title, until the Administrator determines that such designation is no longer necessary for that purpose. (5) Designations for lead The Administrator may, in the Administra

tor’s discretion at any time the Administrator deems appropriate, require a State to des

ignate areas (or portions thereof) with respect to the national ambient air quality standard for lead in effect as of November 15, 1990, in ac

cordance with the procedures under subpara

graphs (A) and (B) of paragraph (1), except that in applying subparagraph (B)(i) of para

graph (1) the phrase ‘‘2 years from the date of promulgation of the new or revised national ambient air quality standard’’ shall be re

placed by the phrase ‘‘1 year from the date the Administrator notifies the State of the re

quirement to designate areas with respect to the standard for lead’’. (6) Designations (A) Submission Notwithstanding any other provision of law, not later than February 15, 2004, the Governor of each State shall submit designa

tions referred to in paragraph (1) for the July 1997 PM 2.5 national ambient air quality standards for each area within the State, based on air quality monitoring data col

lected in accordance with any applicable Federal reference methods for the relevant

areas. (B) Promulgation Notwithstanding any other provision of law, not later than December 31, 2004, the Administrator shall, consistent with para

graph (1), promulgate the designations re

ferred to in subparagraph (A) for each area of each State for the July 1997 PM 2.5 national ambient air quality standards. (7) Implementation plan for regional haze (A) In general Notwithstanding any other provision of law, not later than 3 years after the date on which the Administrator promulgates the designations referred to in paragraph (6)(B) for a State, the State shall submit, for the entire State, the State implementation plan revisions to meet the requirements promul

gated by the Administrator under section 7492(e)(1) of this title (referred to in this paragraph as ‘‘regional haze requirements’’). (B) No preclusion of other provisions Nothing in this paragraph precludes the implementation of the agreements and rec

ommendations stemming from the Grand Canyon Visibility Transport Commission Report dated June 1996, including the sub

mission of State implementation plan revi

sions by the States of Arizona, California, Colorado, Idaho, Nevada, New Mexico, Or

egon, Utah, or Wyoming by December 31, 2003, for implementation of regional haze re

quirements applicable to those States. (e) Redesignation of air quality control regions (1) Except as otherwise provided in paragraph (2), the Governor of each State is authorized, with the approval of the Administrator, to re

designate from time to time the air quality con

trol regions within such State for purposes of ef

ficient and effective air quality management. Upon such redesignation, the list under sub

section (d) of this section shall be modified ac

cordingly.Page 6226 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7407

1 See References in Text note below. (2) In the case of an air quality control region in a State, or part of such region, which the Ad

ministrator finds may significantly affect air pollution concentrations in another State, the Governor of the State in which such region, or part of a region, is located may redesignate from time to time the boundaries of so much of such air quality control region as is located within such State only with the approval of the Admin

istrator and with the consent of all Governors of all States which the Administrator determines may be significantly affected. (3) No compliance date extension granted under section 7413(d)(5) 1 of this title (relating to coal conversion) shall cease to be effective by reason of the regional limitation provided in section 7413(d)(5) 1 of this title if the violation of such limitation is due solely to a redesignation of a region under this subsection. (July 14, 1955, ch. 360, title I, §107, as added Pub. L. 91–604, §4(a), Dec. 31, 1970, 84 Stat. 1678; amended Pub. L. 95–95, title I, §103, Aug. 7, 1977, 91 Stat. 687; Pub. L. 101–549, title I, §101(a), Nov. 15, 1990, 104 Stat. 2399; Pub. L. 108–199, div. G, title IV, §425(a), Jan. 23, 2004, 118 Stat. 417.)

R EFERENCES IN T EXT Section 7413 of this title, referred to in subsec. (e)(3), was amended generally by Pub. L. 101–549, title VII, §701, Nov. 15, 1990, 104 Stat. 2672, and, as so amended, subsec. (d) of section 7413 no longer relates to final compliance orders.

C ODIFICATION Section was formerly classified to section 1857c–2 of this title.

P RIOR P ROVISIONS A prior section 107 of act July 14, 1955, as added Nov. 21, 1967, Pub. L. 90–148, §2, 81 Stat. 490, related to air quality control regions and was classified to section 1857c–2 of this title, prior to repeal by Pub. L. 91–604. Another prior section 107 of act July 14, 1955, as added Dec. 17, 1963, Pub. L. 88–206, §1, 77 Stat. 399, was renum

bered section 111 by Pub. L. 90–148 and is classified to section 7411 of this title.

A MENDMENTS 2004—Subsec. (d)(6), (7). Pub. L. 108–199 added pars. (6) and (7). 1990—Subsec. (d). Pub. L. 101–549 amended subsec. (d) generally, substituting present provisions for provi

sions which required States to submit lists of regions not in compliance on Aug. 7, 1977, with certain air qual

ity standards to be submitted to the Administrator, and which authorized States to revise and resubmit such lists from time to time. 1977—Subsecs. (d), (e). Pub. L. 95–95 added subsecs. (d) and (e).

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

O ZONE AND P ARTICULATE M ATTER S TANDARDS Pub. L. 108–199, div. G, title IV, §425(b), Jan. 23, 2004, 118 Stat. 417, provided that: ‘‘Except as provided in paragraphs (6) and (7) of section 107(d) of the Clean Air Act [subsec. (d)(6), (7) of this section] (as added by sub

section (a)), section 6101, subsections (a) and (b) of sec

tion 6102, and section 6103 of the Transportation Equity Act for the 21st Century [Pub. L. 105–178] (42 U.S.C. 7407 note; 112 Stat. 463), as in effect on the day before the date of enactment of this Act [Jan. 23, 2004], shall re

main in effect.’’ Pub. L. 105–178, title VI, June 9, 1998, 112 Stat. 463, as amended by Pub. L. 109–59, title VI, §6012(a), Aug. 10, 2005, 119 Stat. 1882, provided that:
‘‘SEC. 6101. FINDINGS AND PURPOSE. ‘‘(a) The Congress finds that— ‘‘(1) there is a lack of air quality monitoring data for fine particle levels, measured as PM 2.5 , in the United States and the States should receive full fund

ing for the monitoring efforts; ‘‘(2) such data would provide a basis for designating areas as attainment or nonattainment for any PM 2.5 national ambient air quality standards pursuant to the standards promulgated in July 1997; ‘‘(3) the President of the United States directed the Administrator of the Environmental Protection Agency (referred to in this title as the ‘Adminis

trator’) in a memorandum dated July 16, 1997, to com

plete the next periodic review of the particulate mat

ter national ambient air quality standards by July 2002 in order to determine ‘whether to revise or main

tain the standards’; ‘‘(4) the Administrator has stated that 3 years of air quality monitoring data for fine particle levels, measured as PM 2.5 and performed in accordance with any applicable Federal reference methods, is appro

priate for designating areas as attainment or non

attainment pursuant to the July 1997 promulgated standards; and ‘‘(5) the Administrator has acknowledged that in drawing boundaries for attainment and nonattain

ment areas for the July 1997 ozone national air qual

ity standards, Governors would benefit from consider

ing implementation guidance from EPA on drawing area boundaries. ‘‘(b) The purposes of this title are— ‘‘(1) to ensure that 3 years of air quality monitoring data regarding fine particle levels are gathered for use in the determination of area attainment or non

attainment designations respecting any PM 2.5 na

tional ambient air quality standards; ‘‘(2) to ensure that the Governors have adequate time to consider implementation guidance from EPA on drawing area boundaries prior to submitting area designations respecting the July 1997 ozone national ambient air quality standards; ‘‘(3) to ensure that the schedule for implementation of the July 1997 revisions of the ambient air quality standards for particulate matter and the schedule for the Environmental Protection Agency’s visibility regulations related to regional haze are consistent with the timetable for implementation of such par

ticulate matter standards as set forth in the Presi

dent’s Implementation Memorandum dated July 16, 1997.
‘‘SEC. 6102. PARTICULATE MATTER MONITORING PROGRAM. ‘‘(a) Through grants under section 103 of the Clean Air Act [42 U.S.C. 7403] the Administrator of the Envi

ronmental Protection Agency shall use appropriated funds no later than fiscal year 2000 to fund 100 percent of the cost of the establishment, purchase, operation and maintenance of a PM 2.5 monitoring network nec

essary to implement the national ambient air quality standards for PM 2.5 under section 109 of the Clean Air Act [42 U.S.C. 7409]. This implementation shall not re

sult in a diversion or reprogramming of funds from other Federal, State or local Clean Air Act activities. Any funds previously diverted or reprogrammed from section 105 Clean Air Act [42 U.S.C. 7405] grants for PM 2.5 monitors must be restored to State or local air programs in fiscal year 1999. ‘‘(b) EPA and the States, consistent with their re

spective authorities under the Clean Air Act [42 U.S.C. 7401 et seq.], shall ensure that the national networkPage 6227 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7408

(designated in subsection (a)) which consists of the PM 2.5 monitors necessary to implement the national ambient air quality standards is established by Decem

ber 31, 1999. ‘‘(c)(1) The Governors shall be required to submit des

ignations referred to in section 107(d)(1) of the Clean Air Act [42 U.S.C. 7407(d)(1)] for each area following promulgation of the July 1997 PM 2.5 national ambient air quality standard within 1 year after receipt of 3 years of air quality monitoring data performed in ac

cordance with any applicable Federal reference meth

ods for the relevant areas. Only data from the monitor

ing network designated in subsection (a) and other Fed

eral reference method PM 2.5 monitors shall be consid

ered for such designations. Nothing in the previous sen

tence shall be construed as affecting the Governor’s au

thority to designate an area initially as nonattain

ment, and the Administrator’s authority to promulgate the designation of an area as nonattainment, under sec

tion 107(d)(1) of the Clean Air Act, based on its con

tribution to ambient air quality in a nearby nonattain

ment area. ‘‘(2) For any area designated as nonattainment for the July 1997 PM 2.5 national ambient air quality stand

ard in accordance with the schedule set forth in this section, notwithstanding the time limit prescribed in paragraph (2) of section 169B(e) of the Clean Air Act [42 U.S.C. 7492(e)(2)], the Administrator shall require State implementation plan revisions referred to in such para

graph (2) to be submitted at the same time as State im

plementation plan revisions referred to in section 172 of the Clean Air Act [42 U.S.C. 7502] implementing the re

vised national ambient air quality standard for fine particulate matter are required to be submitted. For any area designated as attainment or unclassifiable for such standard, the Administrator shall require the State implementation plan revisions referred to in such paragraph (2) to be submitted 1 year after the area has been so designated. The preceding provisions of this paragraph shall not preclude the implementation of the agreements and recommendations set forth in the Grand Canyon Visibility Transport Commission Report dated June 1996. ‘‘(d) The Administrator shall promulgate the designa

tions referred to in section 107(d)(1) of the Clean Air Act [42 U.S.C. 7407(d)(1)] for each area following pro

mulgation of the July 1997 PM 2.5 national ambient air quality standard by the earlier of 1 year after the ini

tial designations required under subsection (c)(1) are required to be submitted or December 31, 2005. ‘‘(e) F IELD S TUDY .—Not later than 2 years after the date of enactment of the SAFETEA–LU [Aug. 10, 2005], the Administrator shall— ‘‘(1) conduct a field study of the ability of the PM 2.5 Federal Reference Method to differentiate those par

ticles that are larger than 2.5 micrometers in diame

ter; ‘‘(2) develop a Federal reference method to measure directly particles that are larger than 2.5 microm

eters in diameter without reliance on subtracting from coarse particle measurements those particles that are equal to or smaller than 2.5 micrometers in diameter; ‘‘(3) develop a method of measuring the composi

tion of coarse particles; and ‘‘(4) submit a report on the study and responsibil

ities of the Administrator under paragraphs (1) through (3) to— ‘‘(A) the Committee on Energy and Commerce of the House of Representatives; and ‘‘(B) the Committee on Environment and Public Works of the Senate. ‘‘SEC. 6103. OZONE DESIGNATION REQUIREMENTS. ‘‘(a) The Governors shall be required to submit the designations referred to in section 107(d)(1) of the Clean Air Act [42 U.S.C. 7407(d)(1)] within 2 years following the promulgation of the July 1997 ozone national ambi

ent air quality standards. ‘‘(b) The Administrator shall promulgate final des

ignations no later than 1 year after the designations re

quired under subsection (a) are required to be submit

ted.
‘‘SEC. 6104. ADDITIONAL PROVISIONS. ‘‘Nothing in sections 6101 through 6103 shall be con

strued by the Administrator of Environmental Protec

tion Agency or any court, State, or person to affect any pending litigation or to be a ratification of the ozone or PM 2.5 standards.’’

P ENDING A CTIONS AND P ROCEEDINGS Suits, actions, and other proceedings lawfully com

menced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7408. Air quality criteria and control tech

niques (a) Air pollutant list; publication and revision by Administrator; issuance of air quality cri

teria for air pollutants (1) For the purpose of establishing national primary and secondary ambient air quality standards, the Administrator shall within 30 days after December 31, 1970, publish, and shall from time to time thereafter revise, a list which includes each air pollutant— (A) emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare; (B) the presence of which in the ambient air results from numerous or diverse mobile or stationary sources; and (C) for which air quality criteria had not been issued before December 31, 1970 but for which he plans to issue air quality criteria under this section. (2) The Administrator shall issue air quality criteria for an air pollutant within 12 months after he has included such pollutant in a list under paragraph (1). Air quality criteria for an air pollutant shall accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambi

ent air, in varying quantities. The criteria for an air pollutant, to the extent practicable, shall include information on— (A) those variable factors (including atmos

pheric conditions) which of themselves or inPage 6228 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7408

1 See Codification note below. combination with other factors may alter the effects on public health or welfare of such air pollutant; (B) the types of air pollutants which, when present in the atmosphere, may interact with such pollutant to produce an adverse effect on public health or welfare; and (C) any known or anticipated adverse effects on welfare. (b) Issuance by Administrator of information on air pollution control techniques; standing consulting committees for air pollutants; es

tablishment; membership (1) Simultaneously with the issuance of cri

teria under subsection (a) of this section, the Administrator shall, after consultation with ap

propriate advisory committees and Federal de

partments and agencies, issue to the States and appropriate air pollution control agencies infor

mation on air pollution control techniques, which information shall include data relating to the cost of installation and operation, energy re

quirements, emission reduction benefits, and en

vironmental impact of the emission control technology. Such information shall include such data as are available on available technology and alternative methods of prevention and con

trol of air pollution. Such information shall also include data on alternative fuels, processes, and operating methods which will result in elimi

nation or significant reduction of emissions. (2) In order to assist in the development of in

formation on pollution control techniques, the Administrator may establish a standing consult

ing committee for each air pollutant included in a list published pursuant to subsection (a)(1) of this section, which shall be comprised of tech

nically qualified individuals representative of State and local governments, industry, and the academic community. Each such committee shall submit, as appropriate, to the Adminis

trator information related to that required by paragraph (1). (c) Review, modification, and reissuance of cri

teria or information
The Administrator shall from time to time re

view, and, as appropriate, modify, and reissue any criteria or information on control tech

niques issued pursuant to this section. Not later than six months after August 7, 1977, the Admin

istrator shall revise and reissue criteria relating to concentrations of NO 2 over such period (not more than three hours) as he deems appropriate. Such criteria shall include a discussion of nitric and nitrous acids, nitrites, nitrates, nitros

amines, and other carcinogenic and potentially carcinogenic derivatives of oxides of nitrogen. (d) Publication in Federal Register; availability of copies for general public The issuance of air quality criteria and infor

mation on air pollution control techniques shall be announced in the Federal Register and copies shall be made available to the general public. (e) Transportation planning and guidelines The Administrator shall, after consultation with the Secretary of Transportation, and after providing public notice and opportunity for comment, and with State and local officials, within nine months after November 15, 1990, 1 and periodically thereafter as necessary to maintain a continuous transportation-air quality plan

ning process, update the June 1978 Transpor

tation-Air Quality Planning Guidelines and pub

lish guidance on the development and imple

mentation of transportation and other measures necessary to demonstrate and maintain attain

ment of national ambient air quality standards. Such guidelines shall include information on— (1) methods to identify and evaluate alter

native planning and control activities; (2) methods of reviewing plans on a regular basis as conditions change or new information is presented; (3) identification of funds and other re

sources necessary to implement the plan, in

cluding interagency agreements on providing such funds and resources; (4) methods to assure participation by the public in all phases of the planning process; and (5) such other methods as the Administrator determines necessary to carry out a continu

ous planning process. (f) Information regarding processes, procedures, and methods to reduce or control pollutants in transportation; reduction of mobile source related pollutants; reduction of impact on public health (1) The Administrator shall publish and make available to appropriate Federal, State, and local environmental and transportation agencies not later than one year after November 15, 1990, and from time to time thereafter— (A) information prepared, as appropriate, in consultation with the Secretary of Transpor

tation, and after providing public notice and opportunity for comment, regarding the for

mulation and emission reduction potential of transportation control measures related to criteria pollutants and their precursors, in

cluding, but not limited to— (i) programs for improved public transit; (ii) restriction of certain roads or lanes to, or construction of such roads or lanes for use by, passenger buses or high occupancy vehi

cles; (iii) employer-based transportation man

agement plans, including incentives; (iv) trip-reduction ordinances; (v) traffic flow improvement programs that achieve emission reductions; (vi) fringe and transportation corridor parking facilities serving multiple occu

pancy vehicle programs or transit service; (vii) programs to limit or restrict vehicle use in downtown areas or other areas of emission concentration particularly during periods of peak use; (viii) programs for the provision of all forms of high-occupancy, shared-ride serv

ices; (ix) programs to limit portions of road sur

faces or certain sections of the metropolitan area to the use of non-motorized vehicles or pedestrian use, both as to time and place; (x) programs for secure bicycle storage fa

cilities and other facilities, including bicy

-Page 6229 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7408

2 So in original. The period probably should be a semicolon. cle lanes, for the convenience and protection of bicyclists, in both public and private
areas; (xi) programs to control extended idling of vehicles; (xii) programs to reduce motor vehicle emissions, consistent with subchapter II of this chapter, which are caused by extreme cold start conditions; (xiii) employer-sponsored programs to per

mit flexible work schedules; (xiv) programs and ordinances to facilitate non-automobile travel, provision and utiliza

tion of mass transit, and to generally reduce the need for single-occupant vehicle travel, as part of transportation planning and devel

opment efforts of a locality, including pro

grams and ordinances applicable to new shopping centers, special events, and other centers of vehicle activity; (xv) programs for new construction and major reconstructions of paths, tracks or areas solely for the use by pedestrian or other non-motorized means of transpor

tation when economically feasible and in the public interest. For purposes of this clause, the Administrator shall also consult with the Secretary of the Interior; and (xvi) program to encourage the voluntary removal from use and the marketplace of pre-1980 model year light duty vehicles and pre-1980 model light duty trucks. 2 (B) information on additional methods or strategies that will contribute to the reduc

tion of mobile source related pollutants during periods in which any primary ambient air quality standard will be exceeded and during episodes for which an air pollution alert, warning, or emergency has been declared; (C) information on other measures which may be employed to reduce the impact on pub

lic health or protect the health of sensitive or susceptible individuals or groups; and (D) information on the extent to which any process, procedure, or method to reduce or control such air pollutant may cause an in

crease in the emissions or formation of any other pollutant. (2) In publishing such information the Admin

istrator shall also include an assessment of— (A) the relative effectiveness of such proc

esses, procedures, and methods; (B) the potential effect of such processes, procedures, and methods on transportation systems and the provision of transportation services; and (C) the environmental, energy, and economic impact of such processes, procedures, and methods. (g) Assessment of risks to ecosystems The Administrator may assess the risks to ecosystems from exposure to criteria air pollut

ants (as identified by the Administrator in the Administrator’s sole discretion). (h) RACT/BACT/LAER clearinghouse
The Administrator shall make information re

garding emission control technology available to the States and to the general public through a central database. Such information shall in

clude all control technology information re

ceived pursuant to State plan provisions requir

ing permits for sources, including operating per

mits for existing sources. (July 14, 1955, ch. 360, title I, §108, as added Pub. L. 91–604, §4(a), Dec. 31, 1970, 84 Stat. 1678; amended Pub. L. 95–95, title I, §§104, 105, title IV, §401(a), Aug. 7, 1977, 91 Stat. 689, 790; Pub. L. 101–549, title I, §§108(a)–(c), ( o ), 111, Nov. 15, 1990, 104 Stat. 2465, 2466, 2469, 2470; Pub. L. 105–362, title XV, §1501(b), Nov. 10, 1998, 112 Stat. 3294.)

C ODIFICATION November 15, 1990, referred to in subsec. (e), was in the original ‘‘enactment of the Clean Air Act Amend

ments of 1989’’, and was translated as meaning the date of the enactment of Pub. L. 101–549, popularly known as the Clean Air Act Amendments of 1990, to reflect the probable intent of Congress. Section was formerly classified to section 1857c–3 of this title.

P RIOR P ROVISIONS A prior section 108 of act July 14, 1955, was renum

bered section 115 by Pub. L. 91–604 and is classified to section 7415 of this title.

A MENDMENTS 1998—Subsec. (f)(3), (4). Pub. L. 105–362 struck out par. (3), which required reports by the Secretary of Trans

portation and the Administrator to be submitted to Congress by Jan. 1, 1993, and every 3 years thereafter, reviewing and analyzing existing State and local air quality related transportation programs, evaluating achievement of goals, and recommending changes to existing programs, and par. (4), which required that in each report after the first report the Secretary of Transportation include a description of the actions taken to implement the changes recommended in the preceding report. 1990—Subsec. (e). Pub. L. 101–549, §108(a), inserted first sentence and struck out former first sentence which read as follows: ‘‘The Administrator shall, after consultation with the Secretary of Transportation and the Secretary of Housing and Urban Development and State and local officials and within 180 days after Au

gust 7, 1977, and from time to time thereafter, publish guidelines on the basic program elements for the plan

ning process assisted under section 7505 of this title.’’ Subsec. (f)(1). Pub. L. 101–549, §108(b), in introductory provisions, substituted present provisions for provi

sions relating to Federal agencies, States, and air pol

lution control agencies within either 6 months or one year after Aug. 7, 1977. Subsec. (f)(1)(A). Pub. L. 101–549, §108(b), substituted present provisions for provisions relating to informa

tion prepared in cooperation with Secretary of Trans

portation, regarding processes, procedures, and meth

ods to reduce certain pollutants. Subsec. (f)(3), (4). Pub. L. 101–549, §111, added pars. (3) and (4). Subsec. (g). Pub. L. 101–549, §108( o ), added subsec. (g). Subsec. (h). Pub. L. 101–549, §108(c), added subsec. (h). 1977—Subsec. (a)(1)(A). Pub. L. 95–95, §401(a), sub

stituted ‘‘emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare’’ for ‘‘which in his judgment has an adverse effect on public health or welfare’’. Subsec. (b)(1). Pub. L. 95–95, §104(a), substituted ‘‘cost of installation and operation, energy requirements, emission reduction benefits, and environmental impact of the emission control technology’’ for ‘‘technology and costs of emission control’’. Subsec. (c). Pub. L. 95–95, §104(b), inserted provision directing the Administrator, not later than six monthsPage 6230 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7409

after Aug. 7, 1977, to revise and reissue criteria relating to concentrations of NO 2 over such period (not more than three hours) as he deems appropriate, with the criteria to include a discussion of nitric and nitrous acids, nitrites, nitrates, nitrosamines, and other car

cinogenic and potentially carcinogenic derivatives of oxides of nitrogen. Subsecs. (e), (f). Pub. L. 95–95, §105, added subsecs. (e) and (f).

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.
§ 7409. National primary and secondary ambient air quality standards (a) Promulgation (1) The Administrator— (A) within 30 days after December 31, 1970, shall publish proposed regulations prescribing a national primary ambient air quality stand

ard and a national secondary ambient air quality standard for each air pollutant for which air quality criteria have been issued prior to such date; and (B) after a reasonable time for interested persons to submit written comments thereon (but no later than 90 days after the initial pub

lication of such proposed standards) shall by regulation promulgate such proposed national primary and secondary ambient air quality standards with such modifications as he deems appropriate. (2) With respect to any air pollutant for which air quality criteria are issued after December 31, 1970, the Administrator shall publish, simulta

neously with the issuance of such criteria and information, proposed national primary and sec

ondary ambient air quality standards for any such pollutant. The procedure provided for in paragraph (1)(B) of this subsection shall apply to the promulgation of such standards. (b) Protection of public health and welfare (1) National primary ambient air quality standards, prescribed under subsection (a) of this section shall be ambient air quality stand

ards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health. Such primary standards may be revised in the same manner as promulgated. (2) Any national secondary ambient air qual

ity standard prescribed under subsection (a) of this section shall specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator, based on such criteria, is requisite to protect the public wel

fare from any known or anticipated adverse ef

fects associated with the presence of such air pollutant in the ambient air. Such secondary standards may be revised in the same manner as promulgated. (c) National primary ambient air quality stand

ard for nitrogen dioxide The Administrator shall, not later than one year after August 7, 1977, promulgate a national primary ambient air quality standard for NO 2 concentrations over a period of not more than 3 hours unless, based on the criteria issued under section 7408(c) of this title, he finds that there is no significant evidence that such a standard for such a period is requisite to protect public health. (d) Review and revision of criteria and stand

ards; independent scientific review commit

tee; appointment; advisory functions (1) Not later than December 31, 1980, and at five-year intervals thereafter, the Administrator shall complete a thorough review of the criteria published under section 7408 of this title and the national ambient air quality standards promul

gated under this section and shall make such re

visions in such criteria and standards and pro

mulgate such new standards as may be appro

priate in accordance with section 7408 of this title and subsection (b) of this section. The Ad

ministrator may review and revise criteria or promulgate new standards earlier or more fre

quently than required under this paragraph. (2)(A) The Administrator shall appoint an independent scientific review committee com

posed of seven members including at least one member of the National Academy of Sciences, one physician, and one person representing State air pollution control agencies.(B) Not later than January 1, 1980, and at fiveyear intervals thereafter, the committee re

ferred to in subparagraph (A) shall complete a review of the criteria published under section 7408 of this title and the national primary and secondary ambient air quality standards pro

mulgated under this section and shall rec

ommend to the Administrator any new national ambient air quality standards and revisions of existing criteria and standards as may be appro

priate under section 7408 of this title and sub

section (b) of this section. (C) Such committee shall also (i) advise the Administrator of areas in which additional knowledge is required to appraise the adequacy and basis of existing, new, or revised national ambient air quality standards, (ii) describe the research efforts necessary to provide the re

quired information, (iii) advise the Adminis

trator on the relative contribution to air pollu

tion concentrations of natural as well as anthro

pogenic activity, and (iv) advise the Adminis

trator of any adverse public health, welfare, so

cial, economic, or energy effects which may re

sult from various strategies for attainment and maintenance of such national ambient air qual

ity standards. (July 14, 1955, ch. 360, title I, §109, as added Pub. L. 91–604, §4(a), Dec. 31, 1970, 84 Stat. 1679;Page 6231 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410

amended Pub. L. 95–95, title I, §106, Aug. 7, 1977, 91 Stat. 691.)

C ODIFICATION Section was formerly classified to section 1857c–4 of this title.

P RIOR P ROVISIONS A prior section 109 of act July 14, 1955, was renum

bered section 116 by Pub. L. 91–604 and is classified to section 7416 of this title.

A MENDMENTS 1977—Subsec. (c). Pub. L. 95–95, §106(b), added subsec. (c). Subsec. (d). Pub. L. 95–95, §106(a), added subsec. (d).

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

T ERMINATION OF A DVISORY C OMMITTEES Advisory committees established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided for by law. See section 14 of Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 776, set out in the Appen

dix to Title 5, Government Organization and Employ

ees.

R OLE OF S ECONDARY S TANDARDS Pub. L. 101–549, title VIII, §817, Nov. 15, 1990, 104 Stat. 2697, provided that: ‘‘(a) R EPORT .—The Administrator shall request the National Academy of Sciences to prepare a report to the Congress on the role of national secondary ambient air quality standards in protecting welfare and the en

vironment. The report shall: ‘‘(1) include information on the effects on welfare and the environment which are caused by ambient concentrations of pollutants listed pursuant to sec

tion 108 [42 U.S.C. 7408] and other pollutants which may be listed; ‘‘(2) estimate welfare and environmental costs in

curred as a result of such effects; ‘‘(3) examine the role of secondary standards and the State implementation planning process in pre

venting such effects; ‘‘(4) determine ambient concentrations of each such pollutant which would be adequate to protect welfare and the environment from such effects; ‘‘(5) estimate the costs and other impacts of meet

ing secondary standards; and ‘‘(6) consider other means consistent with the goals and objectives of the Clean Air Act [42 U.S.C. 7401 et seq.] which may be more effective than secondary standards in preventing or mitigating such effects. ‘‘(b) S UBMISSION TO C ONGRESS ; C OMMENTS ; A UTHORIZA

TION .—(1) The report shall be transmitted to the Con

gress not later than 3 years after the date of enactment of the Clean Air Act Amendments of 1990 [Nov. 15, 1990]. ‘‘(2) At least 90 days before issuing a report the Ad

ministrator shall provide an opportunity for public comment on the proposed report. The Administrator shall include in the final report a summary of the com

ments received on the proposed report. ‘‘(3) There are authorized to be appropriated such sums as are necessary to carry out this section.’’
§ 7410. State implementation plans for national primary and secondary ambient air quality standards (a) Adoption of plan by State; submission to Ad

ministrator; content of plan; revision; new sources; indirect source review program; supplemental or intermittent control systems (1) Each State shall, after reasonable notice and public hearings, adopt and submit to the Ad

ministrator, within 3 years (or such shorter pe

riod as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof) under section 7409 of this title for any air pollut

ant, a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region (or portion thereof) within such State. In addition, such State shall adopt and submit to the Admin

istrator (either as a part of a plan submitted under the preceding sentence or separately) within 3 years (or such shorter period as the Ad

ministrator may prescribe) after the promulga

tion of a national ambient air quality secondary standard (or revision thereof), a plan which pro

vides for implementation, maintenance, and en

forcement of such secondary standard in each air quality control region (or portion thereof) within such State. Unless a separate public hearing is provided, each State shall consider its plan implementing such secondary standard at the hearing required by the first sentence of this paragraph. (2) Each implementation plan submitted by a State under this chapter shall be adopted by the State after reasonable notice and public hear

ing. Each such plan shall— (A) include enforceable emission limitations and other control measures, means, or tech

niques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be nec

essary or appropriate to meet the applicable requirements of this chapter; (B) provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to— (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator; (C) include a program to provide for the en

forcement of the measures described in sub

paragraph (A), and regulation of the modifica

tion and construction of any stationary source within the areas covered by the plan as nec

-Page 6232 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410

essary to assure that national ambient air quality standards are achieved, including a permit program as required in parts C and D of this subchapter; (D) contain adequate provisions— (i) prohibiting, consistent with the provi

sions of this subchapter, any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will— (I) contribute significantly to nonattain

ment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard, or (II) interfere with measures required to be included in the applicable implementa

tion plan for any other State under part C of this subchapter to prevent significant deterioration of air quality or to protect visibility, (ii) insuring compliance with the applica

ble requirements of sections 7426 and 7415 of this title (relating to interstate and inter

national pollution abatement); (E) provide (i) necessary assurances that the State (or, except where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by the State or general pur

pose local governments for such purpose) will have adequate personnel, funding, and author

ity under State (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of Federal or State law from carrying out such implementa

tion plan or portion thereof), (ii) requirements that the State comply with the requirements respecting State boards under section 7428 of this title, and (iii) necessary assurances that, where the State has relied on a local or re

gional government, agency, or instrumental

ity for the implementation of any plan provi

sion, the State has responsibility for ensuring adequate implementation of such plan provi

sion; (F) require, as may be prescribed by the Ad

ministrator— (i) the installation, maintenance, and re

placement of equipment, and the implemen

tation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and (iii) correlation of such reports by the State agency with any emission limitations or standards established pursuant to this chapter, which reports shall be available at reasonable times for public inspection; (G) provide for authority comparable to that in section 7603 of this title and adequate con

tingency plans to implement such authority; (H) provide for revision of such plan— (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) except as provided in paragraph (3)(C), whenever the Administrator finds on the basis of information available to the Admin

istrator that the plan is substantially inad

equate to attain the national ambient air quality standard which it implements or to otherwise comply with any additional re

quirements established under this chapter; (I) in the case of a plan or plan revision for an area designated as a nonattainment area, meet the applicable requirements of part D of this subchapter (relating to nonattainment areas); (J) meet the applicable requirements of sec

tion 7421 of this title (relating to consulta

tion), section 7427 of this title (relating to pub

lic notification), and part C of this subchapter (relating to prevention of significant deterio

ration of air quality and visibility protection); (K) provide for— (i) the performance of such air quality modeling as the Administrator may pre

scribe for the purpose of predicting the ef

fect on ambient air quality of any emissions of any air pollutant for which the Adminis

trator has established a national ambient air quality standard, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator; (L) require the owner or operator of each major stationary source to pay to the permit

ting authority, as a condition of any permit required under this chapter, a fee sufficient to

cover— (i) the reasonable costs of reviewing and acting upon any application for such a per

mit, and (ii) if the owner or operator receives a per

mit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator’s approval of a fee program under subchapter V of this chapter; and (M) provide for consultation and participa

tion by local political subdivisions affected by the plan. (3)(A) Repealed. Pub. L. 101–549, title I, §101(d)(1), Nov. 15, 1990, 104 Stat. 2409. (B) As soon as practicable, the Administrator shall, consistent with the purposes of this chap

ter and the Energy Supply and Environmental Coordination Act of 1974 [15 U.S.C. 791 et seq.], review each State’s applicable implementation plans and report to the State on whether such plans can be revised in relation to fuel burning stationary sources (or persons supplying fuel to such sources) without interfering with the at

tainment and maintenance of any national am

bient air quality standard within the period per

mitted in this section. If the Administrator de

termines that any such plan can be revised, he shall notify the State that a plan revision may be submitted by the State. Any plan revision which is submitted by the State shall, after pub

-Page 6233 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410

1 See References in Text note below. lic notice and opportunity for public hearing, be approved by the Administrator if the revision relates only to fuel burning stationary sources (or persons supplying fuel to such sources), and the plan as revised complies with paragraph (2) of this subsection. The Administrator shall ap

prove or disapprove any revision no later than three months after its submission. (C) Neither the State, in the case of a plan (or portion thereof) approved under this subsection, nor the Administrator, in the case of a plan (or portion thereof) promulgated under subsection (c) of this section, shall be required to revise an applicable implementation plan because one or more exemptions under section 7418 of this title (relating to Federal facilities), enforcement or

ders under section 7413(d) 1 of this title, suspen

sions under subsection (f) or (g) of this section (relating to temporary energy or economic au

thority), orders under section 7419 of this title (relating to primary nonferrous smelters), or ex

tensions of compliance in decrees entered under section 7413(e) 1 of this title (relating to ironand steel-producing operations) have been grant

ed, if such plan would have met the require

ments of this section if no such exemptions, or

ders, or extensions had been granted. (4) Repealed. Pub. L. 101–549, title I, §101(d)(2), Nov. 15, 1990, 104 Stat. 2409. (5)(A)(i) Any State may include in a State im

plementation plan, but the Administrator may not require as a condition of approval of such plan under this section, any indirect source re

view program. The Administrator may approve and enforce, as part of an applicable implemen

tation plan, an indirect source review program which the State chooses to adopt and submit as part of its plan. (ii) Except as provided in subparagraph (B), no plan promulgated by the Administrator shall in

clude any indirect source review program for any air quality control region, or portion there

of. (iii) Any State may revise an applicable imple

mentation plan approved under this subsection to suspend or revoke any such program included in such plan, provided that such plan meets the requirements of this section. (B) The Administrator shall have the author

ity to promulgate, implement and enforce regu

lations under subsection (c) of this section re

specting indirect source review programs which apply only to federally assisted highways, air

ports, and other major federally assisted indi

rect sources and federally owned or operated in

direct sources. (C) For purposes of this paragraph, the term ‘‘indirect source’’ means a facility, building, structure, installation, real property, road, or highway which attracts, or may attract, mobile sources of pollution. Such term includes parking lots, parking garages, and other facilities sub

ject to any measure for management of parking supply (within the meaning of subsection (c)(2)(D)(ii) of this section), including regulation of existing off-street parking but such term does not include new or existing on-street parking. Direct emissions sources or facilities at, within, or associated with, any indirect source shall not be deemed indirect sources for the purpose of this paragraph. (D) For purposes of this paragraph the term ‘‘indirect source review program’’ means the fa

cility-by-facility review of indirect sources of air pollution, including such measures as are necessary to assure, or assist in assuring, that a new or modified indirect source will not attract mobile sources of air pollution, the emissions from which would cause or contribute to air pol

lution concentrations— (i) exceeding any national primary ambient air quality standard for a mobile source-relat

ed air pollutant after the primary standard at

tainment date, or (ii) preventing maintenance of any such standard after such date. (E) For purposes of this paragraph and para

graph (2)(B), the term ‘‘transportation control measure’’ does not include any measure which is an ‘‘indirect source review program’’. (6) No State plan shall be treated as meeting the requirements of this section unless such plan provides that in the case of any source which uses a supplemental, or intermittent con

trol system for purposes of meeting the require

ments of an order under section 7413(d) 1 of this title or section 7419 of this title (relating to pri

mary nonferrous smelter orders), the owner or operator of such source may not temporarily re

duce the pay of any employee by reason of the use of such supplemental or intermittent or other dispersion dependent control system. (b) Extension of period for submission of plans The Administrator may, wherever he deter

mines necessary, extend the period for submis

sion of any plan or portion thereof which imple

ments a national secondary ambient air quality standard for a period not to exceed 18 months from the date otherwise required for submission of such plan. (c) Preparation and publication by Adminis

trator of proposed regulations setting forth implementation plan; transportation regula

tions study and report; parking surcharge; suspension authority; plan implementation (1) The Administrator shall promulgate a Fed

eral implementation plan at any time within 2 years after the Administrator— (A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under subsection (k)(1)(A) of this section, or (B) disapproves a State implementation plan submission in whole or in part, unless the State corrects the deficiency, and the Administrator approves the plan or plan revi

sion, before the Administrator promulgates such Federal implementation plan. (2)(A) Repealed. Pub. L. 101–549, title I, §101(d)(3)(A), Nov. 15, 1990, 104 Stat. 2409. (B) No parking surcharge regulation may be required by the Administrator under paragraph (1) of this subsection as a part of an applicable implementation plan. All parking surcharge reg

ulations previously required by the Adminis

trator shall be void upon June 22, 1974. This sub

paragraph shall not prevent the AdministratorPage 6234 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410

from approving parking surcharges if they are adopted and submitted by a State as part of an applicable implementation plan. The Adminis

trator may not condition approval of any imple

mentation plan submitted by a State on such plan’s including a parking surcharge regulation. (C) Repealed. Pub. L. 101–549, title I, §101(d)(3)(B), Nov. 15, 1990, 104 Stat. 2409. (D) For purposes of this paragraph— (i) The term ‘‘parking surcharge regulation’’ means a regulation imposing or requiring the imposition of any tax, surcharge, fee, or other charge on parking spaces, or any other area used for the temporary storage of motor vehi

cles. (ii) The term ‘‘management of parking sup

ply’’ shall include any requirement providing that any new facility containing a given num

ber of parking spaces shall receive a permit or other prior approval, issuance of which is to be conditioned on air quality considerations. (iii) The term ‘‘preferential bus/carpool lane’’ shall include any requirement for the setting aside of one or more lanes of a street or highway on a permanent or temporary basis for the exclusive use of buses or carpools, or both. (E) No standard, plan, or requirement, relating to management of parking supply or pref

erential bus/carpool lanes shall be promulgated after June 22, 1974, by the Administrator pursu

ant to this section, unless such promulgation has been subjected to at least one public hearing which has been held in the area affected and for which reasonable notice has been given in such area. If substantial changes are made following public hearings, one or more additional hearings shall be held in such area after such notice. (3) Upon application of the chief executive of

ficer of any general purpose unit of local govern

ment, if the Administrator determines that such unit has adequate authority under State or local law, the Administrator may delegate to such unit the authority to implement and enforce within the jurisdiction of such unit any part of a plan promulgated under this subsection. Noth

ing in this paragraph shall prevent the Adminis

trator from implementing or enforcing any ap

plicable provision of a plan promulgated under this subsection. (4) Repealed. Pub. L. 101–549, title I, §101(d)(3)(C), Nov. 15, 1990, 104 Stat. 2409. (5)(A) Any measure in an applicable implemen

tation plan which requires a toll or other charge for the use of a bridge located entirely within one city shall be eliminated from such plan by the Administrator upon application by the Gov

ernor of the State, which application shall in

clude a certification by the Governor that he will revise such plan in accordance with sub

paragraph (B). (B) In the case of any applicable implementa

tion plan with respect to which a measure has been eliminated under subparagraph (A), such plan shall, not later than one year after August 7, 1977, be revised to include comprehensive measures to: (i) establish, expand, or improve public transportation measures to meet basic trans

portation needs, as expeditiously as is prac

ticable; and (ii) implement transportation control meas

ures necessary to attain and maintain na

tional ambient air quality standards, and such revised plan shall, for the purpose of implementing such comprehensive public trans

portation measures, include requirements to use (insofar as is necessary) Federal grants, State or local funds, or any combination of such grants and funds as may be consistent with the terms of the legislation providing such grants and funds. Such measures shall, as a substitute for the tolls or charges eliminated under subpara

graph (A), provide for emissions reductions equivalent to the reductions which may reason

ably be expected to be achieved through the use of the tolls or charges eliminated. (C) Any revision of an implementation plan for purposes of meeting the requirements of sub

paragraph (B) shall be submitted in coordination with any plan revision required under part D of this subchapter. (d), (e) Repealed. Pub. L. 101–549, title I, § 101(d)(4), (5), Nov. 15, 1990, 104 Stat. 2409
(f) National or regional energy emergencies; de

termination by President (1) Upon application by the owner or operator of a fuel burning stationary source, and after no

tice and opportunity for public hearing, the Governor of the State in which such source is lo

cated may petition the President to determine that a national or regional energy emergency exists of such severity that— (A) a temporary suspension of any part of the applicable implementation plan or of any requirement under section 7651j of this title (concerning excess emissions penalties or off

sets) may be necessary, and (B) other means of responding to the energy emergency may be inadequate. Such determination shall not be delegable by the President to any other person. If the Presi

dent determines that a national or regional en

ergy emergency of such severity exists, a tem

porary emergency suspension of any part of an applicable implementation plan or of any re

quirement under section 7651j of this title (con

cerning excess emissions penalties or offsets) adopted by the State may be issued by the Gov

ernor of any State covered by the President’s determination under the condition specified in paragraph (2) and may take effect immediately. (2) A temporary emergency suspension under this subsection shall be issued to a source only if the Governor of such State finds that— (A) there exists in the vicinity of such source a temporary energy emergency involv

ing high levels of unemployment or loss of necessary energy supplies for residential dwellings; and (B) such unemployment or loss can be to

tally or partially alleviated by such emer

gency suspension. Not more than one such suspension may be is

sued for any source on the basis of the same set of circumstances or on the basis of the same
emergency. (3) A temporary emergency suspension issued by a Governor under this subsection shall re

-Page 6235 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410

2 See References in Text note below. main in effect for a maximum of four months or such lesser period as may be specified in a dis

approval order of the Administrator, if any. The Administrator may disapprove such suspension if he determines that it does not meet the re

quirements of paragraph (2). (4) This subsection shall not apply in the case of a plan provision or requirement promulgated by the Administrator under subsection (c) of this section, but in any such case the President may grant a temporary emergency suspension for a four month period of any such provision or requirement if he makes the determinations and findings specified in paragraphs (1) and (2). (5) The Governor may include in any tem

porary emergency suspension issued under this subsection a provision delaying for a period identical to the period of such suspension any compliance schedule (or increment of progress) to which such source is subject under section 1857c–10 2 of this title, as in effect before August 7, 1977, or section 7413(d) 2 of this title, upon a finding that such source is unable to comply with such schedule (or increment) solely because of the conditions on the basis of which a suspen

sion was issued under this subsection. (g) Governor’s authority to issue temporary emergency suspensions (1) In the case of any State which has adopted and submitted to the Administrator a proposed plan revision which the State determines— (A) meets the requirements of this section, and (B) is necessary (i) to prevent the closing for one year or more of any source of air pollu

tion, and (ii) to prevent substantial increases in unemployment which would result from such closing, and which the Administrator has not approved or disapproved under this section within 12 months of submission of the proposed plan revision, the Governor may issue a temporary emergency sus

pension of the part of the applicable implemen

tation plan for such State which is proposed to be revised with respect to such source. The de

termination under subparagraph (B) may not be made with respect to a source which would close without regard to whether or not the proposed plan revision is approved. (2) A temporary emergency suspension issued by a Governor under this subsection shall re

main in effect for a maximum of four months or such lesser period as may be specified in a dis

approval order of the Administrator. The Ad

ministrator may disapprove such suspension if he determines that it does not meet the require

ments of this subsection. (3) The Governor may include in any tem

porary emergency suspension issued under this subsection a provision delaying for a period identical to the period of such suspension any compliance schedule (or increment of progress) to which such source is subject under section 1857c–10 2 of this title as in effect before August 7, 1977, or under section 7413(d) 2 of this title upon a finding that such source is unable to comply with such schedule (or increment) solely because of the conditions on the basis of which a suspension was issued under this subsection. (h) Publication of comprehensive document for each State setting forth requirements of ap

plicable implementation plan (1) Not later than 5 years after November 15, 1990, and every 3 years thereafter, the Adminis

trator shall assemble and publish a comprehen

sive document for each State setting forth all requirements of the applicable implementation plan for such State and shall publish notice in the Federal Register of the availability of such documents. (2) The Administrator may promulgate such regulations as may be reasonably necessary to carry out the purpose of this subsection. (i) Modification of requirements prohibited Except for a primary nonferrous smelter order under section 7419 of this title, a suspension under subsection (f) or (g) of this section (relat

ing to emergency suspensions), an exemption under section 7418 of this title (relating to cer

tain Federal facilities), an order under section 7413(d) 2 of this title (relating to compliance or

ders), a plan promulgation under subsection (c) of this section, or a plan revision under sub

section (a)(3) of this section; no order, suspen

sion, plan revision, or other action modifying any requirement of an applicable implementa

tion plan may be taken with respect to any sta

tionary source by the State or by the Adminis

trator. (j) Technological systems of continuous emission reduction on new or modified stationary sources; compliance with performance stand

ards As a condition for issuance of any permit re

quired under this subchapter, the owner or oper

ator of each new or modified stationary source which is required to obtain such a permit must show to the satisfaction of the permitting au

thority that the technological system of contin

uous emission reduction which is to be used at such source will enable it to comply with the standards of performance which are to apply to such source and that the construction or modi

fication and operation of such source will be in compliance with all other requirements of this chapter. (k) Environmental Protection Agency action on plan submissions (1) Completeness of plan submissions (A) Completeness criteria Within 9 months after November 15, 1990, the Administrator shall promulgate mini

mum criteria that any plan submission must meet before the Administrator is required to act on such submission under this sub

section. The criteria shall be limited to the information necessary to enable the Admin

istrator to determine whether the plan sub

mission complies with the provisions of this chapter. (B) Completeness finding Within 60 days of the Administrator’s re

ceipt of a plan or plan revision, but no later than 6 months after the date, if any, by which a State is required to submit the plan or revision, the Administrator shall deter

-Page 6236 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410

mine whether the minimum criteria estab

lished pursuant to subparagraph (A) have been met. Any plan or plan revision that a State submits to the Administrator, and that has not been determined by the Admin

istrator (by the date 6 months after receipt of the submission) to have failed to meet the minimum criteria established pursuant to subparagraph (A), shall on that date be deemed by operation of law to meet such minimum criteria. (C) Effect of finding of incompleteness
Where the Administrator determines that a plan submission (or part thereof) does not meet the minimum criteria established pur

suant to subparagraph (A), the State shall be treated as not having made the submission (or, in the Administrator’s discretion, part thereof). (2) Deadline for action Within 12 months of a determination by the Administrator (or a determination deemed by operation of law) under paragraph (1) that a State has submitted a plan or plan revision (or, in the Administrator’s discretion, part thereof) that meets the minimum criteria es

tablished pursuant to paragraph (1), if applica

ble (or, if those criteria are not applicable, within 12 months of submission of the plan or revision), the Administrator shall act on the submission in accordance with paragraph (3). (3) Full and partial approval and disapproval In the case of any submittal on which the Administrator is required to act under para

graph (2), the Administrator shall approve such submittal as a whole if it meets all of the applicable requirements of this chapter. If a portion of the plan revision meets all the ap

plicable requirements of this chapter, the Ad

ministrator may approve the plan revision in part and disapprove the plan revision in part. The plan revision shall not be treated as meet

ing the requirements of this chapter until the Administrator approves the entire plan revi

sion as complying with the applicable require

ments of this chapter. (4) Conditional approval The Administrator may approve a plan revi

sion based on a commitment of the State to adopt specific enforceable measures by a date certain, but not later than 1 year after the date of approval of the plan revision. Any such conditional approval shall be treated as a dis

approval if the State fails to comply with such commitment. (5) Calls for plan revisions
Whenever the Administrator finds that the applicable implementation plan for any area is substantially inadequate to attain or main

tain the relevant national ambient air quality standard, to mitigate adequately the inter

state pollutant transport described in section 7506a of this title or section 7511c of this title, or to otherwise comply with any requirement of this chapter, the Administrator shall re

quire the State to revise the plan as necessary to correct such inadequacies. The Adminis

trator shall notify the State of the inadequa

cies, and may establish reasonable deadlines (not to exceed 18 months after the date of such notice) for the submission of such plan revi

sions. Such findings and notice shall be public. Any finding under this paragraph shall, to the extent the Administrator deems appropriate, subject the State to the requirements of this chapter to which the State was subject when it developed and submitted the plan for which such finding was made, except that the Ad

ministrator may adjust any dates applicable under such requirements as appropriate (ex

cept that the Administrator may not adjust any attainment date prescribed under part D of this subchapter, unless such date has elapsed). (6) Corrections
Whenever the Administrator determines that the Administrator’s action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designa

tion, redesignation, classification, or reclassi

fication was in error, the Administrator may in the same manner as the approval, dis

approval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determina

tion and the basis thereof shall be provided to the State and public. ( l ) Plan revisions Each revision to an implementation plan sub

mitted by a State under this chapter shall be adopted by such State after reasonable notice and public hearing. The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement con

cerning attainment and reasonable further progress (as defined in section 7501 of this title), or any other applicable requirement of this chapter. (m) Sanctions The Administrator may apply any of the sanc

tions listed in section 7509(b) of this title at any time (or at any time after) the Administrator makes a finding, disapproval, or determination under paragraphs (1) through (4), respectively, of section 7509(a) of this title in relation to any plan or plan item (as that term is defined by the Administrator) required under this chapter, with respect to any portion of the State the Ad

ministrator determines reasonable and appro

priate, for the purpose of ensuring that the re

quirements of this chapter relating to such plan or plan item are met. The Administrator shall, by rule, establish criteria for exercising his au

thority under the previous sentence with respect to any deficiency referred to in section 7509(a) of this title to ensure that, during the 24-month pe

riod following the finding, disapproval, or deter

mination referred to in section 7509(a) of this title, such sanctions are not applied on a state

wide basis where one or more political subdivi

sions covered by the applicable implementation plan are principally responsible for such defi

ciency. (n) Savings clauses (1) Existing plan provisions Any provision of any applicable implementa

tion plan that was approved or promulgated byPage 6237 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410

3 So in original. Probably should be followed by a comma. the Administrator pursuant to this section as in effect before November 15, 1990, shall re

main in effect as part of such applicable im

plementation plan, except to the extent that a revision to such provision is approved or pro

mulgated by the Administrator pursuant to this chapter. (2) Attainment dates For any area not designated nonattainment, any plan or plan revision submitted or re

quired to be submitted by a State— (A) in response to the promulgation or re

vision of a national primary ambient air quality standard in effect on November 15, 1990, or (B) in response to a finding of substantial inadequacy under subsection (a)(2) of this section (as in effect immediately before No

vember 15, 1990), shall provide for attainment of the national primary ambient air quality standards within 3 years of November 15, 1990, or within 5 years of issuance of such finding of substantial inad

equacy, whichever is later. (3) Retention of construction moratorium in certain areas In the case of an area to which, immediately before November 15, 1990, the prohibition on construction or modification of major station

ary sources prescribed in subsection (a)(2)(I) of this section (as in effect immediately before November 15, 1990) applied by virtue of a find

ing of the Administrator that the State con

taining such area had not submitted an imple

mentation plan meeting the requirements of section 7502(b)(6) of this title (relating to es

tablishment of a permit program) (as in effect immediately before November 15, 1990) or 7502(a)(1) of this title (to the extent such re

quirements relate to provision for attainment of the primary national ambient air quality standard for sulfur oxides by December 31, 1982) as in effect immediately before November 15, 1990, no major stationary source of the rel

evant air pollutant or pollutants shall be con

structed or modified in such area until the Ad

ministrator finds that the plan for such area meets the applicable requirements of section 7502(c)(5) of this title (relating to permit pro

grams) or subpart 5 of part D of this sub

chapter (relating to attainment of the primary national ambient air quality standard for sul

fur dioxide), respectively. ( o ) Indian tribes If an Indian tribe submits an implementation plan to the Administrator pursuant to section 7601(d) of this title, the plan shall be reviewed in accordance with the provisions for review set forth in this section for State plans, except as otherwise provided by regulation promulgated pursuant to section 7601(d)(2) of this title. When such plan becomes effective in accordance with the regulations promulgated under section 7601(d) of this title, the plan shall become appli

cable to all areas (except as expressly provided otherwise in the plan) located within the exte

rior boundaries of the reservation, notwith

standing the issuance of any patent and includ

ing rights-of-way running through the reserva

tion. (p) Reports Any State shall submit, according to such schedule as the Administrator may prescribe, such reports as the Administrator may require relating to emission reductions, vehicle miles traveled, congestion levels, and any other infor

mation the Administrator may deem necessary to assess the development 3 effectiveness, need for revision, or implementation of any plan or plan revision required under this chapter. (July 14, 1955, ch. 360, title I, §110, as added Pub. L. 91–604, §4(a), Dec. 31, 1970, 84 Stat. 1680; amended Pub. L. 93–319, §4, June 22, 1974, 88 Stat. 256; Pub. L. 95–95, title I, §§107, 108, Aug. 7, 1977, 91 Stat. 691, 693; Pub. L. 95–190, §14(a)(1)–(6), Nov. 16, 1977, 91 Stat. 1399; Pub. L. 97–23, §3, July 17, 1981, 95 Stat. 142; Pub. L. 101–549, title I, §§101(b)–(d), 102(h), 107(c), 108(d), title IV, §412, Nov. 15, 1990, 104 Stat. 2404–2408, 2422, 2464, 2466, 2634.)

R EFERENCES IN T EXT The Energy Supply and Environmental Coordination Act of 1974, referred to in subsec. (a)(3)(B), is Pub. L. 93–319, June 22, 1974, 88 Stat. 246, as amended, which is classified principally to chapter 16C (§791 et seq.) of Title 15, Commerce and Trade. For complete classifica

tion of this Act to the Code, see Short Title note set out under section 791 of Title 15 and Tables. Section 7413 of this title, referred to in subsecs. (a)(3)(C), (6), (f)(5), (g)(3), and (i), was amended gener

ally by Pub. L. 101–549, title VII, §701, Nov. 15, 1990, 104 Stat. 2672, and, as so amended, subsecs. (d) and (e) of section 7413 no longer relates to final compliance or

ders and steel industry compliance extension, respec

tively. Section 1857c–10 of this title, as in effect before Au

gust 7, 1977, referred to in subsecs. (f)(5) and (g)(3), was in the original ‘‘section 119, as in effect before the date of the enactment of this paragraph’’, meaning section 119 of act July 14, 1955, ch. 360, title I, as added June 22, 1974, Pub. L. 93–319, §3, 88 Stat. 248, (which was classi

fied to section 1857c–10 of this title) as in effect prior to the enactment of subsecs. (f)(5) and (g)(3) of this section by Pub. L. 95–95, §107, Aug. 7, 1977, 91 Stat. 691, effective Aug. 7, 1977. Section 112(b)(1) of Pub. L. 95–95 repealed section 119 of act July 14, 1955, ch. 360, title I, as added by Pub. L. 93–319, and provided that all references to such section 119 in any subsequent enactment which su

persedes Pub. L. 93–319 shall be construed to refer to section 113(d) of the Clean Air Act and to paragraph (5) thereof in particular which is classified to section 7413(d)(5) of this title. Section 7413 of this title was sub

sequently amended generally by Pub. L. 101–549, title VII, §701, Nov. 15, 1990, 104 Stat. 2672, see note above. Section 117(b) of Pub. L. 95–95 added a new section 119 of act July 14, 1955, which is classified to section 7419 of this title.

C ODIFICATION Section was formerly classified to section 1857c–5 of this title.

P RIOR P ROVISIONS A prior section 110 of act July 14, 1955, was renum

bered section 117 by Pub. L. 91–604 and is classified to section 7417 of this title.

A MENDMENTS 1990—Subsec. (a)(1). Pub. L. 101–549, §101(d)(8), sub

stituted ‘‘3 years (or such shorter period as the Admin

istrator may prescribe)’’ for ‘‘nine months’’ in two places.Page 6238 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410

Subsec. (a)(2). Pub. L. 101–549, §101(b), amended par. (2) generally, substituting present provisions for provi

sions setting the time within which the Administrator was to approve or disapprove a plan or portion thereof and listing the conditions under which the plan or por

tion thereof was to be approved after reasonable notice and hearing. Subsec. (a)(3)(A). Pub. L. 101–549, §101(d)(1), struck out subpar. (A) which directed Administrator to ap

prove any revision of an implementation plan if it met certain requirements and had been adopted by the State after reasonable notice and public hearings. Subsec. (a)(3)(D). Pub. L. 101–549, §101(d)(1), struck out subpar. (D) which directed that certain implemen

tation plans be revised to include comprehensive meas

ures and requirements. Subsec. (a)(4). Pub. L. 101–549, §101(d)(2), struck out par. (4) which set forth requirements for review proce

dure. Subsec. (c)(1). Pub. L. 101–549, §102(h), amended par. (1) generally, substituting present provisions for provi

sions relating to preparation and publication of regula

tions setting forth an implementation plan, after op

portunity for a hearing, upon failure of a State to make required submission or revision. Subsec. (c)(2)(A). Pub. L. 101–549, §101(d)(3)(A), struck out subpar. (A) which required a study and report on necessity of parking surcharge, management of parking supply, and preferential bus/carpool lane regulations to achieve and maintain national primary ambient air quality standards. Subsec. (c)(2)(C). Pub. L. 101–549, §101(d)(3)(B), struck out subpar. (C) which authorized suspension of certain regulations and requirements relating to management of parking supply. Subsec. (c)(4). Pub. L. 101–549, §101(d)(3)(C), struck out par. (4) which permitted Governors to temporarily sus

pend measures in implementation plans relating to ret

rofits, gas rationing, and reduction of on-street park

ing. Subsec. (c)(5)(B). Pub. L. 101–549, §101(d)(3)(D), struck out ‘‘(including the written evidence required by part D),’’ after ‘‘include comprehensive measures’’. Subsec. (d). Pub. L. 101–549, §101(d)(4), struck out sub

sec. (d) which defined an applicable implementation plan for purposes of this chapter. Subsec. (e). Pub. L. 101–549, §101(d)(5), struck out sub

sec. (e) which permitted an extension of time for at

tainment of a national primary ambient air quality standard. Subsec. (f)(1). Pub. L. 101–549, §412, inserted ‘‘or of any requirement under section 7651j of this title (concern

ing excess emissions penalties or offsets)’’ in subpar. (A) and in last sentence. Subsec. (g)(1). Pub. L. 101–549, §101(d)(6), substituted ‘‘12 months of submission of the proposed plan revi

sion’’ for ‘‘the required four month period’’ in closing provisions. Subsec. (h)(1). Pub. L. 101–549, §101(d)(7), substituted ‘‘5 years after November 15, 1990, and every three years thereafter’’ for ‘‘one year after August 7, 1977, and an

nually thereafter’’ and struck out at end ‘‘Each such document shall be revised as frequently as practicable but not less often than annually.’’ Subsecs. (k) to (n). Pub. L. 101–549, §101(c), added sub

secs. (k) to (n). Subsec. ( o ). Pub. L. 101–549, §107(c), added subsec. ( o ). Subsec. (p). Pub. L. 101–549, §108(d), added subsec. (p). 1981—Subsec. (a)(3)(C). Pub. L. 97–23 inserted ref

erence to extensions of compliance in decrees entered under section 7413(e) of this title (relating to iron- and steel-producing operations). 1977—Subsec. (a)(2)(A). Pub. L. 95–95, §108(a)(1), sub

stituted ‘‘(A) except as may be provided in subpara

graph (I)(i) in the case of a plan’’ for ‘‘(A)(i) in the case of a plan’’. Subsec. (a)(2)(B). Pub. L. 95–95, §108(a)(2), substituted ‘‘transportation controls, air quality maintenance plans, and preconstruction review of direct sources of air pollution as provided in subparagraph (D)’’ for ‘‘land use and transportation controls’’. Subsec. (a)(2)(D). Pub. L. 95–95, §108(a)(3), substituted ‘‘it includes a program to provide for the enforcement of emission limitations and regulation of the modifica

tion, construction, and operation of any stationary source, including a permit program as required in parts C and D and a permit or equivalent program for any major emitting facility, within such region as nec

essary to assure (i) that national ambient air quality standards are achieved and maintained, and (ii) a pro

cedure’’ for ‘‘it includes a procedure’’. Subsec. (a)(2)(E). Pub. L. 95–95, §108(a)(4), substituted ‘‘it contains adequate provisions (i) prohibiting any stationary source within the State from emitting any air pollutant in amounts which will (I) prevent attain

ment or maintenance by any other State of any such national primary or secondary ambient air quality standard, or (II) interfere with measures required to be included in the applicable implementation plan for any other State under part C to prevent significant deterio

ration of air quality or to protect visibility, and (ii) in

suring compliance with the requirements of section 7426 of this title, relating to interstate pollution abate

ment’’ for ‘‘it contains adequate provisions for inter

governmental cooperation, including measures nec

essary to insure that emissions of air pollutants from sources located in any air quality control region will not interfere with the attainment or maintenance of such primary or secondary standard in any portion of such region outside of such State or in any other air quality control region’’. Subsec. (a)(2)(F). Pub. L. 95–95, §108(a)(5), added cl. (vi). Subsec. (a)(2)(H). Pub. L. 95–190, §14(a)(1), substituted ‘‘1977;’’ for ‘‘1977’’. Pub. L. 95–95, §108(a)(6), inserted ‘‘except as provided in paragraph (3)(C),’’ after ‘‘or (ii)’’ and ‘‘or to other

wise comply with any additional requirements estab

lished under the Clean Air Act Amendments of 1977’’ after ‘‘to achieve the national ambient air quality pri

mary or secondary standard which it implements’’. Subsec. (a)(2)(I). Pub. L. 95–95, §108(b), added subpar. (I). Subsec. (a)(2)(J). Pub. L. 95–190, §14(a)(2), substituted ‘‘; and’’ for ‘‘, and’’. Pub. L. 95–95, §108(b), added subpar. (J). Subsec. (a)(2)(K). Pub. L. 95–95, §108(b) added subpar. (K). Subsec. (a)(3)(C). Pub. L. 95–95, §108(c), added subpar. (C). Subsec. (a)(3)(D). Pub. L. 95–190, §14(a)(4), added sub

par. (D). Subsec. (a)(5). Pub. L. 95–95, §108(e), added par. (5). Subsec. (a)(5)(D). Pub. L. 95–190, §14(a)(3), struck out ‘‘preconstruction or premodification’’ before ‘‘review’’. Subsec. (a)(6). Pub. L. 95–95, §108(e), added par. (6). Subsec. (c)(1). Pub. L. 95–95, §108(d)(1), (2), substituted ‘‘plan which meets the requirements of this section’’ for ‘‘plan for any national ambient air quality primary or secondary standard within the time prescribed’’ in subpar. (A) and, in provisions following subpar. (C), di

rected that any portion of a plan relating to any meas

ure described in first sentence of 7421 of this title (re

lating to consultation) or the consultation process re

quired under such section 7421 of this title not be re

quired to be promulgated before the date eight months after such date required for submission. Subsec. (c)(3) to (5). Pub. L. 95–95, §108(d)(3), added pars. (3) to (5). Subsec. (d). Pub. L. 95–95, §108(f), substituted ‘‘and which implements the requirements of this section’’ for ‘‘and which implements a national primary or second

ary ambient air quality standard in a State’’. Subsec. (f). Pub. L. 95–95, §107(a), substituted provi

sions relating to the handling of national or regional energy emergencies for provisions relating to the post

ponement of compliance by stationary sources or class

es of moving sources with any requirement of applica

ble implementation plans. Subsec. (g). Pub. L. 95–95, §108(g), added subsec. (g) re

lating to publication of comprehensive document.Page 6239 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7411

Pub. L. 95–95, §107(b), added subsec. (g) relating to Governor’s authority to issue temporary emergency suspensions. Subsec. (h). Pub. L. 95–190, §14(a)(5), redesignated sub

sec. (g), added by Pub. L. 95–95, §108(g), as (h). Former subsec. (h) redesignated (i). Subsec. (i). Pub. L. 95–190, §14(a)(5), redesignated sub

sec. (h), added by Pub. L. 95–95, §108(g), as (i). Former subsec. (i) redesignated (j) and amended. Subsec. (j). Pub. L. 95–190 §14(a)(5), (6), redesignated subsec. (i), added by Pub. L. 95–95, §108(g), as (j) and in subsec. (j) as so redesignated, substituted ‘‘will enable such source’’ for ‘‘at such source will enable it’’. 1974—Subsec. (a)(3). Pub. L. 93–319, §4(a), designated existing provisions as subpar. (A) and added subpar. (B). Subsec. (c). Pub. L. 93–319, §4(b), designated existing provisions as par. (1) and existing pars. (1), (2), and (3) as subpars. (A), (B), and (C), respectively, of such redes

ignated par. (1), and added par. (2).

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

P ENDING A CTIONS AND P ROCEEDINGS Suits, actions, and other proceedings lawfully com

menced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF I MPLEMENTATION P LANS A PPROVED AND I N E FFECT P RIOR TO A UG . 7, 1977
Nothing in the Clean Air Act Amendments of 1977 [Pub. L. 95–95] to affect any requirement of an approved implementation plan under this section or any other provision in effect under this chapter before Aug. 7, 1977, until modified or rescinded in accordance with this chapter as amended by the Clean Air Act Amend

ments of 1977, see section 406(c) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under sec

tion 7401 of this title.

S AVINGS P ROVISION Section 16 of Pub. L. 91–604 provided that: ‘‘(a)(1) Any implementation plan adopted by any State and submitted to the Secretary of Health, Edu

cation, and Welfare, or to the Administrator pursuant to the Clean Air Act [this chapter] prior to enactment of this Act [Dec. 31, 1970] may be approved under sec

tion 110 of the Clean Air Act [this section] (as amended by this Act) [Pub. L. 91–604] and shall remain in effect, unless the Administrator determines that such imple

mentation plan, or any portion thereof, is not consist

ent with applicable requirements of the Clean Air Act [this chapter] (as amended by this Act) and will not provide for the attainment of national primary ambi

ent air quality standards in the time required by such Act. If the Administrator so determines, he shall, with

in 90 days after promulgation of any national ambient air quality standards pursuant to section 109(a) of the Clean Air Act [section 7409(a) of this title], notify the State and specify in what respects changes are needed to meet the additional requirements of such Act, in

cluding requirements to implement national secondary ambient air quality standards. If such changes are not adopted by the State after public hearings and within six months after such notification, the Administrator shall promulgate such changes pursuant to section 110(c) of such Act [subsec. (c) of this section]. ‘‘(2) The amendments made by section 4(b) [amending sections 7403 and 7415 of this title] shall not be con

strued as repealing or modifying the powers of the Ad

ministrator with respect to any conference convened under section 108(d) of the Clean Air Act [section 7415 of this title] before the date of enactment of this Act [Dec. 31, 1970]. ‘‘(b) Regulations or standards issued under this title II of the Clean Air Act [subchapter II of this chapter] prior to the enactment of this Act [Dec. 31, 1970] shall continue in effect until revised by the Administrator consistent with the purposes of such Act [this chap

ter].’’

F EDERAL E NERGY A DMINISTRATOR ‘‘Federal Energy Administrator’’, for purposes of this chapter, to mean Administrator of Federal Energy Ad

ministration established by Pub. L. 93–275, May 7, 1974, 88 Stat. 97, which is classified to section 761 et seq. of Title 15, Commerce and Trade, but with the term to mean any officer of the United States designated as such by the President until Federal Energy Adminis

trator takes office and after Federal Energy Adminis

tration ceases to exist, see section 798 of Title 15, Com

merce and Trade. Federal Energy Administration terminated and func

tions vested by law in Administrator thereof trans

ferred to Secretary of Energy (unless otherwise specifi

cally provided) by sections 7151(a) and 7293 of this title. § 7411. Standards of performance for new station

ary sources (a) Definitions For purposes of this section: (1) The term ‘‘standard of performance’’ means a standard for emissions of air pollut

ants which reflects the degree of emission lim

itation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy require

ments) the Administrator determines has been adequately demonstrated. (2) The term ‘‘new source’’ means any sta

tionary source, the construction or modifica

tion of which is commenced after the publica

tion of regulations (or, if earlier, proposed reg

ulations) prescribing a standard of perform

ance under this section which will be applica

ble to such source. (3) The term ‘‘stationary source’’ means any building, structure, facility, or installation which emits or may emit any air pollutant. Nothing in subchapter II of this chapter relat

ing to nonroad engines shall be construed to apply to stationary internal combustion en

gines. (4) The term ‘‘modification’’ means any physical change in, or change in the method ofPage 6240 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7411

1 See References in Text note below. operation of, a stationary source which in

creases the amount of any air pollutant emit

ted by such source or which results in the emission of any air pollutant not previously emitted. (5) The term ‘‘owner or operator’’ means any person who owns, leases, operates, controls, or supervises a stationary source. (6) The term ‘‘existing source’’ means any stationary source other than a new source. (7) The term ‘‘technological system of con

tinuous emission reduction’’ means— (A) a technological process for production or operation by any source which is inher

ently low-polluting or nonpolluting, or (B) a technological system for continuous reduction of the pollution generated by a source before such pollution is emitted into the ambient air, including precombustion cleaning or treatment of fuels. (8) A conversion to coal (A) by reason of an order under section 2(a) of the Energy Supply and Environmental Coordination Act of 1974 [15 U.S.C. 792(a)] or any amendment thereto, or any subsequent enactment which super

sedes such Act [15 U.S.C. 791 et seq.], or (B) which qualifies under section 7413(d)(5)(A)(ii) 1 of this title, shall not be deemed to be a modi

fication for purposes of paragraphs (2) and (4) of this subsection. (b) List of categories of stationary sources; standards of performance; information on pollution control techniques; sources owned or operated by United States; particular sys

tems; revised standards (1)(A) The Administrator shall, within 90 days after December 31, 1970, publish (and from time to time thereafter shall revise) a list of cat

egories of stationary sources. He shall include a category of sources in such list if in his judg

ment it causes, or contributes significantly to, air pollution which may reasonably be antici

pated to endanger public health or welfare. (B) Within one year after the inclusion of a category of stationary sources in a list under subparagraph (A), the Administrator shall pub

lish proposed regulations, establishing Federal standards of performance for new sources within such category. The Administrator shall afford interested persons an opportunity for written comment on such proposed regulations. After considering such comments, he shall promul

gate, within one year after such publication, such standards with such modifications as he deems appropriate. The Administrator shall, at least every 8 years, review and, if appropriate, revise such standards following the procedure required by this subsection for promulgation of such standards. Notwithstanding the require

ments of the previous sentence, the Adminis

trator need not review any such standard if the Administrator determines that such review is not appropriate in light of readily available in

formation on the efficacy of such standard. Standards of performance or revisions thereof shall become effective upon promulgation. When implementation and enforcement of any require

ment of this chapter indicate that emission lim

itations and percent reductions beyond those re

quired by the standards promulgated under this section are achieved in practice, the Adminis

trator shall, when revising standards promul

gated under this section, consider the emission limitations and percent reductions achieved in practice. (2) The Administrator may distinguish among classes, types, and sizes within categories of new sources for the purpose of establishing such standards. (3) The Administrator shall, from time to time, issue information on pollution control techniques for categories of new sources and air pollutants subject to the provisions of this sec

tion. (4) The provisions of this section shall apply to any new source owned or operated by the United States. (5) Except as otherwise authorized under sub

section (h) of this section, nothing in this sec

tion shall be construed to require, or to author

ize the Administrator to require, any new or modified source to install and operate any par

ticular technological system of continuous emission reduction to comply with any new source standard of performance. (6) The revised standards of performance re

quired by enactment of subsection (a)(1)(A)(i) and (ii) 1 of this section shall be promulgated not later than one year after August 7, 1977. Any new or modified fossil fuel fired stationary source which commences construction prior to the date of publication of the proposed revised standards shall not be required to comply with such revised standards. (c) State implementation and enforcement of standards of performance (1) Each State may develop and submit to the Administrator a procedure for implementing and enforcing standards of performance for new sources located in such State. If the Adminis

trator finds the State procedure is adequate, he shall delegate to such State any authority he has under this chapter to implement and enforce such standards. (2) Nothing in this subsection shall prohibit the Administrator from enforcing any applicable standard of performance under this section. (d) Standards of performance for existing sources; remaining useful life of source (1) The Administrator shall prescribe regula

tions which shall establish a procedure similar to that provided by section 7410 of this title under which each State shall submit to the Ad

ministrator a plan which (A) establishes stand

ards of performance for any existing source for any air pollutant (i) for which air quality cri

teria have not been issued or which is not in

cluded on a list published under section 7408(a) of this title or emitted from a source category which is regulated under section 7412 of this title but (ii) to which a standard of performance under this section would apply if such existing source were a new source, and (B) provides for the implementation and enforcement of such standards of performance. Regulations of the Administrator under this paragraph shall per

mit the State in applying a standard of perform

ance to any particular source under a plan sub

-Page 6241 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7411

mitted under this paragraph to take into consid

eration, among other factors, the remaining use

ful life of the existing source to which such standard applies. (2) The Administrator shall have the same au

thority— (A) to prescribe a plan for a State in cases where the State fails to submit a satisfactory plan as he would have under section 7410(c) of this title in the case of failure to submit an implementation plan, and (B) to enforce the provisions of such plan in cases where the State fails to enforce them as he would have under sections 7413 and 7414 of this title with respect to an implementation plan. In promulgating a standard of performance under a plan prescribed under this paragraph, the Administrator shall take into consideration, among other factors, remaining useful lives of the sources in the category of sources to which such standard applies. (e) Prohibited acts After the effective date of standards of per

formance promulgated under this section, it shall be unlawful for any owner or operator of any new source to operate such source in viola

tion of any standard of performance applicable to such source. (f) New source standards of performance (1) For those categories of major stationary sources that the Administrator listed under sub

section (b)(1)(A) of this section before November 15, 1990, and for which regulations had not been proposed by the Administrator by November 15, 1990, the Administrator shall— (A) propose regulations establishing stand

ards of performance for at least 25 percent of such categories of sources within 2 years after November 15, 1990; (B) propose regulations establishing stand

ards of performance for at least 50 percent of such categories of sources within 4 years after November 15, 1990; and (C) propose regulations for the remaining categories of sources within 6 years after No

vember 15, 1990. (2) In determining priorities for promulgating standards for categories of major stationary sources for the purpose of paragraph (1), the Ad

ministrator shall consider— (A) the quantity of air pollutant emissions which each such category will emit, or will be designed to emit; (B) the extent to which each such pollutant may reasonably be anticipated to endanger public health or welfare; and (C) the mobility and competitive nature of each such category of sources and the con

sequent need for nationally applicable new source standards of performance. (3) Before promulgating any regulations under this subsection or listing any category of major stationary sources as required under this sub

section, the Administrator shall consult with appropriate representatives of the Governors and of State air pollution control agencies. (g) Revision of regulations (1) Upon application by the Governor of a State showing that the Administrator has failed to specify in regulations under subsection (f)(1) of this section any category of major stationary sources required to be specified under such regu

lations, the Administrator shall revise such reg

ulations to specify any such category. (2) Upon application of the Governor of a State, showing that any category of stationary sources which is not included in the list under subsection (b)(1)(A) of this section contributes significantly to air pollution which may reason

ably be anticipated to endanger public health or welfare (notwithstanding that such category is not a category of major stationary sources), the Administrator shall revise such regulations to specify such category of stationary sources. (3) Upon application of the Governor of a State showing that the Administrator has failed to apply properly the criteria required to be con

sidered under subsection (f)(2) of this section, the Administrator shall revise the list under subsection (b)(1)(A) of this section to apply prop

erly such criteria. (4) Upon application of the Governor of a State showing that— (A) a new, innovative, or improved tech

nology or process which achieves greater con

tinuous emission reduction has been ade

quately demonstrated for any category of sta

tionary sources, and (B) as a result of such technology or process, the new source standard of performance in ef

fect under this section for such category no longer reflects the greatest degree of emission limitation achievable through application of the best technological system of continuous emission reduction which (taking into consid

eration the cost of achieving such emission re

duction, and any non-air quality health and environmental impact and energy require

ments) has been adequately demonstrated,

the Administrator shall revise such standard of performance for such category accordingly. (5) Unless later deadlines for action of the Ad

ministrator are otherwise prescribed under this section, the Administrator shall, not later than three months following the date of receipt of any application by a Governor of a State, ei

ther— (A) find that such application does not con

tain the requisite showing and deny such ap

plication, or (B) grant such application and take the ac

tion required under this subsection. (6) Before taking any action required by sub

section (f) of this section or by this subsection, the Administrator shall provide notice and op

portunity for public hearing. (h) Design, equipment, work practice, or oper

ational standard; alternative emission limita

tion (1) For purposes of this section, if in the judg

ment of the Administrator, it is not feasible to prescribe or enforce a standard of performance, he may instead promulgate a design, equipment, work practice, or operational standard, or com

bination thereof, which reflects the best techno

logical system of continuous emission reduction which (taking into consideration the cost of achieving such emission reduction, and any non-Page 6242 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7411

air quality health and environmental impact and energy requirements) the Administrator de

termines has been adequately demonstrated. In the event the Administrator promulgates a de

sign or equipment standard under this sub

section, he shall include as part of such standard such requirements as will assure the proper op

eration and maintenance of any such element of design or equipment. (2) For the purpose of this subsection, the phrase ‘‘not feasible to prescribe or enforce a standard of performance’’ means any situation in which the Administrator determines that (A) a pollutant or pollutants cannot be emitted through a conveyance designed and constructed to emit or capture such pollutant, or that any requirement for, or use of, such a conveyance would be inconsistent with any Federal, State, or local law, or (B) the application of measure

ment methodology to a particular class of sources is not practicable due to technological or economic limitations. (3) If after notice and opportunity for public hearing, any person establishes to the satisfac

tion of the Administrator that an alternative means of emission limitation will achieve a re

duction in emissions of any air pollutant at least equivalent to the reduction in emissions of such air pollutant achieved under the require

ments of paragraph (1), the Administrator shall permit the use of such alternative by the source for purposes of compliance with this section with respect to such pollutant. (4) Any standard promulgated under paragraph (1) shall be promulgated in terms of standard of performance whenever it becomes feasible to promulgate and enforce such standard in such terms. (5) Any design, equipment, work practice, or operational standard, or any combination there

of, described in this subsection shall be treated as a standard of performance for purposes of the provisions of this chapter (other than the provi

sions of subsection (a) of this section and this subsection). (i) Country elevators Any regulations promulgated by the Adminis

trator under this section applicable to grain ele

vators shall not apply to country elevators (as defined by the Administrator) which have a storage capacity of less than two million five hundred thousand bushels. (j) Innovative technological systems of continu

ous emission reduction (1)(A) Any person proposing to own or operate a new source may request the Administrator for one or more waivers from the requirements of this section for such source or any portion thereof with respect to any air pollutant to en

courage the use of an innovative technological system or systems of continuous emission re

duction. The Administrator may, with the con

sent of the Governor of the State in which the source is to be located, grant a waiver under this paragraph, if the Administrator determines after notice and opportunity for public hearing, that— (i) the proposed system or systems have not been adequately demonstrated, (ii) the proposed system or systems will op

erate effectively and there is a substantial likelihood that such system or systems will achieve greater continuous emission reduction than that required to be achieved under the standards of performance which would other

wise apply, or achieve at least an equivalent reduction at lower cost in terms of energy, economic, or nonair quality environmental impact, (iii) the owner or operator of the proposed source has demonstrated to the satisfaction of the Administrator that the proposed system will not cause or contribute to an unreason

able risk to public health, welfare, or safety in its operation, function, or malfunction, and (iv) the granting of such waiver is consistent with the requirements of subparagraph (C). In making any determination under clause (ii), the Administrator shall take into account any previous failure of such system or systems to operate effectively or to meet any requirement of the new source performance standards. In de

termining whether an unreasonable risk exists under clause (iii), the Administrator shall con

sider, among other factors, whether and to what extent the use of the proposed technological sys

tem will cause, increase, reduce, or eliminate emissions of any unregulated pollutants; avail

able methods for reducing or eliminating any risk to public health, welfare, or safety which may be associated with the use of such system; and the availability of other technological sys

tems which may be used to conform to standards under this section without causing or contribut

ing to such unreasonable risk. The Adminis

trator may conduct such tests and may require the owner or operator of the proposed source to conduct such tests and provide such information as is necessary to carry out clause (iii) of this subparagraph. Such requirements shall include a requirement for prompt reporting of the emis

sion of any unregulated pollutant from a system if such pollutant was not emitted, or was emit

ted in significantly lesser amounts without use of such system. (B) A waiver under this paragraph shall be granted on such terms and conditions as the Ad

ministrator determines to be necessary to as

sure— (i) emissions from the source will not pre

vent attainment and maintenance of any na

tional ambient air quality standards, and (ii) proper functioning of the technological system or systems authorized. Any such term or condition shall be treated as a standard of performance for the purposes of subsection (e) of this section and section 7413 of this title. (C) The number of waivers granted under this paragraph with respect to a proposed techno

logical system of continuous emission reduction shall not exceed such number as the Adminis

trator finds necessary to ascertain whether or not such system will achieve the conditions specified in clauses (ii) and (iii) of subparagraph (A). (D) A waiver under this paragraph shall extend to the sooner of— (i) the date determined by the Adminis

trator, after consultation with the owner or operator of the source, taking into consider

-Page 6243 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7411

ation the design, installation, and capital cost of the technological system or systems being used, or (ii) the date on which the Administrator de

termines that such system has failed to— (I) achieve at least an equivalent continu

ous emission reduction to that required to be achieved under the standards of perform

ance which would otherwise apply, or (II) comply with the condition specified in paragraph (1)(A)(iii),
and that such failure cannot be corrected. (E) In carrying out subparagraph (D)(i), the Administrator shall not permit any waiver for a source or portion thereof to extend beyond the date— (i) seven years after the date on which any waiver is granted to such source or portion thereof, or (ii) four years after the date on which such source or portion thereof commences oper

ation,
whichever is earlier. (F) No waiver under this subsection shall apply to any portion of a source other than the portion on which the innovative technological system or systems of continuous emission re

duction is used. (2)(A) If a waiver under paragraph (1) is termi

nated under clause (ii) of paragraph (1)(D), the Administrator shall grant an extension of the requirements of this section for such source for such minimum period as may be necessary to comply with the applicable standard of perform

ance under this section. Such period shall not extend beyond the date three years from the time such waiver is terminated. (B) An extension granted under this paragraph shall set forth emission limits and a compliance schedule containing increments of progress which require compliance with the applicable standards of performance as expeditiously as practicable and include such measures as are necessary and practicable in the interim to min

imize emissions. Such schedule shall be treated as a standard of performance for purposes of subsection (e) of this section and section 7413 of this title. (July 14, 1955, ch. 360, title I, §111, as added Pub. L. 91–604, §4(a), Dec. 31, 1970, 84 Stat. 1683; amended Pub. L. 92–157, title III, §302(f), Nov. 18, 1971, 85 Stat. 464; Pub. L. 95–95, title I, §109(a)–(d)(1), (e), (f), title IV, §401(b), Aug. 7, 1977, 91 Stat. 697–703, 791; Pub. L. 95–190, §14(a)(7)–(9), Nov. 16, 1977, 91 Stat. 1399; Pub. L. 95–623, §13(a), Nov. 9, 1978, 92 Stat. 3457; Pub. L. 101–549, title I, §108(e)–(g), title III, §302(a), (b), title IV, §403(a), Nov. 15, 1990, 104 Stat. 2467, 2574, 2631.)

R EFERENCES IN T EXT Such Act, referred to in subsec. (a)(8), means Pub. L. 93–319, June 22, 1974, 88 Stat. 246, as amended, known as the Energy Supply and Environmental Coordination Act of 1974, which is classified principally to chapter 16C (§791 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 791 of Title 15 and Tables. Section 7413 of this title, referred to in subsec. (a)(8), was amended generally by Pub. L. 101–549, title VII, §701, Nov. 15, 1990, 104 Stat. 2672, and, as so amended, subsec. (d) of section 7413 no longer relates to final compliance orders. Subsection (a)(1) of this section, referred to in subsec. (b)(6), was amended generally by Pub. L. 101–549, title VII, §403(a), Nov. 15, 1990, 104 Stat. 2631, and, as so amended, no longer contains subpars.

C ODIFICATION Section was formerly classified to section 1857c–6 of this title.

P RIOR P ROVISIONS A prior section 111 of act July 14, 1955, was renum

bered section 118 by Pub. L. 91–604 and is classified to section 7418 of this title.

A MENDMENTS 1990—Subsec. (a)(1). Pub. L. 101–549, §403(a), amended par. (1) generally, substituting provisions defining ‘‘standard of performance’’ with respect to any air pol

lutant for provisions defining such term with respect to subsec. (b) fossil fuel fired and other stationary sources and subsec. (d) particular sources. Subsec. (a)(3). Pub. L. 101–549, §108(f), inserted at end ‘‘Nothing in subchapter II of this chapter relating to nonroad engines shall be construed to apply to station

ary internal combustion engines.’’ Subsec. (b)(1)(B). Pub. L. 101–549, §108(e)(1), sub

stituted ‘‘Within one year’’ for ‘‘Within 120 days’’, ‘‘within one year’’ for ‘‘within 90 days’’, and ‘‘every 8 years’’ for ‘‘every four years’’, inserted before last sen

tence ‘‘Notwithstanding the requirements of the pre

vious sentence, the Administrator need not review any such standard if the Administrator determines that such review is not appropriate in light of readily avail

able information on the efficacy of such standard.’’, and inserted at end ‘‘When implementation and en

forcement of any requirement of this chapter indicate that emission limitations and percent reductions be

yond those required by the standards promulgated under this section are achieved in practice, the Admin

istrator shall, when revising standards promulgated under this section, consider the emission limitations and percent reductions achieved in practice.’’ Subsec. (d)(1)(A)(i). Pub. L. 101–549, §302(a), which di

rected the substitution of ‘‘7412(b)’’ for ‘‘7412(b)(1)(A)’’, could not be executed, because of the prior amendment by Pub. L. 101–549, §108(g), see below. Pub. L. 101–549, §108(g), substituted ‘‘or emitted from a source category which is regulated under section 7412 of this title’’ for ‘‘or 7412(b)(1)(A)’’. Subsec. (f)(1). Pub. L. 101–549, §108(e)(2), amended par. (1) generally, substituting present provisions for provi

sions requiring the Administrator to promulgate regu

lations listing the categories of major stationary sources not on the required list by Aug. 7, 1977, and reg

ulations establishing standards of performance for such categories. Subsec. (g)(5) to (8). Pub. L. 101–549, §302(b), redesig

nated par. (7) as (5) and struck out ‘‘or section 7412 of this title’’ after ‘‘this section’’, redesignated par. (8) as (6), and struck out former pars. (5) and (6) which read as follows: ‘‘(5) Upon application by the Governor of a State showing that the Administrator has failed to list any air pollutant which causes, or contributes to, air pollu

tion which may reasonably be anticipated to result in an increase in mortality or an increase in serious irre

versible, or incapacitating reversible, illness as a haz

ardous air pollutant under section 7412 of this title the Administrator shall revise the list of hazardous air pol

lutants under such section to include such pollutant. ‘‘(6) Upon application by the Governor of a State showing that any category of stationary sources of a hazardous air pollutant listed under section 7412 of this title is not subject to emission standards under such section, the Administrator shall propose and promul

gate such emission standards applicable to such cat

egory of sources.’’Page 6244 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

1978—Subsecs. (d)(1)(A)(ii), (g)(4)(B). Pub. L. 95–623, §13(a)(2), substituted ‘‘under this section’’ for ‘‘under subsection (b) of this section’’. Subsec. (h)(5). Pub. L. 95–623, §13(a)(1), added par. (5). Subsec. (j). Pub. L. 95–623, §13(a)(3), substituted in pars. (1)(A) and (2)(A) ‘‘standards under this section’’ and ‘‘under this section’’ for ‘‘standards under sub

section (b) of this section’’ and ‘‘under subsection (b) of this section’’, respectively. 1977—Subsec. (a)(1). Pub. L. 95–95, §109(c)(1)(A), added subpars. (A), (B), and (C), substituted ‘‘For the purpose of subparagraphs (A)(i) and (ii) and (B), a standard of performance shall reflect’’ for ‘‘a standard for emis

sions of air pollutants which reflects’’, ‘‘and the per

centage reduction achievable’’ for ‘‘achievable’’, and ‘‘technological system of continuous emission reduc

tion which (taking into consideration the cost of achieving such emission reduction, and any nonair quality health and environment impact and energy re

quirements)’’ for ‘‘system of emission reduction which (taking into account the cost of achieving such reduc

tion)’’ in existing provisions, and inserted provision that, for the purpose of subparagraph (1)(A)(ii), any cleaning of the fuel or reduction in the pollution char

acteristics of the fuel after extraction and prior to combustion may be credited, as determined under regu

lations promulgated by the Administrator, to a source which burns such fuel. Subsec. (a)(7). Pub. L. 95–95, §109(c)(1)(B), added par. (7) defining ‘‘technological system of continuous emis

sion reduction’’. Pub. L. 95–95, §109(f), added par. (7) directing that under certain circumstances a conversion to coal not be deemed a modification for purposes of pars. (2) and (4). Subsec. (a)(7), (8). Pub. L. 95–190, §14(a)(7), redesig

nated second par. (7) as (8). Subsec. (b)(1)(A). Pub. L. 95–95, §401(b), substituted ‘‘such list if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger’’ for ‘‘such list if he determines it may contribute significantly to air pollution which causes or contributes to the endangerment of’’. Subsec. (b)(1)(B). Pub. L. 95–95, §109(c)(2), substituted ‘‘shall, at least every four years, review and, if appro

priate,’’ for ‘‘may, from time to time,’’. Subsec. (b)(5), (6). Pub. L. 95–95, §109(c)(3), added pars. (5) and (6). Subsec. (c)(1). Pub. L. 95–95, §109(d)(1), struck out ‘‘(except with respect to new sources owned or operated by the United States)’’ after ‘‘implement and enforce such standards’’. Subsec. (d)(1). Pub. L. 95–95, §109(b)(1), substituted ‘‘standards of performance’’ for ‘‘emission standards’’ and inserted provisions directing that regulations of the Administrator permit the State, in applying a standard of performance to any particular source under a submitted plan, to take into consideration, among other factors, the remaining useful life of the existing source to which the standard applies. Subsec. (d)(2). Pub. L. 95–95, §109(b)(2), provided that, in promulgating a standard of performance under a plan, the Administrator take into consideration, among other factors, the remaining useful lives of the sources in the category of sources to which the stand

ard applies. Subsecs. (f) to (i). Pub. L. 95–95, §109(a), added sub

secs. (f) to (i). Subsecs. (j), (k). Pub. L. 95–190, §14(a)(8), (9), redesig

nated subsec. (k) as (j) and, as so redesignated, sub

stituted ‘‘(B)’’ for ‘‘(8)’’ as designation for second sub

par. in par. (2). Former subsec. (j), added by Pub. L. 95–95, §109(e), which related to compliance with applica

ble standards of performance, was struck out. Pub. L. 95–95, §109(e), added subsec. (k). 1971—Subsec. (b)(1)(B). Pub. L. 92–157 substituted in first sentence ‘‘publish proposed’’ for ‘‘propose’’.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

R EGULATIONS Section 403(b), (c) of Pub. L. 101–549 provided that: ‘‘(b) R EVISED R EGULATIONS .—Not later than three years after the date of enactment of the Clean Air Act Amendments of 1990 [Nov. 15, 1990], the Administrator shall promulgate revised regulations for standards of performance for new fossil fuel fired electric utility units commencing construction after the date on which such regulations are proposed that, at a minimum, re

quire any source subject to such revised standards to emit sulfur dioxide at a rate not greater than would have resulted from compliance by such source with the applicable standards of performance under this section [amending sections 7411 and 7479 of this title] prior to such revision. ‘‘(c) A PPLICABILITY .—The provisions of subsections (a) [amending this section] and (b) apply only so long as the provisions of section 403(e) of the Clean Air Act [42 U.S.C. 7651b(e)] remain in effect.’’

T RANSFER OF F UNCTIONS
Enforcement functions of Administrator or other offi

cial in Environmental Protection Agency related to compliance with new source performance standards under this section with respect to pre-construction, construction, and initial operation of transportation system for Canadian and Alaskan natural gas trans

ferred to Federal Inspector, Office of Federal Inspector for the Alaska Natural Gas Transportation System, until first anniversary of date of initial operation of Alaska Natural Gas Transportation System, see Reorg. Plan No. 1 of 1979, eff. July 1, 1979, §§102(a), 203(a), 44 F.R. 33663, 33666, 93 Stat. 1373, 1376, set out in the Ap

pendix to Title 5, Government Organization and Em

ployees. Office of Federal Inspector for the Alaska Nat

ural Gas Transportation System abolished and func

tions and authority vested in Inspector transferred to Secretary of Energy by section 3012(b) of Pub. L. 102–486, set out as an Abolition of Office of Federal In

spector note under section 719e of Title 15, Commerce and Trade. Functions and authority vested in Sec

retary of Energy subsequently transferred to Federal Coordinator for Alaska Natural Gas Transportation Projects by section 720d(f) of Title 15.

P ENDING A CTIONS AND P ROCEEDINGS Suits, actions, and other proceedings lawfully com

menced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7412. Hazardous air pollutants (a) Definitions For purposes of this section, except subsection (r) of this section—Page 6245 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

1 See References in Text note below. (1) Major source The term ‘‘major source’’ means any sta

tionary source or group of stationary sources located within a contiguous area and under common control that emits or has the poten

tial to emit considering controls, in the aggre

gate, 10 tons per year or more of any hazard

ous air pollutant or 25 tons per year or more of any combination of hazardous air pollut

ants. The Administrator may establish a less

er quantity, or in the case of radionuclides dif

ferent criteria, for a major source than that specified in the previous sentence, on the basis of the potency of the air pollutant, persist

ence, potential for bioaccumulation, other characteristics of the air pollutant, or other relevant factors. (2) Area source The term ‘‘area source’’ means any station

ary source of hazardous air pollutants that is not a major source. For purposes of this sec

tion, the term ‘‘area source’’ shall not include motor vehicles or nonroad vehicles subject to regulation under subchapter II of this chapter. (3) Stationary source The term ‘‘stationary source’’ shall have the same meaning as such term has under section 7411(a) of this title. (4) New source The term ‘‘new source’’ means a stationary source the construction or reconstruction of which is commenced after the Administrator first proposes regulations under this section establishing an emission standard applicable to such source. (5) Modification The term ‘‘modification’’ means any phys

ical change in, or change in the method of op

eration of, a major source which increases the actual emissions of any hazardous air pollut

ant emitted by such source by more than a de minimis amount or which results in the emis

sion of any hazardous air pollutant not pre

viously emitted by more than a de minimis amount. (6) Hazardous air pollutant The term ‘‘hazardous air pollutant’’ means any air pollutant listed pursuant to subsection (b) of this section. (7) Adverse environmental effect
The term ‘‘adverse environmental effect’’ means any significant and widespread adverse effect, which may reasonably be anticipated, to wildlife, aquatic life, or other natural re

sources, including adverse impacts on popu

lations of endangered or threatened species or significant degradation of environmental qual

ity over broad areas. (8) Electric utility steam generating unit The term ‘‘electric utility steam generating unit’’ means any fossil fuel fired combustion unit of more than 25 megawatts that serves a generator that produces electricity for sale. A unit that cogenerates steam and electricity and supplies more than one-third of its poten

tial electric output capacity and more than 25 megawatts electrical output to any utility power distribution system for sale shall be considered an electric utility steam generat

ing unit. (9) Owner or operator The term ‘‘owner or operator’’ means any person who owns, leases, operates, controls, or supervises a stationary source. (10) Existing source The term ‘‘existing source’’ means any sta

tionary source other than a new source. (11) Carcinogenic effect Unless revised, the term ‘‘carcinogenic ef

fect’’ shall have the meaning provided by the Administrator under Guidelines for Carcino

genic Risk Assessment as of the date of enact

ment. 1 Any revisions in the existing Guide

lines shall be subject to notice and oppor

tunity for comment. (b) List of pollutants (1) Initial list The Congress establishes for purposes of this section a list of hazardous air pollutants as follows:

CAS number Chemical name

75070 Acetaldehyde 60355 Acetamide 75058 Acetonitrile 98862 Acetophenone 53963 2-Acetylaminofluorene 107028 Acrolein 79061 Acrylamide 79107 Acrylic acid 107131 Acrylonitrile 107051 Allyl chloride 92671 4-Aminobiphenyl 62533 Aniline 90040 o-Anisidine 1332214 Asbestos 71432 Benzene (including benzene from gasoline) 92875 Benzidine 98077 Benzotrichloride 100447 Benzyl chloride 92524 Biphenyl 117817 Bis(2-ethylhexyl)phthalate (DEHP) 542881 Bis(chloromethyl)ether 75252 Bromoform 106990 1,3-Butadiene 156627 Calcium cyanamide 105602 Caprolactam 133062 Captan 63252 Carbaryl 75150 Carbon disulfide 56235 Carbon tetrachloride 463581 Carbonyl sulfide 120809 Catechol 133904 Chloramben 57749 Chlordane 7782505 Chlorine 79118 Chloroacetic acid 532274 2-Chloroacetophenone 108907 Chlorobenzene 510156 Chlorobenzilate 67663 Chloroform 107302 Chloromethyl methyl ether 126998 Chloroprene 1319773 Cresols/Cresylic acid (isomers and mixture) 95487 o-CresolPage 6246 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

CAS number Chemical name

108394 m-Cresol 106445 p-Cresol 98828 Cumene 94757 2,4-D, salts and esters 3547044 DDE 334883 Diazomethane 132649 Dibenzofurans 96128 1,2-Dibromo-3-chloropropane 84742 Dibutylphthalate 106467 1,4-Dichlorobenzene(p) 91941 3,3-Dichlorobenzidene 111444 Dichloroethyl ether (Bis(2-chloroethyl)ether) 542756 1,3-Dichloropropene 62737 Dichlorvos 111422 Diethanolamine 121697 N,N-Diethyl aniline (N,N-Dimethylaniline) 64675 Diethyl sulfate 119904 3,3-Dimethoxybenzidine 60117 Dimethyl aminoazobenzene 119937 3,3 ′ -Dimethyl benzidine 79447 Dimethyl carbamoyl chloride 68122 Dimethyl formamide 57147 1,1-Dimethyl hydrazine 131113 Dimethyl phthalate 77781 Dimethyl sulfate 534521 4,6-Dinitro-o-cresol, and salts 51285 2,4-Dinitrophenol 121142 2,4-Dinitrotoluene 123911 1,4-Dioxane (1,4-Diethyleneoxide) 122667 1,2-Diphenylhydrazine 106898 Epichlorohydrin (l-Chloro-2,3-epoxypropane) 106887 1,2-Epoxybutane 140885 Ethyl acrylate 100414 Ethyl benzene 51796 Ethyl carbamate (Urethane) 75003 Ethyl chloride (Chloroethane) 106934 Ethylene dibromide (Dibromoethane) 107062 Ethylene dichloride (1,2-Dichloroethane) 107211 Ethylene glycol 151564 Ethylene imine (Aziridine) 75218 Ethylene oxide 96457 Ethylene thiourea 75343 Ethylidene dichloride (1,1-Dichloroethane) 50000 Formaldehyde 76448 Heptachlor 118741 Hexachlorobenzene 87683 Hexachlorobutadiene 77474 Hexachlorocyclopentadiene 67721 Hexachloroethane 822060 Hexamethylene-1,6-diisocyanate 680319 Hexamethylphosphoramide 110543 Hexane 302012 Hydrazine 7647010 Hydrochloric acid 7664393 Hydrogen fluoride (Hydrofluoric acid) 123319 Hydroquinone 78591 Isophorone 58899 Lindane (all isomers) 108316 Maleic anhydride 67561 Methanol 72435 Methoxychlor 74839 Methyl bromide (Bromomethane) 74873 Methyl chloride (Chloromethane) 71556 Methyl chloroform (1,1,1-Trichloroethane) 78933 Methyl ethyl ketone (2-Butanone) 60344 Methyl hydrazine 74884 Methyl iodide (Iodomethane) 108101 Methyl isobutyl ketone (Hexone) 624839 Methyl isocyanate 80626 Methyl methacrylate 1634044 Methyl tert butyl ether 101144 4,4-Methylene bis(2-chloroaniline) 75092 Methylene chloride (Dichloromethane) 101688 Methylene diphenyl diisocyanate (MDI) 101779 4,4 ′ -Methylenedianiline 91203 Naphthalene 98953 Nitrobenzene CAS number Chemical name

92933 4-Nitrobiphenyl 100027 4-Nitrophenol 79469 2-Nitropropane 684935 N-Nitroso-N-methylurea 62759 N-Nitrosodimethylamine 59892 N-Nitrosomorpholine 56382 Parathion 82688 Pentachloronitrobenzene (Quintobenzene) 87865 Pentachlorophenol 108952 Phenol 106503 p-Phenylenediamine 75445 Phosgene 7803512 Phosphine 7723140 Phosphorus 85449 Phthalic anhydride 1336363 Polychlorinated biphenyls (Aroclors) 1120714 1,3-Propane sultone 57578 beta-Propiolactone 123386 Propionaldehyde 114261 Propoxur (Baygon) 78875 Propylene dichloride (1,2-Dichloropropane) 75569 Propylene oxide 75558 1,2-Propylenimine (2-Methyl aziridine) 91225 Quinoline 106514 Quinone 100425 Styrene 96093 Styrene oxide 1746016 2,3,7,8-Tetrachlorodibenzo-p-dioxin 79345 1,1,2,2-Tetrachloroethane 127184 Tetrachloroethylene (Perchloroethylene) 7550450 Titanium tetrachloride 108883 Toluene 95807 2,4-Toluene diamine 584849 2,4-Toluene diisocyanate 95534 o-Toluidine 8001352 Toxaphene (chlorinated camphene) 120821 1,2,4-Trichlorobenzene 79005 1,1,2-Trichloroethane 79016 Trichloroethylene 95954 2,4,5-Trichlorophenol 88062 2,4,6-Trichlorophenol 121448 Triethylamine 1582098 Trifluralin 540841 2,2,4-Trimethylpentane 108054 Vinyl acetate 593602 Vinyl bromide 75014 Vinyl chloride 75354 Vinylidene chloride (1,1-Dichloroethylene) 1330207 Xylenes (isomers and mixture) 95476 o-Xylenes 108383 m-Xylenes 106423 p-Xylenes 0 Antimony Compounds 0 Arsenic Compounds (inorganic including ar

sine) 0 Beryllium Compounds 0 Cadmium Compounds 0 Chromium Compounds 0 Cobalt Compounds 0 Coke Oven Emissions 0 Cyanide Compounds 1 0 Glycol ethers 2 0 Lead Compounds 0 Manganese Compounds 0 Mercury Compounds 0 Fine mineral fibers 3 0 Nickel Compounds 0 Polycylic Organic Matter 4 0 Radionuclides (including radon) 5 0 Selenium Compounds NOTE: For all listings above which contain the word ‘‘compounds’’ and for glycol ethers, the following ap

plies: Unless otherwise specified, these listings are de

fined as including any unique chemical substance that contains the named chemical (i.e., antimony, arsenic, etc.) as part of that chemical’s infrastructure.Page 6247 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

2 So in original. Probably should be ‘‘effects’’. 1 X ′ CN where X = H ′ or any other group where a for

mal dissociation may occur. For example KCN or Ca(CN) 2 . 2 Includes mono- and di- ethers of ethylene glycol, diethylene glycol, and triethylene glycol R–(OCH2CH2) n –OR ′ where

n = 1, 2, or 3 R = alkyl or aryl groups R ′ = R, H, or groups which, when removed, yield glycol ethers with the structure: R–(OCH2CH) n –OH. Polymers are excluded from the glycol category.
3 Includes mineral fiber emissions from facilities manufacturing or processing glass, rock, or slag fibers (or other mineral derived fibers) of average diameter 1 micrometer or less.
4 Includes organic compounds with more than one benzene ring, and which have a boiling point greater than or equal to 100 ° C.
5 A type of atom which spontaneously undergoes radioactive decay. (2) Revision of the list The Administrator shall periodically review the list established by this subsection and pub

lish the results thereof and, where appro

priate, revise such list by rule, adding pollut

ants which present, or may present, through inhalation or other routes of exposure, a threat of adverse human health effects (in

cluding, but not limited to, substances which are known to be, or may reasonably be antici

pated to be, carcinogenic, mutagenic, tera

togenic, neurotoxic, which cause reproductive dysfunction, or which are acutely or chron

ically toxic) or adverse environmental effects whether through ambient concentrations, bio

accumulation, deposition, or otherwise, but not including releases subject to regulation under subsection (r) of this section as a result of emissions to the air. No air pollutant which is listed under section 7408(a) of this title may be added to the list under this section, except that the prohibition of this sentence shall not apply to any pollutant which independently meets the listing criteria of this paragraph and is a precursor to a pollutant which is list

ed under section 7408(a) of this title or to any pollutant which is in a class of pollutants list

ed under such section. No substance, practice, process or activity regulated under subchapter VI of this chapter shall be subject to regula

tion under this section solely due to its ad

verse effects on the environment. (3) Petitions to modify the list (A) Beginning at any time after 6 months after November 15, 1990, any person may peti

tion the Administrator to modify the list of hazardous air pollutants under this subsection by adding or deleting a substance or, in case of listed pollutants without CAS numbers (other than coke oven emissions, mineral fibers, or polycyclic organic matter) removing certain unique substances. Within 18 months after re

ceipt of a petition, the Administrator shall ei

ther grant or deny the petition by publishing a written explanation of the reasons for the Administrator’s decision. Any such petition shall include a showing by the petitioner that there is adequate data on the health or envi

ronmental defects 2 of the pollutant or other evidence adequate to support the petition. The Administrator may not deny a petition solely on the basis of inadequate resources or time for review. (B) The Administrator shall add a substance to the list upon a showing by the petitioner or on the Administrator’s own determination that the substance is an air pollutant and that emissions, ambient concentrations, bio

accumulation or deposition of the substance are known to cause or may reasonably be an

ticipated to cause adverse effects to human health or adverse environmental effects. (C) The Administrator shall delete a sub

stance from the list upon a showing by the pe

titioner or on the Administrator’s own deter

mination that there is adequate data on the health and environmental effects of the sub

stance to determine that emissions, ambient concentrations, bioaccumulation or deposition of the substance may not reasonably be antici

pated to cause any adverse effects to the human health or adverse environmental ef

fects. (D) The Administrator shall delete one or more unique chemical substances that contain a listed hazardous air pollutant not having a CAS number (other than coke oven emissions, mineral fibers, or polycyclic organic matter) upon a showing by the petitioner or on the Ad

ministrator’s own determination that such unique chemical substances that contain the named chemical of such listed hazardous air pollutant meet the deletion requirements of subparagraph (C). The Administrator must grant or deny a deletion petition prior to pro

mulgating any emission standards pursuant to subsection (d) of this section applicable to any source category or subcategory of a listed haz

ardous air pollutant without a CAS number listed under subsection (b) of this section for which a deletion petition has been filed within 12 months of November 15, 1990. (4) Further information
If the Administrator determines that infor

mation on the health or environmental effects of a substance is not sufficient to make a de

termination required by this subsection, the Administrator may use any authority avail

able to the Administrator to acquire such in

formation. (5) Test methods The Administrator may establish, by rule, test measures and other analytic procedures for monitoring and measuring emissions, am

bient concentrations, deposition, and bio

accumulation of hazardous air pollutants. (6) Prevention of significant deterioration The provisions of part C of this subchapter (prevention of significant deterioration) shall not apply to pollutants listed under this sec

tion. (7) Lead The Administrator may not list elemental lead as a hazardous air pollutant under this subsection. (c) List of source categories (1) In general Not later than 12 months after November 15, 1990, the Administrator shall publish, andPage 6248 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

shall from time to time, but no less often than every 8 years, revise, if appropriate, in re

sponse to public comment or new information, a list of all categories and subcategories of major sources and area sources (listed under paragraph (3)) of the air pollutants listed pur

suant to subsection (b) of this section. To the extent practicable, the categories and sub

categories listed under this subsection shall be consistent with the list of source categories established pursuant to section 7411 of this title and part C of this subchapter. Nothing in the preceding sentence limits the Administra

tor’s authority to establish subcategories under this section, as appropriate. (2) Requirement for emissions standards For the categories and subcategories the Ad

ministrator lists, the Administrator shall es

tablish emissions standards under subsection (d) of this section, according to the schedule in this subsection and subsection (e) of this sec

tion. (3) Area sources
The Administrator shall list under this sub

section each category or subcategory of area sources which the Administrator finds pre

sents a threat of adverse effects to human health or the environment (by such sources in

dividually or in the aggregate) warranting reg

ulation under this section. The Administrator shall, not later than 5 years after November 15, 1990, and pursuant to subsection (k)(3)(B) of this section, list, based on actual or estimated aggregate emissions of a listed pollutant or pollutants, sufficient categories or sub

categories of area sources to ensure that area sources representing 90 percent of the area source emissions of the 30 hazardous air pol

lutants that present the greatest threat to public health in the largest number of urban areas are subject to regulation under this sec

tion. Such regulations shall be promulgated not later than 10 years after November 15, 1990. (4) Previously regulated categories The Administrator may, in the Administra

tor’s discretion, list any category or sub

category of sources previously regulated under this section as in effect before November 15, 1990. (5) Additional categories In addition to those categories and sub

categories of sources listed for regulation pur

suant to paragraphs (1) and (3), the Adminis

trator may at any time list additional cat

egories and subcategories of sources of hazard

ous air pollutants according to the same cri

teria for listing applicable under such para

graphs. In the case of source categories and subcategories listed after publication of the initial list required under paragraph (1) or (3), emission standards under subsection (d) of this section for the category or subcategory shall be promulgated within 10 years after Novem

ber 15, 1990, or within 2 years after the date on which such category or subcategory is listed, whichever is later. (6) Specific pollutants With respect to alkylated lead compounds, polycyclic organic matter, hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8- tetrachlorodibenzofurans and 2,3,7,8-tetra

chlorodibenzo-p-dioxin, the Administrator shall, not later than 5 years after November 15, 1990, list categories and subcategories of sources assuring that sources accounting for not less than 90 per centum of the aggregate emissions of each such pollutant are subject to standards under subsection (d)(2) or (d)(4) of this section. Such standards shall be promul

gated not later than 10 years after November 15, 1990. This paragraph shall not be construed to require the Administrator to promulgate standards for such pollutants emitted by elec

tric utility steam generating units. (7) Research facilities The Administrator shall establish a separate category covering research or laboratory fa

cilities, as necessary to assure the equitable treatment of such facilities. For purposes of this section, ‘‘research or laboratory facility’’ means any stationary source whose primary purpose is to conduct research and develop

ment into new processes and products, where such source is operated under the close super

vision of technically trained personnel and is not engaged in the manufacture of products for commercial sale in commerce, except in a de minimis manner. (8) Boat manufacturing When establishing emissions standards for styrene, the Administrator shall list boat manufacturing as a separate subcategory un

less the Administrator finds that such listing would be inconsistent with the goals and re

quirements of this chapter. (9) Deletions from the list (A) Where the sole reason for the inclusion of a source category on the list required under this subsection is the emission of a unique chemical substance, the Administrator shall delete the source category from the list if it is appropriate because of action taken under ei

ther subparagraphs (C) or (D) of subsection (b)(3) of this section. (B) The Administrator may delete any source category from the list under this sub

section, on petition of any person or on the Administrator’s own motion, whenever the Administrator makes the following determina

tion or determinations, as applicable: (i) In the case of hazardous air pollutants emitted by sources in the category that may result in cancer in humans, a determination that no source in the category (or group of sources in the case of area sources) emits such hazardous air pollutants in quantities which may cause a lifetime risk of cancer greater than one in one million to the indi

vidual in the population who is most exposed to emissions of such pollutants from the source (or group of sources in the case of area sources). (ii) In the case of hazardous air pollutants that may result in adverse health effects in humans other than cancer or adverse envi

ronmental effects, a determination that emissions from no source in the category or subcategory concerned (or group of sourcesPage 6249 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

in the case of area sources) exceed a level which is adequate to protect public health with an ample margin of safety and no ad

verse environmental effect will result from emissions from any source (or from a group of sources in the case of area sources). The Administrator shall grant or deny a peti

tion under this paragraph within 1 year after the petition is filed. (d) Emission standards (1) In general The Administrator shall promulgate regula

tions establishing emission standards for each category or subcategory of major sources and area sources of hazardous air pollutants listed for regulation pursuant to subsection (c) of this section in accordance with the schedules provided in subsections (c) and (e) of this sec

tion. The Administrator may distinguish among classes, types, and sizes of sources within a category or subcategory in establish

ing such standards except that, there shall be no delay in the compliance date for any stand

ard applicable to any source under subsection (i) of this section as the result of the authority provided by this sentence. (2) Standards and methods Emissions standards promulgated under this subsection and applicable to new or existing sources of hazardous air pollutants shall re

quire the maximum degree of reduction in emissions of the hazardous air pollutants sub

ject to this section (including a prohibition on such emissions, where achievable) that the Ad

ministrator, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new or existing sources in the category or subcategory to which such emis

sion standard applies, through application of measures, processes, methods, systems or techniques including, but not limited to, measures which— (A) reduce the volume of, or eliminate emissions of, such pollutants through proc

ess changes, substitution of materials or other modifications, (B) enclose systems or processes to elimi

nate emissions, (C) collect, capture or treat such pollut

ants when released from a process, stack, storage or fugitive emissions point, (D) are design, equipment, work practice, or operational standards (including require

ments for operator training or certification) as provided in subsection (h) of this section,

or (E) are a combination of the above. None of the measures described in subpara

graphs (A) through (D) shall, consistent with the provisions of section 7414(c) of this title, in any way compromise any United States patent or United States trademark right, or any con

fidential business information, or any trade secret or any other intellectual property right. (3) New and existing sources The maximum degree of reduction in emis

sions that is deemed achievable for new sources in a category or subcategory shall not be less stringent than the emission control that is achieved in practice by the best con

trolled similar source, as determined by the Administrator. Emission standards promul

gated under this subsection for existing sources in a category or subcategory may be less stringent than standards for new sources in the same category or subcategory but shall not be less stringent, and may be more strin

gent than— (A) the average emission limitation achieved by the best performing 12 percent of the existing sources (for which the Ad

ministrator has emissions information), ex

cluding those sources that have, within 18 months before the emission standard is pro

posed or within 30 months before such stand

ard is promulgated, whichever is later, first achieved a level of emission rate or emission reduction which complies, or would comply if the source is not subject to such standard, with the lowest achievable emission rate (as defined by section 7501 of this title) applica

ble to the source category and prevailing at the time, in the category or subcategory for categories and subcategories with 30 or more
sources, or (B) the average emission limitation achieved by the best performing 5 sources (for which the Administrator has or could reasonably obtain emissions information) in the category or subcategory for categories or subcategories with fewer than 30 sources. (4) Health threshold With respect to pollutants for which a health threshold has been established, the Ad

ministrator may consider such threshold level, with an ample margin of safety, when estab

lishing emission standards under this sub

section. (5) Alternative standard for area sources With respect only to categories and sub

categories of area sources listed pursuant to subsection (c) of this section, the Adminis

trator may, in lieu of the authorities provided in paragraph (2) and subsection (f) of this sec

tion, elect to promulgate standards or require

ments applicable to sources in such categories or subcategories which provide for the use of generally available control technologies or management practices by such sources to re

duce emissions of hazardous air pollutants. (6) Review and revision The Administrator shall review, and revise as necessary (taking into account develop

ments in practices, processes, and control technologies), emission standards promulgated under this section no less often than every 8
years. (7) Other requirements preserved No emission standard or other requirement promulgated under this section shall be inter

preted, construed or applied to diminish or re

place the requirements of a more stringent emission limitation or other applicable re

quirement established pursuant to section 7411 of this title, part C or D of this subchapter, orPage 6250 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

other authority of this chapter or a standard issued under State authority. (8) Coke ovens (A) Not later than December 31, 1992, the Ad

ministrator shall promulgate regulations es

tablishing emission standards under para

graphs (2) and (3) of this subsection for coke oven batteries. In establishing such standards, the Administrator shall evaluate— (i) the use of sodium silicate (or equiva

lent) luting compounds to prevent door leaks, and other operating practices and technologies for their effectiveness in reduc

ing coke oven emissions, and their suit

ability for use on new and existing coke oven batteries, taking into account costs and reasonable commercial door warranties; and (ii) as a basis for emission standards under this subsection for new coke oven batteries that begin construction after the date of proposal of such standards, the Jewell design Thompson non-recovery coke oven batteries and other non-recovery coke oven tech

nologies, and other appropriate emission control and coke production technologies, as to their effectiveness in reducing coke oven emissions and their capability for produc

tion of steel quality coke. Such regulations shall require at a minimum that coke oven batteries will not exceed 8 per centum leaking doors, 1 per centum leaking lids, 5 per centum leaking offtakes, and 16 sec

onds visible emissions per charge, with no ex

clusion for emissions during the period after the closing of self-sealing oven doors. Notwith

standing subsection (i) of this section, the compliance date for such emission standards for existing coke oven batteries shall be De

cember 31, 1995. (B) The Administrator shall promulgate work practice regulations under this sub

section for coke oven batteries requiring, as appropriate— (i) the use of sodium silicate (or equiva

lent) luting compounds, if the Administrator determines that use of sodium silicate is an effective means of emissions control and is achievable, taking into account costs and reasonable commercial warranties for doors and related equipment; and (ii) door and jam cleaning practices. Notwithstanding subsection (i) of this section, the compliance date for such work practice regulations for coke oven batteries shall be not later than the date 3 years after November 15, 1990. (C) For coke oven batteries electing to qual

ify for an extension of the compliance date for standards promulgated under subsection (f) of this section in accordance with subsection (i)(8) of this section, the emission standards under this subsection for coke oven batteries shall require that coke oven batteries not ex

ceed 8 per centum leaking doors, 1 per centum leaking lids, 5 per centum leaking offtakes, and 16 seconds visible emissions per charge, with no exclusion for emissions during the pe

riod after the closing of self-sealing doors. Notwithstanding subsection (i) of this section, the compliance date for such emission stand

ards for existing coke oven batteries seeking an extension shall be not later than the date 3 years after November 15, 1990. (9) Sources licensed by the Nuclear Regulatory Commission
No standard for radionuclide emissions from any category or subcategory of facilities li

censed by the Nuclear Regulatory Commission (or an Agreement State) is required to be pro

mulgated under this section if the Adminis

trator determines, by rule, and after consulta

tion with the Nuclear Regulatory Commission, that the regulatory program established by the Nuclear Regulatory Commission pursuant to the Atomic Energy Act [42 U.S.C. 2011 et seq.] for such category or subcategory pro

vides an ample margin of safety to protect the public health. Nothing in this subsection shall preclude or deny the right of any State or po

litical subdivision thereof to adopt or enforce any standard or limitation respecting emis

sions of radionuclides which is more stringent than the standard or limitation in effect under section 7411 of this title or this section. (10) Effective date Emission standards or other regulations pro

mulgated under this subsection shall be effec

tive upon promulgation. (e) Schedule for standards and review (1) In general The Administrator shall promulgate regula

tions establishing emission standards for cat

egories and subcategories of sources initially listed for regulation pursuant to subsection (c)(1) of this section as expeditiously as prac

ticable, assuring that— (A) emission standards for not less than 40 categories and subcategories (not counting coke oven batteries) shall be promulgated not later than 2 years after November 15, 1990; (B) emission standards for coke oven bat

teries shall be promulgated not later than December 31, 1992; (C) emission standards for 25 per centum of the listed categories and subcategories shall be promulgated not later than 4 years after November 15, 1990; (D) emission standards for an additional 25 per centum of the listed categories and sub

categories shall be promulgated not later than 7 years after November 15, 1990; and (E) emission standards for all categories and subcategories shall be promulgated not later than 10 years after November 15, 1990. (2) Priorities In determining priorities for promulgating standards under subsection (d) of this section, the Administrator shall consider— (A) the known or anticipated adverse ef

fects of such pollutants on public health and the environment; (B) the quantity and location of emissions or reasonably anticipated emissions of haz

ardous air pollutants that each category or subcategory will emit; andPage 6251 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

(C) the efficiency of grouping categories or subcategories according to the pollutants emitted, or the processes or technologies used. (3) Published schedule Not later than 24 months after November 15, 1990, and after opportunity for comment, the Administrator shall publish a schedule estab

lishing a date for the promulgation of emis

sion standards for each category and sub

category of sources listed pursuant to sub

section (c)(1) and (3) of this section which shall be consistent with the requirements of para

graphs (1) and (2). The determination of prior

ities for the promulgation of standards pursu

ant to this paragraph is not a rulemaking and shall not be subject to judicial review, except that, failure to promulgate any standard pur

suant to the schedule established by this para

graph shall be subject to review under section 7604 of this title. (4) Judicial review Notwithstanding section 7607 of this title, no action of the Administrator adding a pollutant to the list under subsection (b) of this section or listing a source category or subcategory under subsection (c) of this section shall be a final agency action subject to judicial review, except that any such action may be reviewed under such section 7607 of this title when the Administrator issues emission standards for such pollutant or category. (5) Publicly owned treatment works The Administrator shall promulgate stand

ards pursuant to subsection (d) of this section applicable to publicly owned treatment works (as defined in title II of the Federal Water Pol

lution Control Act [33 U.S.C. 1281 et seq.]) not later than 5 years after November 15, 1990. (f) Standard to protect health and environment (1) Report Not later than 6 years after November 15, 1990, the Administrator shall investigate and report, after consultation with the Surgeon General and after opportunity for public com

ment, to Congress on— (A) methods of calculating the risk to pub

lic health remaining, or likely to remain, from sources subject to regulation under this section after the application of stand

ards under subsection (d) of this section; (B) the public health significance of such estimated remaining risk and the techno

logically and commercially available meth

ods and costs of reducing such risks; (C) the actual health effects with respect to persons living in the vicinity of sources, any available epidemiological or other health studies, risks presented by back

ground concentrations of hazardous air pol

lutants, any uncertainties in risk assess

ment methodology or other health assess

ment technique, and any negative health or environmental consequences to the commu

nity of efforts to reduce such risks; and (D) recommendations as to legislation re

garding such remaining risk. (2) Emission standards (A) If Congress does not act on any recom

mendation submitted under paragraph (1), the Administrator shall, within 8 years after pro

mulgation of standards for each category or subcategory of sources pursuant to subsection (d) of this section, promulgate standards for such category or subcategory if promulgation of such standards is required in order to pro

vide an ample margin of safety to protect pub

lic health in accordance with this section (as in effect before November 15, 1990) or to pre

vent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. Emission standards pro

mulgated under this subsection shall provide an ample margin of safety to protect public health in accordance with this section (as in effect before November 15, 1990), unless the Ad

ministrator determines that a more stringent standard is necessary to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental ef

fect. If standards promulgated pursuant to subsection (d) of this section and applicable to a category or subcategory of sources emitting a pollutant (or pollutants) classified as a known, probable or possible human carcinogen do not reduce lifetime excess cancer risks to the individual most exposed to emissions from a source in the category or subcategory to less than one in one million, the Administrator shall promulgate standards under this sub

section for such source category. (B) Nothing in subparagraph (A) or in any other provision of this section shall be con

strued as affecting, or applying to the Admin

istrator’s interpretation of this section, as in effect before November 15, 1990, and set forth in the Federal Register of September 14, 1989 (54 Federal Register 38044). (C) The Administrator shall determine whether or not to promulgate such standards and, if the Administrator decides to promul

gate such standards, shall promulgate the standards 8 years after promulgation of the standards under subsection (d) of this section for each source category or subcategory con

cerned. In the case of categories or sub

categories for which standards under sub

section (d) of this section are required to be promulgated within 2 years after November 15, 1990, the Administrator shall have 9 years after promulgation of the standards under sub

section (d) of this section to make the deter

mination under the preceding sentence and, if required, to promulgate the standards under this paragraph. (3) Effective date Any emission standard established pursuant to this subsection shall become effective upon promulgation. (4) Prohibition No air pollutant to which a standard under this subsection applies may be emitted from any stationary source in violation of such standard, except that in the case of an existing

source— (A) such standard shall not apply until 90 days after its effective date, andPage 6252 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

(B) the Administrator may grant a waiver permitting such source a period of up to 2 years after the effective date of a standard to comply with the standard if the Adminis

trator finds that such period is necessary for the installation of controls and that steps will be taken during the period of the waiver to assure that the health of persons will be protected from imminent endangerment. (5) Area sources The Administrator shall not be required to conduct any review under this subsection or promulgate emission limitations under this subsection for any category or subcategory of area sources that is listed pursuant to sub

section (c)(3) of this section and for which an emission standard is promulgated pursuant to subsection (d)(5) of this section. (6) Unique chemical substances In establishing standards for the control of unique chemical substances of listed pollut

ants without CAS numbers under this sub

section, the Administrator shall establish such standards with respect to the health and environmental effects of the substances actu

ally emitted by sources and direct trans

formation byproducts of such emissions in the categories and subcategories. (g) Modifications (1) Offsets (A) A physical change in, or change in the method of operation of, a major source which results in a greater than de minimis increase in actual emissions of a hazardous air pollut

ant shall not be considered a modification, if such increase in the quantity of actual emis

sions of any hazardous air pollutant from such source will be offset by an equal or greater de

crease in the quantity of emissions of another hazardous air pollutant (or pollutants) from such source which is deemed more hazardous, pursuant to guidance issued by the Adminis

trator under subparagraph (B). The owner or operator of such source shall submit a showing to the Administrator (or the State) that such increase has been offset under the preceding sentence. (B) The Administrator shall, after notice and opportunity for comment and not later than 18 months after November 15, 1990, pub

lish guidance with respect to implementation of this subsection. Such guidance shall include an identification, to the extent practicable, of the relative hazard to human health resulting from emissions to the ambient air of each of the pollutants listed under subsection (b) of this section sufficient to facilitate the offset showing authorized by subparagraph (A). Such guidance shall not authorize offsets between pollutants where the increased pollutant (or more than one pollutant in a stream of pollut

ants) causes adverse effects to human health for which no safety threshold for exposure can be determined unless there are corresponding decreases in such types of pollutant(s). (2) Construction, reconstruction and modifica

tions (A) After the effective date of a permit pro

gram under subchapter V of this chapter in any State, no person may modify a major source of hazardous air pollutants in such State, unless the Administrator (or the State) determines that the maximum achievable con

trol technology emission limitation under this section for existing sources will be met. Such determination shall be made on a case-by-case basis where no applicable emissions limita

tions have been established by the Adminis

trator. (B) After the effective date of a permit pro

gram under subchapter V of this chapter in any State, no person may construct or recon

struct any major source of hazardous air pol

lutants, unless the Administrator (or the State) determines that the maximum achiev

able control technology emission limitation under this section for new sources will be met.Such determination shall be made on a caseby-case basis where no applicable emission limitations have been established by the Ad

ministrator. (3) Procedures for modifications The Administrator (or the State) shall es

tablish reasonable procedures for assuring that the requirements applying to modifica

tions under this section are reflected in the permit. (h) Work practice standards and other require

ments (1) In general For purposes of this section, if it is not fea

sible in the judgment of the Administrator to prescribe or enforce an emission standard for control of a hazardous air pollutant or pollut

ants, the Administrator may, in lieu thereof, promulgate a design, equipment, work prac

tice, or operational standard, or combination thereof, which in the Administrator’s judg

ment is consistent with the provisions of sub

section (d) or (f) of this section. In the event the Administrator promulgates a design or equipment standard under this subsection, the Administrator shall include as part of such standard such requirements as will assure the proper operation and maintenance of any such element of design or equipment. (2) Definition For the purpose of this subsection, the phrase ‘‘not feasible to prescribe or enforce an emission standard’’ means any situation in which the Administrator determines that— (A) a hazardous air pollutant or pollutants cannot be emitted through a conveyance de

signed and constructed to emit or capture such pollutant, or that any requirement for, or use of, such a conveyance would be incon

sistent with any Federal, State or local law,

or (B) the application of measurement meth

odology to a particular class of sources is not practicable due to technological and eco

nomic limitations. (3) Alternative standard If after notice and opportunity for comment, the owner or operator of any source estab

lishes to the satisfaction of the Administrator that an alternative means of emission limita

-Page 6253 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

tion will achieve a reduction in emissions of any air pollutant at least equivalent to the re

duction in emissions of such pollutant achieved under the requirements of paragraph (1), the Administrator shall permit the use of such alternative by the source for purposes of compliance with this section with respect to such pollutant. (4) Numerical standard required Any standard promulgated under paragraph (1) shall be promulgated in terms of an emis

sion standard whenever it is feasible to pro

mulgate and enforce a standard in such terms. (i) Schedule for compliance (1) Preconstruction and operating require

ments After the effective date of any emission standard, limitation, or regulation under sub

section (d), (f) or (h) of this section, no person may construct any new major source or recon

struct any existing major source subject to such emission standard, regulation or limita

tion unless the Administrator (or a State with a permit program approved under subchapter V of this chapter) determines that such source, if properly constructed, reconstructed and operated, will comply with the standard, regulation or limitation. (2) Special rule Notwithstanding the requirements of para

graph (1), a new source which commences con

struction or reconstruction after a standard, limitation or regulation applicable to such source is proposed and before such standard, limitation or regulation is promulgated shall not be required to comply with such promul

gated standard until the date 3 years after the date of promulgation if— (A) the promulgated standard, limitation or regulation is more stringent than the standard, limitation or regulation proposed; and (B) the source complies with the standard, limitation, or regulation as proposed during the 3-year period immediately after promul

gation. (3) Compliance schedule for existing sources (A) After the effective date of any emissions standard, limitation or regulation promul

gated under this section and applicable to a source, no person may operate such source in violation of such standard, limitation or regu

lation except, in the case of an existing source, the Administrator shall establish a compliance date or dates for each category or subcategory of existing sources, which shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the effective date of such standard, ex

cept as provided in subparagraph (B) and para

graphs (4) through (8). (B) The Administrator (or a State with a program approved under subchapter V of this chapter) may issue a permit that grants an ex

tension permitting an existing source up to 1 additional year to comply with standards under subsection (d) of this section if such ad

ditional period is necessary for the installa

tion of controls. An additional extension of up to 3 years may be added for mining waste op

erations, if the 4-year compliance time is in

sufficient to dry and cover mining waste in order to reduce emissions of any pollutant listed under subsection (b) of this section. (4) Presidential exemption The President may exempt any stationary source from compliance with any standard or limitation under this section for a period of not more than 2 years if the President deter

mines that the technology to implement such standard is not available and that it is in the national security interests of the United States to do so. An exemption under this para

graph may be extended for 1 or more addi

tional periods, each period not to exceed 2 years. The President shall report to Congress with respect to each exemption (or extension thereof) made under this paragraph. (5) Early reduction (A) The Administrator (or a State acting pursuant to a permit program approved under subchapter V of this chapter) shall issue a per

mit allowing an existing source, for which the owner or operator demonstrates that the source has achieved a reduction of 90 per cen

tum or more in emissions of hazardous air pol

lutants (95 per centum in the case of hazardous air pollutants which are particulates) from the source, to meet an alternative emission limi

tation reflecting such reduction in lieu of an emission limitation promulgated under sub

section (d) of this section for a period of 6 years from the compliance date for the other

wise applicable standard, provided that such reduction is achieved before the otherwise ap

plicable standard under subsection (d) of this section is first proposed. Nothing in this para

graph shall preclude a State from requiring re

ductions in excess of those specified in this subparagraph as a condition of granting the extension authorized by the previous sentence. (B) An existing source which achieves the re

duction referred to in subparagraph (A) after the proposal of an applicable standard but be

fore January 1, 1994, may qualify under sub

paragraph (A), if the source makes an enforce

able commitment to achieve such reduction before the proposal of the standard. Such com

mitment shall be enforceable to the same ex

tent as a regulation under this section. (C) The reduction shall be determined with respect to verifiable and actual emissions in a base year not earlier than calendar year 1987, provided that, there is no evidence that emis

sions in the base year are artificially or sub

stantially greater than emissions in other years prior to implementation of emissions re

duction measures. The Administrator may allow a source to use a baseline year of 1985 or 1986 provided that the source can demonstrate to the satisfaction of the Administrator that emissions data for the source reflects verifi

able data based on information for such source, received by the Administrator prior to November 15, 1990, pursuant to an information request issued under section 7414 of this title. (D) For each source granted an alternative emission limitation under this paragraphPage 6254 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

there shall be established by a permit issued pursuant to subchapter V of this chapter an enforceable emission limitation for hazardous air pollutants reflecting the reduction which qualifies the source for an alternative emis

sion limitation under this paragraph. An al

ternative emission limitation under this para

graph shall not be available with respect to standards or requirements promulgated pursu

ant to subsection (f) of this section and the Administrator shall, for the purpose of deter

mining whether a standard under subsection (f) of this section is necessary, review emis

sions from sources granted an alternative emission limitation under this paragraph at the same time that other sources in the cat

egory or subcategory are reviewed. (E) With respect to pollutants for which high risks of adverse public health effects may be associated with exposure to small quantities including, but not limited to, chlorinated di

oxins and furans, the Administrator shall by regulation limit the use of offsetting reduc

tions in emissions of other hazardous air pol

lutants from the source as counting toward the 90 per centum reduction in such high-risk pollutants qualifying for an alternative emis

sions limitation under this paragraph. (6) Other reductions Notwithstanding the requirements of this section, no existing source that has installed— (A) best available control technology (as defined in section 7479(3) of this title), or (B) technology required to meet a lowest achievable emission rate (as defined in sec

tion 7501 of this title), prior to the promulgation of a standard under this section applicable to such source and the same pollutant (or stream of pollutants) con

trolled pursuant to an action described in sub

paragraph (A) or (B) shall be required to com

ply with such standard under this section until the date 5 years after the date on which such installation or reduction has been achieved, as determined by the Administrator. The Administrator may issue such rules and guidance as are necessary to implement this paragraph. (7) Extension for new sources
A source for which construction or recon

struction is commenced after the date an emission standard applicable to such source is proposed pursuant to subsection (d) of this sec

tion but before the date an emission standard applicable to such source is proposed pursuant to subsection (f) of this section shall not be re

quired to comply with the emission standard under subsection (f) of this section until the date 10 years after the date construction or re

construction is commenced. (8) Coke ovens (A) Any coke oven battery that complies with the emission limitations established under subsection (d)(8)(C) of this section, sub

paragraph (B), and subparagraph (C), and com

plies with the provisions of subparagraph (E), shall not be required to achieve emission limi

tations promulgated under subsection (f) of this section until January 1, 2020. (B)(i) Not later than December 31, 1992, the Administrator shall promulgate emission limi

tations for coke oven emissions from coke oven batteries. Notwithstanding paragraph (3) of this subsection, the compliance date for such emission limitations for existing coke oven batteries shall be January 1, 1998. Such emission limitations shall reflect the lowest achievable emission rate as defined in section 7501 of this title for a coke oven battery that is rebuilt or a replacement at a coke oven plant for an existing battery. Such emission limitations shall be no less stringent than— (I) 3 per centum leaking doors (5 per cen

tum leaking doors for six meter batteries); (II) 1 per centum leaking lids; (III) 4 per centum leaking offtakes; and (IV) 16 seconds visible emissions per charge, with an exclusion for emissions during the pe

riod after the closing of self-sealing oven doors (or the total mass emissions equivalent). The rulemaking in which such emission limita

tions are promulgated shall also establish an appropriate measurement methodology for de

termining compliance with such emission lim

itations, and shall establish such emission limitations in terms of an equivalent level of mass emissions reduction from a coke oven battery, unless the Administrator finds that such a mass emissions standard would not be practicable or enforceable. Such measurement methodology, to the extent it measures leak

ing doors, shall take into consideration alter

native test methods that reflect the best tech

nology and practices actually applied in the affected industries, and shall assure that the final test methods are consistent with the per

formance of such best technology and prac

tices. (ii) If the Administrator fails to promulgate such emission limitations under this subpara

graph prior to the effective date of such emis

sion limitations, the emission limitations ap

plicable to coke oven batteries under this sub

paragraph shall be— (I) 3 per centum leaking doors (5 per cen

tum leaking doors for six meter batteries); (II) 1 per centum leaking lids; (III) 4 per centum leaking offtakes; and (IV) 16 seconds visible emissions per charge, or the total mass emissions equivalent (if the total mass emissions equivalent is determined to be practicable and enforceable), with no ex

clusion for emissions during the period after the closing of self-sealing oven doors. (C) Not later than January 1, 2007, the Ad

ministrator shall review the emission limita

tions promulgated under subparagraph (B) and revise, as necessary, such emission limitations to reflect the lowest achievable emission rate as defined in section 7501 of this title at the time for a coke oven battery that is rebuilt or a replacement at a coke oven plant for an ex

isting battery. Such emission limitations shall be no less stringent than the emission limita

tion promulgated under subparagraph (B). Notwithstanding paragraph (2) of this sub

section, the compliance date for such emissionPage 6255 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

limitations for existing coke oven batteries shall be January 1, 2010. (D) At any time prior to January 1, 1998, the owner or operator of any coke oven battery may elect to comply with emission limitations promulgated under subsection (f) of this sec

tion by the date such emission limitations would otherwise apply to such coke oven bat

tery, in lieu of the emission limitations and the compliance dates provided under subpara

graphs (B) and (C) of this paragraph. Any such owner or operator shall be legally bound to comply with such emission limitations pro

mulgated under subsection (f) of this section with respect to such coke oven battery as of January 1, 2003. If no such emission limita

tions have been promulgated for such coke oven battery, the Administrator shall promul

gate such emission limitations in accordance with subsection (f) of this section for such coke oven battery. (E) Coke oven batteries qualifying for an ex

tension under subparagraph (A) shall make available not later than January 1, 2000, to the surrounding communities the results of any risk assessment performed by the Adminis

trator to determine the appropriate level of any emission standard established by the Ad

ministrator pursuant to subsection (f) of this section. (F) Notwithstanding the provisions of this section, reconstruction of any source of coke oven emissions qualifying for an extension under this paragraph shall not subject such source to emission limitations under sub

section (f) of this section more stringent than those established under subparagraphs (B) and (C) until January 1, 2020. For the purposes of this subparagraph, the term ‘‘reconstruction’’ includes the replacement of existing coke oven battery capacity with new coke oven batteries of comparable or lower capacity and lower po

tential emissions. (j) Equivalent emission limitation by permit (1) Effective date The requirements of this subsection shall apply in each State beginning on the effective date of a permit program established pursuant to subchapter V of this chapter in such State, but not prior to the date 42 months after No

vember 15, 1990. (2) Failure to promulgate a standard
In the event that the Administrator fails to promulgate a standard for a category or sub

category of major sources by the date estab

lished pursuant to subsection (e)(1) and (3) of this section, and beginning 18 months after such date (but not prior to the effective date of a permit program under subchapter V of this chapter), the owner or operator of any major source in such category or subcategory shall submit a permit application under para

graph (3) and such owner or operator shall also comply with paragraphs (5) and (6). (3) Applications By the date established by paragraph (2), the owner or operator of a major source subject to this subsection shall file an application for a permit. If the owner or operator of a source has submitted a timely and complete applica

tion for a permit required by this subsection, any failure to have a permit shall not be a vio

lation of paragraph (2), unless the delay in final action is due to the failure of the appli

cant to timely submit information required or requested to process the application. The Ad

ministrator shall not later than 18 months after November 15, 1990, and after notice and opportunity for comment, establish require

ments for applications under this subsection including a standard application form and cri

teria for determining in a timely manner the completeness of applications. (4) Review and approval Permit applications submitted under this subsection shall be reviewed and approved or disapproved according to the provisions of sec

tion 7661d of this title. In the event that the Administrator (or the State) disapproves a permit application submitted under this sub

section or determines that the application is incomplete, the applicant shall have up to 6 months to revise the application to meet the objections of the Administrator (or the State). (5) Emission limitation The permit shall be issued pursuant to sub

chapter V of this chapter and shall contain emission limitations for the hazardous air pol

lutants subject to regulation under this sec

tion and emitted by the source that the Ad

ministrator (or the State) determines, on a case-by-case basis, to be equivalent to the lim

itation that would apply to such source if an emission standard had been promulgated in a timely manner under subsection (d) of this section. In the alternative, if the applicable criteria are met, the permit may contain an emissions limitation established according to the provisions of subsection (i)(5) of this sec

tion. For purposes of the preceding sentence, the reduction required by subsection (i)(5)(A) of this section shall be achieved by the date on which the relevant standard should have been promulgated under subsection (d) of this sec

tion. No such pollutant may be emitted in amounts exceeding an emission limitation contained in a permit immediately for new sources and, as expeditiously as practicable, but not later than the date 3 years after the permit is issued for existing sources or such other compliance date as would apply under subsection (i) of this section. (6) Applicability of subsequent standards If the Administrator promulgates an emis

sion standard that is applicable to the major source prior to the date on which a permit ap

plication is approved, the emission limitation in the permit shall reflect the promulgated standard rather than the emission limitation determined pursuant to paragraph (5), pro

vided that the source shall have the compli

ance period provided under subsection (i) of this section. If the Administrator promulgates a standard under subsection (d) of this section that would be applicable to the source in lieu of the emission limitation established by per

mit under this subsection after the date on which the permit has been issued, the Admin

-Page 6256 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

istrator (or the State) shall revise such permit upon the next renewal to reflect the standard promulgated by the Administrator providing such source a reasonable time to comply, but no longer than 8 years after such standard is promulgated or 8 years after the date on which the source is first required to comply with the emissions limitation established by paragraph (5), whichever is earlier. (k) Area source program (1) Findings and purpose The Congress finds that emissions of hazard

ous air pollutants from area sources may indi

vidually, or in the aggregate, present signifi

cant risks to public health in urban areas. Considering the large number of persons ex

posed and the risks of carcinogenic and other adverse health effects from hazardous air pol

lutants, ambient concentrations characteris

tic of large urban areas should be reduced to levels substantially below those currently ex

perienced. It is the purpose of this subsection to achieve a substantial reduction in emis

sions of hazardous air pollutants from area sources and an equivalent reduction in the public health risks associated with such sources including a reduction of not less than 75 per centum in the incidence of cancer at

tributable to emissions from such sources. (2) Research program The Administrator shall, after consultation with State and local air pollution control offi

cials, conduct a program of research with re

spect to sources of hazardous air pollutants in urban areas and shall include within such pro

gram— (A) ambient monitoring for a broad range of hazardous air pollutants (including, but not limited to, volatile organic compounds, metals, pesticides and products of incom

plete combustion) in a representative num

ber of urban locations; (B) analysis to characterize the sources of such pollution with a focus on area sources and the contribution that such sources make to public health risks from hazardous air pollutants; and (C) consideration of atmospheric trans

formation and other factors which can ele

vate public health risks from such pollut

ants. Health effects considered under this program shall include, but not be limited to, carcino

genicity, mutagenicity, teratogenicity, neuro

toxicity, reproductive dysfunction and other acute and chronic effects including the role of such pollutants as precursors of ozone or acid aerosol formation. The Administrator shall re

port the preliminary results of such research not later than 3 years after November 15, 1990. (3) National strategy (A) Considering information collected pursu

ant to the monitoring program authorized by paragraph (2), the Administrator shall, not later than 5 years after November 15, 1990, and after notice and opportunity for public com

ment, prepare and transmit to the Congress a comprehensive strategy to control emissions of hazardous air pollutants from area sources in urban areas. (B) The strategy shall— (i) identify not less than 30 hazardous air pollutants which, as the result of emissions from area sources, present the greatest threat to public health in the largest num

ber of urban areas and that are or will be listed pursuant to subsection (b) of this sec

tion, and (ii) identify the source categories or sub

categories emitting such pollutants that are or will be listed pursuant to subsection (c) of this section. When identifying categories and subcategories of sources under this sub

paragraph, the Administrator shall assure that sources accounting for 90 per centum or more of the aggregate emissions of each of the 30 identified hazardous air pollutants are subject to standards pursuant to subsection (d) of this section. (C) The strategy shall include a schedule of specific actions to substantially reduce the public health risks posed by the release of haz

ardous air pollutants from area sources that will be implemented by the Administrator under the authority of this or other laws (in

cluding, but not limited to, the Toxic Sub

stances Control Act [15 U.S.C. 2601 et seq.], the Federal Insecticide, Fungicide and Roden

ticide Act [7 U.S.C. 136 et seq.] and the Re

source Conservation and Recovery Act [42 U.S.C. 6901 et seq.]) or by the States. The strategy shall achieve a reduction in the inci

dence of cancer attributable to exposure to hazardous air pollutants emitted by station

ary sources of not less than 75 per centum, considering control of emissions of hazardous air pollutants from all stationary sources and resulting from measures implemented by the Administrator or by the States under this or other laws. (D) The strategy may also identify research needs in monitoring, analytical methodology, modeling or pollution control techniques and recommendations for changes in law that would further the goals and objectives of this subsection. (E) Nothing in this subsection shall be inter

preted to preclude or delay implementation of actions with respect to area sources of hazard

ous air pollutants under consideration pursu

ant to this or any other law and that may be promulgated before the strategy is prepared. (F) The Administrator shall implement the strategy as expeditiously as practicable assur

ing that all sources are in compliance with all requirements not later than 9 years after No

vember 15, 1990. (G) As part of such strategy the Adminis

trator shall provide for ambient monitoring and emissions modeling in urban areas as ap

propriate to demonstrate that the goals and objectives of the strategy are being met. (4) Areawide activities
In addition to the national urban air toxics strategy authorized by paragraph (3), the Ad

ministrator shall also encourage and support areawide strategies developed by State or local air pollution control agencies that arePage 6257 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

intended to reduce risks from emissions by area sources within a particular urban area. From the funds available for grants under this section, the Administrator shall set aside not less than 10 per centum to support areawide strategies addressing hazardous air pollutants emitted by area sources and shall award such funds on a demonstration basis to those States with innovative and effective strategies. At the request of State or local air pollution con

trol officials, the Administrator shall prepare guidelines for control technologies or manage

ment practices which may be applicable to various categories or subcategories of area

sources. (5) Report The Administrator shall report to the Con

gress at intervals not later than 8 and 12 years after November 15, 1990, on actions taken under this subsection and other parts of this chapter to reduce the risk to public health posed by the release of hazardous air pollut

ants from area sources. The reports shall also identify specific metropolitan areas that con

tinue to experience high risks to public health as the result of emissions from area sources. ( l ) State programs (1) In general Each State may develop and submit to the Administrator for approval a program for the implementation and enforcement (including a review of enforcement delegations previously granted) of emission standards and other re

quirements for air pollutants subject to this section or requirements for the prevention and mitigation of accidental releases pursuant to subsection (r) of this section. A program sub

mitted by a State under this subsection may provide for partial or complete delegation of the Administrator’s authorities and respon

sibilities to implement and enforce emissions standards and prevention requirements but shall not include authority to set standards less stringent than those promulgated by the Administrator under this chapter. (2) Guidance Not later than 12 months after November 15, 1990, the Administrator shall publish guidance that would be useful to the States in develop

ing programs for submittal under this sub

section. The guidance shall also provide for the registration of all facilities producing, processing, handling or storing any substance listed pursuant to subsection (r) of this section in amounts greater than the threshold quan

tity. The Administrator shall include as an element in such guidance an optional program begun in 1986 for the review of high-risk point sources of air pollutants including, but not limited to, hazardous air pollutants listed pur

suant to subsection (b) of this section. (3) Technical assistance
The Administrator shall establish and main

tain an air toxics clearinghouse and center to provide technical information and assistance to State and local agencies and, on a cost re

covery basis, to others on control technology, health and ecological risk assessment, risk analysis, ambient monitoring and modeling, and emissions measurement and monitoring. The Administrator shall use the authority of section 7403 of this title to examine methods for preventing, measuring, and controlling emissions and evaluating associated health and ecological risks. Where appropriate, such activity shall be conducted with not-for-profit organizations. The Administrator may con

duct research on methods for preventing, measuring and controlling emissions and eval

uating associated health and environment risks. All information collected under this paragraph shall be available to the public. (4) Grants Upon application of a State, the Adminis

trator may make grants, subject to such terms and conditions as the Administrator deems ap

propriate, to such State for the purpose of as

sisting the State in developing and imple

menting a program for submittal and approval under this subsection. Programs assisted under this paragraph may include program elements addressing air pollutants or ex

tremely hazardous substances other than those specifically subject to this section. Grants under this paragraph may include sup

port for high-risk point source review as pro

vided in paragraph (2) and support for the de

velopment and implementation of areawide area source programs pursuant to subsection (k) of this section. (5) Approval or disapproval Not later than 180 days after receiving a pro

gram submitted by a State, and after notice and opportunity for public comment, the Ad

ministrator shall either approve or disapprove such program. The Administrator shall dis

approve any program submitted by a State, if the Administrator determines that— (A) the authorities contained in the pro

gram are not adequate to assure compliance by all sources within the State with each ap

plicable standard, regulation or requirement established by the Administrator under this section; (B) adequate authority does not exist, or adequate resources are not available, to im

plement the program; (C) the schedule for implementing the pro

gram and assuring compliance by affected sources is not sufficiently expeditious; or (D) the program is otherwise not in com

pliance with the guidance issued by the Ad

ministrator under paragraph (2) or is not likely to satisfy, in whole or in part, the ob

jectives of this chapter. If the Administrator disapproves a State pro

gram, the Administrator shall notify the State of any revisions or modifications necessary to obtain approval. The State may revise and re

submit the proposed program for review and approval pursuant to the provisions of this subsection. (6) Withdrawal Whenever the Administrator determines, after public hearing, that a State is not ad

ministering and enforcing a program approved pursuant to this subsection in accordance withPage 6258 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

the guidance published pursuant to paragraph (2) or the requirements of paragraph (5), the Administrator shall so notify the State and, if action which will assure prompt compliance is not taken within 90 days, the Administrator shall withdraw approval of the program. The Administrator shall not withdraw approval of any program unless the State shall have been notified and the reasons for withdrawal shall have been stated in writing and made public. (7) Authority to enforce Nothing in this subsection shall prohibit the Administrator from enforcing any applicable emission standard or requirement under this section. (8) Local program The Administrator may, after notice and op

portunity for public comment, approve a pro

gram developed and submitted by a local air pollution control agency (after consultation with the State) pursuant to this subsection and any such agency implementing an ap

proved program may take any action author

ized to be taken by a State under this section. (9) Permit authority Nothing in this subsection shall affect the authorities and obligations of the Adminis

trator or the State under subchapter V of this chapter. (m) Atmospheric deposition to Great Lakes and coastal waters (1) Deposition assessment The Administrator, in cooperation with the Under Secretary of Commerce for Oceans and Atmosphere, shall conduct a program to iden

tify and assess the extent of atmospheric depo

sition of hazardous air pollutants (and in the discretion of the Administrator, other air pol

lutants) to the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters. As part of such program, the Administrator shall— (A) monitor the Great Lakes, the Chesa

peake Bay, Lake Champlain and coastal wa

ters, including monitoring of the Great Lakes through the monitoring network es

tablished pursuant to paragraph (2) of this subsection and designing and deploying an atmospheric monitoring network for coastal waters pursuant to paragraph (4); (B) investigate the sources and deposition rates of atmospheric deposition of air pollut

ants (and their atmospheric transformation precursors); (C) conduct research to develop and im

prove monitoring methods and to determine the relative contribution of atmospheric pol

lutants to total pollution loadings to the Great Lakes, the Chesapeake Bay, Lake Champlain, and coastal waters; (D) evaluate any adverse effects to public health or the environment caused by such deposition (including effects resulting from indirect exposure pathways) and assess the contribution of such deposition to violations of water quality standards established pur

suant to the Federal Water Pollution Con

trol Act [33 U.S.C. 1251 et seq.] and drinking water standards established pursuant to the Safe Drinking Water Act [42 U.S.C. 300f et seq.]; and (E) sample for such pollutants in biota, fish, and wildlife of the Great Lakes, the Chesapeake Bay, Lake Champlain and coast

al waters and characterize the sources of such pollutants. (2) Great Lakes monitoring network The Administrator shall oversee, in accord

ance with Annex 15 of the Great Lakes Water Quality Agreement, the establishment and op

eration of a Great Lakes atmospheric deposi

tion network to monitor atmospheric deposi

tion of hazardous air pollutants (and in the Administrator’s discretion, other air pollut

ants) to the Great Lakes. (A) As part of the network provided for in this paragraph, and not later than December 31, 1991, the Administrator shall establish in each of the 5 Great Lakes at least 1 facility capable of monitoring the atmospheric depo

sition of hazardous air pollutants in both dry and wet conditions. (B) The Administrator shall use the data provided by the network to identify and track the movement of hazardous air pollut

ants through the Great Lakes, to determine the portion of water pollution loadings at

tributable to atmospheric deposition of such pollutants, and to support development of remedial action plans and other manage

ment plans as required by the Great Lakes Water Quality Agreement. (C) The Administrator shall assure that the data collected by the Great Lakes at

mospheric deposition monitoring network is in a format compatible with databases spon

sored by the International Joint Commis

sion, Canada, and the several States of the Great Lakes region. (3) Monitoring for the Chesapeake Bay and Lake Champlain
The Administrator shall establish at the Chesapeake Bay and Lake Champlain atmos

pheric deposition stations to monitor deposi

tion of hazardous air pollutants (and in the Administrator’s discretion, other air pollut

ants) within the Chesapeake Bay and Lake Champlain watersheds. The Administrator shall determine the role of air deposition in the pollutant loadings of the Chesapeake Bay and Lake Champlain, investigate the sources of air pollutants deposited in the watersheds, evaluate the health and environmental effects of such pollutant loadings, and shall sample such pollutants in biota, fish and wildlife within the watersheds, as necessary to charac

terize such effects. (4) Monitoring for coastal waters The Administrator shall design and deploy atmospheric deposition monitoring networks for coastal waters and their watersheds and shall make any information collected through such networks available to the public. As part of this effort, the Administrator shall conduct research to develop and improve deposition monitoring methods, and to determine the rel

ative contribution of atmospheric pollutantsPage 6259 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

to pollutant loadings. For purposes of this sub

section, ‘‘coastal waters’’ shall mean estuaries selected pursuant to section 320(a)(2)(A) of the Federal Water Pollution Control Act [33 U.S.C. 1330(a)(2)(A)] or listed pursuant to section 320(a)(2)(B) of such Act [33 U.S.C. 1330(a)(2)(B)] or estuarine research reserves designated pur

suant to section 1461 of title 16. (5) Report Within 3 years of November 15, 1990, and bi

ennially thereafter, the Administrator, in co

operation with the Under Secretary of Com

merce for Oceans and Atmosphere, shall sub

mit to the Congress a report on the results of any monitoring, studies, and investigations conducted pursuant to this subsection. Such report shall include, at a minimum, an assess

ment of— (A) the contribution of atmospheric depo

sition to pollution loadings in the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters; (B) the environmental and public health effects of any pollution which is attributable to atmospheric deposition to the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters; (C) the source or sources of any pollution to the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters which is attributable to atmospheric deposition; (D) whether pollution loadings in the Great Lakes, the Chesapeake Bay, Lake Champlain or coastal waters cause or con

tribute to exceedances of drinking water standards pursuant to the Safe Drinking Water Act [42 U.S.C. 300f et seq.] or water quality standards pursuant to the Federal Water Pollution Control Act [33 U.S.C. 1251 et seq.] or, with respect to the Great Lakes, exceedances of the specific objectives of the Great Lakes Water Quality Agreement; and (E) a description of any revisions of the re

quirements, standards, and limitations pur

suant to this chapter and other applicable Federal laws as are necessary to assure pro

tection of human health and the environ

ment. (6) Additional regulation As part of the report to Congress, the Ad

ministrator shall determine whether the other provisions of this section are adequate to pre

vent serious adverse effects to public health and serious or widespread environmental ef

fects, including such effects resulting from in

direct exposure pathways, associated with at

mospheric deposition to the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters of hazardous air pollutants (and their atmospheric transformation products). The Administrator shall take into consideration the tendency of such pollutants to bioaccumu

late. Within 5 years after November 15, 1990, the Administrator shall, based on such report and determination, promulgate, in accordance with this section, such further emission stand

ards or control measures as may be necessary and appropriate to prevent such effects, in

cluding effects due to bioaccumulation and in

direct exposure pathways. Any requirements promulgated pursuant to this paragraph with respect to coastal waters shall only apply to the coastal waters of the States which are sub

ject to section 7627(a) of this title. (n) Other provisions (1) Electric utility steam generating units (A) The Administrator shall perform a study of the hazards to public health reasonably an

ticipated to occur as a result of emissions by electric utility steam generating units of pol

lutants listed under subsection (b) of this sec

tion after imposition of the requirements of this chapter. The Administrator shall report the results of this study to the Congress with

in 3 years after November 15, 1990. The Admin

istrator shall develop and describe in the Ad

ministrator’s report to Congress alternative control strategies for emissions which may warrant regulation under this section. The Ad

ministrator shall regulate electric utility steam generating units under this section, if the Administrator finds such regulation is ap

propriate and necessary after considering the results of the study required by this subpara

graph. (B) The Administrator shall conduct, and transmit to the Congress not later than 4 years after November 15, 1990, a study of mer

cury emissions from electric utility steam generating units, municipal waste combustion units, and other sources, including area sources. Such study shall consider the rate and mass of such emissions, the health and en

vironmental effects of such emissions, tech

nologies which are available to control such emissions, and the costs of such technologies. (C) The National Institute of Environmental Health Sciences shall conduct, and transmit to the Congress not later than 3 years after November 15, 1990, a study to determine the threshold level of mercury exposure below which adverse human health effects are not expected to occur. Such study shall include a threshold for mercury concentrations in the tissue of fish which may be consumed (includ

ing consumption by sensitive populations) without adverse effects to public health. (2) Coke oven production technology study (A) The Secretary of the Department of En

ergy and the Administrator shall jointly un

dertake a 6-year study to assess coke oven pro

duction emission control technologies and to assist in the development and commercializa

tion of technically practicable and economi

cally viable control technologies which have the potential to significantly reduce emissions of hazardous air pollutants from coke oven production facilities. In identifying control technologies, the Secretary and the Adminis

trator shall consider the range of existing coke oven operations and battery design and the availability of sources of materials for such coke ovens as well as alternatives to ex

isting coke oven production design. (B) The Secretary and the Administrator are authorized to enter into agreements with per

sons who propose to develop, install and oper

ate coke production emission control tech

nologies which have the potential for signifi

-Page 6260 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

3 So in original. Probably should be ‘‘section’’. cant emissions reductions of hazardous air pollutants provided that Federal funds shall not exceed 50 per centum of the cost of any project assisted pursuant to this paragraph. (C) On completion of the study, the Sec

retary shall submit to Congress a report on the results of the study and shall make recom

mendations to the Administrator identifying practicable and economically viable control technologies for coke oven production facili

ties to reduce residual risks remaining after implementation of the standard under sub

section (d) of this section. (D) There are authorized to be appropriated $5,000,000 for each of the fiscal years 1992 through 1997 to carry out the program author

ized by this paragraph. (3) Publicly owned treatment works The Administrator may conduct, in coopera

tion with the owners and operators of publicly owned treatment works, studies to character

ize emissions of hazardous air pollutants emit

ted by such facilities, to identify industrial, commercial and residential discharges that contribute to such emissions and to dem

onstrate control measures for such emissions. When promulgating any standard under this section applicable to publicly owned treat

ment works, the Administrator may provide for control measures that include pre

treatment of discharges causing emissions of hazardous air pollutants and process or prod

uct substitutions or limitations that may be effective in reducing such emissions. The Ad

ministrator may prescribe uniform sampling, modeling and risk assessment methods for use in implementing this subsection. (4) Oil and gas wells; pipeline facilities (A) Notwithstanding the provisions of sub

section (a) of this section, emissions from any oil or gas exploration or production well (with its associated equipment) and emissions from any pipeline compressor or pump station shall not be aggregated with emissions from other similar units, whether or not such units are in a contiguous area or under common control, to determine whether such units or stations are major sources, and in the case of any oil or gas exploration or production well (with its associated equipment), such emissions shall not be aggregated for any purpose under this section. (B) The Administrator shall not list oil and gas production wells (with its associated equipment) as an area source category under subsection (c) of this section, except that the Administrator may establish an area source category for oil and gas production wells lo

cated in any metropolitan statistical area or consolidated metropolitan statistical area with a population in excess of 1 million, if the Administrator determines that emissions of hazardous air pollutants from such wells present more than a negligible risk of adverse effects to public health. (5) Hydrogen sulfide
The Administrator is directed to assess the hazards to public health and the environment resulting from the emission of hydrogen sul

fide associated with the extraction of oil and natural gas resources. To the extent prac

ticable, the assessment shall build upon and not duplicate work conducted for an assess

ment pursuant to section 8002(m) of the Solid Waste Disposal Act [42 U.S.C. 6982(m)] and shall reflect consultation with the States. The assessment shall include a review of existing State and industry control standards, tech

niques and enforcement. The Administrator shall report to the Congress within 24 months after November 15, 1990, with the findings of such assessment, together with any recom

mendations, and shall, as appropriate, develop and implement a control strategy for emis

sions of hydrogen sulfide to protect human health and the environment, based on the find

ings of such assessment, using authorities under this chapter including sections 3 7411 of this title and this section. (6) Hydrofluoric acid Not later than 2 years after November 15, 1990, the Administrator shall, for those regions of the country which do not have comprehen

sive health and safety regulations with respect to hydrofluoric acid, complete a study of the potential hazards of hydrofluoric acid and the uses of hydrofluoric acid in industrial and commercial applications to public health and the environment considering a range of events including worst-case accidental releases and shall make recommendations to the Congress for the reduction of such hazards, if appro

priate. (7) RCRA facilities In the case of any category or subcategory of sources the air emissions of which are regu

lated under subtitle C of the Solid Waste Dis

posal Act [42 U.S.C. 6921 et seq.], the Adminis

trator shall take into account any regulations of such emissions which are promulgated under such subtitle and shall, to the maximum extent practicable and consistent with the provisions of this section, ensure that the re

quirements of such subtitle and this section are consistent. ( o ) National Academy of Sciences study (1) Request of the Academy Within 3 months of November 15, 1990, the Administrator shall enter into appropriate ar

rangements with the National Academy of Sciences to conduct a review of— (A) risk assessment methodology used by the Environmental Protection Agency to de

termine the carcinogenic risk associated with exposure to hazardous air pollutants from source categories and subcategories subject to the requirements of this section; and (B) improvements in such methodology. (2) Elements to be studied In conducting such review, the National Academy of Sciences should consider, but not be limited to, the following— (A) the techniques used for estimating and describing the carcinogenic potency to hu

mans of hazardous air pollutants; andPage 6261 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

(B) the techniques used for estimating ex

posure to hazardous air pollutants (for hypo

thetical and actual maximally exposed indi

viduals as well as other exposed individuals). (3) Other health effects of concern To the extent practicable, the Academy shall evaluate and report on the methodology for assessing the risk of adverse human health effects other than cancer for which safe thresholds of exposure may not exist, includ

ing, but not limited to, inheritable genetic mutations, birth defects, and reproductive dysfunctions. (4) Report A report on the results of such review shall be submitted to the Senate Committee on En

vironment and Public Works, the House Com

mittee on Energy and Commerce, the Risk As

sessment and Management Commission estab

lished by section 303 of the Clean Air Act Amendments of 1990 and the Administrator not later than 30 months after November 15, 1990. (5) Assistance The Administrator shall assist the Academy in gathering any information the Academy deems necessary to carry out this subsection. The Administrator may use any authority under this chapter to obtain information from any person, and to require any person to con

duct tests, keep and produce records, and make reports respecting research or other ac

tivities conducted by such person as necessary to carry out this subsection. (6) Authorization Of the funds authorized to be appropriated to the Administrator by this chapter, such amounts as are required shall be available to carry out this subsection. (7) Guidelines for carcinogenic risk assessment The Administrator shall consider, but need not adopt, the recommendations contained in the report of the National Academy of Sci

ences prepared pursuant to this subsection and the views of the Science Advisory Board, with respect to such report. Prior to the promulga

tion of any standard under subsection (f) of this section, and after notice and opportunity for comment, the Administrator shall publish revised Guidelines for Carcinogenic Risk As

sessment or a detailed explanation of the rea

sons that any recommendations contained in the report of the National Academy of Sci

ences will not be implemented. The publica

tion of such revised Guidelines shall be a final Agency action for purposes of section 7607 of this title. (p) Mickey Leland National Urban Air Toxics Re

search Center (1) Establishment
The Administrator shall oversee the estab

lishment of a National Urban Air Toxics Re

search Center, to be located at a university, a hospital, or other facility capable of under

taking and maintaining similar research capa

bilities in the areas of epidemiology, oncology, toxicology, pulmonary medicine, pathology, and biostatistics. The center shall be known as the Mickey Leland National Urban Air Toxics Research Center. The geographic site of the National Urban Air Toxics Research Center should be further directed to Harris County, Texas, in order to take full advantage of the well developed scientific community presence on-site at the Texas Medical Center as well as the extensive data previously compiled for the comprehensive monitoring system currently in place. (2) Board of Directors
The National Urban Air Toxics Research Center shall be governed by a Board of Direc

tors to be comprised of 9 members, the ap

pointment of which shall be allocated pro rata among the Speaker of the House, the Majority Leader of the Senate and the President. The members of the Board of Directors shall be se

lected based on their respective academic and professional backgrounds and expertise in matters relating to public health, environ

mental pollution and industrial hygiene. The duties of the Board of Directors shall be to de

termine policy and research guidelines, submit views from center sponsors and the public and issue periodic reports of center findings and activities. (3) Scientific Advisory Panel The Board of Directors shall be advised by a Scientific Advisory Panel, the 13 members of which shall be appointed by the Board, and to include eminent members of the scientific and medical communities. The Panel membership may include scientists with relevant experi

ence from the National Institute of Environ

mental Health Sciences, the Center for Dis

ease Control, the Environmental Protection Agency, the National Cancer Institute, and others, and the Panel shall conduct peer re

view and evaluate research results. The Panel shall assist the Board in developing the re

search agenda, reviewing proposals and appli

cations, and advise on the awarding of re

search grants. (4) Funding
The center shall be established and funded with both Federal and private source funds. (q) Savings provision (1) Standards previously promulgated Any standard under this section in effect be

fore the date of enactment of the Clean Air Act Amendments of 1990 [November 15, 1990] shall remain in force and effect after such date unless modified as provided in this section be

fore the date of enactment of such Amend

ments or under such Amendments. Except as provided in paragraph (4), any standard under this section which has been promulgated, but has not taken effect, before such date shall not be affected by such Amendments unless modi

fied as provided in this section before such date or under such Amendments. Each such standard shall be reviewed and, if appropriate, revised, to comply with the requirements of subsection (d) of this section within 10 years after the date of enactment of the Clean Air Act Amendments of 1990. If a timely petitionPage 6262 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

4 So in original. Probably should be ‘‘Right-To-Know’’. for review of any such standard under section 7607 of this title is pending on such date of en

actment, the standard shall be upheld if it complies with this section as in effect before that date. If any such standard is remanded to the Administrator, the Administrator may in the Administrator’s discretion apply either the requirements of this section, or those of this section as in effect before the date of en

actment of the Clean Air Act Amendments of 1990. (2) Special rule Notwithstanding paragraph (1), no standard shall be established under this section, as amended by the Clean Air Act Amendments of 1990, for radionuclide emissions from (A) ele

mental phosphorous plants, (B) grate calci

nation elemental phosphorous plants, (C) phosphogypsum stacks, or (D) any subcategory of the foregoing. This section, as in effect prior to the date of enactment of the Clean Air Act Amendments of 1990 [November 15, 1990], shall remain in effect for radionuclide emis

sions from such plants and stacks. (3) Other categories Notwithstanding paragraph (1), this section, as in effect prior to the date of enactment of the Clean Air Act Amendments of 1990 [No

vember 15, 1990], shall remain in effect for radionuclide emissions from non-Department of Energy Federal facilities that are not li

censed by the Nuclear Regulatory Commis

sion, coal-fired utility and industrial boilers, underground uranium mines, surface uranium mines, and disposal of uranium mill tailings piles, unless the Administrator, in the Admin

istrator’s discretion, applies the requirements of this section as modified by the Clean Air Act Amendments of 1990 to such sources of radionuclides. (4) Medical facilities Notwithstanding paragraph (1), no standard promulgated under this section prior to No

vember 15, 1990, with respect to medical re

search or treatment facilities shall take effect for two years following November 15, 1990, un

less the Administrator makes a determination pursuant to a rulemaking under subsection (d)(9) of this section. If the Administrator de

termines that the regulatory program estab

lished by the Nuclear Regulatory Commission for such facilities does not provide an ample margin of safety to protect public health, the requirements of this section shall fully apply to such facilities. If the Administrator deter

mines that such regulatory program does pro

vide an ample margin of safety to protect the public health, the Administrator is not re

quired to promulgate a standard under this section for such facilities, as provided in sub

section (d)(9) of this section. (r) Prevention of accidental releases (1) Purpose and general duty It shall be the objective of the regulations and programs authorized under this subsection to prevent the accidental release and to mini

mize the consequences of any such release of any substance listed pursuant to paragraph (3) or any other extremely hazardous substance. The owners and operators of stationary sources producing, processing, handling or storing such substances have a general duty in the same manner and to the same extent as section 654 of title 29 to identify hazards which may result from such releases using appro

priate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental re

leases which do occur. For purposes of this paragraph, the provisions of section 7604 of this title shall not be available to any person or otherwise be construed to be applicable to this paragraph. Nothing in this section shall be interpreted, construed, implied or applied to create any liability or basis for suit for compensation for bodily injury or any other injury or property damages to any person which may result from accidental releases of such substances. (2) Definitions (A) The term ‘‘accidental release’’ means an unanticipated emission of a regulated sub

stance or other extremely hazardous substance into the ambient air from a stationary source. (B) The term ‘‘regulated substance’’ means a substance listed under paragraph (3). (C) The term ‘‘stationary source’’ means any buildings, structures, equipment, installations or substance emitting stationary activities (i) which belong to the same industrial group, (ii) which are located on one or more contiguous properties, (iii) which are under the control of the same person (or persons under common control), and (iv) from which an accidental re

lease may occur. (D) The term ‘‘retail facility’’ means a sta

tionary source at which more than one-half of the income is obtained from direct sales to end users or at which more than one-half of the fuel sold, by volume, is sold through a cylinder exchange program. (3) List of substances The Administrator shall promulgate not later than 24 months after November 15, 1990, an initial list of 100 substances which, in the case of an accidental release, are known to cause or may reasonably be anticipated to cause death, injury, or serious adverse effects to human health or the environment. For pur

poses of promulgating such list, the Adminis

trator shall use, but is not limited to, the list of extremely hazardous substances published under the Emergency Planning and Commu

nity Right-to-Know 4 Act of 1986 [42 U.S.C. 11001 et seq.], with such modifications as the Administrator deems appropriate. The initial list shall include chlorine, anhydrous ammo

nia, methyl chloride, ethylene oxide, vinyl chloride, methyl isocyanate, hydrogen cya

nide, ammonia, hydrogen sulfide, toluene diisocyanate, phosgene, bromine, anhydrous hydrogen chloride, hydrogen fluoride, anhy

drous sulfur dioxide, and sulfur trioxide. The initial list shall include at least 100 substances which pose the greatest risk of causing death,Page 6263 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

injury, or serious adverse effects to human health or the environment from accidental re

leases. Regulations establishing the list shall include an explanation of the basis for estab

lishing the list. The list may be revised from time to time by the Administrator on the Ad

ministrator’s own motion or by petition and shall be reviewed at least every 5 years. No air pollutant for which a national primary ambi

ent air quality standard has been established shall be included on any such list. No sub

stance, practice, process, or activity regulated under subchapter VI of this chapter shall be subject to regulations under this subsection. The Administrator shall establish procedures for the addition and deletion of substances from the list established under this paragraph consistent with those applicable to the list in subsection (b) of this section. (4) Factors to be considered In listing substances under paragraph (3), the Administrator— (A) shall consider— (i) the severity of any acute adverse health effects associated with accidental releases of the substance; (ii) the likelihood of accidental releases of the substance; and (iii) the potential magnitude of human exposure to accidental releases of the sub

stance; and (B) shall not list a flammable substance when used as a fuel or held for sale as a fuel at a retail facility under this subsection solely because of the explosive or flammable properties of the substance, unless a fire or explosion caused by the substance will result in acute adverse health effects from human exposure to the substance, including the un

burned fuel or its combustion byproducts, other than those caused by the heat of the fire or impact of the explosion. (5) Threshold quantity At the time any substance is listed pursuant to paragraph (3), the Administrator shall es

tablish by rule, a threshold quantity for the substance, taking into account the toxicity, reactivity, volatility, dispersibility, combus

tibility, or flammability of the substance and the amount of the substance which, as a result of an accidental release, is known to cause or may reasonably be anticipated to cause death, injury or serious adverse effects to human health for which the substance was listed. The Administrator is authorized to establish a greater threshold quantity for, or to exempt entirely, any substance that is a nutrient used in agriculture when held by a farmer. (6) Chemical Safety Board (A) There is hereby established an independ

ent safety board to be known as the Chemical Safety and Hazard Investigation Board. (B) The Board shall consist of 5 members, in

cluding a Chairperson, who shall be appointed by the President, by and with the advice and consent of the Senate. Members of the Board shall be appointed on the basis of technical qualification, professional standing, and dem

onstrated knowledge in the fields of accident reconstruction, safety engineering, human fac

tors, toxicology, or air pollution regulation. The terms of office of members of the Board shall be 5 years. Any member of the Board, in

cluding the Chairperson, may be removed for inefficiency, neglect of duty, or malfeasance in office. The Chairperson shall be the Chief Executive Officer of the Board and shall exer

cise the executive and administrative func

tions of the Board. (C) The Board shall— (i) investigate (or cause to be inves

tigated), determine and report to the public in writing the facts, conditions, and circum

stances and the cause or probable cause of any accidental release resulting in a fatal

ity, serious injury or substantial property damages; (ii) issue periodic reports to the Congress, Federal, State and local agencies, including the Environmental Protection Agency and the Occupational Safety and Health Admin

istration, concerned with the safety of chemical production, processing, handling and storage, and other interested persons recommending measures to reduce the like

lihood or the consequences of accidental re

leases and proposing corrective steps to make chemical production, processing, han

dling and storage as safe and free from risk of injury as is possible and may include in such reports proposed rules or orders which should be issued by the Administrator under the authority of this section or the Sec

retary of Labor under the Occupational Safety and Health Act [29 U.S.C. 651 et seq.] to prevent or minimize the consequences of any release of substances that may cause death, injury or other serious adverse effects on human health or substantial property damage as the result of an accidental re

lease; and (iii) establish by regulation requirements binding on persons for reporting accidental releases into the ambient air subject to the Board’s investigatory jurisdiction. Report

ing releases to the National Response Cen

ter, in lieu of the Board directly, shall sat

isfy such regulations. The National Response Center shall promptly notify the Board of any releases which are within the Board’s ju

risdiction. (D) The Board may utilize the expertise and experience of other agencies. (E) The Board shall coordinate its activities with investigations and studies conducted by other agencies of the United States having a responsibility to protect public health and safety. The Board shall enter into a memoran

dum of understanding with the National Transportation Safety Board to assure coordi

nation of functions and to limit duplication of activities which shall designate the National Transportation Safety Board as the lead agen

cy for the investigation of releases which are transportation related. The Board shall not be authorized to investigate marine oil spills, which the National Transportation Safety Board is authorized to investigate. The Board shall enter into a memorandum of understand

ing with the Occupational Safety and HealthPage 6264 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

5 So in original. Probably should be paragraph ‘‘(7)(B)’’.

6 So in original. The word ‘‘or’’ probably should appear. 7 So in original. The word ‘‘Administrator’’ probably should be ‘‘Secretary’’. Administration so as to limit duplication of activities. In no event shall the Board forego an investigation where an accidental release causes a fatality or serious injury among the general public, or had the potential to cause substantial property damage or a number of deaths or injuries among the general public. (F) The Board is authorized to conduct re

search and studies with respect to the poten

tial for accidental releases, whether or not an accidental release has occurred, where there is evidence which indicates the presence of a po

tential hazard or hazards. To the extent prac

ticable, the Board shall conduct such studies in cooperation with other Federal agencies having emergency response authorities, State and local governmental agencies and associa

tions and organizations from the industrial, commercial, and nonprofit sectors. (G) No part of the conclusions, findings, or recommendations of the Board relating to any accidental release or the investigation thereof shall be admitted as evidence or used in any action or suit for damages arising out of any matter mentioned in such report. (H) Not later than 18 months after November 15, 1990, the Board shall publish a report ac

companied by recommendations to the Admin

istrator on the use of hazard assessments in preventing the occurrence and minimizing the consequences of accidental releases of ex

tremely hazardous substances. The recom

mendations shall include a list of extremely hazardous substances which are not regulated substances (including threshold quantities for such substances) and categories of stationary sources for which hazard assessments would be an appropriate measure to aid in the preven

tion of accidental releases and to minimize the consequences of those releases that do occur. The recommendations shall also include a de

scription of the information and analysis which would be appropriate to include in any hazard assessment. The Board shall also make recommendations with respect to the role of risk management plans as required by para

graph (8)(B) 5 in preventing accidental releases. The Board may from time to time review and revise its recommendations under this sub

paragraph. (I) Whenever the Board submits a recom

mendation with respect to accidental releases to the Administrator, the Administrator shall respond to such recommendation formally and in writing not later than 180 days after receipt thereof. The response to the Board’s recom

mendation by the Administrator shall indicate whether the Administrator will— (i) initiate a rulemaking or issue such or

ders as are necessary to implement the rec

ommendation in full or in part, pursuant to any timetable contained in the recommenda

tion; 6 (ii) decline to initiate a rulemaking or issue orders as recommended. Any determination by the Administrator not to implement a recommendation of the Board or to implement a recommendation only in part, including any variation from the sched

ule contained in the recommendation, shall be accompanied by a statement from the Admin

istrator setting forth the reasons for such de

termination. (J) The Board may make recommendations with respect to accidental releases to the Sec

retary of Labor. Whenever the Board submits such recommendation, the Secretary shall re

spond to such recommendation formally and in writing not later than 180 days after receipt thereof. The response to the Board’s recom

mendation by the Administrator 7 shall indi

cate whether the Secretary will— (i) initiate a rulemaking or issue such or

ders as are necessary to implement the rec

ommendation in full or in part, pursuant to any timetable contained in the recommenda

tion; 6 (ii) decline to initiate a rulemaking or issue orders as recommended. Any determination by the Secretary not to implement a recommendation or to implement a recommendation only in part, including any variation from the schedule contained in the recommendation, shall be accompanied by a statement from the Secretary setting forth the reasons for such determination. (K) Within 2 years after November 15, 1990, the Board shall issue a report to the Adminis

trator of the Environmental Protection Agen

cy and to the Administrator of the Occupa

tional Safety and Health Administration rec

ommending the adoption of regulations for the preparation of risk management plans and general requirements for the prevention of ac

cidental releases of regulated substances into the ambient air (including recommendations for listing substances under paragraph (3)) and for the mitigation of the potential adverse ef

fect on human health or the environment as a result of accidental releases which should be applicable to any stationary source handling any regulated substance in more than thresh

old amounts. The Board may include proposed rules or orders which should be issued by the Administrator under authority of this sub

section or by the Secretary of Labor under the Occupational Safety and Health Act [29 U.S.C. 651 et seq.]. Any such recommendations shall be specific and shall identify the regulated substance or class of regulated substances (or other substances) to which the recommenda

tions apply. The Administrator shall consider such recommendations before promulgating regulations required by paragraph (7)(B). (L) The Board, or upon authority of the Board, any member thereof, any administra

tive law judge employed by or assigned to the Board, or any officer or employee duly des

ignated by the Board, may for the purpose of carrying out duties authorized by subpara

graph (C)— (i) hold such hearings, sit and act at such times and places, administer such oaths, and require by subpoena or otherwise attendance and testimony of such witnesses and the pro

duction of evidence and may require byPage 6265 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

8 So in original. Probably should be ‘‘subparagraph’’. order that any person engaged in the produc

tion, processing, handling, or storage of ex

tremely hazardous substances submit writ

ten reports and responses to requests and questions within such time and in such form as the Board may require; and (ii) upon presenting appropriate creden

tials and a written notice of inspection au

thority, enter any property where an acci

dental release causing a fatality, serious in

jury or substantial property damage has oc

curred and do all things therein necessary for a proper investigation pursuant to sub

paragraph (C) and inspect at reasonable times records, files, papers, processes, con

trols, and facilities and take such samples as are relevant to such investigation.

Whenever the Administrator or the Board con

ducts an inspection of a facility pursuant to this subsection, employees and their rep

resentatives shall have the same rights to par

ticipate in such inspections as provided in the Occupational Safety and Health Act [29 U.S.C. 651 et seq.]. (M) In addition to that described in subpara

graph (L), the Board may use any information gathering authority of the Administrator under this chapter, including the subpoena power provided in section 7607(a)(1) of this title. (N) The Board is authorized to establish such procedural and administrative rules as are necessary to the exercise of its functions and duties. The Board is authorized without regard to section 6101 of title 41 to enter into con

tracts, leases, cooperative agreements or other transactions as may be necessary in the con

duct of the duties and functions of the Board with any other agency, institution, or person. (O) After the effective date of any reporting requirement promulgated pursuant to sub

paragraph (C)(iii) it shall be unlawful for any person to fail to report any release of any ex

tremely hazardous substance as required by such subparagraph. The Administrator is au

thorized to enforce any regulation or require

ments established by the Board pursuant to subparagraph (C)(iii) using the authorities of sections 7413 and 7414 of this title. Any request for information from the owner or operator of a stationary source made by the Board or by the Administrator under this section shall be treated, for purposes of sections 7413, 7414, 7416, 7420, 7603, 7604 and 7607 of this title and any other enforcement provisions of this chap

ter, as a request made by the Administrator under section 7414 of this title and may be en

forced by the Chairperson of the Board or by the Administrator as provided in such section. (P) The Administrator shall provide to the Board such support and facilities as may be necessary for operation of the Board. (Q) Consistent with subsection 8 (G) and sec

tion 7414(c) of this title any records, reports or information obtained by the Board shall be available to the Administrator, the Secretary of Labor, the Congress and the public, except that upon a showing satisfactory to the Board by any person that records, reports, or infor

mation, or particular part thereof (other than release or emissions data) to which the Board has access, if made public, is likely to cause substantial harm to the person’s competitive position, the Board shall consider such record, report, or information or particular portion thereof confidential in accordance with sec

tion 1905 of title 18, except that such record, report, or information may be disclosed to other officers, employees, and authorized rep

resentatives of the United States concerned with carrying out this chapter or when rel

evant under any proceeding under this chap

ter. This subparagraph does not constitute au

thority to withhold records, reports, or infor

mation from the Congress. (R) Whenever the Board submits or trans

mits any budget estimate, budget request, supplemental budget request, or other budget information, legislative recommendation, pre

pared testimony for congressional hearings, recommendation or study to the President, the Secretary of Labor, the Administrator, or the Director of the Office of Management and Budget, it shall concurrently transmit a copy thereof to the Congress. No report of the Board shall be subject to review by the Admin

istrator or any Federal agency or to judicial review in any court. No officer or agency of the United States shall have authority to re

quire the Board to submit its budget requests or estimates, legislative recommendations, prepared testimony, comments, recommenda

tions or reports to any officer or agency of the United States for approval or review prior to the submission of such recommendations, tes

timony, comments or reports to the Congress. In the performance of their functions as estab

lished by this chapter, the members, officers and employees of the Board shall not be re

sponsible to or subject to supervision or direc

tion, in carrying out any duties under this subsection, of any officer or employee or agent of the Environmental Protection Agency, the Department of Labor or any other agency of the United States except that the President may remove any member, officer or employee of the Board for inefficiency, neglect of duty or malfeasance in office. Nothing in this sec

tion shall affect the application of title 5 to of

ficers or employees of the Board. (S) The Board shall submit an annual report to the President and to the Congress which shall include, but not be limited to, informa

tion on accidental releases which have been investigated by or reported to the Board dur

ing the previous year, recommendations for legislative or administrative action which the Board has made, the actions which have been taken by the Administrator or the Secretary of Labor or the heads of other agencies to im

plement such recommendations, an identifica

tion of priorities for study and investigation in the succeeding year, progress in the devel

opment of risk-reduction technologies and the response to and implementation of significant research findings on chemical safety in the public and private sector.Page 6266 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

(7) Accident prevention (A) In order to prevent accidental releases of regulated substances, the Administrator is au

thorized to promulgate release prevention, de

tection, and correction requirements which may include monitoring, record-keeping, re

porting, training, vapor recovery, secondary containment, and other design, equipment, work practice, and operational requirements. Regulations promulgated under this paragraph may make distinctions between various types, classes, and kinds of facilities, devices and systems taking into consideration factors in

cluding, but not limited to, the size, location, process, process controls, quantity of sub

stances handled, potency of substances, and response capabilities present at any station

ary source. Regulations promulgated pursuant to this subparagraph shall have an effective date, as determined by the Administrator, as

suring compliance as expeditiously as prac

ticable. (B)(i) Within 3 years after November 15, 1990, the Administrator shall promulgate reason

able regulations and appropriate guidance to provide, to the greatest extent practicable, for the prevention and detection of accidental re

leases of regulated substances and for response to such releases by the owners or operators of the sources of such releases. The Adminis

trator shall utilize the expertise of the Sec

retaries of Transportation and Labor in pro

mulgating such regulations. As appropriate, such regulations shall cover the use, oper

ation, repair, replacement, and maintenance of equipment to monitor, detect, inspect, and control such releases, including training of persons in the use and maintenance of such equipment and in the conduct of periodic in

spections. The regulations shall include proce

dures and measures for emergency response after an accidental release of a regulated sub

stance in order to protect human health and the environment. The regulations shall cover storage, as well as operations. The regulations shall, as appropriate, recognize differences in size, operations, processes, class and cat

egories of sources and the voluntary actions of such sources to prevent such releases and re

spond to such releases. The regulations shall be applicable to a stationary source 3 years after the date of promulgation, or 3 years after the date on which a regulated substance present at the source in more than threshold amounts is first listed under paragraph (3), whichever is later. (ii) The regulations under this subparagraph shall require the owner or operator of station

ary sources at which a regulated substance is present in more than a threshold quantity to prepare and implement a risk management plan to detect and prevent or minimize acci

dental releases of such substances from the stationary source, and to provide a prompt emergency response to any such releases in order to protect human health and the envi

ronment. Such plan shall provide for compli

ance with the requirements of this subsection and shall also include each of the following: (I) a hazard assessment to assess the po

tential effects of an accidental release of any regulated substance. This assessment shall include an estimate of potential release quantities and a determination of downwind effects, including potential exposures to af

fected populations. Such assessment shall include a previous release history of the past 5 years, including the size, concentration, and duration of releases, and shall include an evaluation of worst case accidental re

leases; (II) a program for preventing accidental releases of regulated substances, including safety precautions and maintenance, mon

itoring and employee training measures to be used at the source; and (III) a response program providing for spe

cific actions to be taken in response to an accidental release of a regulated substance so as to protect human health and the envi

ronment, including procedures for informing the public and local agencies responsible for responding to accidental releases, emer

gency health care, and employee training

measures. At the time regulations are promulgated under this subparagraph, the Administrator shall promulgate guidelines to assist station

ary sources in the preparation of risk manage

ment plans. The guidelines shall, to the extent practicable, include model risk management plans. (iii) The owner or operator of each station

ary source covered by clause (ii) shall register a risk management plan prepared under this subparagraph with the Administrator before the effective date of regulations under clause (i) in such form and manner as the Adminis

trator shall, by rule, require. Plans prepared pursuant to this subparagraph shall also be submitted to the Chemical Safety and Hazard Investigation Board, to the State in which the stationary source is located, and to any local agency or entity having responsibility for planning for or responding to accidental re

leases which may occur at such source, and shall be available to the public under section 7414(c) of this title. The Administrator shall establish, by rule, an auditing system to regu

larly review and, if necessary, require revision in risk management plans to assure that the plans comply with this subparagraph. Each such plan shall be updated periodically as re

quired by the Administrator, by rule. (C) Any regulations promulgated pursuant to this subsection shall to the maximum ex

tent practicable, consistent with this sub

section, be consistent with the recommenda

tions and standards established by the Amer

ican Society of Mechanical Engineers (ASME), the American National Standards Institute (ANSI) or the American Society of Testing Materials (ASTM). The Administrator shall take into consideration the concerns of small business in promulgating regulations under this subsection. (D) In carrying out the authority of this paragraph, the Administrator shall consult with the Secretary of Labor and the Secretary of Transportation and shall coordinate any re

quirements under this paragraph with any re

quirements established for comparable pur

-Page 6267 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

poses by the Occupational Safety and Health Administration or the Department of Trans

portation. Nothing in this subsection shall be interpreted, construed or applied to impose re

quirements affecting, or to grant the Adminis

trator, the Chemical Safety and Hazard Inves

tigation Board, or any other agency any au

thority to regulate (including requirements for hazard assessment), the accidental release of radionuclides arising from the construction and operation of facilities licensed by the Nu

clear Regulatory Commission. (E) After the effective date of any regulation or requirement imposed under this subsection, it shall be unlawful for any person to operate any stationary source subject to such regula

tion or requirement in violation of such regu

lation or requirement. Each regulation or re

quirement under this subsection shall for pur

poses of sections 7413, 7414, 7416, 7420, 7604, and 7607 of this title and other enforcement provi

sions of this chapter, be treated as a standard in effect under subsection (d) of this section. (F) Notwithstanding the provisions of sub

chapter V of this chapter or this section, no stationary source shall be required to apply for, or operate pursuant to, a permit issued under such subchapter solely because such source is subject to regulations or require

ments under this subsection. (G) In exercising any authority under this subsection, the Administrator shall not, for purposes of section 653(b)(1) of title 29, be deemed to be exercising statutory authority to prescribe or enforce standards or regula

tions affecting occupational safety and health. (H) P UBLIC ACCESS TO OFF

- SITE CONSEQUENCE ANALYSIS INFORMATION .— (i) D EFINITIONS .—In this subparagraph: (I) C OVERED PERSON .—The term ‘‘covered person’’ means— (aa) an officer or employee of the United States; (bb) an officer or employee of an agent or contractor of the Federal Govern

ment; (cc) an officer or employee of a State or local government; (dd) an officer or employee of an agent or contractor of a State or local govern

ment; (ee) an individual affiliated with an en

tity that has been given, by a State or local government, responsibility for pre

venting, planning for, or responding to accidental releases; (ff) an officer or employee or an agent or contractor of an entity described in item (ee); and (gg) a qualified researcher under clause (vii). (II) O FFICIAL USE .—The term ‘‘official use’’ means an action of a Federal, State, or local government agency or an entity referred to in subclause (I)(ee) intended to carry out a function relevant to prevent

ing, planning for, or responding to acciden

tal releases. (III) O FF

- SITE CONSEQUENCE ANALYSIS IN

FORMATION .—The term ‘‘off-site con

sequence analysis information’’ means those portions of a risk management plan, excluding the executive summary of the plan, consisting of an evaluation of 1 or more worst-case release scenarios or alter

native release scenarios, and any elec

tronic data base created by the Adminis

trator from those portions. (IV) R ISK MANAGEMENT PLAN .—The term ‘‘risk management plan’’ means a risk management plan submitted to the Ad

ministrator by an owner or operator of a stationary source under subparagraph (B)(iii). (ii) R EGULATIONS .—Not later than 1 year after August 5, 1999, the President shall— (I) assess— (aa) the increased risk of terrorist and other criminal activity associated with the posting of off-site consequence analysis information on the Internet; and (bb) the incentives created by public disclosure of off-site consequence analy

sis information for reduction in the risk of accidental releases; and (II) based on the assessment under sub

clause (I), promulgate regulations govern

ing the distribution of off-site consequence analysis information in a manner that, in the opinion of the President, minimizes the likelihood of accidental releases and the risk described in subclause (I)(aa) and the likelihood of harm to public health and welfare, and— (aa) allows access by any member of the public to paper copies of off-site con

sequence analysis information for a lim

ited number of stationary sources lo

cated anywhere in the United States, without any geographical restriction;(bb) allows other public access to offsite consequence analysis information as appropriate; (cc) allows access for official use by a covered person described in any of items (cc) through (ff) of clause (i)(I) (referred to in this subclause as a ‘‘State or local covered person’’) to off-site consequence analysis information relating to station

ary sources located in the person’s State; (dd) allows a State or local coveredperson to provide, for official use, offsite consequence analysis information relating to stationary sources located in the person’s State to a State or local covered person in a contiguous State; and (ee) allows a State or local covered person to obtain for official use, by re

quest to the Administrator, off-site con

sequence analysis information that is not available to the person under item (cc). (iii) A VAILABILITY UNDER FREEDOM OF IN

FORMATION ACT .— (I) F IRST YEAR .—Off-site consequence analysis information, and any ranking of stationary sources derived from the infor

mation, shall not be made available under section 552 of title 5 during the 1-year pe

riod beginning on August 5, 1999.Page 6268 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

9 So in original. Probably should be ‘‘(i)(II)’’.

(II) A FTER FIRST YEAR .—If the regula

tions under clause (ii) are promulgated on or before the end of the period described in subclause (I), off-site consequence analysis information covered by the regulations, and any ranking of stationary sources de

rived from the information, shall not be made available under section 552 of title 5 after the end of that period. (III) A PPLICABILITY .—Subclauses (I) and (II) apply to off-site consequence analysis information submitted to the Adminis

trator before, on, or after August 5, 1999. (iv) A VAILABILITY OF INFORMATION DURING TRANSITION PERIOD .—The Administrator shall make off-site consequence analysis in

formation available to covered persons for official use in a manner that meets the re

quirements of items (cc) through (ee) of clause (ii)(II), and to the public in a form that does not make available any informa

tion concerning the identity or location of stationary sources, during the period— (I) beginning on August 5, 1999; and (II) ending on the earlier of the date of promulgation of the regulations under clause (ii) or the date that is 1 year after August 5, 1999. (v) P ROHIBITION ON UNAUTHORIZED DISCLO

SURE OF INFORMATION BY COVERED PERSONS .— (I) I N GENERAL .—Beginning on August 5, 1999, a covered person shall not disclose to the public off-site consequence analysis in

formation in any form, or any statewide or national ranking of identified stationary sources derived from such information, ex

cept as authorized by this subparagraph (including the regulations promulgated under clause (ii)). After the end of the 1- year period beginning on August 5, 1999, if regulations have not been promulgated under clause (ii), the preceding sentence shall not apply. (II) C RIMINAL PENALTIES .—Notwithstand

ing section 7413 of this title, a covered per

son that willfully violates a restriction or prohibition established by this subpara

graph (including the regulations promul

gated under clause (ii)) shall, upon convic

tion, be fined for an infraction under sec

tion 3571 of title 18 (but shall not be sub

ject to imprisonment) for each unauthor

ized disclosure of off-site consequence analysis information, except that sub

section (d) of such section 3571 shall not apply to a case in which the offense results in pecuniary loss unless the defendant knew that such loss would occur. The dis

closure of off-site consequence analysis in

formation for each specific stationary source shall be considered a separate of

fense. The total of all penalties that may be imposed on a single person or organiza

tion under this item shall not exceed $1,000,000 for violations committed during any 1 calendar year. (III) A PPLICABILITY .—If the owner or op

erator of a stationary source makes offsite consequence analysis information re

lating to that stationary source available to the public without restriction— (aa) subclauses (I) and (II) shall not apply with respect to the information; and (bb) the owner or operator shall notify the Administrator of the public avail

ability of the information. (IV) L IST .—The Administrator shall maintain and make publicly available a list of all stationary sources that have pro

vided notification under subclause (III)(bb). (vi) N OTICE .—The Administrator shall pro

vide notice of the definition of official use as provided in clause (i)(III) 9 and examples of actions that would and would not meet that definition, and notice of the restrictions on further dissemination and the penalties es

tablished by this chapter to each covered person who receives off-site consequence analysis information under clause (iv) and each covered person who receives off-site consequence analysis information for an of

ficial use under the regulations promulgated under clause (ii). (vii) Q UALIFIED RESEARCHERS .— (I) I N GENERAL .—Not later than 180 days after August 5, 1999, the Administrator, in consultation with the Attorney General, shall develop and implement a system for providing off-site consequence analysis in

formation, including facility identifica

tion, to any qualified researcher, including a qualified researcher from industry or any public interest group. (II) L IMITATION ON DISSEMINATION .—The system shall not allow the researcher to disseminate, or make available on the Internet, the off-site consequence analysis information, or any portion of the off-site consequence analysis information, re

ceived under this clause. (viii) R EAD

- ONLY INFORMATION TECHNOLOGY SYSTEM .—In consultation with the Attorney General and the heads of other appropriate Federal agencies, the Administrator shall establish an information technology system that provides for the availability to the pub

lic of off-site consequence analysis informa

tion by means of a central data base under the control of the Federal Government that contains information that users may read, but that provides no means by which an electronic or mechanical copy of the infor

mation may be made. (ix) V OLUNTARY INDUSTRY ACCIDENT PRE

VENTION STANDARDS .—The Environmental Protection Agency, the Department of Jus

tice, and other appropriate agencies may provide technical assistance to owners and operators of stationary sources and partici

pate in the development of voluntary indus

try standards that will help achieve the ob

jectives set forth in paragraph (1). (x) E FFECT ON STATE OR LOCAL LAW .— (I) I N GENERAL .—Subject to subclause (II), this subparagraph (including the regu

lations promulgated under this subpara

graph) shall supersede any provision ofPage 6269 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

State or local law that is inconsistent with this subparagraph (including the regula

tions). (II) A VAILABILITY OF INFORMATION UNDER STATE LAW .—Nothing in this subparagraph precludes a State from making available data on the off-site consequences of chemi

cal releases collected in accordance with State law. (xi) R EPORT .— (I) I N GENERAL .—Not later than 3 years after August 5, 1999, the Attorney General, in consultation with appropriate State, local, and Federal Government agencies, affected industry, and the public, shall submit to Congress a report that describes the extent to which regulations promul

gated under this paragraph have resulted in actions, including the design and main

tenance of safe facilities, that are effective in detecting, preventing, and minimizing the consequences of releases of regulated substances that may be caused by criminal activity. As part of this report, the Attor

ney General, using available data to the extent possible, and a sampling of covered stationary sources selected at the discre

tion of the Attorney General, and in con

sultation with appropriate State, local, and Federal governmental agencies, af

fected industry, and the public, shall re

view the vulnerability of covered station

ary sources to criminal and terrorist ac

tivity, current industry practices regard

ing site security, and security of transpor

tation of regulated substances. The Attor

ney General shall submit this report, con

taining the results of the review, together with recommendations, if any, for reduc

ing vulnerability of covered stationary sources to criminal and terrorist activity, to the Committee on Commerce of the United States House of Representatives and the Committee on Environment and Public Works of the United States Senate and other relevant committees of Con

gress. (II) I NTERIM REPORT .—Not later than 12 months after August 5, 1999, the Attorney General shall submit to the Committee on Commerce of the United States House of Representatives and the Committee on En

vironment and Public Works of the United States Senate, and other relevant commit

tees of Congress, an interim report that in

cludes, at a minimum— (aa) the preliminary findings under subclause (I); (bb) the methods used to develop the findings; and (cc) an explanation of the activities ex

pected to occur that could cause the findings of the report under subclause (I) to be different than the preliminary find

ings. (III) A VAILABILITY OF INFORMATION .—In

formation that is developed by the Attor

ney General or requested by the Attorney General and received from a covered sta

tionary source for the purpose of conduct

ing the review under subclauses (I) and (II) shall be exempt from disclosure under sec

tion 552 of title 5 if such information would pose a threat to national security. (xii) S COPE .—This subparagraph— (I) applies only to covered persons; and (II) does not restrict the dissemination of off-site consequence analysis informa

tion by any covered person in any manner or form except in the form of a risk man

agement plan or an electronic data base created by the Administrator from off-site consequence analysis information. (xiii) A UTHORIZATION OF APPROPRIATIONS .— There are authorized to be appropriated to the Administrator and the Attorney General such sums as are necessary to carry out this subparagraph (including the regulations pro

mulgated under clause (ii)), to remain avail

able until expended. (8) Research on hazard assessments The Administrator may collect and publish information on accident scenarios and conse

quences covering a range of possible events for substances listed under paragraph (3). The Ad

ministrator shall establish a program of longterm research to develop and disseminate in

formation on methods and techniques for haz

ard assessment which may be useful in im

proving and validating the procedures em

ployed in the preparation of hazard assess

ments under this subsection. (9) Order authority (A) In addition to any other action taken, when the Administrator determines that there may be an imminent and substantial endan

germent to the human health or welfare or the environment because of an actual or threat

ened accidental release of a regulated sub

stance, the Administrator may secure such re

lief as may be necessary to abate such danger or threat, and the district court of the United States in the district in which the threat oc

curs shall have jurisdiction to grant such re

lief as the public interest and the equities of the case may require. The Administrator may also, after notice to the State in which the stationary source is located, take other action under this paragraph including, but not lim

ited to, issuing such orders as may be nec

essary to protect human health. The Adminis

trator shall take action under section 7603 of this title rather than this paragraph whenever the authority of such section is adequate to protect human health and the environment. (B) Orders issued pursuant to this paragraph may be enforced in an action brought in the appropriate United States district court as if the order were issued under section 7603 of this title. (C) Within 180 days after November 15, 1990, the Administrator shall publish guidance for using the order authorities established by this paragraph. Such guidance shall provide for the coordinated use of the authorities of this para

graph with other emergency powers authorized by section 9606 of this title, sections 311(c), 308, 309 and 504(a) of the Federal Water Pollution Control Act [33 U.S.C. 1321(c), 1318, 1319,Page 6270 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

1364(a)], sections 3007, 3008, 3013, and 7003 of the Solid Waste Disposal Act [42 U.S.C. 6927, 6928, 6934, 6973], sections 1445 and 1431 of the Safe Drinking Water Act [42 U.S.C. 300j–4, 300i], sec

tions 5 and 7 of the Toxic Substances Control Act [15 U.S.C. 2604, 2606], and sections 7413, 7414, and 7603 of this title. (10) Presidential review
The President shall conduct a review of re

lease prevention, mitigation and response au

thorities of the various Federal agencies and shall clarify and coordinate agency respon

sibilities to assure the most effective and effi

cient implementation of such authorities and to identify any deficiencies in authority or re

sources which may exist. The President may utilize the resources and solicit the recom

mendations of the Chemical Safety and Hazard Investigation Board in conducting such re

view. At the conclusion of such review, but not later than 24 months after November 15, 1990, the President shall transmit a message to the Congress on the release prevention, mitigation and response activities of the Federal Govern

ment making such recommendations for change in law as the President may deem ap

propriate. Nothing in this paragraph shall be interpreted, construed or applied to authorize the President to modify or reassign release prevention, mitigation or response authorities otherwise established by law. (11) State authority Nothing in this subsection shall preclude, deny or limit any right of a State or political subdivision thereof to adopt or enforce any regulation, requirement, limitation or stand

ard (including any procedural requirement) that is more stringent than a regulation, re

quirement, limitation or standard in effect under this subsection or that applies to a sub

stance not subject to this subsection. (s) Periodic report Not later than January 15, 1993 and every 3 years thereafter, the Administrator shall pre

pare and transmit to the Congress a comprehen

sive report on the measures taken by the Agen

cy and by the States to implement the provi

sions of this section. The Administrator shall maintain a database on pollutants and sources subject to the provisions of this section and shall include aggregate information from the database in each annual report. The report shall include, but not be limited to— (1) a status report on standard-setting under subsections (d) and (f) of this section; (2) information with respect to compliance with such standards including the costs of compliance experienced by sources in various categories and subcategories; (3) development and implementation of the national urban air toxics program; and (4) recommendations of the Chemical Safety and Hazard Investigation Board with respect to the prevention and mitigation of accidental releases. (July 14, 1955, ch. 360, title I, §112, as added Pub. L. 91–604, §4(a), Dec. 31, 1970, 84 Stat. 1685; amended Pub. L. 95–95, title I, §§109(d)(2), 110, title IV, §401(c), Aug. 7, 1977, 91 Stat. 701, 703, 791; Pub. L. 95–623, §13(b), Nov. 9, 1978, 92 Stat. 3458; Pub. L. 101–549, title III, §301, Nov. 15, 1990, 104 Stat. 2531; Pub. L. 102–187, Dec. 4, 1991, 105 Stat. 1285; Pub. L. 105–362, title IV, §402(b), Nov. 10, 1998, 112 Stat. 3283; Pub. L. 106–40, §§2, 3(a), Aug. 5, 1999, 113 Stat. 207, 208.)

R EFERENCES IN T EXT The date of enactment, referred to in subsec. (a)(11), probably means the date of enactment of Pub. L. 101–549, which amended this section generally and was approved Nov. 15, 1990. The Atomic Energy Act, referred to in subsec. (d)(9), probably means the Atomic Energy Act of 1954, act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, §1, 68 Stat. 921, and amended, which is classified generally to chapter 23 (§2011 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. The Federal Water Pollution Control Act, referred to in subsecs. (e)(5) and (m)(1)(D), (5)(D), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92–500, §2, Oct. 18, 1972, 86 Stat. 816, which is classified generally to chapter 26 (§1251 et seq.) of Title 33, Navigation and Navigable Waters. Title II of the Act is classified gener

ally to subchapter II (§1281 et seq.) of chapter 26 of Title 33. For complete classification of this Act to the Code, see Short Title note set out under section 1251 of Title 33 and Tables. The Toxic Substances Control Act, referred to in sub

sec. (k)(3)(C), is Pub. L. 94–469, Oct. 11, 1976, 90 Stat. 2003, as amended, which is classified generally to chap

ter 53 (§2601 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 2601 of Title 15 and Tables. The Federal Insecticide, Fungicide and Rodenticide Act, referred to in subsec. (k)(3)(C), probably means the Federal Insecticide, Fungicide, and Rodenticide Act, act June 25, 1947, ch. 125, as amended generally by Pub. L. 92–516, Oct. 21, 1972, 86 Stat. 973, which is classified generally to subchapter II (§136 et seq.) of chapter 6 of Title 7, Agriculture. For complete classification of this Act to the Code, see Short Title note set out under sec

tion 136 of Title 7 and Tables. The Resource Conservation and Recovery Act, re

ferred to in subsec. (k)(3)(C), probably means the Re

source Conservation and Recovery Act of 1976, Pub. L. 94–580, Oct. 21, 1976, 90 Stat. 2796, as amended, which is classified generally to chapter 82 (§6901 et seq.) of this title. For complete classification of this Act to the Code, see Short Title of 1976 Amendment note set out under section 6901 of this title and Tables. The Safe Drinking Water Act, referred to in subsec. (m)(1)(D), (5)(D), is title XIV of act July 1, 1944, as added Dec. 16, 1974, Pub. L. 93–523, §2(a), 88 Stat. 1660, as amended, which is classified generally to subchapter XII (§300f et seq.) of chapter 6A of this title. For com

plete classification of this Act to the Code, see Short Title note set out under section 201 of this title and Tables. The Solid Waste Disposal Act, referred to in subsec. (n)(7), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94–580, §2, Oct. 21, 1976, 90 Stat. 2795. Subtitle C of the Act is classified generally to subchapter III (§6921 et seq.) of chapter 82 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables. Section 303 of the Clean Air Act Amendments of 1990, referred to in subsec. ( o )(4), probably means section 303 of Pub. L. 101–549, which is set out below. The Clean Air Act Amendments of 1990, referred to in subsec. (q)(1)–(3), probably means Pub. L. 101–549, Nov. 15, 1990, 104 Stat. 2399. For complete classification of this Act to the Code, see Short Title note set out under section 7401 of this title and Tables.The Emergency Planning and Community Right-ToKnow Act of 1986, referred to in subsec. (r)(3), is title IIIPage 6271 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

of Pub. L. 99–499, Oct. 17, 1986, 100 Stat. 1728, which is classified generally to chapter 116 (§11001 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 11001 of this title and Tables. The Occupational Safety and Health Act, referred to in subsec. (r)(6)(C)(ii), (K), (L), probably means the Oc

cupational Safety and Health Act of 1970, Pub. L. 91–596, Dec. 29, 1970, 84 Stat. 1590, as amended, which is classified principally to chapter 15 (§651 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 651 of Title 29 and Tables.

C ODIFICATION In subsec. (r)(6)(N), ‘‘section 6101 of title 41’’ sub

stituted for ‘‘section 5 of title 41 of the United States Code’’ on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Con

tracts. Section was formerly classified to section 1857c-7 of this title.

A MENDMENTS 1999—Subsec. (r)(2)(D). Pub. L. 106–40, §2(5), added subpar. (D). Subsec. (r)(4). Pub. L. 106–40, §2, substituted ‘‘Admin

istrator— ‘‘(A) shall consider—’’ for ‘‘Administrator shall consider each of the following criteria—’’ in introductory provisions, redesignated subpars. (A) to (C) as cls. (i) to (iii), respectively, of subpar. (A) and added subpar. (B). Subsec. (r)(7)(H). Pub. L. 106–40, §3(a), added subpar. (H). 1998—Subsec. (n)(2)(C). Pub. L. 105–362 substituted ‘‘On completion of the study, the Secretary shall sub

mit to Congress a report on the results of the study and’’ for ‘‘The Secretary shall prepare annual reports to Congress on the status of the research program and at the completion of the study’’. 1991—Subsec. (b)(1). Pub. L. 102–187 struck out ‘‘7783064 Hydrogen sulfide’’ from list of pollutants. 1990—Pub. L. 101–549 amended section generally, sub

stituting present provisions for provisions which relat

ed to: in subsec. (a), definitions; in subsec. (b), list of hazardous air pollutants, emission standards, and pol

lution control techniques; in subsec. (c), prohibited acts and exemption; in subsec. (d), State implementation and enforcement; and in subsec. (e), design, equipment, work practice, and operational standards. 1978—Subsec. (e)(5). Pub. L. 95–623 added par. (5). 1977—Subsec. (a)(1). Pub. L. 95–95, §401(c), substituted ‘‘causes, or contributes to, air pollution which may rea

sonably be anticipated to result in an increase in mor

tality or an increase in serious irreversible, or inca

pacitating reversible, illness’’ for ‘‘may cause, or con

tribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, ill

ness’’. Subsec. (d)(1). Pub. L. 95–95, §109(d)(2), struck out ‘‘(except with respect to stationary sources owned or operated by the United States)’’ after ‘‘implement and enforce such standards’’. Subsec. (e). Pub. L. 95–95, §110, added subsec. (e).

C HANGE OF N AME Committee on Energy and Commerce of House of Representatives treated as referring to Committee on Commerce of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Commerce of House of Representatives changed to Committee on En

ergy and Commerce of House of Representatives, and jurisdiction over matters relating to securities and ex

changes and insurance generally transferred to Com

mittee on Financial Services of House of Representa

tives by House Resolution No. 5, One Hundred Seventh Congress, Jan. 3, 2001. E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

T ERMINATION OF R EPORTING R EQUIREMENTS For termination, effective May 15, 2000, of provisions of law requiring submittal to Congress of any annual, semiannual, or other regular periodic report listed in House Document No. 103–7 (in which reports required under subsecs. (m)(5), (r)(6)(C)(ii), and (s) of this section are listed, respectively, as the 8th item on page 162, the 9th item on page 198, and the 9th item on page 162), see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance.

P ENDING A CTIONS AND P ROCEEDINGS Suits, actions, and other proceedings lawfully com

menced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

D ELEGATION OF A UTHORITY Memorandum of President of the United States, Aug. 19, 1993, 58 F.R. 52397, provided: Memorandum for the Administrator of the Environ

mental Protection Agency WHEREAS, the Environmental Protection Agency, the agencies and departments that are members of the National Response Team (authorized under Executive Order No. 12580, 52 Fed. Reg. 2923 (1987) [42 U.S.C. 9615 note]), and other Federal agencies and departments un

dertake emergency release prevention, mitigation, and response activities pursuant to various authorities; By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 112(r)(10) of the Clean Air Act (the ‘‘Act’’) (section 7412(r)(10) of title 42 of the United States Code) and section 301 of title 3 of the United States Code, and in order to provide for the delegation of certain functions under the Act [42 U.S.C. 7401 et seq.], I hereby: (1) Authorize you, in coordination with agencies and departments that are members of the National Re

sponse Team and other appropriate agencies and de

partments, to conduct a review of release prevention, mitigation, and response authorities of Federal agen

cies in order to assure the most effective and efficient implementation of such authorities and to identify any deficiencies in authority or resources that may exist, to the extent such review is required by section 112(r)(10) of the Act; and (2) Authorize you, in coordination with agencies and departments that are members of the National Re

sponse Team and other appropriate agencies and de

-Page 6272 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

partments, to prepare and transmit a message to the Congress concerning the release prevention, mitiga

tion, and response activities of the Federal Government with such recommendations for change in law as you deem appropriate, to the extent such message is re

quired by section 112(r)(10) of the Act. The authority delegated by this memorandum may be further redelegated within the Environmental Protec

tion Agency. You are hereby authorized and directed to publish this memorandum in the Federal Register.
W ILLIAM J. C LINTON

. Memorandum of President of the United States, Jan. 27, 2000, 65 F.R. 8631, provided: Memorandum for the Attorney General[, ] the Admin

istrator of the Environmental Protection Agency[, and] the Director of the Office of Management and Budget By the authority vested in me as President by the Constitution and laws of the United States of America, including section 112(r)(7)(H) of the Clean Air Act (‘‘Act’’) (42 U.S.C. 7412(r)(7)(H)), as added by section 3 of the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (Public Law 106–40), and section 301 of title 3, United States Code, I hereby dele

gate to: (1) the Attorney General the authority vested in the President under section 112(r)(7)(H)(ii)(I)(aa) of the Act to assess the increased risk of terrorist and other criminal activity associated with the posting of off-site consequence analysis information on the Internet; (2) the Administrator of the Environmental Protec

tion Agency (EPA) the authority vested in the Presi

dent under section 112(r)(7)(H)(ii)(I)(bb) of the Act toassess the incentives created by public disclosure of offsite consequence analysis information for reduction in the risk of accidental releases; and (3) the Attorney General and the Administrator of EPA, jointly, the authority vested in the President under section 112(r)(7)(H)(ii)(II) of the Act to promul

gate regulations, based on these assessments, govern

ing the distribution of off-site consequence analysis in

formation. These regulations, in proposed and final form, shall be subject to review and approval by the Di

rector of the Office of Management and Budget. The Administrator of EPA is authorized and directed to publish this memorandum in the Federal Register.
W ILLIAM J. C LINTON

. R EPORTS Pub. L. 106–40, §3(b), Aug. 5, 1999, 113 Stat. 213, pro

vided that: ‘‘(1) D EFINITION OF ACCIDENTAL RELEASE .—In this sub

section, the term ‘accidental release’ has the meaning given the term in section 112(r)(2) of the Clean Air Act (42 U.S.C. 7412(r)(2)). ‘‘(2) R EPORT ON STATUS OF CERTAIN AMENDMENTS .—Not later than 2 years after the date of enactment of this Act [Aug. 5, 1999], the Comptroller General of the United States shall submit to Congress a report on the status of the development of amendments to the Na

tional Fire Protection Association Code for Liquefied Petroleum Gas that will result in the provision of in

formation to local emergency response personnel con

cerning the off-site effects of accidental releases of sub

stances exempted from listing under section 112(r)(4)(B) of the Clean Air Act (as added by section 3). ‘‘(3) R EPORT ON COMPLIANCE WITH CERTAIN INFORMA

TION SUBMISSION REQUIREMENTS .—Not later than 3 years after the date of enactment of this Act, the Comptrol

ler General of the United States shall submit to Con

gress a report that— ‘‘(A) describes the level of compliance with Federal and State requirements relating to the submission to local emergency response personnel of information intended to help the local emergency response per

sonnel respond to chemical accidents or related envi

ronmental or public health threats; and ‘‘(B) contains an analysis of the adequacy of the in

formation required to be submitted and the efficacy of the methods for delivering the information to local emergency response personnel.’’

R EEVALUATION OF R EGULATIONS Pub. L. 106–40, §3(c), Aug. 5, 1999, 113 Stat. 213, pro

vided that: ‘‘The President shall reevaluate the regula

tions promulgated under this section within 6 years after the enactment of this Act [Aug. 5, 1999]. If the President determines not to modify such regulations, the President shall publish a notice in the Federal Reg

ister stating that such reevaluation has been completed and that a determination has been made not to modify the regulations. Such notice shall include an expla

nation of the basis of such decision.’’

P UBLIC M EETING D URING M ORATORIUM P ERIOD Pub. L. 106–40, §4, Aug. 5, 1999, 113 Stat. 214, provided that: ‘‘(a) I N G ENERAL .—Not later than 180 days after the date of enactment of this Act [Aug. 5, 1999], each owner or operator of a stationary source covered by section 112(r)(7)(B)(ii) of the Clean Air Act [42 U.S.C. 7412(r)(7)(B)(ii)] shall convene a public meeting, after reasonable public notice, in order to describe and dis

cuss the local implications of the risk management plan submitted by the stationary source pursuant to section 112(r)(7)(B)(iii) of the Clean Air Act, including a summary of the off-site consequence analysis portion of the plan. Two or more stationary sources may con

duct a joint meeting. In lieu of conducting such a meet

ing, small business stationary sources as defined in sec

tion 507(c)(1) of the Clean Air Act [42 U.S.C. 7661f(c)(1)] may comply with this section by publicly posting a summary of the off-site consequence analysis informa

tion for their facility not later than 180 days after the enactment of this Act. Not later than 10 months after the date of enactment of this Act, each such owner or operator shall send a certification to the director of the Federal Bureau of Investigation stating that such meeting has been held, or that such summary has been posted, within 1 year prior to, or within 6 months after, the date of the enactment of this Act. This section shall not apply to sources that employ only Program 1 processes within the meaning of regulations promul

gated under section 112(r)(7)(B)(i) of the Clean Air Act. ‘‘(b) E NFORCEMENT .—The Administrator of the Envi

ronmental Protection Agency may bring an action in the appropriate United States district court against any person who fails or refuses to comply with the re

quirements of this section, and such court may issue such orders, and take such other actions, as may be necessary to require compliance with such require

ments.’’

R ISK A SSESSMENT AND M ANAGEMENT C OMMISSION Section 303 of Pub. L. 101–549 provided that: ‘‘(a) E STABLISHMENT .—There is hereby established a Risk Assessment and Management Commission (here

after referred to in this section as the ‘Commission’), which shall commence proceedings not later than 18 months after the date of enactment of the Clean Air Act Amendments of 1990 [Nov. 15, 1990] and which shall make a full investigation of the policy implications and appropriate uses of risk assessment and risk man

agement in regulatory programs under various Federal laws to prevent cancer and other chronic human health effects which may result from exposure to hazardous substances. ‘‘(b) C HARGE .—The Commission shall consider— ‘‘(1) the report of the National Academy of Sciences authorized by section 112( o ) of the Clean Air Act [42 U.S.C. 7412( o )], the use and limitations of risk assess

ment in establishing emission or effluent standards, ambient standards, exposure standards, acceptable concentration levels, tolerances or other environ

mental criteria for hazardous substances that present a risk of carcinogenic effects or other chronic health effects and the suitability of risk assessment for such
purposes;Page 6273 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

‘‘(2) the most appropriate methods for measuring and describing cancer risks or risks of other chronic health effects from exposure to hazardous substances considering such alternative approaches as the life

time risk of cancer or other effects to the individual or individuals most exposed to emissions from a source or sources on both an actual and worst case basis, the range of such risks, the total number of health effects avoided by exposure reductions, efflu

ent standards, ambient standards, exposures stand

ards, acceptable concentration levels, tolerances and other environmental criteria, reductions in the num

ber of persons exposed at various levels of risk, the incidence of cancer, and other public health factors; ‘‘(3) methods to reflect uncertainties in measure

ment and estimation techniques, the existence of synergistic or antagonistic effects among hazardous substances, the accuracy of extrapolating human health risks from animal exposure data, and the ex

istence of unquantified direct or indirect effects on human health in risk assessment studies; ‘‘(4) risk management policy issues including the use of lifetime cancer risks to individuals most ex

posed, incidence of cancer, the cost and technical fea

sibility of exposure reduction measures and the use of site-specific actual exposure information in setting emissions standards and other limitations applicable to sources of exposure to hazardous substances; and ‘‘(5) and comment on the degree to which it is pos

sible or desirable to develop a consistent risk assess

ment methodology, or a consistent standard of ac

ceptable risk, among various Federal programs. ‘‘(c) M EMBERSHIP .—Such Commission shall be com

posed of ten members who shall have knowledge or ex

perience in fields of risk assessment or risk manage

ment, including three members to be appointed by the President, two members to be appointed by the Speaker of the House of Representatives, one member to be ap

pointed by the Minority Leader of the House of Rep

resentatives, two members to be appointed by the Ma

jority Leader of the Senate, one member to be ap

pointed by the Minority Leader of the Senate, and one member to be appointed by the President of the Na

tional Academy of Sciences. Appointments shall be made not later than 18 months after the date of enact

ment of the Clean Air Act Amendments of 1990 [Nov. 15, 1990]. ‘‘(d) A SSISTANCE FROM A GENCIES .—The Administrator of the Environmental Protection Agency and the heads of all other departments, agencies, and instrumental

ities of the executive branch of the Federal Govern

ment shall, to the maximum extent practicable, assist the Commission in gathering such information as the Commission deems necessary to carry out this section subject to other provisions of law. ‘‘(e) S TAFF AND C ONTRACTS .— ‘‘(1) In the conduct of the study required by this section, the Commission is authorized to contract (in accordance with Federal contract law) with non

governmental entities that are competent to perform research or investigations within the Commission’s mandate, and to hold public hearings, forums, and workshops to enable full public participation. ‘‘(2) The Commission may appoint and fix the pay of such staff as it deems necessary in accordance with the provisions of title 5, United States Code. The Commission may request the temporary assignment of personnel from the Environmental Protection Agency or other Federal agencies. ‘‘(3) The members of the Commission who are not officers or employees of the United States, while at

tending conferences or meetings of the Commission or while otherwise serving at the request of the Chair, shall be entitled to receive compensation at a rate not in excess of the maximum rate of pay for Grade GS–18, as provided in the General Schedule under section 5332 of title 5 of the United States Code, including travel time, and while away from their homes or regular places of business they may be al

lowed travel expenses, including per diem in lieu of subsistence as authorized by law for persons in the Government service employed intermittently. ‘‘(f) R EPORT .—A report containing the results of all Commission studies and investigations under this sec

tion, together with any appropriate legislative recom

mendations or administrative recommendations, shall be made available to the public for comment not later than 42 months after the date of enactment of the Clean Air Act Amendments of 1990 [Nov. 15, 1990] and shall be submitted to the President and to the Congress not later than 48 months after such date of enactment. In the report, the Commission shall make recommenda

tions with respect to the appropriate use of risk assess

ment and risk management in Federal regulatory pro

grams to prevent cancer or other chronic health effects which may result from exposure to hazardous sub

stances. The Commission shall cease to exist upon the date determined by the Commission, but not later than 9 months after the submission of such report. ‘‘(g) A UTHORIZATION .—There are authorized to be ap

propriated such sums as are necessary to carry out the activities of the Commission established by this sec

tion.’’ [References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organi

zation and Employees, see section 529 [title I, §101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of Title 5.]

F LEXIBLE I MPLEMENTATION OF THE M ERCURY AND A IR

T OXICS S TANDARDS R ULE Memorandum of President of the United States, Dec. 21, 2011, 76 F.R. 80727, provided: Memorandum for the Administrator of the Environ

mental Protection Agency Today’s issuance, by the Environmental Protection Agency (EPA), of the final Mercury and Air Toxics Standards rule for power plants (the ‘‘MATS Rule’’) represents a major step forward in my Administration’s efforts to protect public health and the environment. This rule, issued after careful consideration of public comments, prescribes standards under section 112 of the Clean Air Act to control emissions of mercury and other toxic air pollutants from power plants, which col

lectively are among the largest sources of such pollu

tion in the United States. The EPA estimates that by substantially reducing emissions of pollutants that contribute to neurological damage, cancer, respiratory illnesses, and other health risks, the MATS Rule will produce major health benefits for millions of Ameri

cans—including children, older Americans, and other vulnerable populations. Consistent with Executive Order 13563 (Improving Regulation and Regulatory Re

view), the estimated benefits of the MATS Rule far ex

ceed the estimated costs. The MATS Rule can be implemented through the use of demonstrated, existing pollution control tech

nologies. The United States is a global market leader in the design and manufacture of these technologies, and it is anticipated that U.S. firms and workers will provide much of the equipment and labor needed to meet the substantial investments in pollution control that the standards are expected to spur. These new standards will promote the transition to a cleaner and more efficient U.S. electric power system. This system as a whole is critical infrastructure that plays a key role in the functioning of all facets of the U.S. economy, and maintaining its stability and reli

ability is of critical importance. It is therefore crucial that implementation of the MATS Rule proceed in a cost-effective manner that ensures electric reliability. Analyses conducted by the EPA and the Department of Energy (DOE) indicate that the MATS Rule is not anticipated to compromise electric generating resource adequacy in any region of the country. The Clean Air Act offers a number of implementation flexibilities, and the EPA has a long and successful history of using those flexibilities to ensure a smooth transition to cleaner technologies.Page 6274 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7413

The Clean Air Act provides 3 years from the effective date of the MATS Rule for sources to comply with its requirements. In addition, section 112(i)(3)(B) of the Act allows the issuance of a permit granting a source up to one additional year where necessary for the installa

tion of controls. As you stated in the preamble to the MATS Rule, this additional fourth year should be broadly available to sources, consistent with the re

quirements of the law. The EPA has concluded that 4 years should generally be sufficient to install the necessary emission control equipment, and DOE has issued analysis consistent with that conclusion. While more time is generally not expected to be needed, the Clean Air Act offers other important flexibilities as well. For example, section 113(a) of the Act provides the EPA with flexibility to bring sources into compliance over the course of an ad

ditional year, should unusual circumstances arise that warrant such flexibility. To address any concerns with respect to electric reli

ability while assuring MATS’ public health benefits, I direct you to take the following actions: 1. Building on the information and guidance that you have provided to the public, relevant stakeholders, and permitting authorities in the preamble of the MATS Rule, work with State and local permitting authorities to make the additional year for compliance with the MATS Rule provided under section 112(i)(3)(B) of the Clean Air Act broadly available to sources, consistent with law, and to invoke this flexibility expeditiously where justified. 2. Promote early, coordinated, and orderly planning and execution of the measures needed to implement the MATS Rule while maintaining the reliability of the electric power system. Consistent with Executive Order 13563, this process should be designed to ‘‘promote pre

dictability and reduce uncertainty,’’ and should include engagement and coordination with DOE, the Federal Energy Regulatory Commission, State utility regu

lators, Regional Transmission Organizations, the North American Electric Reliability Corporation and regional electric reliability organizations, other grid planning authorities, electric utilities, and other stakeholders, as appropriate. 3. Make available to the public, including relevant stakeholders, information concerning any anticipated use of authorities: (a) under section 112(i)(3)(B) of the Clean Air Act in the event that additional time to com

ply with the MATS Rule is necessary for the installa

tion of technology; and (b) under section 113(a) of the Clean Air Act in the event that additional time to com

ply with the MATS Rule is necessary to address a spe

cific and documented electric reliability issue. This in

formation should describe the process for working with entities with relevant expertise to identify circum

stances where electric reliability concerns might jus

tify allowing additional time to comply. This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or enti

ties, its officers, employees, or agents, or any other
person. You are hereby authorized and directed to publish this memorandum in the Federal Register.
B ARACK O BAMA

. § 7413. Federal enforcement (a) In general (1) Order to comply with SIP Whenever, on the basis of any information available to the Administrator, the Adminis

trator finds that any person has violated or is in violation of any requirement or prohibition of an applicable implementation plan or per

mit, the Administrator shall notify the person and the State in which the plan applies of such finding. At any time after the expiration of 30 days following the date on which such notice of a violation is issued, the Administrator may, without regard to the period of violation (subject to section 2462 of title 28)— (A) issue an order requiring such person to comply with the requirements or prohibi

tions of such plan or permit, (B) issue an administrative penalty order in accordance with subsection (d) of this sec

tion, or (C) bring a civil action in accordance with subsection (b) of this section. (2) State failure to enforce SIP or permit pro

gram Whenever, on the basis of information avail

able to the Administrator, the Administrator finds that violations of an applicable imple

mentation plan or an approved permit pro

gram under subchapter V of this chapter are so widespread that such violations appear to result from a failure of the State in which the plan or permit program applies to enforce the plan or permit program effectively, the Ad

ministrator shall so notify the State. In the case of a permit program, the notice shall be made in accordance with subchapter V of this chapter. If the Administrator finds such fail

ure extends beyond the 30th day after such no

tice (90 days in the case of such permit pro

gram), the Administrator shall give public no

tice of such finding. During the period begin

ning with such public notice and ending when such State satisfies the Administrator that it will enforce such plan or permit program (hereafter referred to in this section as ‘‘pe

riod of federally assumed enforcement’’), the Administrator may enforce any requirement or prohibition of such plan or permit program with respect to any person by— (A) issuing an order requiring such person to comply with such requirement or prohibi

tion, (B) issuing an administrative penalty order in accordance with subsection (d) of this section, or (C) bringing a civil action in accordance with subsection (b) of this section. (3) EPA enforcement of other requirements Except for a requirement or prohibition en

forceable under the preceding provisions of this subsection, whenever, on the basis of any information available to the Administrator, the Administrator finds that any person has violated, or is in violation of, any other re

quirement or prohibition of this subchapter, section 7603 of this title, subchapter IV–A, sub

chapter V, or subchapter VI of this chapter, including, but not limited to, a requirement or prohibition of any rule, plan, order, waiver, or permit promulgated, issued, or approved under those provisions or subchapters, or for the payment of any fee owed to the United States under this chapter (other than subchapter II of this chapter), the Administrator may— (A) issue an administrative penalty order in accordance with subsection (d) of this sec

tion, (B) issue an order requiring such person to comply with such requirement or prohibi

tion,Page 6275 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7413

1 So in original. The semicolon probably should be a comma. (C) bring a civil action in accordance with subsection (b) of this section or section 7605 of this title, or (D) request the Attorney General to com

mence a criminal action in accordance with subsection (c) of this section. (4) Requirements for orders An order issued under this subsection (other than an order relating to a violation of section 7412 of this title) shall not take effect until the person to whom it is issued has had an op

portunity to confer with the Administrator concerning the alleged violation. A copy of any order issued under this subsection shall be sent to the State air pollution control agency of any State in which the violation occurs. Any order issued under this subsection shall state with reasonable specificity the nature of the violation and specify a time for compli

ance which the Administrator determines is reasonable, taking into account the serious

ness of the violation and any good faith efforts to comply with applicable requirements. In any case in which an order under this sub

section (or notice to a violator under para

graph (1)) is issued to a corporation, a copy of such order (or notice) shall be issued to appro

priate corporate officers. An order issued under this subsection shall require the person to whom it was issued to comply with the re

quirement as expeditiously as practicable, but in no event longer than one year after the date the order was issued, and shall be nonrenew

able. No order issued under this subsection shall prevent the State or the Administrator from assessing any penalties nor otherwise af

fect or limit the State’s or the United States authority to enforce under other provisions of this chapter, nor affect any person’s obliga

tions to comply with any section of this chap

ter or with a term or condition of any permit or applicable implementation plan promul

gated or approved under this chapter. (5) Failure to comply with new source require

ments Whenever, on the basis of any available in

formation, the Administrator finds that a State is not acting in compliance with any re

quirement or prohibition of the chapter relat

ing to the construction of new sources or the modification of existing sources, the Adminis

trator may— (A) issue an order prohibiting the con

struction or modification of any major sta

tionary source in any area to which such re

quirement applies; 1 (B) issue an administrative penalty order in accordance with subsection (d) of this sec

tion, or (C) bring a civil action under subsection (b) of this section. Nothing in this subsection shall preclude the United States from commencing a criminal ac

tion under subsection (c) of this section at any time for any such violation. (b) Civil judicial enforcement The Administrator shall, as appropriate, in the case of any person that is the owner or oper

ator of an affected source, a major emitting fa

cility, or a major stationary source, and may, in the case of any other person, commence a civil action for a permanent or temporary injunction, or to assess and recover a civil penalty of not more than $25,000 per day for each violation, or both, in any of the following instances: (1) Whenever such person has violated, or is in violation of, any requirement or prohibition of an applicable implementation plan or per

mit. Such an action shall be commenced (A) during any period of federally assumed en

forcement, or (B) more than 30 days following the date of the Administrator’s notification under subsection (a)(1) of this section that such person has violated, or is in violation of, such requirement or prohibition. (2) Whenever such person has violated, or is in violation of, any other requirement or pro

hibition of this subchapter, section 7603 of this title, subchapter IV–A, subchapter V, or sub

chapter VI of this chapter, including, but not limited to, a requirement or prohibition of any rule, order, waiver or permit promulgated, is

sued, or approved under this chapter, or for the payment of any fee owed the United States under this chapter (other than subchapter II of this chapter). (3) Whenever such person attempts to con

struct or modify a major stationary source in any area with respect to which a finding under subsection (a)(5) of this section has been made. Any action under this subsection may be brought in the district court of the United States for the district in which the violation is alleged to have occurred, or is occurring, or in which the defendant resides, or where the de

fendant’s principal place of business is located, and such court shall have jurisdiction to re

strain such violation, to require compliance, to assess such civil penalty, to collect any fees owed the United States under this chapter (other than subchapter II of this chapter) and any noncompliance assessment and nonpayment penalty owed under section 7420 of this title, and to award any other appropriate relief. Notice of the commencement of such action shall be given to the appropriate State air pollution control agency. In the case of any action brought by the Administrator under this subsection, the court may award costs of litigation (including reason

able attorney and expert witness fees) to the party or parties against whom such action was brought if the court finds that such action was unreasonable. (c) Criminal penalties (1) Any person who knowingly violates any re

quirement or prohibition of an applicable imple

mentation plan (during any period of federally assumed enforcement or more than 30 days after having been notified under subsection (a)(1) of this section by the Administrator that such per

son is violating such requirement or prohibi

tion), any order under subsection (a) of this sec

tion, requirement or prohibition of section 7411(e) of this title (relating to new source per

formance standards), section 7412 of this title, section 7414 of this title (relating to inspections, etc.), section 7429 of this title (relating to solid waste combustion), section 7475(a) of this titlePage 6276 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7413

2 So in original. Probably should be followed by a comma. (relating to preconstruction requirements), an order under section 7477 of this title (relating to preconstruction requirements), an order under section 7603 of this title (relating to emergency orders), section 7661a(a) or 7661b(c) of this title (relating to permits), or any requirement or pro

hibition of subchapter IV–A of this chapter (re

lating to acid deposition control), or subchapter VI of this chapter (relating to stratospheric ozone control), including a requirement of any rule, order, waiver, or permit promulgated or approved under such sections or subchapters, and including any requirement for the payment of any fee owed the United States under this chapter (other than subchapter II of this chap

ter) shall, upon conviction, be punished by a fine pursuant to title 18 or by imprisonment for not to exceed 5 years, or both. If a conviction of any person under this paragraph is for a violation committed after a first conviction of such per

son under this paragraph, the maximum punish

ment shall be doubled with respect to both the fine and imprisonment. (2) Any person who knowingly— (A) makes any false material statement, rep

resentation, or certification in, or omits mate

rial information from, or knowingly alters, conceals, or fails to file or maintain any no

tice, application, record, report, plan, or other document required pursuant to this chapter to be either filed or maintained (whether with re

spect to the requirements imposed by the Ad

ministrator or by a State); (B) fails to notify or report as required under this chapter; or (C) falsifies, tampers with, renders inac

curate, or fails to install any monitoring de

vice or method required to be maintained or followed under this chapter 2 shall, upon conviction, be punished by a fine pursuant to title 18 or by imprisonment for not more than 2 years, or both. If a conviction of any person under this paragraph is for a viola

tion committed after a first conviction of such person under this paragraph, the maximum pun

ishment shall be doubled with respect to both the fine and imprisonment. (3) Any person who knowingly fails to pay any fee owed the United States under this sub

chapter, subchapter III, IV–A, V, or VI of this chapter shall, upon conviction, be punished by a fine pursuant to title 18 or by imprisonment for not more than 1 year, or both. If a conviction of any person under this paragraph is for a viola

tion committed after a first conviction of such person under this paragraph, the maximum pun

ishment shall be doubled with respect to both the fine and imprisonment. (4) Any person who negligently releases into the ambient air any hazardous air pollutant list

ed pursuant to section 7412 of this title or any extremely hazardous substance listed pursuant to section 11002(a)(2) of this title that is not list

ed in section 7412 of this title, and who at the time negligently places another person in immi

nent danger of death or serious bodily injury shall, upon conviction, be punished by a fine under title 18 or by imprisonment for not more than 1 year, or both. If a conviction of any per

son under this paragraph is for a violation com

mitted after a first conviction of such person under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment. (5)(A) Any person who knowingly releases into the ambient air any hazardous air pollutant list

ed pursuant to section 7412 of this title or any extremely hazardous substance listed pursuant to section 11002(a)(2) of this title that is not list

ed in section 7412 of this title, and who knows at the time that he thereby places another person in imminent danger of death or serious bodily injury shall, upon conviction, be punished by a fine under title 18 or by imprisonment of not more than 15 years, or both. Any person com

mitting such violation which is an organization shall, upon conviction under this paragraph, be subject to a fine of not more than $1,000,000 for each violation. If a conviction of any person under this paragraph is for a violation commit

ted after a first conviction of such person under this paragraph, the maximum punishment shall be doubled with respect to both the fine and im

prisonment. For any air pollutant for which the Administrator has set an emissions standard or for any source for which a permit has been is

sued under subchapter V of this chapter, a re

lease of such pollutant in accordance with that standard or permit shall not constitute a viola

tion of this paragraph or paragraph (4). (B) In determining whether a defendant who is an individual knew that the violation placed an

other person in imminent danger of death or se

rious bodily injury— (i) the defendant is responsible only for ac

tual awareness or actual belief possessed; and (ii) knowledge possessed by a person other than the defendant, but not by the defendant, may not be attributed to the defendant; except that in proving a defendant’s possession of actual knowledge, circumstantial evidence may be used, including evidence that the defend

ant took affirmative steps to be shielded from relevant information. (C) It is an affirmative defense to a prosecu

tion that the conduct charged was freely con

sented to by the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of— (i) an occupation, a business, or a profession;

or (ii) medical treatment or medical or sci

entific experimentation conducted by profes

sionally approved methods and such other per

son had been made aware of the risks involved prior to giving consent. The defendant may establish an affirmative de

fense under this subparagraph by a preponder

ance of the evidence. (D) All general defenses, affirmative defenses, and bars to prosecution that may apply with re

spect to other Federal criminal offenses may apply under subparagraph (A) of this paragraph and shall be determined by the courts of the United States according to the principles of common law as they may be interpreted in the light of reason and experience. Concepts of jus

tification and excuse applicable under this sec

-Page 6277 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7413

tion may be developed in the light of reason and experience. (E) The term ‘‘organization’’ means a legal en

tity, other than a government, established or or

ganized for any purpose, and such term includes a corporation, company, association, firm, part

nership, joint stock company, foundation, insti

tution, trust, society, union, or any other asso

ciation of persons. (F) The term ‘‘serious bodily injury’’ means bodily injury which involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. (6) For the purpose of this subsection, the term ‘‘person’’ includes, in addition to the enti

ties referred to in section 7602(e) of this title, any responsible corporate officer. (d) Administrative assessment of civil penalties (1) The Administrator may issue an adminis

trative order against any person assessing a civil administrative penalty of up to $25,000, per day of violation, whenever, on the basis of any available information, the Administrator finds that such person— (A) has violated or is violating any require

ment or prohibition of an applicable imple

mentation plan (such order shall be issued (i) during any period of federally assumed en

forcement, or (ii) more than thirty days fol

lowing the date of the Administrator’s notifi

cation under subsection (a)(1) of this section of a finding that such person has violated or is violating such requirement or prohibition); or (B) has violated or is violating any other re

quirement or prohibition of this subchapter or subchapter III, IV–A, V, or VI of this chapter, including, but not limited to, a requirement or prohibition of any rule, order, waiver, permit, or plan promulgated, issued, or approved under this chapter, or for the payment of any fee owed the United States under this chapter (other than subchapter II of this chapter); or (C) attempts to construct or modify a major stationary source in any area with respect to which a finding under subsection (a)(5) of this section has been made. The Administrator’s authority under this para

graph shall be limited to matters where the total penalty sought does not exceed $200,000 and the first alleged date of violation occurred no more than 12 months prior to the initiation of the administrative action, except where the Ad

ministrator and the Attorney General jointly determine that a matter involving a larger pen

alty amount or longer period of violation is ap

propriate for administrative penalty action. Any such determination by the Administrator and the Attorney General shall not be subject to ju

dicial review. (2)(A) An administrative penalty assessed under paragraph (1) shall be assessed by the Ad

ministrator by an order made after opportunity for a hearing on the record in accordance with sections 554 and 556 of title 5. The Administrator shall issue reasonable rules for discovery and other procedures for hearings under this para

graph. Before issuing such an order, the Admin

istrator shall give written notice to the person to be assessed an administrative penalty of the Administrator’s proposal to issue such order and provide such person an opportunity to request such a hearing on the order, within 30 days of the date the notice is received by such person. (B) The Administrator may compromise, mod

ify, or remit, with or without conditions, any administrative penalty which may be imposed under this subsection. (3) The Administrator may implement, after consultation with the Attorney General and the States, a field citation program through regula

tions establishing appropriate minor violations for which field citations assessing civil penalties not to exceed $5,000 per day of violation may be issued by officers or employees designated by the Administrator. Any person to whom a field citation is assessed may, within a reasonable time as prescribed by the Administrator through regulation, elect to pay the penalty as

sessment or to request a hearing on the field ci

tation. If a request for a hearing is not made within the time specified in the regulation, the penalty assessment in the field citation shall be final. Such hearing shall not be subject to sec

tion 554 or 556 of title 5, but shall provide a rea

sonable opportunity to be heard and to present evidence. Payment of a civil penalty required by a field citation shall not be a defense to further enforcement by the United States or a State to correct a violation, or to assess the statutory maximum penalty pursuant to other authorities in the chapter, if the violation continues. (4) Any person against whom a civil penalty is assessed under paragraph (3) of this subsection or to whom an administrative penalty order is issued under paragraph (1) of this subsection may seek review of such assessment in the United States District Court for the District of Columbia or for the district in which the viola

tion is alleged to have occurred, in which such person resides, or where such person’s principal place of business is located, by filing in such court within 30 days following the date the ad

ministrative penalty order becomes final under paragraph (2), the assessment becomes final under paragraph (3), or a final decision following a hearing under paragraph (3) is rendered, and by simultaneously sending a copy of the filing by certified mail to the Administrator and the Attorney General. Within 30 days thereafter, the Administrator shall file in such court a certified copy, or certified index, as appropriate, of the record on which the administrative penalty order or assessment was issued. Such court shall not set aside or remand such order or assess

ment unless there is not substantial evidence in the record, taken as a whole, to support the finding of a violation or unless the order or pen

alty assessment constitutes an abuse of discre

tion. Such order or penalty assessment shall not be subject to review by any court except as pro

vided in this paragraph. In any such proceed

ings, the United States may seek to recover civil penalties ordered or assessed under this section. (5) If any person fails to pay an assessment of a civil penalty or fails to comply with an admin

istrative penalty order— (A) after the order or assessment has become final, orPage 6278 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7413

3 So in original. The comma probably should not appear. (B) after a court in an action brought under paragraph (4) has entered a final judgment in favor of the Administrator, the Administrator shall request the Attorney General to bring a civil action in an appropriate district court to enforce the order or to recover the amount ordered or assessed (plus interest at rates established pursuant to section 6621(a)(2) of title 26 from the date of the final order or de

cision or the date of the final judgment, as the case may be). In such an action, the validity, amount, and appropriateness of such order or as

sessment shall not be subject to review. Any person who fails to pay on a timely basis a civil penalty ordered or assessed under this section shall be required to pay, in addition to such pen

alty and interest, the United States enforce

ment expenses, including but not limited to at

torneys fees and costs incurred by the United States for collection proceedings and a quar

terly nonpayment penalty for each quarter dur

ing which such failure to pay persists. Such non

payment penalty shall be 10 percent of the ag

gregate amount of such person’s outstanding penalties and nonpayment penalties accrued as of the beginning of such quarter.
(e) Penalty assessment criteria (1) In determining the amount of any penalty to be assessed under this section or section 7604(a) of this title, the Administrator or the court, as appropriate, shall take into consider

ation (in addition to such other factors as jus

tice may require) the size of the business, the economic impact of the penalty on the business, the violator’s full compliance history and good faith efforts to comply, the duration of the vio

lation as established by any credible evidence (including evidence other than the applicable test method), payment by the violator of pen

alties previously assessed for the same viola

tion, the economic benefit of noncompliance, and the seriousness of the violation. The court shall not assess penalties for noncompliance with administrative subpoenas under section 7607(a) of this title, or actions under section 7414 of this title, where the violator had sufficient cause to violate or fail or refuse to comply with such subpoena or action. (2) A penalty may be assessed for each day of violation. For purposes of determining the num

ber of days of violation for which a penalty may be assessed under subsection (b) or (d)(1) of this section, or section 7604(a) of this title, or an as

sessment may be made under section 7420 of this title, where the Administrator or an air pollu

tion control agency has notified the source of the violation, and the plaintiff makes a prima facie showing that the conduct or events giving rise to the violation are likely to have con

tinued or recurred past the date of notice, the days of violation shall be presumed to include the date of such notice and each and every day thereafter until the violator establishes that continuous compliance has been achieved, ex

cept to the extent that the violator can prove by a preponderance of the evidence that there were intervening days during which no violation oc

curred or that the violation was not continuing in nature. (f) Awards The Administrator may pay an award, not to exceed $10,000, to any person who furnishes in

formation or services which lead to a criminal conviction or a judicial or administrative civil penalty for any violation of this subchapter or subchapter III, IV–A, V, or VI of this chapter en

forced under this section. Such payment is sub

ject to available appropriations for such pur

poses as provided in annual appropriation Acts. Any officer, 3 or employee of the United States or any State or local government who furnishes information or renders service in the perform

ance of an official duty is ineligible for payment under this subsection. The Administrator may, by regulation, prescribe additional criteria for eligibility for such an award. (g) Settlements; public participation At least 30 days before a consent order or set

tlement agreement of any kind under this chap

ter to which the United States is a party (other than enforcement actions under this section, section 7420 of this title, or subchapter II of this chapter, whether or not involving civil or crimi

nal penalties, or judgments subject to Depart

ment of Justice policy on public participation) is final or filed with a court, the Administrator shall provide a reasonable opportunity by notice in the Federal Register to persons who are not named as parties or intervenors to the action or matter to comment in writing. The Adminis

trator or the Attorney General, as appropriate, shall promptly consider any such written com

ments and may withdraw or withhold his con

sent to the proposed order or agreement if the comments disclose facts or considerations which indicate that such consent is inappropriate, im

proper, inadequate, or inconsistent with the re

quirements of this chapter. Nothing in this sub

section shall apply to civil or criminal penalties under this chapter. (h) Operator For purposes of the provisions of this section and section 7420 of this title, the term ‘‘opera

tor’’, as used in such provisions, shall include any person who is senior management personnel or a corporate officer. Except in the case of knowing and willful violations, such term shall not include any person who is a stationary engi

neer or technician responsible for the operation, maintenance, repair, or monitoring of equip

ment and facilities and who often has super

visory and training duties but who is not senior management personnel or a corporate officer. Except in the case of knowing and willful viola

tions, for purposes of subsection (c)(4) of this section, the term ‘‘a person’’ shall not include an employee who is carrying out his normal ac

tivities and who is not a part of senior manage

ment personnel or a corporate officer. Except in the case of knowing and willful violations, for purposes of paragraphs (1), (2), (3), and (5) of sub

section (c) of this section the term ‘‘a person’’ shall not include an employee who is carrying out his normal activities and who is acting under orders from the employer. (July 14, 1955, ch. 360, title I, §113, as added Pub. L. 91–604, §4(a), Dec. 31, 1970, 84 Stat. 1686;Page 6279 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7413

amended Pub. L. 92–157, title III, §302(b), (c), Nov. 18, 1971, 85 Stat. 464; Pub. L. 93–319, §6(a)(1)–(3), June 22, 1974, 88 Stat. 259; Pub. L. 95–95, title I, §§111, 112(a), Aug. 7, 1977, 91 Stat. 704, 705; Pub. L. 95–190, §14(a)(10)–(21), (b)(1), Nov. 16, 1977, 91 Stat. 1400, 1404; Pub. L. 97–23, §2, July 17, 1981, 95 Stat. 139; Pub. L. 101–549, title VII, §701, Nov. 15, 1990, 104 Stat. 2672.)

C ODIFICATION Section was formerly classified to section 1857c–8 of this title.

A MENDMENTS 1990—Pub. L. 101–549 amended section generally, sub

stituting present provisions for provisions which relat

ed to: in subsec. (a), finding of violation, notice, com

pliance order, civil action, State failure to enforce plan, and construction or modification of major sta

tionary sources; in subsec. (b), violations by owners or operators of major stationary sources; in subsec. (c), penalties; in subsec. (d), final compliance orders; and in subsec. (e), steel industry compliance extension. 1981—Subsec. (e). Pub. L. 97–23 added subsec. (e). 1977—Subsec. (a)(5). Pub. L. 95–95, §111(a), added par. (5). Subsec. (b). Pub. L. 95–95, §111(b), (c), substituted ‘‘shall, in the case of any person which is the owner or operator of a major stationary source, and may, in the case of any other person, commence a civil action for a permanent or temporary injunction, or to assess and recover a civil penalty of not more than $25,000 per day of violation, or both, whenever such person’’ for ‘‘may commence a civil action for appropriate relief, includ

ing a permanent or temporary injunction, whenever any person’’ in provisions preceding par. (1), inserted references to subsec. (d)(5) of this section, sections 7419 and 7620 of this title, and regulations under part in par. (3), inserted reference to subsec. (d) of this section in par. (4), added par. (5), and, in provisions following par. (5), authorized the commencement of civil actions to recover noncompliance penalties and nonpayment pen

alties under section 7420 of this title, expanded jurisdic

tional provisions to authorize actions in districts in which the violation occurred and to authorize the dis

trict court to restrain violations, to require compli

ance, to assess civil penalties, and to collect penalties under section 7420 of this title, enumerated factors to be taken into consideration in determining the amount of civil penalties, and authorized awarding of costs to the party or parties against whom the action was brought in cases where the court finds that the action was unreasonable. Subsec. (b)(3). Pub. L. 95–190, §14(a)(10), (11), inserted ‘‘or’’ after ‘‘ozone);’’, and substituted ‘‘7624’’ for ‘‘7620’’, ‘‘conversion), section’’ for ‘‘conversion) section’’, and ‘‘orders), or’’ for ‘‘orders) or’’. Subsec. (c)(1). Pub. L. 95–95, §111(d)(1), (2), substituted ‘‘any order issued under section 7419 of this title or under subsection (a) or (d) of this section’’ for ‘‘any order issued by the Administrator under subsection (a) of this section’’ in subpar. (B), struck out reference to section 119(g) (as in effect before the date of the enact

ment of Pub. L. 95–95) in subpar. (C), and added subpar. (D). Subsec. (c)(1)(B). Pub. L. 95–190, §14(a)(12), inserted ‘‘or’’ after ‘‘section,’’. Subsec. (c)(1)(D). Pub. L. 95–190, §14(a)(13), substituted ‘‘1977 subsection’’ for ‘‘1977) subsection’’ and ‘‘pen

alties), or’’ for ‘‘penalties) or’’. Subsec. (c)(3). Pub. L. 95–95, §111(d)(3), added par. (3). Subsec. (d). Pub. L. 95–95, §112(a), added subsec. (d). Subsec. (d)(1). Pub. L. 95–190, §14(a)(14), substituted ‘‘to any stationary source which is unable to comply with any requirement of an applicable implementation plan an order’’ for ‘‘an order for any stationary source’’ and ‘‘such requirement’’ for ‘‘any requirement of an ap

plicable implementation plan’’. Subsec. (d)(1)(E). Pub. L. 95–190, §14(a)(15), inserted provision relating to exemption under section 7420(a)(2)(B) or (C) of this title, provision relating to noncompliance penalties effective July 1, 1979, and ref

erence to subsec. (b)(3) or (g) of section 7420 of this title. Subsec. (d)(2). Pub. L. 95–190, §14(a)(16), inserted pro

visions relating to determinations by the Adminis

trator of compliance with requirements of this chapter of State orders issued under this subsection. Subsec. (d)(4)(A). Pub. L. 95–190, §14(a)(17), sub

stituted ‘‘title) upon’’ for ‘‘title upon’’. Subsec. (d)(5)(A). Pub. L. 95–190, §14(a)(18), sub

stituted ‘‘an additional period for’’ for ‘‘an additional period of’’. Subsec. (d)(8). Pub. L. 95–190, §14(a)(19), struck out reference to par. (3) of this subsection. Subsec. (d)(10). Pub. L. 95–190, §14(a)(20), substituted ‘‘in effect’’ for ‘‘issued’’, ‘‘Federal’’ for ‘‘other’’, and ‘‘and no action under’’ for ‘‘or’’. Subsec. (d)(11). Pub. L. 95–190, §14(a)(21), substituted ‘‘and in effect’’ for ‘‘(and approved by the Adminis

trator)’’. 1974—Subsec. (a)(3). Pub. L. 93–319, §6(a)(1), inserted reference to section 1857c–10(g) of this title (relating to energy-related authorities). Subsecs. (b)(3), (c)(1)(C). Pub. L. 93–319, §6(a)(2), (3), inserted reference to section 1857c–10(g) of this title. 1971—Subsec. (b)(2). Pub. L. 92–157, §302(b), inserted ‘‘(A)’’ before ‘‘during’’ and ‘‘, or (B)’’ after ‘‘assumed enforcement’’. Subsec. (c)(1)(A). Pub. L. 92–157, §302(c), inserted ‘‘(i)’’ before ‘‘during’’ and ‘‘, or (ii)’’ after ‘‘assumed enforce

ment’’.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

P ENDING A CTIONS AND P ROCEEDINGS Suits, actions, and other proceedings lawfully com

menced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

T RANSFER OF F UNCTIONS
Federal Power Commission terminated and its func

tions, personnel, property, funds, etc., transferred to Secretary of Energy (except for certain functions trans

ferred to Federal Energy Regulatory Commission) by sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of this title.Page 6280 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7414

1 So in original.

2 So in original. The ‘‘and’’ probably should not appear.

3 The period probably should be ‘‘; and’’. 4 So in original. Probably should not be capitalized.

5 See References in Text note below. § 7414. Recordkeeping, inspections, monitoring, and entry
(a) Authority of Administrator or authorized rep

resentative For the purpose (i) of developing or assisting in the development of any implementation plan under section 7410 or section 7411(d) of this title, any standard of performance under section 7411 of this title, any emission standard under sec

tion 7412 of this title,, 1 or any regulation of solid waste combustion under section 7429 of this title, or any regulation under section 7429 of this title (relating to solid waste combustion), (ii) of determining whether any person is in violation of any such standard or any requirement of such a plan, or (iii) carrying out any provision of this chapter (except a provision of subchapter II of this chapter with respect to a manufacturer of new motor vehicles or new motor vehicle en

gines)— (1) the Administrator may require any per

son who owns or operates any emission source, who manufactures emission control equipment or process equipment, who the Administrator believes may have information necessary for the purposes set forth in this subsection, or who is subject to any requirement of this chapter (other than a manufacturer subject to the provisions of section 7525(c) or 7542 of this title with respect to a provision of subchapter II of this chapter) on a one-time, periodic or continuous basis to— (A) establish and maintain such records; (B) make such reports; (C) install, use, and maintain such mon

itoring equipment, and use such audit proce

dures, or methods; (D) sample such emissions (in accordance with such procedures or methods, at such lo

cations, at such intervals, during such peri

ods and in such manner as the Adminis

trator shall prescribe); (E) keep records on control equipment pa

rameters, production variables or other indi

rect data when direct monitoring of emis

sions is impractical; (F) submit compliance certifications in ac

cordance with subsection (a)(3) of this sec

tion; and (G) provide such other information as the Administrator may reasonably require; and 2 (2) the Administrator or his authorized rep

resentative, upon presentation of his creden

tials— (A) shall have a right of entry to, upon, or through any premises of such person or in which any records required to be maintained under paragraph (1) of this section are lo

cated, and (B) may at reasonable times have access to and copy any records, inspect any monitor

ing equipment or method required under paragraph (1), and sample any emissions which such person is required to sample under paragraph (1). 3 (3) The 4 Administrator shall in the case of any person which is the owner or operator of a major stationary source, and may, in the case of any other person, require enhanced monitoring and submission of compliance cer

tifications. Compliance certifications shall in

clude (A) identification of the applicable re

quirement that is the basis of the certifi

cation, (B) the method used for determining the compliance status of the source, (C) the compliance status, (D) whether compliance is continuous or intermittent, (E) such other facts as the Administrator may require. Com

pliance certifications and monitoring data shall be subject to subsection (c) of this sec

tion. Submission of a compliance certification shall in no way limit the Administrator’s au

thorities to investigate or otherwise imple

ment this chapter. The Administrator shall promulgate rules to provide guidance and to implement this paragraph within 2 years after November 15, 1990. (b) State enforcement (1) Each State may develop and submit to the Administrator a procedure for carrying out this section in such State. If the Administrator finds the State procedure is adequate, he may dele

gate to such State any authority he has to carry out this section. (2) Nothing in this subsection shall prohibit the Administrator from carrying out this sec

tion in a State. (c) Availability of records, reports, and informa

tion to public; disclosure of trade secrets Any records, reports or information obtained under subsection (a) of this section shall be available to the public, except that upon a show

ing satisfactory to the Administrator by any person that records, reports, or information, or particular part thereof, (other than emission data) to which the Administrator has access under this section if made public, would divulge methods or processes entitled to protection as trade secrets of such person, the Administrator shall consider such record, report, or informa

tion or particular portion thereof confidential in accordance with the purposes of section 1905 of title 18, except that such record, report, or infor

mation may be disclosed to other officers, em

ployees, or authorized representatives of the United States concerned with carrying out this chapter or when relevant in any proceeding under this chapter. (d) Notice of proposed entry, inspection, or mon

itoring (1) In the case of any emission standard or limitation or other requirement which is adopt

ed by a State, as part of an applicable imple

mentation plan or as part of an order under sec

tion 7413(d) 5 of this title, before carrying out an entry, inspection, or monitoring under para

graph (2) of subsection (a) of this section with respect to such standard, limitation, or other re

quirement, the Administrator (or his represent

atives) shall provide the State air pollution con

trol agency with reasonable prior notice of suchPage 6281 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7415

action, indicating the purpose of such action. No State agency which receives notice under this paragraph of an action proposed to be taken may use the information contained in the notice to inform the person whose property is proposed to be affected of the proposed action. If the Ad

ministrator has reasonable basis for believing that a State agency is so using or will so use such information, notice to the agency under this paragraph is not required until such time as the Administrator determines the agency will no longer so use information contained in a no

tice under this paragraph. Nothing in this sec

tion shall be construed to require notification to any State agency of any action taken by the Ad

ministrator with respect to any standard, limi

tation, or other requirement which is not part of an applicable implementation plan or which was promulgated by the Administrator under section 7410(c) of this title. (2) Nothing in paragraph (1) shall be construed to provide that any failure of the Administrator to comply with the requirements of such para

graph shall be a defense in any enforcement ac

tion brought by the Administrator or shall make inadmissible as evidence in any such ac

tion any information or material obtained not

withstanding such failure to comply with such requirements. (July 14, 1955, ch. 360, title I, §114, as added Pub. L. 91–604, §4(a), Dec. 31, 1970, 84 Stat. 1687; amended Pub. L. 93–319, §6(a)(4), June 22, 1974, 88 Stat. 259; Pub. L. 95–95, title I, §§109(d)(3), 113, title III, §305(d), Aug. 7, 1977, 91 Stat. 701, 709, 776; Pub. L. 95–190, §14(a)(22), (23), Nov. 16, 1977, 91 Stat. 1400; Pub. L. 101–549, title III, §302(c), title VII, §702(a), (b), Nov. 15, 1990, 104 Stat. 2574, 2680, 2681.)

R EFERENCES IN T EXT Section 7413(d) of this title, referred to in subsec. (d)(1), was amended generally by Pub. L. 101–549, title VII, §701, Nov. 15, 1990, 104 Stat. 2672, and, as so amend

ed, no longer relates to final compliance orders.

C ODIFICATION Section was formerly classified to section 1857c–9 of this title.

A MENDMENTS 1990—Subsec. (a). Pub. L. 101–549, §702(a)(1), which di

rected that ‘‘or’’ be struck out in first sentence imme

diately before ‘‘any emission standard under section 7412 of this title,’’ could not be executed because of the prior amendment by Pub. L. 101–549, §302(c), see below. Pub. L. 101–549, §702(a)(2), inserted ‘‘or any regulation under section 7429 of this title (relating to solid waste combustion),’’ before ‘‘(ii) of determining’’. Pub. L. 101–549, §302(c), struck out ‘‘or’’ after ‘‘per

formance under section 7411 of this title,’’ and inserted ‘‘, or any regulation of solid waste combustion under section 7429 of this title,’’ after ‘‘standard under section 7412 of this title’’. Subsec. (a)(1). Pub. L. 101–549, §702(a)(3), amended par. (1) generally. Prior to amendment, par. (1) read as fol

lows: ‘‘the Administrator may require any person who owns or operates any emission source or who is subject to any requirement of this chapter (other than a manu

facturer subject to the provisions of section 7525(c) or 7542 of this title) with respect to a provision of sub

chapter II of this chapter to (A) establish and maintain such records, (B) make such reports, (C) install, use, and maintain such monitoring equipment or methods, (D) sample such emissions (in accordance with such methods, at such locations, at such intervals, and in such manner as the Administrator shall prescribe), and (E) provide such other information as he may reason

ably require; and’’. Subsec. (a)(3). Pub. L. 101–549, §702(b), added par. (3). 1977—Subsec. (a). Pub. L. 95–190, §14(a)(22), inserted reference to subchapter II of this chapter and ‘‘new’’ before ‘‘motor’’ in two places. Pub. L. 95–95, §305(d), substituted ‘‘carrying out any provision of this chapter (except with respect to a man

ufacturer of motor vehicles or motor vehicle engines)’’ for ‘‘carrying out sections 119 or 303’’ in cl. (iii) preced

ing par. (1), substituted ‘‘any person subject to any re

quirement of this chapter (other than a manufacturer subject to the provisions of sections 7525(c) or 7542 of this title)’’ for ‘‘the owner or operator of any emission source’’ in par. (1), substituted ‘‘any premises of such person’’ for ‘‘any premises in which an emission source is located’’ in subpar. (A) of par. (2), and substituted ‘‘emissions which such person is required to sample’’ for ‘‘emissions which the owner or operator of such source is required to sample’’ in subpar. (B) of subpar. (2). Subsec. (a)(1). Pub. L. 95–190, §14(a)(23), inserted ref

erence to subchapter II of this chapter and ‘‘who owns or operates any emission source or who is’’ after ‘‘any person’’. Subsec. (b)(1). Pub. L. 95–95, §109(d)(3), struck out ‘‘(except with respect to new sources owned or operated by the United States)’’ after ‘‘to carry out this sec

tion’’. Subsec. (d). Pub. L. 95–95, §113, added subsec. (d). 1974—Subsec. (a). Pub. L. 93–319 inserted reference to section 119.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

P ENDING A CTIONS AND P ROCEEDINGS Suits, actions, and other proceedings lawfully com

menced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.
§ 7415. International air pollution (a) Endangerment of public health or welfare in foreign countries from pollution emitted in United States Whenever the Administrator, upon receipt of reports, surveys or studies from any duly con

stituted international agency has reason to be

lieve that any air pollutant or pollutants emit

-Page 6282 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7415

ted in the United States cause or contribute to air pollution which may reasonably be antici

pated to endanger public health or welfare in a foreign country or whenever the Secretary of State requests him to do so with respect to such pollution which the Secretary of State alleges is of such a nature, the Administrator shall give formal notification thereof to the Governor of the State in which such emissions originate. (b) Prevention or elimination of endangerment
The notice of the Administrator shall be deemed to be a finding under section 7410(a)(2)(H)(ii) of this title which requires a plan revision with respect to so much of the ap

plicable implementation plan as is inadequate to prevent or eliminate the endangerment re

ferred to in subsection (a) of this section. Any foreign country so affected by such emission of pollutant or pollutants shall be invited to ap

pear at any public hearing associated with any revision of the appropriate portion of the appli

cable implementation plan. (c) Reciprocity This section shall apply only to a foreign country which the Administrator determines has given the United States essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country by this section. (d) Recommendations Recommendations issued following any abate

ment conference conducted prior to August 7, 1977, shall remain in effect with respect to any pollutant for which no national ambient air quality standard has been established under sec

tion 7409 of this title unless the Administrator, after consultation with all agencies which were party to the conference, rescinds any such rec

ommendation on grounds of obsolescence. (July 14, 1955, ch. 360, title I, §115, formerly §5, as added Pub. L. 88–206, §1, Dec. 17, 1963, 77 Stat. 396; renumbered §105 and amended Pub. L. 89–272, title I, §§101(2), (3), 102, Oct. 20, 1965, 79 Stat. 992, 995, renumbered §108 and amended Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 491, re

numbered §115 and amended Pub. L. 91–604, §§4(a), (b)(2)–(10), 15(c)(2), Dec. 31, 1970, 84 Stat. 1678, 1688, 1689, 1713; Pub. L. 95–95, title I, §114, Aug. 7, 1977, 91 Stat. 710.)

C ODIFICATION Section was formerly classified to section 1857d of this title.

A MENDMENTS 1977—Pub. L. 95–95 completely revised section by sub

stituting provisions establishing a mechanism for the Administrator to trigger a revision of a State imple

mentation plan under section 7410(a)(2)(H) upon a peti

tion of an international agency or the Secretary of State if he finds that emissions originating in a State endanger the health or welfare of persons in a foreign country for provisions calling for the abatement of air pollution by means of conference procedures. 1970—Subsec. (a). Pub. L. 91–604, §4(b)(2), inserted ‘‘and which is covered by subsection (b) or (c) of this section’’ after ‘‘persons’’. Subsec. (b). Pub. L. 91–604, §§4(b)(3), (4), (5), 15(c)(2), redesignated former subsec. (d)(1)(A), (B), and (C) as (b)(1), (2), and (3), substituted ‘‘Administrator’’ for ‘‘Secretary’’ wherever appearing, and added subsec. (b)(4). Former subsec. (b), which related to the encour

agement of municipal, State, and interstate action to abate air pollution, was struck out. Subsec. (c). Pub. L. 91–604, §§4(b)(3), (6), 15(c)(2), redes

ignated former subsec. (d)(1)(D) as (c) and substituted ‘‘Administrator’’ for ‘‘Secretary’’ and ‘‘Secretary of Health, Education, and Welfare’’ wherever appearing and ‘‘subsection’’ for ‘‘subparagraph’’ wherever appear

ing. Former subsec. (c), which related to the procedure for the promulgation of State air quality standards, was struck out. Subsec. (d). Pub. L. 91–604, §§4(b)(4), (6), (7), (8), 15(c)(2), redesignated former subsec. (d)(2) and (3) as (d)(1) and (2), in (d)(1) substituted ‘‘Administrator’’ for ‘‘Secretary’’ wherever appearing and ‘‘any conference under this section’’ for ‘‘such conference’’, and in (d)(2) substituted ‘‘Administrator’’ for ‘‘Secretary’’. Former subsec. (d)(1)(A), (B), and (C) were redesignated as (b)(1), (2), and (3), respectively, and subsec. (d)(1)(D) was redesignated as (c). Subsec. (e). Pub. L. 91–604, §15(c)(2), substituted ‘‘Ad

ministrator’’ for ‘‘Secretary’’ wherever appearing. Subsec. (f). Pub. L. 91–604, §15(c)(2), substituted ‘‘Ad

ministrator’’ for ‘‘Secretary’’ wherever appearing and ‘‘Environmental Protection Agency’’ for ‘‘Department of Health, Education, and Welfare’’. Subsec. (g). Pub. L. 91–604, §§4(b)(9), 15(c)(2), sub

stituted ‘‘Administrator’’ for ‘‘Secretary’’ and ‘‘sub

section (c)’’ for ‘‘subparagraph (D) of subsection (d)’’. Subsecs. (i), (j). Pub. L. 91–604, §15(c)(2), substituted ‘‘Administrator’’ for ‘‘Secretary’’ wherever appearing. Subsec. (k). Pub. L. 91–604, §4(b)(3), (10), substituted provisions relating to compliance with any require

ment of an applicable implementation plan or with any standard prescribed under section 7411 of this title or section 7412 of this title, for provisions relating to the enjoining of imminent and substantial endangerment from pollution sources. 1967—Subsec. (b). Pub. L. 90–148 substituted reference to subsec. (c), (h), or (k) of this section for reference to subsec. (g) of this section. Subsecs. (c), (d). Pub. L. 90–148 added subsec. (c), re

designated former subsec. (c) as (d), inserted in par. (2) provisions for the delivery prior to the conference of a Federal report to agencies and interested parties cover

ing matters before the conference, raised from three weeks to thirty days the required notice of the con

ference, and inserted provisions for notice by news

papers, presentation of views on the Federal report, and transcript of proceedings. Former subsec. (d) redesig

nated (e). Subsec. (e). Pub. L. 90–148 redesignated former subsec. (d) as (e). Former subsec. (e) redesignated (f) and amended. Subsec. (f). Pub. L. 90–148 redesignated former subsec. (e) as (f) and inserted in par. (1) requirement that all in

terested parties be given a reasonable opportunity to present evidence to the hearing board. Former subsec. (f) redesignated (g) and amended. Subsec. (g). Pub. L. 90–148 redesignated former subsec. (f) as (g) and substituted reference to subsec. (d) of this section for reference to subsec. (c) of this section. Former subsec. (g) redesignated (h) and amended. Subsec. (h). Pub. L. 90–148 redesignated former sub

sec. (g) as (h) and substituted reference to subsec. (g) of this section for reference to subsec. (f) of this section. Former subsec. (h) redesignated (i) and amended. Subsec. (i). Pub. L. 90–148 redesignated former subsec. (h) as (i) and substituted reference to subsec. (f) of this section for reference to subsec. (e) of this section and raised the per diem maximum from $50 to $100. Former subsec. (i) redesignated (j). Subsec. (j). Pub. L. 90–148 redesignated former subsec. (i) as (j). Subsec. (k). Pub. L. 90–148 added subsec. (k). 1965—Subsec. (b). Pub. L. 89–272, §101(2), substituted ‘‘this title’’ for ‘‘this Act’’, which for purposes of codi

fication has been changed to ‘‘this subchapter’’. Subsec. (c)(1)(D). Pub. L. 89–272, §102(a), added subpar. (D).Page 6283 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7416

Subsec. (d)(3). Pub. L. 89–272, §101(2), substituted ‘‘subchapter’’ for ‘‘chapter’’. Subsec. (f)(1). Pub. L. 89–272, §102(b), designated exist

ing provisions as cl. (A) and added cl. (B).

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

U NITED S TATES -C ANADIAN N EGOTIATIONS ON A IR Q UALITY Pub. L. 95–426, title VI, §612, Oct. 7, 1978, 92 Stat. 990, provided that: ‘‘(a) The Congress finds that— ‘‘(1) the United States and Canada share a common environment along a 5,500 mile border; ‘‘(2) the United States and Canada are both becom

ing increasingly concerned about the effects of pollu

tion, particularly that resulting from power genera

tion facilities, since the facilities of each country af

fect the environment of the other; ‘‘(3) the United States and Canada have subscribed to international conventions; have joined in the envi

ronmental work of the United Nations, the Organiza

tion for Economic Cooperation and Development, and other international environmental forums; and have entered into and implemented effectively the provi

sions of the historic Boundary Waters Treaty of 1909; and ‘‘(4) the United States and Canada have a tradition of cooperative resolution of issues of mutual concern which is nowhere more evident than in the environ

mental area. ‘‘(b) It is the sense of the Congress that the President should make every effort to negotiate a cooperative agreement with the Government of Canada aimed at preserving the mutual airshed of the United States and Canada so as to protect and enhance air resources and insure the attainment and maintenance of air quality protective of public health and welfare. ‘‘(c) It is further the sense of the Congress that the President, through the Secretary of State working in concert with interested Federal agencies and the af

fected States, should take whatever diplomatic actions appear necessary to reduce or eliminate any undesir

able impact upon the United States and Canada result

ing from air pollution from any source.’’
§ 7416. Retention of State authority
Except as otherwise provided in sections 1857c–10(c), (e), and (f) (as in effect before August 7, 1977), 7543, 7545(c)(4), and 7573 of this title (pre

empting certain State regulation of moving sources) nothing in this chapter shall preclude or deny the right of any State or political sub

division thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution; except that if an emission standard or limitation is in effect under an applicable implementation plan or under section 7411 or section 7412 of this title, such State or political subdivision may not adopt or enforce any emission standard or limi

tation which is less stringent than the standard or limitation under such plan or section. (July 14, 1955, ch. 360, title I, §116, formerly §109, as added Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 497; renumbered §116 and amended Pub. L. 91–604, §4(a), (c), Dec. 31, 1970, 84 Stat. 1678, 1689; Pub. L. 93–319, §6(b), June 22, 1974, 88 Stat. 259; Pub. L. 95–190, §14(a)(24), Nov. 16, 1977, 91 Stat. 1400.)

R EFERENCES IN T EXT 1857c–10(c), (e), and (f) (as in effect before August 7, 1977), referred to in text, was in the original ‘‘119(c), (e), and (f) (as in effect before the date of the enactment of the Clean Air Act Amendments of 1977)’’ meaning sec

tion 119 of act July 14, 1955, ch. 360, title I, as added June 22, 1974, Pub. L. 93–319, §3, 88 Stat. 248, (which was classified to section 1857c–10 of this title) as in effect prior to the enactment of Pub. L. 95–95, Aug. 7, 1977, 91 Stat. 691, effective Aug. 7, 1977. Section 112(b)(1) of Pub. L. 95–95 repealed section 119 of act July 14, 1955, ch. 360, title I, as added by Pub. L. 93–319, and provided that all references to such section 119 in any subsequent enact

ment which supersedes Pub. L. 93–319 shall be construed to refer to section 113(d) of the Clean Air Act and to paragraph (5) thereof in particular which is classified to subsec. (d)(5) of section 7413 of this title. Section 7413 of this title was subsequently amended generally by Pub. L. 101–549, title VII, §701, Nov. 15, 1990, 104 Stat. 2672, and, as so amended, no longer relates to final com

pliance orders. Section 117(b) of Pub. L. 95–95 added a new section 119 of act July 14, 1955, which is classified to section 7419 of this title.

C ODIFICATION Section was formerly classified to section 1857d–1 of this title.

A MENDMENTS 1977—Pub. L. 95–190 inserted reference to specified provisions in effect before Aug. 7, 1977. 1974—Pub. L. 93–319 inserted reference to section 1857c–10(c), (e), and (f). 1970—Pub. L. 91–604, §4(c), substituted provisions which authorized any State or political subdivision thereof to adopt or enforce, except as otherwise pro

vided, emission standards or limitations under the specified conditions, or any requirement respecting control or abatement of air pollution, for provisions which authorized any State, political subdivision, or intermunicipal or interstate agency to adopt standards and plans to achieve a higher level of air quality than approved by the Secretary.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.Page 6284 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7417

1 See Codification note below.

2 See References in Text note below. § 7417. Advisory committees (a) Establishment; membership In order to obtain assistance in the develop

ment and implementation of the purposes of this chapter including air quality criteria, rec

ommended control techniques, standards, re

search and development, and to encourage the continued efforts on the part of industry to im

prove air quality and to develop economically feasible methods for the control and abatement of air pollution, the Administrator shall from time to time establish advisory committees. Committee members shall include, but not be limited to, persons who are knowledgeable con

cerning air quality from the standpoint of health, welfare, economics or technology. (b) Compensation The members of any other advisory commit

tees appointed pursuant to this chapter who are not officers or employees of the United States while attending conferences or meetings or while otherwise serving at the request of the Ad

ministrator, shall be entitled to receive com

pensation at a rate to be fixed by the Adminis

trator, but not exceeding $100 per diem, includ

ing traveltime, and while away from their homes or regular places of business they may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of title 5 for persons in the Government service employed intermittently. (c) 1 Consultations by Administrator
Prior to— (1) issuing criteria for an air pollutant under section 7408(a)(2) of this title, (2) publishing any list under section 7411(b)(1)(A) or section 7412(b)(1)(A) 2 of this title, (3) publishing any standard under section 7411 or section 7412 of this title, or (4) publishing any regulation under section 7521(a) of this title, the Administrator shall, to the maximum extent practicable within the time provided, consult with appropriate advisory committees, inde

pendence experts, and Federal departments and agencies. (July 14, 1955, ch. 360, title I, §117 formerly §6, as added Pub. L. 88–206, §1, Dec. 17, 1963, 77 Stat. 399; renumbered §106, Pub. L. 89–272, title I, §101(3), Oct. 20, 1965, 79 Stat. 992; renumbered §110 and amended Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 498; renumbered §117 and amended Pub. L. 91–604, §§4(a), (d), 15(c)(2), Dec. 31, 1970, 84 Stat. 1678, 1689, 1713; Pub. L. 95–95, title I, §115, Aug. 7, 1977, 91 Stat. 711; Pub. L. 95–623, §13(c), Nov. 9, 1978, 92 Stat. 3458.)

R EFERENCES IN T EXT Section 7412(b)(1), referred to in subsec. (c)(2), was amended generally by Pub. L. 101–549, title III, §301, Nov. 15, 1990, 104 Stat. 2531, and, as so amended, no longer contains a subpar. (A).

C ODIFICATION Subsec. (c) was originally enacted as subsec. (f) but has been redesignated (c) for purposes of codification in view of the failure of Pub. L. 95–95 to redesignate sub

sec. (f) as (c) after repealing former subsecs. (a) and (b) and redesignating former subsecs. (d) and (e) as (a) and (b). Section was formerly classified to section 1857e of this title.

A MENDMENTS 1978—Subsec. (c)(3). Pub. L. 95–623 substituted ‘‘7411’’ for ‘‘7411(b)(1)(B)’’ and ‘‘7412’’ for ‘‘7412(b)(1)(B)’’. 1977—Subsec. (a). Pub. L. 95–95, §115(1), (2), redesig

nated subsec. (d) as (a). Former subsec. (a), establishing an Air Quality Advisory Board in the Environmental Protection Agency, was struck out. Subsec. (b). Pub. L. 95–95, §115(1)–(3), redesignated subsec. (e) as (b) and substituted ‘‘The members of any other advisory committees’’ for ‘‘The members of the Board and other advisory committees’’ and ‘‘con

ferences or meetings or while otherwise serving’’ for ‘‘conferences or meetings of the Board or while other

wise serving’’. Former subsec. (b), setting out the du

ties of the Air Quality Advisory Board, was struck out. Subsecs. (c) to (e). Pub. L. 95–95, §115(1), (2), struck out subsec. (c) which related to clerical and technical assistance for the Air Quality Advisory Board, and re

designated subsecs. (d) and (e) as (a) and (b), respec

tively. 1970—Subsec. (a). Pub. L. 91–604, §15(c)(2), substituted ‘‘Environmental Protection Agency’’ for ‘‘Department of Health, Education, and Welfare’’ and ‘‘Adminis

trator’’ for ‘‘Secretary’’. Subsec. (b). Pub. L. 91–604, §15(c)(2), substituted ‘‘Ad

ministrator’’ for ‘‘Secretary’’ wherever appearing. Subsec. (c). Pub. L. 91–604, §15(c)(2), substituted ‘‘En

vironmental Protection Agency’’ for ‘‘Department of Health, Education, and Welfare’’. Subsecs. (d), (e). Pub. L. 91–604, §15(c)(2), substituted ‘‘Administrator’’ for ‘‘Secretary’’ wherever appearing. Subsec. (f). Pub. L. 91–604, §4(d), added subsec. (f). 1967—Subsec. (a). Pub. L. 90–148 substituted provi

sions establishing in the Department of Health, Edu

cation, and Welfare an Air Quality Advisory Board and providing for the appointment and term of its members for provisions directing the Secretary to maintain liai

son with manufacturers looking toward development of devices and fuels to reduce pollutants in automotive exhaust and to appoint a technical committee and call it together from time to time to evaluate progress and develop and recommend research programs. Subsec. (b). Pub. L. 90–148 substituted provision set

ting out the duties of the Air Quality Advisory Boardfor provisions requiring the Secretary to make semiannual reports to Congress on measures being taken to

ward the resolution of vehicle exhaust pollution prob

lems. Subsecs. (c) to (e). Pub. L. 90–148 added subsecs. (c) to (e).

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.Page 6285 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7418

T ERMINATION OF A DVISORY C OMMITTEES Advisory committees in existence on Jan. 5, 1973, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2- year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. Advisory committees established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. See section 14 of Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 776, set out in the Appendix to Title 5, Government Organization and Employees.
§ 7418. Control of pollution from Federal facili

ties (a) General compliance Each department, agency, and instrumen

tality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, and each officer, agent, or employee thereof, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administra

tive authority, and process and sanctions re

specting the control and abatement of air pollu

tion in the same manner, and to the same extent as any nongovernmental entity. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement whatsoever), (B) to any re

quirement to pay a fee or charge imposed by any State or local agency to defray the costs of its air pollution regulatory program, (C) to the ex

ercise of any Federal, State, or local administra

tive authority, and (D) to any process and sanc

tion, whether enforced in Federal, State, or local courts, or in any other manner. This sub

section shall apply notwithstanding any immu

nity of such agencies, officers, agents, or em

ployees under any law or rule of law. No officer, agent, or employee of the United States shall be personally liable for any civil penalty for which he is not otherwise liable. (b) Exemption The President may exempt any emission source of any department, agency, or instrumen

tality in the executive branch from compliance with such a requirement if he determines it to be in the paramount interest of the United States to do so, except that no exemption may be granted from section 7411 of this title, and an exemption from section 7412 of this title may be granted only in accordance with section 7412(i)(4) of this title. No such exemption shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in ex

cess of one year, but additional exemptions may be granted for periods of not to exceed one year upon the President’s making a new determina

tion. In addition to any such exemption of a par

ticular emission source, the President may, if he determines it to be in the paramount interest of the United States to do so, issue regulations ex

empting from compliance with the requirements of this section any weaponry, equipment, air

craft, vehicles, or other classes or categories of property which are owned or operated by the Armed Forces of the United States (including the Coast Guard) or by the National Guard of any State and which are uniquely military in nature. The President shall reconsider the need for such regulations at three-year intervals. The President shall report each January to the Con

gress all exemptions from the requirements of this section granted during the preceding cal

endar year, together with his reason for grant

ing each such exemption. (c) Government vehicles Each department, agency, and instrumental

ity of executive, legislative, and judicial branches of the Federal Government shall com

ply with all applicable provisions of a valid in

spection and maintenance program established under the provisions of subpart 2 of part D of this subchapter or subpart 3 of part D of this subchapter except for such vehicles that are considered military tactical vehicles. (d) Vehicles operated on Federal installations Each department, agency, and instrumental

ity of executive, legislative, and judicial branches of the Federal Government having ju

risdiction over any property or facility shall re

quire all employees which operate motor vehi

cles on the property or facility to furnish proof of compliance with the applicable requirements of any vehicle inspection and maintenance pro

gram established under the provisions of subpart 2 of part D of this subchapter or subpart 3 of part D of this subchapter for the State in which such property or facility is located (without re

gard to whether such vehicles are registered in the State). The installation shall use one of the following methods to establish proof of compli

ance— (1) presentation by the vehicle owner of a valid certificate of compliance from the vehi

cle inspection and maintenance program; (2) presentation by the vehicle owner of proof of vehicle registration within the geo

graphic area covered by the vehicle inspection and maintenance program (except for any pro

gram whose enforcement mechanism is not through the denial of vehicle registration); (3) another method approved by the vehicle inspection and maintenance program adminis

trator. (July 14, 1955, ch. 360, title I, §118, formerly, §7, as added Pub. L. 88–206, §1, Dec. 17, 1963, 77 Stat. 399; renumbered §107, Pub. L. 89–272, title I, §101(3), Oct. 20, 1965, 79 Stat. 992; renumbered §111 and amended Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 499; renumbered §118 and amended Pub. L. 91–604, §§4(a), 5, Dec. 31, 1970, 84 Stat. 1678, 1689; Pub. L. 95–95, title I, §116, Aug. 7, 1977,Page 6286 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7419

91 Stat. 711; Pub. L. 101–549, title I, §101(e), title II, §235, title III, §302(d), Nov. 15, 1990, 104 Stat. 2409, 2530, 2574.)

C ODIFICATION Section was formerly classified to section 1857f of this title.

A MENDMENTS 1990—Subsec. (a). Pub. L. 101–549, §235, inserted head

ing. Pub. L. 101–549, §101(e), amended second sentence gen

erally. Prior to amendment, second sentence read as follows: ‘‘The preceding sentence shall apply (A) to any requirement whether substantive or procedural (includ

ing any recordkeeping or reporting requirement, any requirement respecting permits and any other require

ment whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner.’’ Subsec. (b). Pub. L. 101–549, §302(d), substituted ‘‘sec

tion 7412(i)(4) of this title’’ for ‘‘section 7412(c) of this title’’. Subsecs. (c), (d). Pub. L. 101–549, §235, added subsecs. (c) and (d). 1977—Subsec. (a). Pub. L. 95–95, §116(a), designated ex

isting first sentence as subsec. (a) and inserted provi

sions enumerating the legal and administrative areas to which the compliance requirements apply and di

recting that agencies, officers, agents, and employees not be immune and that officers, agents, or employees of the United States not be personally liable for civil penalties for which they are not otherwise liable. Subsec. (b). Pub. L. 95–95, §116(b), designated second and following existing sentences as subsec. (b) and in

serted provisions authorizing the President to exempt weaponry, equipment, aircraft, vehicles, and other classes and categories of property of the Armed Forces and the National Guard from compliance but to recon

sider the need for such an exemption at three-year in

tervals. 1970—Pub. L. 91–604, §5, struck out lettered designa

tions (a) and (b), and, as so redesignated, substituted provisions requiring Federal facilities to comply with Federal, State, local, and interstate air pollution con

trol and abatement requirements and provisions au

thorizing the President to exempt, under the specified terms and conditions, any emission source of any de

partment, etc., in the executive branch from compli

ance with control and abatement requirements, for pro

visions requiring, to the extent practicable and consist

ent with the interests of the United States and within any available appropriations, Federal facilities to co

operate with the Department of Health, Education, and Welfare and with any air pollution control agency to prevent and control air pollution and provisions au

thorizing the Secretary to establish classes of potential pollution sources for which any Federal department or agency having jurisdiction over any facility was re

quired to obtain a permit, under the specified terms and conditions, for the discharge of any matter into the air of the United States. 1967—Pub. L. 90–148 reenacted section without change.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

T ERMINATION OF R EPORTING R EQUIREMENTS For termination, effective May 15, 2000, of provisions in subsec. (b) of this section relating to annual reports to Congress, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and the 12th item on page 20 of House Document No. 103–7. T RANSFER OF F UNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat

ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu

rity, and the Department of Homeland Security Reor

ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

P ENDING A CTIONS AND P ROCEEDINGS Suits, actions, and other proceedings lawfully com

menced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

E XECUTIVE O RDER N O . 11282
Ex. Ord. No. 11282, May 26, 1966, 31 F.R. 7663, which provided for the prevention, control, and abatement of air pollution from Federal activities, was superseded by Ex. Ord. No. 11507, Feb. 4, 1970, 35 F.R. 2573.

E XECUTIVE O RDER N O . 11507
Ex. Ord. No. 11507, Feb. 4, 1970, 35 F.R. 2573, which pro

vided for the prevention, control, and abatement of air pollution at Federal facilities, was superseded by Ex. Ord. No. 11752, Dec. 17, 1973, 38 F.R. 34793, formerly set out as a note under section 4331 of this title.
§ 7419. Primary nonferrous smelter orders (a) Issuance; hearing; enforcement orders; state

ment of grounds for application; findings (1) Upon application by the owner or operator of a primary nonferrous smelter, a primary non

ferrous smelter order under subsection (b) of this section may be issued— (A) by the Administrator, after thirty days’ notice to the State, or (B) by the State in which such source is lo

cated, but no such order issued by the State shall take effect until the Administrator de

termines that such order has been issued in ac

cordance with the requirements of this chap

ter. Not later than ninety days after submission by the State to the Administrator of notice of the issuance of a primary nonferrous smelter order under this section, the Administrator shall de

termine whether or not such order has been is

sued by the State in accordance with the re

quirements of this chapter. If the AdministratorPage 6287 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7419

1 See References in Text note below. determines that such order has not been issued in accordance with such requirements, he shall conduct a hearing respecting the reasonably available control technology for primary non

ferrous smelters. (2)(A) An order issued under this section to a primary nonferrous smelter shall be referred to as a ‘‘primary nonferrous smelter order’’. No pri

mary nonferrous smelter may receive both an enforcement order under section 7413(d) 1 of this title and a primary nonferrous smelter order under this section. (B) Before any hearing conducted under this section, in the case of an application made by the owner or operator of a primary nonferrous smelter for a second order under this section, the applicant shall furnish the Administrator (or the State as the case may be) with a state

ment of the grounds on which such application is based (including all supporting documents and information). The statement of the grounds for the proposed order shall be provided by the Ad

ministrator or the State in any case in which such State or Administrator is acting on its own initiative. Such statement (including such docu

ments and information) shall be made available to the public for a thirty-day period before such hearing and shall be considered as part of such hearing. No primary nonferrous smelter order may be granted unless the applicant establishes that he meets the conditions required for the is

suance of such order (or the Administrator or State establishes the meeting of such conditions when acting on their own initiative). (C) Any decision with respect to the issuance of a primary nonferrous smelter order shall be accompanied by a concise statement of the find

ings and of the basis of such findings. (3) For the purposes of sections 7410, 7604, and 7607 of this title, any order issued by the State and in effect pursuant to this subsection shall become part of the applicable implementation plan. (b) Prerequisites to issuance of orders A primary nonferrous smelter order under this section may be issued to a primary nonferrous smelter if— (1) such smelter is in existence on August 7, 1977; (2) the requirement of the applicable imple

mentation plan with respect to which the order is issued is an emission limitation or standard for sulfur oxides which is necessary and intended to be itself sufficient to enable attainment and maintenance of national pri

mary and secondary ambient air quality standards for sulfur oxides; and (3) such smelter is unable to comply with such requirement by the applicable date for compliance because no means of emission lim

itation applicable to such smelter which will enable it to achieve compliance with such re

quirement has been adequately demonstrated to be reasonably available (as determined by the Administrator, taking into account the cost of compliance, non-air quality health and environmental impact, and energy consider

ation). (c) Second orders (1) A second order issued to a smelter under this section shall set forth compliance schedules containing increments of progress which require compliance with the requirement postponed as expeditiously as practicable. The increments of progress shall be limited to requiring compli

ance with subsection (d) of this section and, in the case of a second order, to procuring, install

ing, and operating the necessary means of emis

sion limitation as expeditiously as practicable after the Administrator determines such means have been adequately demonstrated to be rea

sonably available within the meaning of sub

section (b)(3) of this section. (2) Not in excess of two primary nonferrous smelter orders may be issued under this section to any primary nonferrous smelter. The first such order issued to a smelter shall not result in the postponement of the requirement with re

spect to which such order is issued beyond Janu

ary 1, 1983. The second such order shall not re

sult in the postponement of such requirement beyond January 1, 1988. (d) Interim measures; continuous emission re

duction technology (1)(A) Each primary nonferrous smelter to which an order is issued under this section shall be required to use such interim measures for the period during which such order is in effect as may be necessary in the judgment of the Admin

istrator to assure attainment and maintenance of the national primary and secondary ambient air quality standards during such period, taking into account the aggregate effect on air quality of such order together with all variances, exten

sions, waivers, enforcement orders, delayed com

pliance orders and primary nonferrous smelter orders previously issued under this chapter. (B) Such interim requirements shall include— (i) a requirement that the source to which the order applies comply with such reporting requirements and conduct such monitoring as the Administrator determines may be nec

essary, and (ii) such measures as the Administrator de

termines are necessary to avoid an imminent and substantial endangerment to health of
persons. (C) Such interim measures shall also, except as provided in paragraph (2), include continuous emission reduction technology. The Adminis

trator shall condition the use of any such in

terim measures upon the agreement of the owner or operator of the smelter— (i) to comply with such conditions as the Ad

ministrator determines are necessary to maxi

mize the reliability and enforceability of such interim measures, as applied to the smelter, in attaining and maintaining the national ambi

ent air quality standards to which the order relates, and (ii) to commit reasonable resources to re

search and development of appropriate emis

sion control technology. (2) The requirement of paragraph (1) for the use of continuous emission reduction technology may be waived with respect to a particular smelter by the State or the Administrator, afterPage 6288 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7420

notice and a hearing on the record, and upon a showing by the owner or operator of the smelter that such requirement would be so costly as to necessitate permanent or prolonged temporary cessation of operations of the smelter. Upon ap

plication for such waiver, the Administrator shall be notified and shall, within ninety days, hold a hearing on the record in accordance with section 554 of title 5. At such hearing the Admin

istrator shall require the smelter involved to present information relating to any alleged ces

sation of operations and the detailed reasons or justifications therefor. On the basis of such hearing the Administrator shall make findings of fact as to the effect of such requirement and on the alleged cessation of operations and shall make such recommendations as he deems appro

priate. Such report, findings, and recommenda

tions shall be available to the public, and shall be taken into account by the State or the Ad

ministrator in making the decision whether or not to grant such waiver. (3) In order to obtain information for purposes of a waiver under paragraph (2), the Adminis

trator may, on his own motion, conduct an in

vestigation and use the authority of section 7621 of this title. (4) In the case of any smelter which on August 7, 1977, uses continuous emission reduction tech

nology and supplemental controls and which re

ceives an initial primary nonferrous smelter order under this section, no additional continu

ous emission reduction technology shall be re

quired as a condition of such order unless the Administrator determines, at any time, after notice and public hearing, that such additional continuous emission reduction technology is adequately demonstrated to be reasonably avail

able for the primary nonferrous smelter indus

try. (e) Termination of orders At any time during which an order under this section applies, the Administrator may enter upon a public hearing respecting the availability of technology. Any order under this section shall be terminated if the Administrator deter

mines on the record, after notice and public hearing, that the conditions upon which the order was based no longer exist. If the owner or operator of the smelter to which the order is is

sued demonstrates that prompt termination of such order would result in undue hardship, the termination shall become effective at the earli

est practicable date on which such undue hard

ship would not result, but in no event later than the date required under subsection (c) of this section. (f) Violation of requirements
If the Administrator determines that a smelter to which an order is issued under this section is in violation of any requirement of subsection (c) or (d) of this section, he shall— (1) enforce such requirement under section 7413 of this title, (2) (after notice and opportunity for public hearing) revoke such order and enforce com

pliance with the requirement with respect to which such order was granted, (3) give notice of noncompliance and com

mence action under section 7420 of this title,

or (4) take any appropriate combination of such actions. (July 14, 1955, ch. 360, title I, §119, as added Pub. L. 95–95, title I, §117(b), Aug. 7, 1977, 91 Stat. 712; amended Pub. L. 95–190, §14(a)(25)–(27), Nov. 16, 1977, 91 Stat. 1401.)

R EFERENCES IN T EXT Section 7413(d) of this title, referred to in subsec. (a)(2)(A), was amended generally by Pub. L. 101–549, title VII, §701, Nov. 15, 1990, 104 Stat. 2672, and, as so amended, no longer relates to final compliance orders.

P RIOR P ROVISIONS A prior section 119 of act July 14, 1955, ch. 360, title I, as added June 22, 1974, Pub. L. 93–319, §3, 88 Stat. 248, was classified to section 1857c–10 of this title and pro

vided for the authority to deal with energy shortages, prior to repeal by Pub. L. 95–95, title I, §112(b)(1), Aug. 7, 1977, 91 Stat. 709, which provided that all references to such section 119 in any subsequent enactment which supersedes Pub. L. 93–319 shall be construed to refer to section 113(d) of the Clean Air Act and to paragraph (5) thereof in particular which is classified to section 7413(d)(5) of this title.

A MENDMENTS 1977—Subsec. (a)(3). Pub. L. 95–190, §14(a)(25), added par. (3). Subsec. (d)(3). Pub. L. 95–190, §14(a)(26), substituted ‘‘7621’’ for ‘‘7619’’. Subsec. (e). Pub. L. 95–190, §14(a)(27), substituted ‘‘an order under this section’’ for ‘‘such order’’.

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7420. Noncompliance penalty (a) Assessment and collection (1)(A) Not later than 6 months after August 7, 1977, and after notice and opportunity for a pub

lic hearing, the Administrator shall promulgate regulations requiring the assessment and collec

tion of a noncompliance penalty against persons referred to in paragraph (2)(A). (B)(i) Each State may develop and submit to the Administrator a plan for carrying out this section in such State. If the Administrator finds that the State plan meets the requirements of this section, he may delegate to such State any authority he has to carry out this section. (ii) Notwithstanding a delegation to a State under clause (i), the Administrator may carry out this section in such State under the circum

stances described in subsection (b)(2)(B) of this section.Page 6289 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7420

1 See References in Text note below. (2)(A) Except as provided in subparagraph (B) or (C) of this paragraph, the State or the Admin

istrator shall assess and collect a noncompli

ance penalty against every person who owns or operates— (i) a major stationary source (other than a primary nonferrous smelter which has re

ceived a primary nonferrous smelter order under section 7419 of this title), which is not in compliance with any emission limitation, emission standard or compliance schedule under any applicable implementation plan (whether or not such source is subject to a Federal or State consent decree), or (ii) a stationary source which is not in com

pliance with an emission limitation, emission standard, standard of performance, or other requirement established under section 7411, 7477, 7603, or 7412 of this title, or (iii) a stationary source which is not in com

pliance with any requirement of subchapter IV–A, V, or VI of this chapter, or (iv) any source referred to in clause (i), (ii), or (iii) (for which an extension, order, or sus

pension referred to in subparagraph (B), or Federal or State consent decree is in effect), or a primary nonferrous smelter which has re

ceived a primary nonferrous smelter order under section 7419 of this title which is not in compliance with any interim emission control requirement or schedule of compliance under such extension, order, suspension, or consent decree. For purposes of subsection (d)(2) of this section, in the case of a penalty assessed with respect to a source referred to in clause (iii) of this sub

paragraph, the costs referred to in such sub

section (d)(2) shall be the economic value of non

compliance with the interim emission control requirement or the remaining steps in the schedule of compliance referred to in such clause. (B) Notwithstanding the requirements of sub

paragraph (A)(i) and (ii), the owner or operator of any source shall be exempted from the duty to pay a noncompliance penalty under such re

quirements with respect to that source if, in ac

cordance with the procedures in subsection (b)(5) of this section, the owner or operator dem

onstrates that the failure of such source to com

ply with any such requirement is due solely to— (i) a conversion by such source from the burning of petroleum products or natural gas, or both, as the permanent primary energy source to the burning of coal pursuant to an order under section 7413(d)(5) 1 of this title or section 1857c–10 1 of this title (as in effect be

fore August 7, 1977); (ii) in the case of a coal-burning source granted an extension under the second sen

tence of section 1857c–10(c)(1) 1 of this title (as in effect before August 7, 1977), a prohibition from using petroleum products or natural gas or both, by reason of an order under the provi

sions of section 792(a) and (b) of title 15 or under any legislation which amends or super

sedes such provisions; (iii) the use of innovative technology sanc

tioned by an enforcement order under section 7413(d)(4) 1 of this title; (iv) an inability to comply with any such re

quirement, for which inability the source has received an order under section 7413(d) 1 of this title (or an order under section 7413 of this title issued before August 7, 1977) which has the effect of permitting a delay or violation of any requirement of this chapter (including a requirement of an applicable implementation plan) which inability results from reasons en

tirely beyond the control of the owner or oper

ator of such source or of any entity control

ling, controlled by, or under common control with the owner or operator of such source; or (v) the conditions by reason of which a tem

porary emergency suspension is authorized under section 7410(f) or (g) of this title. An exemption under this subparagraph shall cease to be effective if the source fails to comply with the interim emission control requirements or schedules of compliance (including incre

ments of progress) under any such extension, order, or suspension. (C) The Administrator may, after notice and opportunity for public hearing, exempt any source from the requirements of this section with respect to a particular instance of non

compliance if he finds that such instance of non

compliance is de minimis in nature and in dura

tion. (b) Regulations Regulations under subsection (a) of this sec

tion shall— (1) permit the assessment and collection of such penalty by the State if the State has a delegation of authority in effect under sub

section (a)(1)(B)(i) of this section; (2) provide for the assessment and collection of such penalty by the Administrator, if— (A) the State does not have a delegation of authority in effect under subsection (a)(1)(B)(i) of this section, or (B) the State has such a delegation in ef

fect but fails with respect to any particular person or source to assess or collect the pen

alty in accordance with the requirements of this section; (3) require the States, or in the event the States fail to do so, the Administrator, to give a brief but reasonably specific notice of non

compliance under this section to each person referred to in subsection (a)(2)(A) of this sec

tion with respect to each source owned or op

erated by such person which is not in compli

ance as provided in such subsection, not later than July 1, 1979, or thirty days after the dis

covery of such noncompliance, whichever is later; (4) require each person to whom notice is given under paragraph (3) to— (A) calculate the amount of the penalty owed (determined in accordance with sub

section (d)(2) of this section) and the sched

ule of payments (determined in accordance with subsection (d)(3) of this section) for each such source and, within forty-five days after the issuance of such notice or after the denial of a petition under subparagraph (B), to submit that calculation and proposed schedule, together with the information nec

-Page 6290 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7420

essary for an independent verification there

of, to the State and to the Administrator, or (B) submit a petition, within forty–five days after the issuance of such notice, chal

lenging such notice of noncompliance or al

leging entitlement to an exemption under subsection (a)(2)(B) of this section with re

spect to a particular source; (5) require the Administrator to provide a hearing on the record (within the meaning of subchapter II of chapter 5 of title 5) and to make a decision on such petition (including findings of fact and conclusions of law) not later than ninety days after the receipt of any petition under paragraph (4)(B), unless the State agrees to provide a hearing which is sub

stantially similar to such a hearing on the record and to make a decision on such petition (including such findings and conclusions) within such ninety-day period; (6)(A) authorize the Administrator on his own initiative to review the decision of the State under paragraph (5) and disapprove it if it is not in accordance with the requirements of this section, and (B) require the Adminis

trator to do so not later than sixty days after receipt of a petition under this subparagraph, notice, and public hearing and a showing by such petitioner that the State decision under paragraph (5) is not in accordance with the re

quirements of this section; (7) require payment, in accordance with sub

section (d) of this section, of the penalty by each person to whom notice of noncompliance is given under paragraph (3) with respect to each noncomplying source for which such no

tice is given unless there has been a final de

termination granting a petition under para

graph (4)(B) with respect to such source; (8) authorize the State or the Administrator to adjust (and from time to time to readjust) the amount of the penalty assessment cal

culated or the payment schedule proposed by such owner or operator under paragraph (4), if the Administrator finds after notice and op

portunity for a hearing on the record that the penalty or schedule does not meet the require

ments of this section; and (9) require a final adjustment of the penalty within 180 days after such source comes into compliance in accordance with subsection (d)(4) of this section. In any case in which the State establishes a non

compliance penalty under this section, the State shall provide notice thereof to the Adminis

trator. A noncompliance penalty established by a State under this section shall apply unless the Administrator, within ninety days after the date of receipt of notice of the State penalty assess

ment under this section, objects in writing to the amount of the penalty as less than would be required to comply with guidelines established by the Administrator. If the Administrator ob

jects, he shall immediately establish a sub

stitute noncompliance penalty applicable to such source. (c) Contract to assist in determining amount of penalty assessment or payment schedule If the owner or operator of any stationary source to whom a notice is issued under sub

section (b)(3) of this section— (1) does not submit a timely petition under subsection (b)(4)(B) of this section, or (2) submits a petition under subsection (b)(4)(B) of this section which is denied, and fails to submit a calculation of the penalty as

sessment, a schedule for payment, and the infor

mation necessary for independent verification thereof, the State (or the Administrator, as the case may be) may enter into a contract with any person who has no financial interest in the owner or operator of the source (or in any per

son controlling, controlled by or under common control with such source) to assist in determin

ing the amount of the penalty assessment or payment schedule with respect to such source. The cost of carrying out such contract may be added to the penalty to be assessed against the owner or operator of such source. (d) Payment (1) All penalties assessed by the Administrator under this section shall be paid to the United States Treasury. All penalties assessed by the State under this section shall be paid to such State. (2) The amount of the penalty which shall be assessed and collected with respect to any source under this section shall be equal to— (A) the amount determined in accordance with regulations promulgated by the Adminis

trator under subsection (a) of this section, which is no less than the economic value which a delay in compliance beyond July 1, 1979, may have for the owner of such source, including the quarterly equivalent of the cap

ital costs of compliance and debt service over a normal amortization period, not to exceed ten years, operation and maintenance costs foregone as a result of noncompliance, and any additional economic value which such a delay may have for the owner or operator of such source, minus (B) the amount of any expenditure made by the owner or operator of that source during any such quarter for the purpose of bringing that source into, and maintaining compliance with, such requirement, to the extent that such expenditures have not been taken into account in the calculation of the penalty under subparagraph (A). To the extent that any expenditure under sub

paragraph (B) made during any quarter is not subtracted for such quarter from the costs under subparagraph (A), such expenditure may be sub

tracted for any subsequent quarter from such costs. In no event shall the amount paid be less than the quarterly payment minus the amount attributed to actual cost of construction. (3)(A) The assessed penalty required under this section shall be paid in quarterly installments for the period of covered noncompliance. All quarterly payments (determined without regard to any adjustment or any subtraction under paragraph (2)(B)) after the first payment shall be equal. (B) The first payment shall be due on the date six months after the date of issuance of the no

tice of noncompliance under subsection (b)(3) of this section with respect to any source or on January 1, 1980, whichever is later. Such firstPage 6291 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7420

payment shall be in the amount of the quarterly installment for the upcoming quarter, plus the amount owed for any preceding period within the period of covered noncompliance for such

source. (C) For the purpose of this section, the term ‘‘period of covered noncompliance’’ means the period which begins— (i) two years after August 7, 1977, in the case of a source for which notice of noncompliance under subsection (b)(3) of this section is issued on or before the date two years after August 7, 1977, or (ii) on the date of issuance of the notice of noncompliance under subsection (b)(3) of this section, in the case of a source for which such notice is issued after July 1, 1979, and ending on the date on which such source comes into (or for the purpose of establishing the schedule of payments, is estimated to come into) compliance with such requirement. (4) Upon making a determination that a source with respect to which a penalty has been paid under this section is in compliance and is maintaining compliance with the applicable re

quirement, the State (or the Administrator as the case may be) shall review the actual expend

itures made by the owner or operator of such source for the purpose of attaining and main

taining compliance, and shall within 180 days after such source comes into compliance— (A) provide reimbursement with interest (to be paid by the State or Secretary of the Treas

ury, as the case may be) at appropriate pre

vailing rates (as determined by the Secretary of the Treasury) for any overpayment by such
person, or (B) assess and collect an additional payment with interest at appropriate prevailing rates (as determined by the Secretary of the Treas

ury) for any underpayment by such person. (5) Any person who fails to pay the amount of any penalty with respect to any source under this section on a timely basis shall be required to pay in addition a quarterly nonpayment pen

alty for each quarter during which such failure to pay persists. Such nonpayment penalty shall be in an amount equal to 20 percent of the aggre

gate amount of such person’s penalties and non

payment penalties with respect to such source which are unpaid as of the beginning of such quarter. (e) Judicial review Any action pursuant to this section, including any objection of the Administrator under the last sentence of subsection (b) of this section, shall be considered a final action for purposes of judicial review of any penalty under section 7607 of this title. (f) Other orders, payments, sanctions, or require

ments Any orders, payments, sanctions, or other re

quirements under this section shall be in addi

tion to any other permits, orders, payments, sanctions, or other requirements established under this chapter, and shall in no way affect any civil or criminal enforcement proceedings brought under any provision of this chapter or State or local law. (g) More stringent emission limitations or other requirements In the case of any emission limitation or other requirement approved or promulgated by the Administrator under this chapter after August 7, 1977, which is more stringent than the emis

sion limitation or requirement for the source in effect prior to such approval or promulgation, if any, or where there was no emission limitation or requirement approved or promulgated before August 7, 1977, the date for imposition of the non-compliance penalty under this section, shall be either July 1, 1979, or the date on which the source is required to be in full compliance with such emission limitation or requirement, which

ever is later, but in no event later than three years after the approval or promulgation of such emission limitation or requirement. (July 14, 1955, ch. 360, title I, §120, as added Pub. L. 95–95, title I, §118, Aug. 7, 1977, 91 Stat. 714; amended Pub. L. 95–190, §14(a)(28)–(38), Nov. 16, 1977, 91 Stat. 1401; Pub. L. 101–549, title VII, §710(a), Nov. 15, 1990, 104 Stat. 2684.)

R EFERENCES IN T EXT Section 7413(d) of this title, referred to in subsec. (a)(2)(B), was amended generally by Pub. L. 101–549, title VII, §701, Nov. 15, 1990, 104 Stat. 2672, and, as so amended, no longer relates to final compliance orders. Section 1857c–10 of this title (as in effect before Au

gust 7, 1977), referred to in subsec. (a)(2)(B)(i), was in the original ‘‘section 119 (as in effect before the date of the enactment of the Clean Air Act Amendments of 1977)’’, meaning section 119 of act July 14, 1955, ch. 360, title I, as added June 22, 1974, Pub. L. 93–319, §3, 88 Stat. 248, (which was classified to section 1857c–10 of this title) as in effect prior to the enactment of Pub. L. 95–95, Aug. 7, 1977, 91 Stat. 691, effective Aug. 7, 1977. Section 112(b)(1) of Pub. L. 95–95 repealed section 119 of act July 14, 1955, ch. 360, title I, as added by Pub. L. 93–319, and provided that all references to such section 119 in any subsequent enactment which supersedes Pub. L. 93–319 shall be construed to refer to section 113(d) of the Clean Air Act and to paragraph (5) thereof in par

ticular which is classified to subsec. (d)(5) of section 7413 of this title. Section 7413(d) of this title was subse

quently amended generally by Pub. L. 101–549, title VII, §701, Nov. 15, 1990, 104 Stat. 2672, and, as so amended, no longer relates to final compliance orders. Section 117(b) of Pub. L. 95–95 added a new section 119 of act July 14, 1955, which is classified to section 7419 of this title. Section 1857c–10(c)(1) of this title (as in effect before August 7, 1977), referred to in subsec. (a)(2)(B)(ii), was in the original ‘‘section 119(c)(1) (as in effect before the date of the enactment of the Clean Air Act Amend

ments of 1977).’’ See paragraph set out above for expla

nation of codification.

A MENDMENTS 1990—Subsec. (a)(2)(A). Pub. L. 101–549 inserted ref

erence to sections 7477 and 7603 of this title in cl. (ii), added cl. (iii), and redesignated former cl. (iii) as (iv) and inserted reference to cl. (iii). 1977—Subsec. (a)(2)(A). Pub. L. 95–190, §14(a)(28), (29), in cls. (i) and (iii) inserted provisions relating to con

sent decrees wherever appearing. Subsec. (a)(2)(B). Pub. L. 95–190, §14(a)(30), (31), in cl. (i) inserted reference to section 7413(d)(5) of this title, and in cls. (i) and (ii) inserted provision relating to or

ders in effect under section 1857c–10 of this title before Aug. 7, 1977, wherever appearing. Subsec. (b). Pub. L. 95–190, §14(a)(34)–(36), in closing provisions inserted provisions relating to notice to the Administrator when a noncompliance penalty is estab

lished by a State, and substituted references to non

compliance for references to delayed compliance in twoPage 6292 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7421

1 See References in Text note below. 1 See References in Text note below.

2 So in original. The word ‘‘material’’ probably should precede the comma. places, ‘‘source’’ for ‘‘facility’’, and ‘‘receipt of notice of the State penalty assessment’’ for ‘‘publication of the proposed penalty’’. Subsec. (b)(2)(A). Pub. L. 95–190, §14(a)(33), sub

stituted ‘‘(a)(1)(B)(i)’’ for ‘‘(e)’’. Subsec. (b)(8). Pub. L. 95–190, §14(a)(32), substituted ‘‘(4)’’ for ‘‘(6)’’. Subsec. (d)(2)(A). Pub. L. 95–190, §14(a)(37), inserted provisions relating to inclusion of the economic value of a delay in compliance, and substituted ‘‘such a delay’’ for ‘‘a delay in compliance beyond July 1, 1979,’’. Subsec. (e). Pub. L. 95–190, §14(a)(38), substituted ‘‘subsection, shall’’ for ‘‘subsection shall’’.

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.
§ 7421. Consultation
In carrying out the requirements of this chap

ter requiring applicable implementation plans to contain— (1) any transportation controls, air quality maintenance plan requirements or pre

construction review of direct sources of air pollution, or (2) any measure referred to— (A) in part D of this subchapter (pertaining to nonattainment requirements), or (B) in part C of this subchapter (pertaining to prevention of significant deterioration), and in carrying out the requirements of section 7413(d) 1 of this title (relating to certain enforce

ment orders), the State shall provide a satisfac

tory process of consultation with general pur

pose local governments, designated organiza

tions of elected officials of local governments and any Federal land manager having authority over Federal land to which the State plan ap

plies, effective with respect to any such require

ment which is adopted more than one year after August 7, 1977, as part of such plan. Such process shall be in accordance with regulations promul

gated by the Administrator to assure adequate consultation. The Administrator shall update as necessary the original regulations required and promulgated under this section (as in effect im

mediately before November 15, 1990) to ensure adequate consultation. Only a general purpose unit of local government, regional agency, or council of governments adversely affected by ac

tion of the Administrator approving any portion of a plan referred to in this subsection may peti

tion for judicial review of such action on the basis of a violation of the requirements of this section. (July 14, 1955, ch. 360, title I, §121, as added Pub. L. 95–95, title I, §119, Aug. 7, 1977, 91 Stat. 719; amended Pub. L. 101–549, title I, §108(h), Nov. 15, 1990, 104 Stat. 2467.)

R EFERENCES IN T EXT Section 7413(d) of this title, referred to in text, was amended generally by Pub. L. 101–549, title VII, §701, Nov. 15, 1990, 104 Stat. 2672, and, as so amended, no longer relates to final compliance orders.

A MENDMENTS 1990—Pub. L. 101–549 amended penultimate sentence generally. Prior to amendment, penultimate sentence read as follows: ‘‘Such regulations shall be promulgated after notice and opportunity for public hearing and not later than 6 months after August 7, 1977.’’

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7422. Listing of certain unregulated pollutants (a) Radioactive pollutants, cadmium, arsenic, and polycyclic organic matter Not later than one year after August 7, 1977 (two years for radioactive pollutants) and after notice and opportunity for public hearing, the Administrator shall review all available rel

evant information and determine whether or not emissions of radioactive pollutants (including source material, special nuclear material, and byproduct material), cadmium, arsenic and polycyclic organic matter into the ambient air will cause, or contribute to, air pollution which may reasonably be anticipated to endanger pub

lic health. If the Administrator makes an af

firmative determination with respect to any such substance, he shall simultaneously with such determination include such substance in the list published under section 7408(a)(1) or 7412(b)(1)(A) 1 of this title (in the case of a sub

stance which, in the judgment of the Adminis

trator, causes, or contributes to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in se

rious irreversible, or incapacitating reversible, illness), or shall include each category of sta

tionary sources emitting such substance in sig

nificant amounts in the list published under sec

tion 7411(b)(1)(A) of this title, or take any com

bination of such actions. (b) Revision authority Nothing in subsection (a) of this section shall be construed to affect the authority of the Ad

ministrator to revise any list referred to in sub

section (a) of this section with respect to any substance (whether or not enumerated in sub

section (a) of this section). (c) Consultation with Nuclear Regulatory Com

mission; interagency agreement; notice and hearing (1) Before listing any source material, special nuclear, 2 or byproduct material (or component or derivative thereof) as provided in subsection (a) of this section, the Administrator shall con

sult with the Nuclear Regulatory Commission. (2) Not later than six months after listing any such material (or component or derivative thereof) the Administrator and the Nuclear Reg

ulatory Commission shall enter into an inter

agency agreement with respect to those sources or facilities which are under the jurisdiction of the Commission. This agreement shall, to the maximum extent practicable consistent with this chapter, minimize duplication of effort and conserve administrative resources in the estab

lishment, implementation, and enforcement ofPage 6293 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7424

emission limitations, standards of performance, and other requirements and authorities (sub

stantive and procedural) under this chapter re

specting the emission of such material (or com

ponent or derivative thereof) from such sources or facilities. (3) In case of any standard or emission limita

tion promulgated by the Administrator, under this chapter or by any State (or the Adminis

trator) under any applicable implementation plan under this chapter, if the Nuclear Regu

latory Commission determines, after notice and opportunity for public hearing that the applica

tion of such standard or limitation to a source or facility within the jurisdiction of the Com

mission would endanger public health or safety, such standard or limitation shall not apply to such facilities or sources unless the President determines otherwise within ninety days from the date of such finding. (July 14, 1955, ch. 360, title I, §122, as added Pub. L. 95–95, title I, §120(a), Aug. 7, 1977, 91 Stat. 720.)

R EFERENCES IN T EXT Section 7412(b)(1), referred to in subsec. (a), was amended generally by Pub. L. 101–549, title III, §301, Nov. 15, 1990, 104 Stat. 2531, and, as so amended, no longer contains a subpar. (A).

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

T RANSFER OF F UNCTIONS For transfer of certain functions from Nuclear Regu

latory Commission to Chairman thereof, see Reorg. Plan No. 1 of 1980, 45 F.R. 40561, 94 Stat. 3585, set out as a note under section 5841 of this title.

S TUDY BY A DMINISTRATOR OF E NVIRONMENTAL

P ROTECTION A GENCY Section 120(b) of Pub. L. 95–95 directed Administrator of Environmental Protection Agency to conduct a study, in conjunction with other appropriate agencies, concerning effect on public health and welfare of sul

fates, radioactive pollutants, cadmium, arsenic, and polycyclic organic matter which are present or may reasonably be anticipated to occur in the ambient air, such study to include a thorough investigation of how sulfates are formed and how to protect public health and welfare from the injurious effects, if any, of sul

fates, cadmium, arsenic, and polycyclic organic matter.
§ 7423. Stack heights (a) Heights in excess of good engineering prac

tice; other dispersion techniques The degree of emission limitation required for control of any air pollutant under an applicable implementation plan under this subchapter shall not be affected in any manner by— (1) so much of the stack height of any source as exceeds good engineering practice (as deter

mined under regulations promulgated by the Administrator), or (2) any other dispersion technique. The preceding sentence shall not apply with re

spect to stack heights in existence before De

cember 31, 1970, or dispersion techniques imple

mented before such date. In establishing an emission limitation for coal-fired steam electric generating units which are subject to the provi

sions of section 7418 of this title and which com

menced operation before July 1, 1957, the effect of the entire stack height of stacks for which a construction contract was awarded before Feb

ruary 8, 1974, may be taken into account. (b) Dispersion technique For the purpose of this section, the term ‘‘dis

persion technique’’ includes any intermittent or supplemental control of air pollutants varying with atmospheric conditions. (c) Regulations; good engineering practice Not later than six months after August 7, 1977, the Administrator, shall after notice and oppor

tunity for public hearing, promulgate regula

tions to carry out this section. For purposes of this section, good engineering practice means, with respect to stack heights, the height nec

essary to insure that emissions from the stack do not result in excessive concentrations of any air pollutant in the immediate vicinity of the source as a result of atmospheric downwash, ed

dies and wakes which may be created by the source itself, nearby structures or nearby ter

rain obstacles (as determined by the Adminis

trator). For purposes of this section such height shall not exceed two and a half times the height of such source unless the owner or operator of the source demonstrates, after notice and oppor

tunity for public hearing, to the satisfaction of the Administrator, that a greater height is nec

essary as provided under the preceding sentence. In no event may the Administrator prohibit any increase in any stack height or restrict in any manner the stack height of any source. (July 14, 1955, ch. 360, title I, §123, as added Pub. L. 95–95, title I, §121, Aug. 7, 1977, 91 Stat. 721.)

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7424. Assurance of adequacy of State plans (a) State review of implementation plans which relate to major fuel burning sources As expeditiously as practicable but not later than one year after August 7, 1977, each State shall review the provisions of its implementa

tion plan which relate to major fuel burning sources and shall determine— (1) the extent to which compliance with re

quirements of such plan is dependent upon the use by major fuel burning stationary sources of petroleum products or natural gas, (2) the extent to which such plan may rea

sonably be anticipated to be inadequate to meet the requirements of this chapter in such State on a reliable and long-term basis by rea

son of its dependence upon the use of such fuels, and (3) the extent to which compliance with the requirements of such plan is dependent upon use of coal or coal derivatives which is not lo

cally or regionally available.
Each State shall submit the results of its review and its determination under this paragraph to the Administrator promptly upon completion thereof.Page 6294 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7425

(b) Plan revision (1) Not later than eighteen months after Au

gust 7, 1977, the Administrator shall review the submissions of the States under subsection (a) of this section and shall require each State to re

vise its plan if, in the judgment of the Adminis

trator, such plan revision is necessary to assure that such plan will be adequate to assure com

pliance with the requirements of this chapter in such State on a reliable and long-term basis, taking into account the actual or potential pro

hibitions on use of petroleum products or natu

ral gas, or both, under any other authority of law. (2) Before requiring a plan revision under this subsection, with respect to any State the Ad

ministrator shall take into account the report of the review conducted by such State under paragraph (1) and shall consult with the Gov

ernor of the State respecting such required revi

sion. (July 14, 1955, ch. 360, title I, §124, as added Pub. L. 95–95, title I, §122, Aug. 7, 1977, 91 Stat. 722.)

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7425. Measures to prevent economic disruption or unemployment (a) Determination that action is necessary After notice and opportunity for a public hear

ing— (1) the Governor of any State in which a major fuel burning stationary source referred to in this subsection (or class or category thereof) is located, (2) the Administrator, or (3) the President (or his designee), may determine that action under subsection (b) of this section is necessary to prevent or mini

mize significant local or regional economic dis

ruption or unemployment which would other

wise result from use by such source (or class or category) of— (A) coal or coal derivatives other than lo

cally or regionally available coal, (B) petroleum products, (C) natural gas, or (D) any combination of fuels referred to in subparagraphs (A) through (C), to comply with the requirements of a State im

plementation plan. (b) Use of locally or regionally available coal or coal derivatives to comply with implementa

tion plan requirements Upon a determination under subsection (a) of this section— (1) such Governor, with the written consent of the President or his designee, (2) the President’s designee with the written consent of such Governor, or (3) the President may by rule or order prohibit any such major fuel burning stationary source (or class or cat

egory thereof) from using fuels other than lo

cally or regionally available coal or coal deriva

tives to comply with implementation plan re

quirements. In taking any action under this sub

section, the Governor, the President, or the President’s designee as the case may be, shall take into account, the final cost to the con

sumer of such an action. (c) Contracts; schedules The Governor, in the case of action under sub

section (b)(1) of this section, or the Adminis

trator, in the case of an action under subsection (b)(2) or (3) of this section shall, by rule or order, require each source to which such action applies to— (1) enter into long-term contracts of at least ten years in duration (except as the President or his designee may otherwise permit or re

quire by rule or order for good cause) for sup

plies of regionally available coal or coal de

rivatives, (2) enter into contracts to acquire any addi

tional means of emission limitation which the Administrator or the State determines may be necessary to comply with the requirements of this chapter while using such coal or coal de

rivatives as fuel, and (3) comply with such schedules (including in

crements of progress), timetables and other re

quirements as may be necessary to assure compliance with the requirements of this chapter. Requirements under this subsection shall be es

tablished simultaneously with, and as a condi

tion of, any action under subsection (b) of this section. (d) Existing or new major fuel burning station

ary sources This section applies only to existing or new major fuel burning stationary sources— (1) which have the design capacity to produce 250,000,000 Btu’s per hour (or its equiv

alent), as determined by the Administrator, and (2) which are not in compliance with the re

quirements of an applicable implementation plan or which are prohibited from burning oil or natural gas, or both, under any other au

thority of law. (e) Actions not to be deemed modifications of major fuel burning stationary sources Except as may otherwise be provided by rule by the State or the Administrator for good cause, any action required to be taken by a major fuel burning stationary source under this section shall not be deemed to constitute a modification for purposes of section 7411(a)(2) and (4) of this title. (f) Treatment of prohibitions, rules, or orders as requirements or parts of plans under other provisions For purposes of sections 7413 and 7420 of this title a prohibition under subsection (b) of this section, and a corresponding rule or order under subsection (c) of this section, shall be treated as a requirement of section 7413 of this title. For purposes of any plan (or portion thereof) pro

mulgated under section 7410(c) of this title, any rule or order under subsection (c) of this sectionPage 6295 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7426

1 See References in Text note below. corresponding to a prohibition under subsection (b) of this section, shall be treated as a part of such plan. For purposes of section 7413 of this title, a prohibition under subsection (b) of this section, applicable to any source, and a cor

responding rule or order under subsection (c) of this section, shall be treated as part of the ap

plicable implementation plan for the State in which subject source is located. (g) Delegation of Presidential authority The President may delegate his authority under this section to an officer or employee ofthe United States designated by him on a caseby-case basis or in any other manner he deems suitable. (h) ‘‘Locally or regionally available coal or coal derivatives’’ defined For the purpose of this section the term ‘‘lo

cally or regionally available coal or coal deriva

tives’’ means coal or coal derivatives which is, or can in the judgment of the State or the Ad

ministrator feasibly be, mined or produced in the local or regional area (as determined by the Administrator) in which the major fuel burning stationary source is located. (July 14, 1955, ch. 360, title I, §125, as added Pub. L. 95–95, title I, §122, Aug. 7, 1977, 91 Stat. 722.)

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7426. Interstate pollution abatement (a) Written notice to all nearby States Each applicable implementation plan shall— (1) require each major proposed new (or modified) source— (A) subject to part C of this subchapter (re

lating to significant deterioration of air quality) or (B) which may significantly contribute to levels of air pollution in excess of the na

tional ambient air quality standards in any air quality control region outside the State in which such source intends to locate (or make such modification), to provide written notice to all nearby States the air pollution levels of which may be af

fected by such source at least sixty days prior to the date on which commencement of con

struction is to be permitted by the State pro

viding notice, and (2) identify all major existing stationary sources which may have the impact described in paragraph (1) with respect to new or modi

fied sources and provide notice to all nearby States of the identity of such sources not later than three months after August 7, 1977. (b) Petition for finding that major sources emit or would emit prohibited air pollutants Any State or political subdivision may peti

tion the Administrator for a finding that any major source or group of stationary sources emits or would emit any air pollutant in viola

tion of the prohibition of section 7410(a)(2)(D)(ii) of this title or this section. Within 60 days after receipt of any petition under this subsection and after public hearing, the Administrator shall make such a finding or deny the petition. (c) Violations; allowable continued operation Notwithstanding any permit which may have been granted by the State in which the source is located (or intends to locate), it shall be a viola

tion of this section and the applicable imple

mentation plan in such State— (1) for any major proposed new (or modified) source with respect to which a finding has been made under subsection (b) of this section to be constructed or to operate in violation of the prohibition of section 7410(a)(2)(D)(ii) of this title or this section, or (2) for any major existing source to operate more than three months after such finding has been made with respect to it. The Administrator may permit the continued operation of a source referred to in paragraph (2) beyond the expiration of such three-month pe

riod if such source complies with such emission limitations and compliance schedules (contain

ing increments of progress) as may be provided by the Administrator to bring about compliance with the requirements contained in section 7410(a)(2)(D)(ii) of this title or this section as ex

peditiously as practicable, but in no case later than three years after the date of such finding. Nothing in the preceding sentence shall be con

strued to preclude any such source from being eligible for an enforcement order under section 7413(d) 1 of this title after the expiration of such period during which the Administrator has per

mitted continuous operation. (July 14, 1955, ch. 360, title I, §126, as added Pub. L. 95–95, title I, §123, Aug. 7, 1977, 91 Stat. 724; amended Pub. L. 95–190, §14(a)(39), Nov. 16, 1977, 91 Stat. 1401; Pub. L. 101–549, title I, §109(a), Nov. 15, 1990, 104 Stat. 2469.)

R EFERENCES IN T EXT Section 7413(d) of this title, referred to in subsec. (c), was amended generally by Pub. L. 101–549, title VII, §701, Nov. 15, 1990, 104 Stat. 2672, and, as so amended, no longer relates to final compliance orders.

A MENDMENTS 1990—Subsec. (b). Pub. L. 101–549, §109(a)(1), inserted ‘‘or group of stationary sources’’ after ‘‘any major source’’ and substituted ‘‘section 7410(a)(2)(D)(ii) of this title or this section’’ for ‘‘section 7410(a)(2)(E)(i) of this title’’. Subsec. (c). Pub. L. 101–549, §109(a)(2)(A), which di

rected the insertion of ‘‘this section and’’ after ‘‘viola

tion of’’, was executed by making the insertion after first reference to ‘‘violation of’’ to reflect the probable intent of Congress. Pub. L. 101–549, §109(a)(2)(B), substituted ‘‘section 7410(a)(2)(D)(ii) of this title or this section’’ for ‘‘sec

tion 7410(a)(2)(E)(i) of this title’’ in par. (1) and penulti

mate sentence. 1977—Subsec. (a)(1). Pub. L. 95–190 substituted ‘‘(relat

ing to significant deterioration of air quality)’’ for ‘‘, relating to significant deterioration of air quality’’.

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.Page 6296 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7427

1 So in original. Probably should be ‘‘calendar year’’.

1 So in original. Section enacted without a subsec. (b). 1 So in original. Probably should be ‘‘subsection’’. § 7427. Public notification

(a) Warning signs; television, radio, or press no

tices or information Each State plan shall contain measures which will be effective to notify the public during any calendar 1 on a regular basis of instances or areas in which any national primary ambient air quality standard is exceeded or was exceeded during any portion of the preceding calendar year to advise the public of the health hazards associated with such pollution, and to enhance public awareness of the measures which can be taken to prevent such standards from being ex

ceeded and the ways in which the public can par

ticipate in regulatory and other efforts to im

prove air quality. Such measures may include the posting of warning signs on interstate high

way access points to metropolitan areas or tele

vision, radio, or press notices or information.

(b) Grants
The Administrator is authorized to make grants to States to assist in carrying out the re

quirements of subsection (a) of this section. (July 14, 1955, ch. 360, title I, §127, as added Pub. L. 95–95, title I, §124, Aug. 7, 1977, 91 Stat. 725.)

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

§ 7428. State boards
(a) 1 Not later than the date one year after Au

gust 7, 1977, each applicable implementation plan shall contain requirements that— (1) any board or body which approves per

mits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement or

ders under this chapter, and (2) any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed. A State may adopt any requirements respecting conflicts of interest for such boards or bodies or heads of executive agencies, or any other enti

ties which are more stringent than the require

ments of paragraph (1) and (2), and the Adminis

trator shall approve any such more stringent re

quirements submitted as part of an implementa

tion plan. (July 14, 1955, ch. 360, title I, §128, as added Pub. L. 95–95, title I, §125, Aug. 7, 1977, 91 Stat. 725.)

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7429. Solid waste combustion (a) New source performance standards (1) In general (A) The Administrator shall establish per

formance standards and other requirements pursuant to section 7411 of this title and this section for each category of solid waste incin

eration units. Such standards shall include emissions limitations and other requirements applicable to new units and guidelines (under section 7411(d) of this title and this section) and other requirements applicable to existing units. (B) Standards under section 7411 of this title and this section applicable to solid waste in

cineration units with capacity greater than 250 tons per day combusting municipal waste shall be promulgated not later than 12 months after November 15, 1990. Nothing in this sub

paragraph shall alter any schedule for the pro

mulgation of standards applicable to such units under section 7411 of this title pursuant to any settlement and consent decree entered by the Administrator before November 15, 1990: Provided , That, such standards are subse

quently modified pursuant to the schedule es

tablished in this subparagraph to include each of the requirements of this section. (C) Standards under section 7411 of this title and this section applicable to solid waste in

cineration units with capacity equal to or less than 250 tons per day combusting municipal waste and units combusting hospital waste, medical waste and infectious waste shall be promulgated not later than 24 months after November 15, 1990. (D) Standards under section 7411 of this title and this section applicable to solid waste in

cineration units combusting commercial or in

dustrial waste shall be proposed not later than 36 months after November 15, 1990, and pro

mulgated not later than 48 months after No

vember 15, 1990. (E) Not later than 18 months after November 15, 1990, the Administrator shall publish a schedule for the promulgation of standards under section 7411 of this title and this section applicable to other categories of solid waste incineration units. (2) Emissions standard Standards applicable to solid waste inciner

ation units promulgated under section 7411 of this title and this section shall reflect the maximum degree of reduction in emissions of air pollutants listed under section 1 (a)(4) that the Administrator, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environ

mental impacts and energy requirements, de

termines is achievable for new or existing units in each category. The Administrator may distinguish among classes, types (includ

ing mass-burn, refuse-derived fuel, modular and other types of units), and sizes of units within a category in establishing such stand

ards. The degree of reduction in emissions that is deemed achievable for new units in aPage 6297 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7429

2 So in original. Probably should be subsection ‘‘(h)(3)’’. category shall not be less stringent than the emissions control that is achieved in practice by the best controlled similar unit, as deter

mined by the Administrator. Emissions stand

ards for existing units in a category may be less stringent than standards for new units in the same category but shall not be less strin

gent than the average emissions limitation achieved by the best performing 12 percent of units in the category (excluding units which first met lowest achievable emissions rates 18 months before the date such standards are pro

posed or 30 months before the date such stand

ards are promulgated, whichever is later). (3) Control methods and technologies
Standards under section 7411 of this title and this section applicable to solid waste inciner

ation units shall be based on methods and technologies for removal or destruction of pol

lutants before, during, or after combustion, and shall incorporate for new units siting re

quirements that minimize, on a site specific basis, to the maximum extent practicable, po

tential risks to public health or the environ

ment. (4) Numerical emissions limitations The performance standards promulgated under section 7411 of this title and this section and applicable to solid waste incineration units shall specify numerical emission limita

tions for the following substances or mixtures: particulate matter (total and fine), opacity (as appropriate), sulfur dioxide, hydrogen chlo

ride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, and dioxins and di

benzofurans. The Administrator may promul

gate numerical emissions limitations or pro

vide for the monitoring of postcombustion concentrations of surrogate substances, pa

rameters or periods of residence time in excess of stated temperatures with respect to pollut

ants other than those listed in this paragraph. (5) Review and revision Not later than 5 years following the initial promulgation of any performance standards and other requirements under this section and section 7411 of this title applicable to a cat

egory of solid waste incineration units, and at 5 year intervals thereafter, the Administrator shall review, and in accordance with this sec

tion and section 7411 of this title, revise such standards and requirements. (b) Existing units (1) Guidelines
Performance standards under this section and section 7411 of this title for solid waste in

cineration units shall include guidelines pro

mulgated pursuant to section 7411(d) of this title and this section applicable to existing units. Such guidelines shall include, as pro

vided in this section, each of the elements re

quired by subsection (a) of this section (emis

sions limitations, notwithstanding any re

striction in section 7411(d) of this title regard

ing issuance of such limitations), subsection (c) of this section (monitoring), subsection (d) of this section (operator training), subsection (e) of this section (permits), and subsection (h)(4) 2 of this section (residual risk). (2) State plans Not later than 1 year after the Adminis

trator promulgates guidelines for a category of solid waste incineration units, each State in which units in the category are operating shall submit to the Administrator a plan to implement and enforce the guidelines with re

spect to such units. The State plan shall be at least as protective as the guidelines promul

gated by the Administrator and shall provide that each unit subject to the guidelines shall be in compliance with all requirements of this section not later than 3 years after the State plan is approved by the Administrator but not later than 5 years after the guidelines were promulgated. The Administrator shall approve or disapprove any State plan within 180 days of the submission, and if a plan is disapproved, the Administrator shall state the reasons for disapproval in writing. Any State may modify and resubmit a plan which has been dis

approved by the Administrator. (3) Federal plan The Administrator shall develop, implement and enforce a plan for existing solid waste in

cineration units within any category located in any State which has not submitted an ap

provable plan under this subsection with re

spect to units in such category within 2 years after the date on which the Administrator pro

mulgated the relevant guidelines. Such plan shall assure that each unit subject to the plan is in compliance with all provisions of the guidelines not later than 5 years after the date the relevant guidelines are promulgated. (c) Monitoring The Administrator shall, as part of each per

formance standard promulgated pursuant to subsection (a) of this section and section 7411 of this title, promulgate regulations requiring the owner or operator of each solid waste inciner

ation unit— (1) to monitor emissions from the unit at the point at which such emissions are emitted into the ambient air (or within the stack, combustion chamber or pollution control equipment, as appropriate) and at such other points as necessary to protect public health and the environment; (2) to monitor such other parameters relat

ing to the operation of the unit and its pollu

tion control technology as the Administrator determines are appropriate; and (3) to report the results of such monitoring. Such regulations shall contain provisions re

garding the frequency of monitoring, test meth

ods and procedures validated on solid waste in

cineration units, and the form and frequency of reports containing the results of monitoring and shall require that any monitoring reports or test results indicating an exceedance of any standard under this section shall be reported separately and in a manner that facilitates review for pur

poses of enforcement actions. Such regulationsPage 6298 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7429

shall require that copies of the results of such monitoring be maintained on file at the facility concerned and that copies shall be made avail

able for inspection and copying by interested members of the public during business hours. (d) Operator training Not later than 24 months after November 15, 1990, the Administrator shall develop and pro

mote a model State program for the training and certification of solid waste incineration unit operators and high-capacity fossil fuel fired plant operators. The Administrator may author

ize any State to implement a model program for the training of solid waste incineration unit op

erators and high-capacity fossil fuel fired plant operators, if the State has adopted a program which is at least as effective as the model pro

gram developed by the Administrator. Begin

ning on the date 36 months after the date on which performance standards and guidelines are promulgated under subsection (a) of this section and section 7411 of this title for any category of solid waste incineration units it shall be unlaw

ful to operate any unit in the category unless each person with control over processes affect

ing emissions from such unit has satisfactorily completed a training program meeting the re

quirements established by the Administrator under this subsection. (e) Permits Beginning (1) 36 months after the promulga

tion of a performance standard under subsection (a) of this section and section 7411 of this title applicable to a category of solid waste inciner

ation units, or (2) the effective date of a permit program under subchapter V of this chapter in the State in which the unit is located, which

ever is later, each unit in the category shall op

erate pursuant to a permit issued under this subsection and subchapter V of this chapter. Permits required by this subsection may be re

newed according to the provisions of subchapter V of this chapter. Notwithstanding any other provision of this chapter, each permit for a solid waste incineration unit combusting municipal waste issued under this chapter shall be issued for a period of up to 12 years and shall be re

viewed every 5 years after date of issuance or re

issuance. Each permit shall continue in effect after the date of issuance until the date of ter

mination, unless the Administrator or State de

termines that the unit is not in compliance with all standards and conditions contained in the permit. Such determination shall be made at regular intervals during the term of the permit, such intervals not to exceed 5 years, and only after public comment and public hearing. No permit for a solid waste incineration unit may be issued under this chapter by an agency, in

strumentality or person that is also responsible, in whole or part, for the design and construction or operation of the unit. Notwithstanding any other provision of this subsection, the Adminis

trator or the State shall require the owner or operator of any unit to comply with emissions limitations or implement any other measures, if the Administrator or the State determines that emissions in the absence of such limitations or measures may reasonably be anticipated to en

danger public health or the environment. The Administrator’s determination under the pre

ceding sentence is a discretionary decision. (f) Effective date and enforcement (1) New units Performance standards and other require

ments promulgated pursuant to this section and section 7411 of this title and applicable to new solid waste incineration units shall be ef

fective as of the date 6 months after the date of promulgation. (2) Existing units Performance standards and other require

ments promulgated pursuant to this section and section 7411 of this title and applicable to existing solid waste incineration units shall be effective as expeditiously as practicable after approval of a State plan under subsection (b)(2) of this section (or promulgation of a plan by the Administrator under subsection (b)(3) of this section) but in no event later than 3 years after the State plan is approved or 5 years after the date such standards or require

ments are promulgated, whichever is earlier. (3) Prohibition After the effective date of any performance standard, emission limitation or other re

quirement promulgated pursuant to this sec

tion and section 7411 of this title, it shall be unlawful for any owner or operator of any solid waste incineration unit to which such standard, limitation or requirement applies to operate such unit in violation of such limita

tion, standard or requirement or for any other person to violate an applicable requirement of this section. (4) Coordination with other authorities For purposes of sections 7411(e), 7413, 7414, 7416, 7420, 7603, 7604, 7607 of this title and other provisions for the enforcement of this chapter, each performance standard, emission limita

tion or other requirement established pursu

ant to this section by the Administrator or a State or local government, shall be treated in the same manner as a standard of performance under section 7411 of this title which is an emission limitation. (g) Definitions For purposes of section 306 of the Clean Air Act Amendments of 1990 and this section only— (1) Solid waste incineration unit
The term ‘‘solid waste incineration unit’’ means a distinct operating unit of any facility which combusts any solid waste material from commercial or industrial establishments or the general public (including single and mul

tiple residences, hotels, and motels). Such term does not include incinerators or other units required to have a permit under section 3005 of the Solid Waste Disposal Act [42 U.S.C. 6925]. The term ‘‘solid waste incineration unit’’ does not include (A) materials recovery facilities (including primary or secondary smelters) which combust waste for the pri

mary purpose of recovering metals, (B) quali

fying small power production facilities, as de

fined in section 796(17)(C) of title 16, or quali

fying cogeneration facilities, as defined in sec

-Page 6299 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7429

3 So in original. Probably should be ‘‘the’’. tion 796(18)(B) of title 16, which burn homo

geneous waste (such as units which burn tires or used oil, but not including refuse-derived fuel) for the production of electric energy or in the case of qualifying cogeneration facilities which burn homogeneous waste for the produc

tion of electric energy and steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes, or (C) air curtain incinerators pro

vided that such incinerators only burn wood wastes, yard wastes and clean lumber and that such air curtain incinerators comply with opacity limitations to be established by the Administrator by rule. (2) New solid waste incineration unit
The term ‘‘new solid waste incineration unit’’ means a solid waste incineration unit the construction of which is commenced after the Administrator proposes requirements under this section establishing emissions standards or other requirements which would be applicable to such unit or a modified solid waste incineration unit. (3) Modified solid waste incineration unit
The term ‘‘modified solid waste incineration unit’’ means a solid waste incineration unit at which modifications have occurred after the effective date of a standard under subsection (a) of this section if (A) the cumulative cost of the modifications, over the life of the unit, ex

ceed 50 per centum of the original cost of con

struction and installation of the unit (not in

cluding the cost of any land purchased in con

nection with such construction or installa

tion) updated to current costs, or (B) the modification is a physical change in or change in the method of operation of the unit which increases the amount of any air pollutant emitted by the unit for which standards have been established under this section or section 7411 of this title. (4) Existing solid waste incineration unit The term ‘‘existing solid waste incineration unit’’ means a solid waste unit which is not a new or modified solid waste incineration unit. (5) Municipal waste The term ‘‘municipal waste’’ means refuse (and refuse-derived fuel) collected from the general public and from residential, commer

cial, institutional, and industrial sources con

sisting of paper, wood, yard wastes, food wastes, plastics, leather, rubber, and other combustible materials and non-combustible materials such as metal, glass and rock, pro

vided that: (A) the term does not include in

dustrial process wastes or medical wastes that are segregated from such other wastes; and (B) an incineration unit shall not be considered to be combusting municipal waste for purposes of section 7411 of this title or this section if it combusts a fuel feed stream, 30 percent or less of the weight of which is comprised, in aggre

gate, of municipal waste. (6) Other terms
The terms ‘‘solid waste’’ and ‘‘medical waste’’ shall have the meanings established by the Administrator pursuant to the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.]. (h) Other authority (1) State authority Nothing in this section shall preclude or deny the right of any State or political sub

division thereof to adopt or enforce any regu

lation, requirement, limitation or standard re

lating to solid waste incineration units that is more stringent than a regulation, require

ment, limitation or standard in effect under this section or under any other provision of this chapter. (2) Other authority under this chapter Nothing in this section shall diminish the authority of the Administrator or a State to establish any other requirements applicable to solid waste incineration units under any other authority of law, including the authority to establish for any air pollutant a national am

bient air quality standard, except that no solid waste incineration unit subject to perform

ance standards under this section and section 7411 of this title shall be subject to standards under section 7412(d) of this title. (3) Residual risk The Administrator shall promulgate stand

ards under section 7412(f) of this title for a cat

egory of solid waste incineration units, if pro

mulgation of such standards is required under section 7412(f) of this title. For purposes of this 3 preceding sentence only— (A) the performance standards under sub

section (a) of this section and section 7411 of this title applicable to a category of solid waste incineration units shall be deemed standards under section 7412(d)(2) of this title, and (B) the Administrator shall consider and regulate, if required, the pollutants listed under subsection (a)(4) of this section and no others. (4) Acid rain
A solid waste incineration unit shall not be a utility unit as defined in subchapter IV–A of this chapter: Provided , That, more than 80 per centum of its annual average fuel consump

tion measured on a Btu basis, during a period or periods to be determined by the Adminis

trator, is from a fuel (including any waste burned as a fuel) other than a fossil fuel. (5) Requirements of parts C and D No requirement of an applicable implemen

tation plan under section 7475 of this title (re

lating to construction of facilities in regions identified pursuant to section 7407(d)(1)(A)(ii) or (iii) of this title) or under section 7502(c)(5) of this title (relating to permits for construc

tion and operation in nonattainment areas) may be used to weaken the standards in effect under this section. (July 14, 1955, ch. 360, title I, §129, as added Pub. L. 101–549, title III, §305(a), Nov. 15, 1990, 104 Stat. 2577.)

R EFERENCES IN T EXT Section 306 of the Clean Air Act Amendments of 1990, referred to in subsec. (g), probably means section 306 ofPage 6300 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7430

1 So in original. Probably should be ‘‘anticipated’’.

2 So in original. Section was enacted without an opening paren

thesis. Pub. L. 101–549, which is set out as a note under section 6921 of this title. The Solid Waste Disposal Act, referred to in subsec. (g)(6), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94–580, §2, Oct. 21, 1976, 90 Stat. 2795, which is classified generally to chap

ter 82 (§6901 et seq.) of this title. For complete classi

fication of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables.

R EVIEW OF A CID G AS S CRUBBING R EQUIREMENTS Section 305(c) of Pub. L. 101–549 provided that: ‘‘Prior to the promulgation of any performance standard for solid waste incineration units combusting municipal waste under section 111 or section 129 of the Clean Air Act [42 U.S.C. 7411, 7429], the Administrator shall re

view the availability of acid gas scrubbers as a pollu

tion control technology for small new units and for ex

isting units (as defined in 54 Federal Register 52190 (De

cember 20, 1989)[)], taking into account the provisions of subsection (a)(2) of section 129 of the Clean Air Act.’’
§ 7430. Emission factors
Within 6 months after November 15, 1990, and at least every 3 years thereafter, the Adminis

trator shall review and, if necessary, revise, the methods (‘‘emission factors’’) used for purposes of this chapter to estimate the quantity of emis

sions of carbon monoxide, volatile organic com

pounds, and oxides of nitrogen from sources of such air pollutants (including area sources and mobile sources). In addition, the Administrator shall establish emission factors for sources for which no such methods have previously been es

tablished by the Administrator. The Adminis

trator shall permit any person to demonstrate improved emissions estimating techniques, and following approval of such techniques, the Ad

ministrator shall authorize the use of such tech

niques. Any such technique may be approved only after appropriate public participation. Until the Administrator has completed the revi

sion required by this section, nothing in this section shall be construed to affect the validity of emission factors established by the Adminis

trator before November 15, 1990. (July 14, 1955, ch. 360, title I, §130, as added Pub. L. 101–549, title VIII, §804, Nov. 15, 1990, 104 Stat. 2689.) § 7431. Land use authority
Nothing in this chapter constitutes an in

fringement on the existing authority of counties and cities to plan or control land use, and noth

ing in this chapter provides or transfers author

ity over such land use. (July 14, 1955, ch. 360, title I, §131, as added Pub. L. 101–549, title VIII, §805, Nov. 15, 1990, 104 Stat. 2689.)

P ART B—O ZONE P ROTECTION §§ 7450 to 7459. Repealed. Pub. L. 101–549, title VI, § 601, Nov. 15, 1990, 104 Stat. 2648

Section 7450, act July 14, 1955, ch. 360, title I, §150, as added Aug. 7, 1977, Pub. L. 95–95, title I, §126, 91 Stat. 725, set forth Congressional declaration of purpose. Section 7451, act July 14, 1955, ch. 360, title I, §151, as added Aug. 7, 1977, Pub. L. 95–95, title I, §126, 91 Stat. 726, set forth Congressional findings. Section 7452, act July 14, 1955, ch. 360, title I, §152, as added Aug. 7, 1977, Pub. L. 95–95, title I, §126, 91 Stat. 726, set forth definitions applicable to this part. Section 7453, act July 14, 1955, ch. 360, title I, §153, as added Aug. 7, 1977, Pub. L. 95–95, title I, §126, 91 Stat. 726, related to studies by Environmental Protection Agency. Section 7454, act July 14, 1955, ch. 360, title I, §154, as added Aug. 7, 1977, Pub. L. 95–95, title I, §126, 91 Stat. 728; amended Pub. L. 96–88, title V, §509(b), Oct. 17, 1979, 93 Stat. 695, related to research and monitoring activi

ties by Federal agencies. Section 7455, act July 14, 1955, ch. 360, title I, §155, as added Aug. 7, 1977, Pub. L. 95–95, title I, §126, 91 Stat. 729, related to reports on progress of regulation. Section 7456, act July 14, 1955, ch. 360, title I, §156, as added Aug. 7, 1977, Pub. L. 95–95, title I, §126, 91 Stat. 729, authorized President to enter into international agreements to foster cooperative research. Section 7457, act July 14, 1955, ch. 360, title I, §157, as added Aug. 7, 1977, Pub. L. 95–95, title I, §126, 91 Stat. 729, related to promulgation of regulations. Section 7458, act July 14, 1955, ch. 360, title I, §158, as added Aug. 7, 1977, Pub. L. 95–95, title I, §126, 91 Stat. 730, set forth other provisions of law that would be un

affected by this part. Section 7459, act July 14, 1955, ch. 360, title I, §159, as added Aug. 7, 1977, Pub. L. 95–95, title I, §126, 91 Stat. 730, related to authority of States to protect the strato

sphere.

S IMILAR P ROVISIONS For provisions relating to stratospheric ozone protec

tion, see section 7671 et seq. of this title.

P ART C—P REVENTION OF S IGNIFICANT D ETERIORATION OF A IR Q UALITY

SUBPART I

— CLEAN AIR § 7470. Congressional declaration of purpose
The purposes of this part are as follows: (1) to protect public health and welfare from any actual or potential adverse effect which in the Administrator’s judgment may reasonably be anticipate 1 to occur from air pollution or from exposures to pollutants in other media, which pollutants originate as emissions to the ambient air) 2 , notwithstanding attainment and maintenance of all national ambient air quality standards; (2) to preserve, protect, and enhance the air quality in national parks, national wilderness areas, national monuments, national sea

shores, and other areas of special national or regional natural, recreational, scenic, or his

toric value; (3) to insure that economic growth will occur in a manner consistent with the preser

vation of existing clean air resources; (4) to assure that emissions from any source in any State will not interfere with any por

tion of the applicable implementation plan to prevent significant deterioration of air quality for any other State; and (5) to assure that any decision to permit in

creased air pollution in any area to which this section applies is made only after careful eval

uation of all the consequences of such a deci

sion and after adequate procedural opportuni

ties for informed public participation in the decisionmaking process. (July 14, 1955, ch. 360, title I, §160, as added Pub. L. 95–95, title I, §127(a), Aug. 7, 1977, 91 Stat. 731.)Page 6301 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7473

E FFECTIVE D ATE Subpart effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

G UIDANCE D OCUMENT Section 127(c) of Pub. L. 95–95 required Adminis

trator, not later than 1 year after Aug. 7, 1977, to pub

lish a guidance document to assist States in carrying out their functions under part C of title I of the Clean Air Act (this part) with respect to pollutants for which national ambient air quality standards are promul

gated.

S TUDY AND R EPORT ON P ROGRESS M ADE IN P ROGRAM R ELATING TO S IGNIFICANT D ETERIORATION OF A IR Q UALITY Section 127(d) of Pub. L. 95–95 directed Administrator, not later than 2 years after Aug. 7, 1977, to complete a study and report to Congress on progress made in car

rying out part C of title I of the Clean Air Act (this part) and the problems associated in carrying out such section. § 7471. Plan requirements
In accordance with the policy of section 7401(b)(1) of this title, each applicable implemen

tation plan shall contain emission limitations and such other measures as may be necessary, as determined under regulations promulgated under this part, to prevent significant deteriora

tion of air quality in each region (or portion thereof) designated pursuant to section 7407 of this title as attainment or unclassifiable. (July 14, 1955, ch. 360, title I, §161, as added Pub. L. 95–95, title I, §127(a), Aug. 7, 1977, 91 Stat. 731; amended Pub. L. 101–549, title I, §110(1), Nov. 15, 1990, 104 Stat. 2470.)

A MENDMENTS 1990—Pub. L. 101–549 substituted ‘‘designated pursu

ant to section 7407 of this title as attainment or un

classifiable’’ for ‘‘identified pursuant to section 7407(d)(1)(D) or (E) of this title’’.
§ 7472. Initial classifications (a) Areas designated as class I Upon the enactment of this part, all— (1) international parks, (2) national wilderness areas which exceed 5,000 acres in size, (3) national memorial parks which exceed 5,000 acres in size, and (4) national parks which exceed six thousand acres in size, and which are in existence on August 7, 1977, shall be class I areas and may not be redesig

nated. All areas which were redesignated as class I under regulations promulgated before August 7, 1977, shall be class I areas which may be redesignated as provided in this part. The ex

tent of the areas designated as Class I under this section shall conform to any changes in the boundaries of such areas which have occurred subsequent to August 7, 1977, or which may occur subsequent to November 15, 1990. (b) Areas designated as class II All areas in such State designated pursuant to section 7407(d) of this title as attainment or un

classifiable which are not established as class I under subsection (a) of this section shall be class II areas unless redesignated under section 7474 of this title. (July 14, 1955, ch. 360, title I, §162, as added Pub. L. 95–95, title I, §127(a), Aug. 7, 1977, 91 Stat. 731; amended Pub. L. 95–190, §14(a)(40), Nov. 16, 1977, 91 Stat. 1401; Pub. L. 101–549, title I, §§108(m), 110(2), Nov. 15, 1990, 104 Stat. 2469, 2470.)

A MENDMENTS 1990—Subsec. (a). Pub. L. 101–549, §108(m), inserted at end ‘‘The extent of the areas designated as Class I under this section shall conform to any changes in the boundaries of such areas which have occurred subse

quent to August 7, 1977, or which may occur subsequent to November 15, 1990.’’ Subsec. (b). Pub. L. 101–549, §110(2), substituted ‘‘des

ignated pursuant to section 7407(d) of this title as at

tainment or unclassifiable’’ for ‘‘identified pursuant to section 7407(d)(1)(D) or (E) of this title’’. 1977—Subsec. (a)(4). Pub. L. 95–190 inserted a comma after ‘‘size’’.
§ 7473. Increments and ceilings (a) Sulfur oxide and particulate matter; require

ment that maximum allowable increases and maximum allowable concentrations not be exceeded In the case of sulfur oxide and particulate matter, each applicable implementation plan shall contain measures assuring that maximum allowable increases over baseline concentrations of, and maximum allowable concentrations of, such pollutant shall not be exceeded. In the case of any maximum allowable increase (except an allowable increase specified under section 7475(d)(2)(C)(iv) of this title) for a pollutant based on concentrations permitted under na

tional ambient air quality standards for any pe

riod other than an annual period, such regula

tions shall permit such maximum allowable in

crease to be exceeded during one such period per
year. (b) Maximum allowable increases in concentra

tions over baseline concentrations (1) For any class I area, the maximum allow

able increase in concentrations of sulfur dioxide and particulate matter over the baseline con

centration of such pollutants shall not exceed the following amounts:

Pollutant Maximum allowable increase (in micrograms per cubic meter) Particulate matter: Annual geometric mean

................................... 5 Twenty-four-hour maximum

............................ 10 Sulfur dioxide: Annual arithmetic mean

.................................. 2 Twenty-four-hour maximum

............................ 5 Three-hour maximum

....................................... 25 (2) For any class II area, the maximum allow

able increase in concentrations of sulfur dioxide and particulate matter over the baseline con

centration of such pollutants shall not exceed the following amounts:

Pollutant Maximum allowable increase (in micrograms per cubic meter) Particulate matter: Annual geometric mean

.................................. 19 Twenty-four-hour maximum

.......................... 37 Sulfur dioxide: Annual arithmetic mean

................................. 20Page 6302 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7474

1 So in original. The period probably should be a comma. 1 So in original. Probably should be ‘‘paragraphs’’. Twenty-four-hour maximum

.......................... 91 Three-hour maximum

..................................... 512 (3) For any class III area, the maximum allow

able increase in concentrations of sulfur dioxide and particulate matter over the baseline con

centration of such pollutants shall not exceed the following amounts:

Pollutant Maximum allowable increase (in micrograms per cubic meter) Particulate matter: Annual geometric mean

.................................. 37 Twenty-four-hour maximum

.......................... 75 Sulfur dioxide: Annual arithmetic mean

................................. 40 Twenty-four-hour maximum

.......................... 182 Three-hour maximum

..................................... 700 (4) The maximum allowable concentration of any air pollutant in any area to which this part applies shall not exceed a concentration for such pollutant for each period of exposure equal to— (A) the concentration permitted under the national secondary ambient air quality stand

ard, or (B) the concentration permitted under the national primary ambient air quality stand

ard, whichever concentration is lowest for such pol

lutant for such period of exposure. (c) Orders or rules for determining compliance with maximum allowable increases in ambi

ent concentrations of air pollutants (1) In the case of any State which has a plan approved by the Administrator for purposes of carrying out this part, the Governor of such State may, after notice and opportunity for pub

lic hearing, issue orders or promulgate rules providing that for purposes of determining com

pliance with the maximum allowable increases in ambient concentrations of an air pollutant, the following concentrations of such pollutant shall not be taken into account: (A) concentrations of such pollutant attrib

utable to the increase in emissions from sta

tionary sources which have converted from the use of petroleum products, or natural gas, or both, by reason of an order which is in ef

fect under the provisions of sections 792(a) and (b) of title 15 (or any subsequent legislation which supersedes such provisions) over the emissions from such sources before the effec

tive date of such order. 1 (B) the concentrations of such pollutant at

tributable to the increase in emissions from stationary sources which have converted from using natural gas by reason of a natural gas curtailment pursuant to a natural gas curtail

ment plan in effect pursuant to the Federal Power Act [16 U.S.C. 791a et seq.] over the emissions from such sources before the effec

tive date of such plan, (C) concentrations of particulate matter at

tributable to the increase in emissions from construction or other temporary emission-re

lated activities, and (D) the increase in concentrations attrib

utable to new sources outside the United States over the concentrations attributable to existing sources which are included in the baseline concentration determined in accord

ance with section 7479(4) of this title. (2) No action taken with respect to a source under paragraph (1)(A) or (1)(B) shall apply more than five years after the effective date of the order referred to in paragraph (1)(A) or the plan referred to in paragraph (1)(B), whichever is ap

plicable. If both such order and plan are applica

ble, no such action shall apply more than five years after the later of such effective dates. (3) No action under this subsection shall take effect unless the Governor submits the order or rule providing for such exclusion to the Admin

istrator and the Administrator determines that such order or rule is in compliance with the pro

visions of this subsection. (July 14, 1955, ch. 360, title I, §163, as added Pub. L. 95–95, title I, §127(a), Aug. 7, 1977, 91 Stat. 732; amended Pub. L. 95–190, §14(a)(41), Nov. 16, 1977, 91 Stat. 1401.)

R EFERENCES I N T EXT The Federal Power Act, referred to in subsec. (c)(1)(B), is act June 10, 1920, ch. 285, 41 Stat. 1063, as amended, which is classified generally to chapter 12 (§791a et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see section 791a of Title 16 and Tables.

A MENDMENTS 1977—Subsec. (a). Pub. L. 95–190 inserted ‘‘section’’ be

fore ‘‘7475’’. § 7474. Area redesignation (a) Authority of States to redesignate areas Except as otherwise provided under subsection (c) of this section, a State may redesignate such areas as it deems appropriate as class I areas. The following areas may be redesignated only as class I or II: (1) an area which exceeds ten thousand acres in size and is a national monument, a national primitive area, a national preserve, a national recreation area, a national wild and scenic river, a national wildlife refuge, a national lakeshore or seashore, and (2) a national park or national wilderness area established after August 7, 1977, which ex

ceeds ten thousand acres in size. The extent of the areas referred to in para

graph 1 (1) and (2) shall conform to any changes in the boundaries of such areas which have oc

curred subsequent to August 7, 1977, or which may occur subsequent to November 15, 1990. Any area (other than an area referred to in para

graph (1) or (2) or an area established as class I under the first sentence of section 7472(a) of this title) may be redesignated by the State as class III if— (A) such redesignation has been specifically approved by the Governor of the State, after consultation with the appropriate Committees of the legislature if it is in session or with the leadership of the legislature if it is not in ses

sion (unless State law provides that such re

designation must be specifically approved by State legislation) and if general purpose units of local government representing a majority ofPage 6303 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7474

2 So in original. Probably should be ‘‘with’’. the residents of the area so redesignated enact legislation (including for such units of local government resolutions where appropriate) concurring in the State’s redesignation; (B) such redesignation will not cause, or contribute to, concentrations of any air pol

lutant which exceed any maximum allowable increase or maximum allowable concentration permitted under the classification of any other area; and (C) such redesignation otherwise meets the requirements of this part. Subparagraph (A) of this paragraph shall not apply to area redesignations by Indian tribes. (b) Notice and hearing; notice to Federal land manager; written comments and recom

mendations; regulations; disapproval of re

designation (1)(A) Prior to redesignation of any area under this part, notice shall be afforded and public hearings shall be conducted in areas proposed to be redesignated and in areas which may be af

fected by the proposed redesignation. Prior to any such public hearing a satisfactory descrip

tion and analysis of the health, environmental, economic, social, and energy effects of the pro

posed redesignation shall be prepared and made available for public inspection and prior to any such redesignation, the description and analysis of such effects shall be reviewed and examined by the redesignating authorities. (B) Prior to the issuance of notice under sub

paragraph (A) respecting the redesignation of any area under this subsection, if such area in

cludes any Federal lands, the State shall provide written notice to the appropriate Federal land manager and afford adequate opportunity (but not in excess of 60 days) to confer with the State respecting the intended notice of redesignation and to submit written comments and recom

mendations with respect to such intended notice of redesignation. In redesignating any area under this section with respect to which any Federal land manager has submitted written comments and recommendations, the State shall publish a list of any inconsistency between such redesignation and such recommendations and an explanation of such inconsistency (to

gether with the reasons for making such redes

ignation against the recommendation of the Federal land manager). (C) The Administrator shall promulgate regu

lations not later than six months after August 7, 1977, to assure, insofar as practicable, that prior to any public hearing on redesignation of any area, there shall be available for public inspec

tion any specific plans for any new or modified major emitting facility which may be permitted to be constructed and operated only if the area in question is designated or redesignated as class III. (2) The Administrator may disapprove the re

designation of any area only if he finds, after notice and opportunity for public hearing, that such redesignation does not meet the procedural requirements of this section or is inconsistent with the requirements of section 7472(a) of this title or of subsection (a) of this section. If any such disapproval occurs, the classification of the area shall be that which was in effect prior to the redesignation which was disapproved. (c) Indian reservations
Lands within the exterior boundaries of res

ervations of federally recognized Indian tribes may be redesignated only by the appropriate In

dian governing body. Such Indian governing body shall be subject in all respect to the provi

sions of subsection (e) of this section. (d) Review of national monuments, primitive areas, and national preserves The Federal Land Manager shall review all na

tional monuments, primitive areas, and national preserves, and shall recommend any appropriate areas for redesignation as class I where air qual

ity related values are important attributes of the area. The Federal Land Manager shall report such recommendations, within 2 supporting analysis, to the Congress and the affected States within one year after August 7, 1977. The Federal Land Manager shall consult with the appro

priate States before making such recommenda

tions. (e) Resolution of disputes between State and In

dian tribes If any State affected by the redesignation of an area by an Indian tribe or any Indian tribe af

fected by the redesignation of an area by a State disagrees with such redesignation of any area, or if a permit is proposed to be issued for any new major emitting facility proposed for construc

tion in any State which the Governor of an af

fected State or governing body of an affected In

dian tribe determines will cause or contribute to a cumulative change in air quality in excess of that allowed in this part within the affected State or tribal reservation, the Governor or In

dian ruling body may request the Administrator to enter into negotiations with the parties in

volved to resolve such dispute. If requested by any State or Indian tribe involved, the Adminis

trator shall make a recommendation to resolve the dispute and protect the air quality related values of the lands involved. If the parties in

volved do not reach agreement, the Adminis

trator shall resolve the dispute and his deter

mination, or the results of agreements reached through other means, shall become part of the applicable plan and shall be enforceable as part of such plan. In resolving such disputes relating to area redesignation, the Administrator shall consider the extent to which the lands involved are of sufficient size to allow effective air qual

ity management or have air quality related val

ues of such an area. (July 14, 1955, ch. 360, title I, §164, as added Pub. L. 95–95, title I, §127(a), Aug. 7, 1977, 91 Stat. 733; amended Pub. L. 95–190, §14(a)(42), (43), Nov. 16, 1977, 91 Stat. 1402; Pub. L. 101–549, title I, §108(n), Nov. 15, 1990, 104 Stat. 2469.)

A MENDMENTS 1990—Subsec. (a). Pub. L. 101–549, which directed the insertion of ‘‘The extent of the areas referred to in paragraph (1) and (2) shall conform to any changes in the boundaries of such areas which have occurred sub

sequent to August 7, 1977, or which may occur subse

quent to November 15, 1990.’’ before ‘‘Any area (other than an area referred to in paragraph (1) or (2))’’, was executed by making the insertion before ‘‘Any areaPage 6304 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7475

(other than an area referred to in paragraph (1) or (2)’’, to reflect the probable intent of Congress. 1977—Subsec. (b)(2). Pub. L. 95–190, §14(a)(42), inserted ‘‘or is inconsistent with the requirements of section 7472(a) of this title or of subsection (a) of this section’’ after ‘‘this section’’. Subsec. (e). Pub. L. 95–190, §14(a)(43), inserted ‘‘an’’ after ‘‘If any State affected by the redesignation of’’. § 7475. Preconstruction requirements (a) Major emitting facilities on which construc

tion is commenced No major emitting facility on which construc

tion is commenced after August 7, 1977, may be constructed in any area to which this part ap

plies unless— (1) a permit has been issued for such pro

posed facility in accordance with this part set

ting forth emission limitations for such facil

ity which conform to the requirements of this part; (2) the proposed permit has been subject to a review in accordance with this section, the re

quired analysis has been conducted in accord

ance with regulations promulgated by the Ad

ministrator, and a public hearing has been held with opportunity for interested persons including representatives of the Administrator to appear and submit written or oral presen

tations on the air quality impact of such source, alternatives thereto, control tech

nology requirements, and other appropriate considerations; (3) the owner or operator of such facility demonstrates, as required pursuant to section 7410(j) of this title, that emissions from con

struction or operation of such facility will not cause, or contribute to, air pollution in excess of any (A) maximum allowable increase or maximum allowable concentration for any pollutant in any area to which this part ap

plies more than one time per year, (B) na

tional ambient air quality standard in any air quality control region, or (C) any other appli

cable emission standard or standard of per

formance under this chapter; (4) the proposed facility is subject to the best available control technology for each pol

lutant subject to regulation under this chapter emitted from, or which results from, such fa

cility; (5) the provisions of subsection (d) of this section with respect to protection of class I areas have been complied with for such facil

ity; (6) there has been an analysis of any air quality impacts projected for the area as a re

sult of growth associated with such facility; (7) the person who owns or operates, or pro

poses to own or operate, a major emitting fa

cility for which a permit is required under this part agrees to conduct such monitoring as may be necessary to determine the effect which emissions from any such facility may have, or is having, on air quality in any area which may be affected by emissions from such source; and (8) in the case of a source which proposes to construct in a class III area, emissions from which would cause or contribute to exceeding the maximum allowable increments applicable in a class II area and where no standard under section 7411 of this title has been promulgated subsequent to August 7, 1977, for such source category, the Administrator has approved the determination of best available technology as set forth in the permit. (b) Exception The demonstration pertaining to maximum al

lowable increases required under subsection (a)(3) of this section shall not apply to maxi

mum allowable increases for class II areas in the case of an expansion or modification of a major emitting facility which is in existence on Au

gust 7, 1977, whose allowable emissions of air pollutants, after compliance with subsection (a)(4) of this section, will be less than fifty tons per year and for which the owner or operator of such facility demonstrates that emissions of particulate matter and sulfur oxides will not cause or contribute to ambient air quality levels in excess of the national secondary ambient air quality standard for either of such pollutants. (c) Permit applications Any completed permit application under sec

tion 7410 of this title for a major emitting facil

ity in any area to which this part applies shall be granted or denied not later than one year after the date of filing of such completed appli

cation. (d) Action taken on permit applications; notice; adverse impact on air quality related values; variance; emission limitations (1) Each State shall transmit to the Adminis

trator a copy of each permit application relating to a major emitting facility received by such State and provide notice to the Administrator of every action related to the consideration of such permit. (2)(A) The Administrator shall provide notice of the permit application to the Federal Land Manager and the Federal official charged with direct responsibility for management of any lands within a class I area which may be af

fected by emissions from the proposed facility. (B) The Federal Land Manager and the Federal official charged with direct responsibility for management of such lands shall have an affirm

ative responsibility to protect the air quality re

lated values (including visibility) of any such lands within a class I area and to consider, in consultation with the Administrator, whether a proposed major emitting facility will have an adverse impact on such values. (C)(i) In any case where the Federal official charged with direct responsibility for manage

ment of any lands within a class I area or the Federal Land Manager of such lands, or the Ad

ministrator, or the Governor of an adjacent State containing such a class I area files a no

tice alleging that emissions from a proposed major emitting facility may cause or contribute to a change in the air quality in such area and identifying the potential adverse impact of such change, a permit shall not be issued unless the owner or operator of such facility demonstrates that emissions of particulate matter and sulfur dioxide will not cause or contribute to con

centrations which exceed the maximum allow

able increases for a class I area.Page 6305 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7475

(ii) In any case where the Federal Land Man

ager demonstrates to the satisfaction of the State that the emissions from such facility will have an adverse impact on the air quality-relat

ed values (including visibility) of such lands, notwithstanding the fact that the change in air quality resulting from emissions from such fa

cility will not cause or contribute to concentra

tions which exceed the maximum allowable in

creases for a class I area, a permit shall not be issued. (iii) In any case where the owner or operator of such facility demonstrates to the satisfaction of the Federal Land Manager, and the Federal Land Manager so certifies, that the emissions from such facility will have no adverse impact on the air quality-related values of such lands (including visibility), notwithstanding the fact that the change in air quality resulting from emissions from such facility will cause or con

tribute to concentrations which exceed the max

imum allowable increases for class I areas, the State may issue a permit. (iv) In the case of a permit issued pursuant to clause (iii), such facility shall comply with such emission limitations under such permit as may be necessary to assure that emissions of sulfur oxides and particulates from such facility will not cause or contribute to concentrations of such pollutant which exceed the following maxi

mum allowable increases over the baseline con

centration for such pollutants:

Maximum allowable increase (in micrograms per cubic meter) Particulate matter: Annual geometric mean

.................................. 19 Twenty-four-hour maximum

.......................... 37 Sulfur dioxide: Annual arithmetic mean

................................. 20 Twenty-four-hour maximum

.......................... 91 Three-hour maximum

..................................... 325 (D)(i) In any case where the owner or operator of a proposed major emitting facility who has been denied a certification under subparagraph (C)(iii) demonstrates to the satisfaction of the Governor, after notice and public hearing, and the Governor finds, that the facility cannot be constructed by reason of any maximum allow

able increase for sulfur dioxide for periods of twenty-four hours or less applicable to any class I area and, in the case of Federal mandatory class I areas, that a variance under this clause will not adversely affect the air quality related values of the area (including visibility), the Gov

ernor, after consideration of the Federal Land Manager’s recommendation (if any) and subject to his concurrence, may grant a variance from such maximum allowable increase. If such vari

ance is granted, a permit may be issued to such source pursuant to the requirements of this sub

paragraph. (ii) In any case in which the Governor rec

ommends a variance under this subparagraph in which the Federal Land Manager does not con

cur, the recommendations of the Governor and the Federal Land Manager shall be transmitted to the President. The President may approve the Governor’s recommendation if he finds that such variance is in the national interest. No Presidential finding shall be reviewable in any court. The variance shall take effect if the President approves the Governor’s recommenda

tions. The President shall approve or disapprove such recommendation within ninety days after his receipt of the recommendations of the Gov

ernor and the Federal Land Manager. (iii) In the case of a permit issued pursuant to this subparagraph, such facility shall comply with such emission limitations under such per

mit as may be necessary to assure that emis

sions of sulfur oxides from such facility will not (during any day on which the otherwise applica

ble maximum allowable increases are exceeded) cause or contribute to concentrations which ex

ceed the following maximum allowable increases for such areas over the baseline concentration for such pollutant and to assure that such emis

sions will not cause or contribute to concentra

tions which exceed the otherwise applicable maximum allowable increases for periods of ex

posure of 24 hours or less on more than 18 days during any annual period:

MAXIMUM ALLOWABLE INCREASE (In micrograms per cubic meter)

Period of exposure Low terrain
areas High

terrain
areas

24-hr maximum

......................................... 36 62 3-hr maximum

.......................................... 130 221
(iv) For purposes of clause (iii), the term ‘‘high terrain area’’ means with respect to any facil

ity, any area having an elevation of 900 feet or more above the base of the stack of such facil

ity, and the term ‘‘low terrain area’’ means any area other than a high terrain area. (e) Analysis; continuous air quality monitoring data; regulations; model adjustments (1) The review provided for in subsection (a) of this section shall be preceded by an analysis in accordance with regulations of the Adminis

trator, promulgated under this subsection, which may be conducted by the State (or any general purpose unit of local government) or by the major emitting facility applying for such permit, of the ambient air quality at the pro

posed site and in areas which may be affected by emissions from such facility for each pollutant subject to regulation under this chapter which will be emitted from such facility. (2) Effective one year after August 7, 1977, the analysis required by this subsection shall in

clude continuous air quality monitoring data gathered for purposes of determining whether emissions from such facility will exceed the maximum allowable increases or the maximum allowable concentration permitted under this part. Such data shall be gathered over a period of one calendar year preceding the date of appli

cation for a permit under this part unless the State, in accordance with regulations promul

gated by the Administrator, determines that a complete and adequate analysis for such pur

poses may be accomplished in a shorter period. The results of such analysis shall be available at the time of the public hearing on the application for such permit. (3) The Administrator shall within six months after August 7, 1977, promulgate regulations re

specting the analysis required under this sub

section which regulations—Page 6306 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7476

1 So in original. Probably should be ‘‘of’’. (A) shall not require the use of any auto

matic or uniform buffer zone or zones, (B) shall require an analysis of the ambient air quality, climate and meteorology, terrain, soils and vegetation, and visibility at the site of the proposed major emitting facility and in the area potentially affected by the emissions from such facility for each pollutant regulated under this chapter which will be emitted from, or which results from the construction or op

eration of, such facility, the size and nature of the proposed facility, the degree of continuous emission reduction which could be achieved by such facility, and such other factors as may be relevant in determining the effect of emissions from a proposed facility on any air quality control region, (C) shall require the results of such analysis shall be available at the time of the public hearing on the application for such permit, and (D) shall specify with reasonable particular

ity each air quality model or models to be used under specified sets of conditions for pur

poses of this part. Any model or models designated under such reg

ulations may be adjusted upon a determination, after notice and opportunity for public hearing, by the Administrator that such adjustment is necessary to take into account unique terrain or meteorological characteristics of an area poten

tially affected by emissions from a source apply

ing for a permit required under this part. (July 14, 1955, ch. 360, title I, §165, as added Pub. L. 95–95, title I, §127(a), Aug. 7, 1977, 91 Stat. 735; amended Pub. L. 95–190, §14(a)(44)–(51), Nov. 16, 1977, 91 Stat. 1402.)

A MENDMENTS 1977—Subsec. (a)(1). Pub. L. 95–190, §14(a)(44), sub

stituted ‘‘part;’’ for ‘‘part:’’. Subsec. (a)(3). Pub. L. 95–190, §14(a)(45), inserted pro

vision making applicable requirement of section 7410(j) of this title. Subsec. (b). Pub. L. 95–190, §14(a)(46), inserted ‘‘cause or’’ before ‘‘contribute’’ and struck out ‘‘actual’’ before ‘‘allowable emissions’’. Subsec. (d)(2)(C). Pub. L. 95–190, §14(a)(47)–(49), in cl. (ii) substituted ‘‘contribute’’ for ‘‘contrbute’’, in cl. (iii) substituted ‘‘quality-related’’ for ‘‘quality related’’ and ‘‘concentrations which’’ for ‘‘concentrations, which’’, and in cl. (iv) substituted ‘‘such facility’’ for ‘‘such sources’’ and ‘‘will not cause or contribute to con

centrations of such pollutant which exceed’’ for ‘‘to

gether with all other sources, will not exceed’’. Subsec. (d)(2)(D). Pub. L. 95–190, §14(a)(50), (51), in cl. (iii) substituted provisions relating to determinations of amounts of emissions of sulfur oxides from facilities, for provisions relating to determinations of amounts of emissions of sulfur oxides from sources operating under permits issued pursuant to this subpar., together with all other sources, and added cl. (iv). § 7476. Other pollutants (a) Hydrocarbons, carbon monoxide, petrochemi

cal oxidants, and nitrogen oxides In the case of the pollutants hydrocarbons, carbon monoxide, photochemical oxidants, and nitrogen oxides, the Administrator shall con

duct a study and not later than two years after August 7, 1977, promulgate regulations to pre

vent the significant deterioration of air quality which would result from the emissions of such pollutants. In the case of pollutants for which national ambient air quality standards are pro

mulgated after August 7, 1977, he shall promul

gate such regulations not more than 2 years after the date of promulgation of such stand

ards. (b) Effective date of regulations Regulations referred to in subsection (a) of this section shall become effective one year after the date of promulgation. Within 21 months after such date of promulgation such plan revision shall be submitted to the Adminis

trator who shall approve or disapprove the plan within 25 months after such date or 1 promulga

tion in the same manner as required under sec

tion 7410 of this title. (c) Contents of regulations Such regulations shall provide specific numer

ical measures against which permit applications may be evaluated, a framework for stimulating improved control technology, protection of air quality values, and fulfill the goals and purposes set forth in section 7401 and section 7470 of this title. (d) Specific measures to fulfill goals and pur

poses The regulations of the Administrator under subsection (a) of this section shall provide spe

cific measures at least as effective as the incre

ments established in section 7473 of this title to fulfill such goals and purposes, and may contain air quality increments, emission density re

quirements, or other measures. (e) Area classification plan not required With respect to any air pollutant for which a national ambient air quality standard is estab

lished other than sulfur oxides or particulate matter, an area classification plan shall not be required under this section if the implementa

tion plan adopted by the State and submitted for the Administrator’s approval or promulgated by the Administrator under section 7410(c) of this title contains other provisions which when considered as a whole, the Administrator finds will carry out the purposes in section 7470 of this title at least as effectively as an area classifica

tion plan for such pollutant. Such other provi

sions referred to in the preceding sentence need not require the establishment of maximum al

lowable increases with respect to such pollutant for any area to which this section applies. (f) PM–10 increments The Administrator is authorized to substitute, for the maximum allowable increases in particu

late matter specified in section 7473(b) of this title and section 7475(d)(2)(C)(iv) of this title, maximum allowable increases in particulate matter with an aerodynamic diameter smaller than or equal to 10 micrometers. Such sub

stituted maximum allowable increases shall be of equal stringency in effect as those specified in the provisions for which they are substituted. Until the Administrator promulgates regula

tions under the authority of this subsection, the current maximum allowable increases in con

-Page 6307 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7479

centrations of particulate matter shall remain in effect. (July 14, 1955, ch. 360, title I, §166, as added Pub. L. 95–95, title I, §127(a), Aug. 7, 1977, 91 Stat. 739; amended Pub. L. 101–549, title I, §105(b), Nov. 15, 1990, 104 Stat. 2462.)

A MENDMENTS 1990—Subsec. (f). Pub. L. 101–549 added subsec. (f).
§ 7477. Enforcement
The Administrator shall, and a State may, take such measures, including issuance of an order, or seeking injunctive relief, as necessary to prevent the construction or modification of a major emitting facility which does not conform to the requirements of this part, or which is pro

posed to be constructed in any area designated pursuant to section 7407(d) of this title as at

tainment or unclassifiable and which is not sub

ject to an implementation plan which meets the requirements of this part. (July 14, 1955, ch. 360, title I, §167, as added Pub. L. 95–95, title I, §127(a), Aug. 7, 1977, 91 Stat. 740; amended Pub. L. 101–549, title I, §110(3), title VII, §708, Nov. 15, 1990, 104 Stat. 2470, 2684.)

A MENDMENTS 1990—Pub. L. 101–549, §708, substituted ‘‘construction or modification of a major emitting facility’’ for ‘‘con

struction of a major emitting facility’’. Pub. L. 101–549, §110(3), substituted ‘‘designated pur

suant to section 7407(d) as attainment or unclassifi

able’’ for ‘‘included in the list promulgated pursuant to paragraph (1)(D) or (E) of subsection (d) of section 7407 of this title’’. § 7478. Period before plan approval (a) Existing regulations to remain in effect Until such time as an applicable implementa

tion plan is in effect for any area, which plan meets the requirements of this part to prevent significant deterioration of air quality with re

spect to any air pollutant, applicable regula

tions under this chapter prior to August 7, 1977, shall remain in effect to prevent significant de

terioration of air quality in any such area for any such pollutant except as otherwise provided in subsection (b) of this section. (b) Regulations deemed amended; construction commenced after June 1, 1975 If any regulation in effect prior to August 7, 1977, to prevent significant deterioration of air quality would be inconsistent with the require

ments of section 7472(a), section 7473(b) or sec

tion 7474(a) of this title, then such regulations shall be deemed amended so as to conform with such requirements. In the case of a facility on which construction was commenced (in accord

ance with the definition of ‘‘commenced’’ in sec

tion 7479(2) of this title) after June 1, 1975, and prior to August 7, 1977, the review and permit

ting of such facility shall be in accordance with the regulations for the prevention of significant deterioration in effect prior to August 7, 1977. (July 14, 1955, ch. 360, title I, §168, as added Pub. L. 95–95, title I, §127(a), Aug. 7, 1977, 91 Stat. 740; amended Pub. L. 95–190, §14(a)(52), Nov. 16, 1977, 91 Stat. 1402.) A MENDMENTS 1977—Subsec. (b). Pub. L. 95–190 substituted ‘‘(in ac

cordance with the definition of ‘commenced’ in section 7479(2) of this title)’’ for ‘‘in accordance with this definition’’.
§ 7479. Definitions
For purposes of this part— (1) The term ‘‘major emitting facility’’ means any of the following stationary sources of air pollutants which emit, or have the po

tential to emit, one hundred tons per year or more of any air pollutant from the following types of stationary sources: fossil-fuel fired steam electric plants of more than two hun

dred and fifty million British thermal units per hour heat input, coal cleaning plants (thermal dryers), kraft pulp mills, Portland Cement plants, primary zinc smelters, iron and steel mill plants, primary aluminum ore reduction plants, primary copper smelters, municipal incinerators capable of charging more than fifty tons of refuse per day, hydro

fluoric, sulfuric, and nitric acid plants, petro

leum refineries, lime plants, phosphate rock processing plants, coke oven batteries, sulfur recovery plants, carbon black plants (furnace process), primary lead smelters, fuel conver

sion plants, sintering plants, secondary metal production facilities, chemical process plants, fossil-fuel boilers of more than two hundred and fifty million British thermal units per hour heat input, petroleum storage and trans

fer facilities with a capacity exceeding three hundred thousand barrels, taconite ore proc

essing facilities, glass fiber processing plants, charcoal production facilities. Such term also includes any other source with the potential to emit two hundred and fifty tons per year or more of any air pollutant. This term shall not include new or modified facilities which are nonprofit health or education institutions which have been exempted by the State. (2)(A) The term ‘‘commenced’’ as applied to construction of a major emitting facility means that the owner or operator has obtained all necessary preconstruction approvals or permits required by Federal, State, or local air pollution emissions and air quality laws or regulations and either has (i) begun, or causedto begin, a continuous program of physical onsite construction of the facility or (ii) entered into binding agreements or contractual obliga

tions, which cannot be canceled or modified without substantial loss to the owner or oper

ator, to undertake a program of construction of the facility to be completed within a rea

sonable time. (B) The term ‘‘necessary preconstruction ap

provals or permits’’ means those permits or approvals, required by the permitting author

ity as a precondition to undertaking any ac

tivity under clauses (i) or (ii) of subparagraph (A) of this paragraph. (C) The term ‘‘construction’’ when used in connection with any source or facility, in

cludes the modification (as defined in section 7411(a) of this title) of any source or facility. (3) The term ‘‘best available control tech

nology’’ means an emission limitation based on the maximum degree of reduction of eachPage 6308 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7491

pollutant subject to regulation under this chapter emitted from or which results from any major emitting facility, which the permit

ting authority, on a case-by-case basis, taking into account energy, environmental, and eco

nomic impacts and other costs, determines is achievable for such facility through applica

tion of production processes and available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or in

novative fuel combustion techniques for con

trol of each such pollutant. In no event shall application of ‘‘best available control tech

nology’’ result in emissions of any pollutants which will exceed the emissions allowed by any applicable standard established pursuant to section 7411 or 7412 of this title. Emissions from any source utilizing clean fuels, or any other means, to comply with this paragraph shall not be allowed to increase above levels that would have been required under this para

graph as it existed prior to November 15, 1990. (4) The term ‘‘baseline concentration’’ means, with respect to a pollutant, the ambi

ent concentration levels which exist at the time of the first application for a permit in an area subject to this part, based on air quality data available in the Environmental Protec

tion Agency or a State air pollution control agency and on such monitoring data as the permit applicant is required to submit. Such ambient concentration levels shall take into account all projected emissions in, or which may affect, such area from any major emit

ting facility on which construction com

menced prior to January 6, 1975, but which has not begun operation by the date of the base

line air quality concentration determination. Emissions of sulfur oxides and particulate matter from any major emitting facility on which construction commenced after January 6, 1975, shall not be included in the baseline and shall be counted against the maximum al

lowable increases in pollutant concentrations established under this part. (July 14, 1955, ch. 360, title I, §169, as added Pub. L. 95–95, title I, §127(a), Aug. 7, 1977, 91 Stat. 740; amended Pub. L. 95–190, §14(a)(54), Nov. 16, 1977, 91 Stat. 1402; Pub. L. 101–549, title III, §305(b), title IV, §403(d), Nov. 15, 1990, 104 Stat. 2583, 2631.)

A MENDMENTS 1990—Par. (1). Pub. L. 101–549, §305(b), struck out ‘‘two hundred and’’ after ‘‘municipal incinerators capable of charging more than’’. Par. (3). Pub. L. 101–549, §403(d), directed the insertion of ‘‘, clean fuels,’’ after ‘‘including fuel cleaning,’’, which was executed by making the insertion after ‘‘in

cluding fuel cleaning’’ to reflect the probable intent of Congress, and inserted at end ‘‘Emissions from any source utilizing clean fuels, or any other means, to comply with this paragraph shall not be allowed to in

crease above levels that would have been required under this paragraph as it existed prior to November 15, 1990.’’ 1977—Par. (2)(C). Pub. L. 95–190 added subpar. (C).

S TUDY OF M AJOR E MITTING F ACILITIES W ITH P OTENTIAL OF E MITTING 250 T ONS P ER Y EAR Section 127(b) of Pub. L. 95–95 directed Administrator, within 1 year after Aug. 7, 1977, to report to Congress on consequences of that portion of definition of ‘‘major emitting facility’’ under this subpart which applies to facilities with potential to emit 250 tons per year or

more.

SUBPART II

— VISIBILITY PROTECTION

C ODIFICATION As originally enacted, subpart II of part C of sub

chapter I of this chapter was added following section 7478 of this title. Pub. L. 95–190, §14(a)(53), Nov. 16, 1977, 91 Stat. 1402, struck out subpart II and inserted such subpart following section 7479 of this title. § 7491. Visibility protection for Federal class I

areas (a) Impairment of visibility; list of areas; study and report (1) Congress hereby declares as a national goal the prevention of any future, and the remedying of any existing, impairment of visibility in man

datory class I Federal areas which impairment results from manmade air pollution. (2) Not later than six months after August 7, 1977, the Secretary of the Interior in consulta

tion with other Federal land managers shall re

view all mandatory class I Federal areas and identify those where visibility is an important value of the area. From time to time the Sec

retary of the Interior may revise such identi

fications. Not later than one year after August 7, 1977, the Administrator shall, after consulta

tion with the Secretary of the Interior, promul

gate a list of mandatory class I Federal areas in which he determines visibility is an important value. (3) Not later than eighteen months after Au

gust 7, 1977, the Administrator shall complete a study and report to Congress on available meth

ods for implementing the national goal set forth in paragraph (1). Such report shall include rec

ommendations for— (A) methods for identifying, characterizing, determining, quantifying, and measuring visi

bility impairment in Federal areas referred to in paragraph (1), and (B) modeling techniques (or other methods) for determining the extent to which manmade air pollution may reasonably be anticipated to cause or contribute to such impairment, and (C) methods for preventing and remedying such manmade air pollution and resulting visi

bility impairment. Such report shall also identify the classes or categories of sources and the types of air pollut

ants which, alone or in conjunction with other sources or pollutants, may reasonably be antici

pated to cause or contribute significantly to im

pairment of visibility. (4) Not later than twenty-four months after August 7, 1977, and after notice and public hear

ing, the Administrator shall promulgate regula

tions to assure (A) reasonable progress toward meeting the national goal specified in paragraph (1), and (B) compliance with the requirements of this section. (b) Regulations Regulations under subsection (a)(4) of this sec

tion shall— (1) provide guidelines to the States, taking into account the recommendations under sub

-Page 6309 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7491

section (a)(3) of this section on appropriate techniques and methods for implementing this section (as provided in subparagraphs (A) through (C) of such subsection (a)(3)), and (2) require each applicable implementation plan for a State in which any area listed by the Administrator under subsection (a)(2) of this section is located (or for a State the emis

sions from which may reasonably be antici

pated to cause or contribute to any impair

ment of visibility in any such area) to contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress toward meeting the national goal specified in subsection (a) of this section, including— (A) except as otherwise provided pursuant to subsection (c) of this section, a require

ment that each major stationary source which is in existence on August 7, 1977, but which has not been in operation for more than fifteen years as of such date, and which, as determined by the State (or the Administrator in the case of a plan promul

gated under section 7410(c) of this title) emits any air pollutant which may reason

ably be anticipated to cause or contribute to any impairment of visibility in any such area, shall procure, install, and operate, as expeditiously as practicable (and maintain thereafter) the best available retrofit tech

nology, as determined by the State (or the Administrator in the case of a plan promul

gated under section 7410(c) of this title) for controlling emissions from such source for the purpose of eliminating or reducing any such impairment, and (B) a long-term (ten to fifteen years) strat

egy for making reasonable progress toward meeting the national goal specified in sub

section (a) of this section. In the case of a fossil-fuel fired generating powerplant having a total generating capacity in excess of 750 megawatts, the emission limita

tions required under this paragraph shall be de

termined pursuant to guidelines, promulgated by the Administrator under paragraph (1). (c) Exemptions (1) The Administrator may, by rule, after no

tice and opportunity for public hearing, exempt any major stationary source from the require

ment of subsection (b)(2)(A) of this section, upon his determination that such source does not or will not, by itself or in combination with other sources, emit any air pollutant which may rea

sonably be anticipated to cause or contribute to a significant impairment of visibility in any mandatory class I Federal area. (2) Paragraph (1) of this subsection shall not be applicable to any fossil-fuel fired powerplant with total design capacity of 750 megawatts or more, unless the owner or operator of any such plant demonstrates to the satisfaction of the Administrator that such powerplant is located at such distance from all areas listed by the Ad

ministrator under subsection (a)(2) of this sec

tion that such powerplant does not or will not, by itself or in combination with other sources, emit any air pollutant which may reasonably be anticipated to cause or contribute to significant impairment of visibility in any such area. (3) An exemption under this subsection shall be effective only upon concurrence by the appro

priate Federal land manager or managers with the Administrator’s determination under this subsection. (d) Consultations with appropriate Federal land managers Before holding the public hearing on the pro

posed revision of an applicable implementation plan to meet the requirements of this section, the State (or the Administrator, in the case of a plan promulgated under section 7410(c) of this title) shall consult in person with the appro

priate Federal land manager or managers and shall include a summary of the conclusions and recommendations of the Federal land managers in the notice to the public. (e) Buffer zones In promulgating regulations under this sec

tion, the Administrator shall not require the use of any automatic or uniform buffer zone or

zones. (f) Nondiscretionary duty For purposes of section 7604(a)(2) of this title, the meeting of the national goal specified in subsection (a)(1) of this section by any specific date or dates shall not be considered a ‘‘non

discretionary duty’’ of the Administrator. (g) Definitions For the purpose of this section— (1) in determining reasonable progress there shall be taken into consideration the costs of compliance, the time necessary for compli

ance, and the energy and nonair quality envi

ronmental impacts of compliance, and the re

maining useful life of any existing source sub

ject to such requirements; (2) in determining best available retrofit technology the State (or the Administrator in determining emission limitations which re

flect such technology) shall take into consid

eration the costs of compliance, the energy and nonair quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source, and the degree of im

provement in visibility which may reasonably be anticipated to result from the use of such technology; (3) the term ‘‘manmade air pollution’’ means air pollution which results directly or indi

rectly from human activities; (4) the term ‘‘as expeditiously as prac

ticable’’ means as expeditiously as practicable but in no event later than five years after the date of approval of a plan revision under this section (or the date of promulgation of such a plan revision in the case of action by the Ad

ministrator under section 7410(c) of this title for purposes of this section); (5) the term ‘‘mandatory class I Federal areas’’ means Federal areas which may not be designated as other than class I under this part; (6) the terms ‘‘visibility impairment’’ and ‘‘impairment of visibility’’ shall include re

duction in visual range and atmospheric dis

coloration; andPage 6310 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7492

1 So in original. Words ‘‘subsection (b) of this section’’ prob

ably should be ‘‘paragraph (2)’’.

2 So in original. Probably should not be capitalized. (7) the term ‘‘major stationary source’’ means the following types of stationary sources with the potential to emit 250 tons or more of any pollutant: fossil-fuel fired steam electric plants of more than 250 million Brit

ish thermal units per hour heat input, coal cleaning plants (thermal dryers), kraft pulp mills, Portland Cement plants, primary zinc smelters, iron and steel mill plants, primary aluminum ore reduction plants, primary cop

per smelters, municipal incinerators capable of charging more than 250 tons of refuse per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum refineries, lime plants, phos

phate rock processing plants, coke oven bat

teries, sulfur recovery plants, carbon black plants (furnace process), primary lead smelt

ers, fuel conversion plants, sintering plants, secondary metal production facilities, chemi

cal process plants, fossil-fuel boilers of more than 250 million British thermal units per hour heat input, petroleum storage and trans

fer facilities with a capacity exceeding 300,000 barrels, taconite ore processing facilities, glass fiber processing plants, charcoal produc

tion facilities. (July 14, 1955, ch. 360, title I, §169A, as added Pub. L. 95–95, title I, §128, Aug. 7, 1977, 91 Stat. 742.)

E FFECTIVE D ATE Subpart effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7492. Visibility (a) Studies (1) The Administrator, in conjunction with the National Park Service and other appropriate Federal agencies, shall conduct research to iden

tify and evaluate sources and source regions of both visibility impairment and regions that pro

vide predominantly clean air in class I areas. A total of $8,000,000 per year for 5 years is author

ized to be appropriated for the Environmental Protection Agency and the other Federal agen

cies to conduct this research. The research shall include— (A) expansion of current visibility related monitoring in class I areas; (B) assessment of current sources of visi

bility impairing pollution and clean air cor

ridors; (C) adaptation of regional air quality models for the assessment of visibility; (D) studies of atmospheric chemistry and physics of visibility. (2) Based on the findings available from the re

search required in subsection (a)(1) of this sec

tion as well as other available scientific and technical data, studies, and other available in

formation pertaining to visibility source-recep

tor relationships, the Administrator shall con

duct an assessment and evaluation that identi

fies, to the extent possible, sources and source regions of visibility impairment including natu

ral sources as well as source regions of clear air for class I areas. The Administrator shall produce interim findings from this study within 3 years after November 15, 1990. (b) Impacts of other provisions Within 24 months after November 15, 1990, the Administrator shall conduct an assessment of the progress and improvements in visibility in class I areas that are likely to result from the implementation of the provisions of the Clean Air Act Amendments of 1990 other than the pro

visions of this section. Every 5 years thereafter the Administrator shall conduct an assessment of actual progress and improvement in visibility in class I areas. The Administrator shall prepare a written report on each assessment and trans

mit copies of these reports to the appropriate committees of Congress. (c) Establishment of visibility transport regions and commissions (1) Authority to establish visibility transport regions Whenever, upon the Administrator’s motion or by petition from the Governors of at least two affected States, the Administrator has reason to believe that the current or projected interstate transport of air pollutants from one or more States contributes significantly to visibility impairment in class I areas located in the affected States, the Administrator may establish a transport region for such pollut

ants that includes such States. The Adminis

trator, upon the Administrator’s own motion or upon petition from the Governor of any af

fected State, or upon the recommendations of a transport commission established under sub

section (b) of this section 1 may— (A) add any State or portion of a State to a visibility transport region when the Ad

ministrator determines that the interstate transport of air pollutants from such State significantly contributes to visibility im

pairment in a class I area located within the transport region, or (B) remove any State or portion of a State from the region whenever the Administrator has reason to believe that the control of emissions in that State or portion of the State pursuant to this section will not sig

nificantly contribute to the protection or enhancement of visibility in any class I area in the region. (2) Visibility transport commissions
Whenever the Administrator establishes a transport region under subsection (c)(1) of this section, the Administrator shall establish a transport commission comprised of (as a mini

mum) each of the following members: (A) the Governor of each State in the Visi

bility Transport Region, or the Governor’s designee; (B) The 2 Administrator or the Administra

tor’s designee; and (C) A 2 representative of each Federal agen

cy charged with the direct management of each class I area or areas within the Visi

bility Transport Region. (3) Ex officio members All representatives of the Federal Govern

ment shall be ex officio members.Page 6311 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7501

(4) Federal Advisory Committee Act The visibility transport commissions shall be exempt from the requirements of the Fed

eral Advisory Committee Act [5 U.S.C. App.]. (d) Duties of visibility transport commissions A Visibility Transport Commission— (1) shall assess the scientific and technical data, studies, and other currently available in

formation, including studies conducted pursu

ant to subsection (a)(1) of this section, per

taining to adverse impacts on visibility from potential or projected growth in emissions from sources located in the Visibility Trans

port Region; and (2) shall, within 4 years of establishment, issue a report to the Administrator rec

ommending what measures, if any, should be taken under this chapter to remedy such ad

verse impacts. The report required by this sub

section shall address at least the following

measures: (A) the establishment of clean air cor

ridors, in which additional restrictions on increases in emissions may be appropriate to protect visibility in affected class I areas; (B) the imposition of the requirements of part D of this subchapter affecting the con

struction of new major stationary sources or major modifications to existing sources in such clean air corridors specifically includ

ing the alternative siting analysis provisions of section 7503(a)(5) of this title; and (C) the promulgation of regulations under section 7491 of this title to address long range strategies for addressing regional haze which impairs visibility in affected class I

areas. (e) Duties of Administrator (1) The Administrator shall, taking into ac

count the studies pursuant to subsection (a)(1) of this section and the reports pursuant to sub

section (d)(2) of this section and any other rel

evant information, within eighteen months of receipt of the report referred to in subsection (d)(2) of this section, carry out the Administra

tor’s regulatory responsibilities under section 7491 of this title, including criteria for measur

ing ‘‘reasonable progress’’ toward the national goal. (2) Any regulations promulgated under section 7491 of this title pursuant to this subsection shall require affected States to revise within 12 months their implementation plans under sec

tion 7410 of this title to contain such emission limits, schedules of compliance, and other meas

ures as may be necessary to carry out regula

tions promulgated pursuant to this subsection. (f) Grand Canyon visibility transport commission The Administrator pursuant to subsection (c)(1) of this section shall, within 12 months, es

tablish a visibility transport commission for the region affecting the visibility of the Grand Can

yon National Park. (July 14, 1955, ch. 360, title I, §169B, as added Pub. L. 101–549, title VIII, §816, Nov. 15, 1990, 104 Stat. 2695.)

R EFERENCES IN T EXT The Clean Air Act Amendments of 1990, referred to in subsec. (b), probably means Pub. L. 101–549, Nov. 15, 1990, 104 Stat. 2399. For complete classification of this Act to the Code, see Short Title note set out under sec

tion 7401 of this title and Tables. The Federal Advisory Committee Act, referred to in subsec. (c)(4), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, as amended, which is set out in the Appendix to Title 5, Government Organization and Employees.

P ART D—P LAN R EQUIREMENTS FOR N ONATTAINMENT A REAS

SUBPART 1

— NONATTAINMENT AREAS IN GENERAL
§ 7501. Definitions
For the purpose of this part— (1) R EASONABLE FURTHER PROGRESS .—The term ‘‘reasonable further progress’’ means such annual incremental reductions in emis

sions of the relevant air pollutant as are re

quired by this part or may reasonably be re

quired by the Administrator for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date. (2) N ONATTAINMENT AREA .—The term ‘‘non

attainment area’’ means, for any air pollut

ant, an area which is designated ‘‘nonattain

ment’’ with respect to that pollutant within the meaning of section 7407(d) of this title. (3) The term ‘‘lowest achievable emission rate’’ means for any source, that rate of emis

sions which reflects— (A) the most stringent emission limitation which is contained in the implementation plan of any State for such class or category of source, unless the owner or operator of the proposed source demonstrates that such limitations are not achievable, or (B) the most stringent emission limitation which is achieved in practice by such class or category of source, whichever is more stringent. In no event shall the application of this term permit a proposed new or modified source to emit any pollutant in excess of the amount al

lowable under applicable new source standards of performance. (4) The terms ‘‘modifications’’ and ‘‘modi

fied’’ mean the same as the term ‘‘modifica

tion’’ as used in section 7411(a)(4) of this title. (July 14, 1955, ch. 360, title I, §171, as added Pub. L. 95–95, title I, §129(b), Aug. 7, 1977, 91 Stat. 745; amended Pub. L. 101–549, title I, §102(a)(2), Nov. 15, 1990, 104 Stat. 2412.)

A MENDMENTS 1990—Pub. L. 101–549, §102(a)(2)(A), struck out ‘‘and section 7410(a)(2)(I) of this title’’ after ‘‘purpose of this part’’. Pars. (1), (2). Pub. L. 101–549, §102(a)(2)(B), (C), amend

ed pars. (1) and (2) generally. Prior to amendment, pars. (1) and (2) read as follows: ‘‘(1) The term ‘reasonable further progress’ means an

nual incremental reductions in emissions of the appli

cable air pollutant (including substantial reductions in the early years following approval or promulgation of plan provisions under this part and section 7410(a)(2)(I) of this title and regular reductions thereafter) which are sufficient in the judgment of the Administrator, to provide for attainment of the applicable national ambi

ent air quality standard by the date required in section 7502(a) of this title. ‘‘(2) The term ‘nonattainment area’ means, for any air pollutant an area which is shown by monitored dataPage 6312 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7502

or which is calculated by air quality modeling (or other methods determined by the Administrator to be reli

able) to exceed any national ambient air quality stand

ard for such pollutant. Such term includes any area identified under subparagraphs (A) through (C) of sec

tion 7407(d)(1) of this title.’’

E FFECTIVE D ATE Part effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7502. Nonattainment plan provisions in general (a) Classifications and attainment dates (1) Classifications (A) On or after the date the Administrator promulgates the designation of an area as a nonattainment area pursuant to section 7407(d) of this title with respect to any na

tional ambient air quality standard (or any re

vised standard, including a revision of any standard in effect on November 15, 1990), the Administrator may classify the area for the purpose of applying an attainment date pursu

ant to paragraph (2), and for other purposes. In determining the appropriate classification, if any, for a nonattainment area, the Adminis

trator may consider such factors as the sever

ity of nonattainment in such area and the availability and feasibility of the pollution control measures that the Administrator be

lieves may be necessary to provide for attain

ment of such standard in such area. (B) The Administrator shall publish a notice in the Federal Register announcing each clas

sification under subparagraph (A), except the Administrator shall provide an opportunity for at least 30 days for written comment. Such classification shall not be subject to the provi

sions of sections 553 through 557 of title 5 (con

cerning notice and comment) and shall not be subject to judicial review until the Adminis

trator takes final action under subsection (k) or ( l ) of section 7410 of this title (concerning action on plan submissions) or section 7509 of this title (concerning sanctions) with respect to any plan submissions required by virtue of such classification. (C) This paragraph shall not apply with re

spect to nonattainment areas for which classi

fications are specifically provided under other provisions of this part. (2) Attainment dates for nonattainment areas (A) The attainment date for an area des

ignated nonattainment with respect to a na

tional primary ambient air quality standard shall be the date by which attainment can be achieved as expeditiously as practicable, but no later than 5 years from the date such area was designated nonattainment under section 7407(d) of this title, except that the Adminis

trator may extend the attainment date to the extent the Administrator determines appro

priate, for a period no greater than 10 years from the date of designation as nonattain

ment, considering the severity of nonattain

ment and the availability and feasibility of pollution control measures. (B) The attainment date for an area des

ignated nonattainment with respect to a sec

ondary national ambient air quality standard shall be the date by which attainment can be achieved as expeditiously as practicable after the date such area was designated nonattain

ment under section 7407(d) of this title. (C) Upon application by any State, the Ad

ministrator may extend for 1 additional year (hereinafter referred to as the ‘‘Extension Year’’) the attainment date determined by the Administrator under subparagraph (A) or (B) if— (i) the State has complied with all require

ments and commitments pertaining to the area in the applicable implementation plan, and (ii) in accordance with guidance published by the Administrator, no more than a mini

mal number of exceedances of the relevant national ambient air quality standard has occurred in the area in the year preceding the Extension Year. No more than 2 one-year extensions may be is

sued under this subparagraph for a single non

attainment area. (D) This paragraph shall not apply with re

spect to nonattainment areas for which at

tainment dates are specifically provided under other provisions of this part. (b) Schedule for plan submissions At the time the Administrator promulgates the designation of an area as nonattainment with respect to a national ambient air quality standard under section 7407(d) of this title, the Administrator shall establish a schedule accord

ing to which the State containing such area shall submit a plan or plan revision (including the plan items) meeting the applicable require

ments of subsection (c) of this section and sec

tion 7410(a)(2) of this title. Such schedule shall at a minimum, include a date or dates, extend

ing no later than 3 years from the date of the nonattainment designation, for the submission of a plan or plan revision (including the plan items) meeting the applicable requirements of subsection (c) of this section and section 7410(a)(2) of this title. (c) Nonattainment plan provisions The plan provisions (including plan items) re

quired to be submitted under this part shall comply with each of the following: (1) In general Such plan provisions shall provide for the implementation of all reasonably available control measures as expeditiously as prac

ticable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment of the na

tional primary ambient air quality standards. (2) RFP Such plan provisions shall require reason

able further progress. (3) Inventory Such plan provisions shall include a compre

hensive, accurate, current inventory of actual emissions from all sources of the relevant pol

-Page 6313 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7502

lutant or pollutants in such area, including such periodic revisions as the Administrator may determine necessary to assure that the requirements of this part are met. (4) Identification and quantification Such plan provisions shall expressly identify and quantify the emissions, if any, of any such pollutant or pollutants which will be allowed, in accordance with section 7503(a)(1)(B) of this title, from the construction and operation of major new or modified stationary sources in each such area. The plan shall demonstrate to the satisfaction of the Administrator that the emissions quantified for this purpose will be consistent with the achievement of reasonable further progress and will not interfere with at

tainment of the applicable national ambient air quality standard by the applicable attain

ment date. (5) Permits for new and modified major sta

tionary sources Such plan provisions shall require permits for the construction and operation of new or modified major stationary sources anywhere in the nonattainment area, in accordance with section 7503 of this title. (6) Other measures Such plan provisions shall include enforce

able emission limitations, and such other con

trol measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emission rights), as well as schedules and timetables for compli

ance, as may be necessary or appropriate to provide for attainment of such standard in such area by the applicable attainment date specified in this part. (7) Compliance with section 7410(a)(2) Such plan provisions shall also meet the ap

plicable provisions of section 7410(a)(2) of this title. (8) Equivalent techniques Upon application by any State, the Adminis

trator may allow the use of equivalent model

ing, emission inventory, and planning proce

dures, unless the Administrator determines that the proposed techniques are, in the aggre

gate, less effective than the methods specified by the Administrator. (9) Contingency measures Such plan shall provide for the implementa

tion of specific measures to be undertaken if the area fails to make reasonable further progress, or to attain the national primary ambient air quality standard by the attain

ment date applicable under this part. Such measures shall be included in the plan revision as contingency measures to take effect in any such case without further action by the State or the Administrator. (d) Plan revisions required in response to find

ing of plan inadequacy Any plan revision for a nonattainment area which is required to be submitted in response to a finding by the Administrator pursuant to sec

tion 7410(k)(5) of this title (relating to calls for plan revisions) must correct the plan deficiency (or deficiencies) specified by the Administrator and meet all other applicable plan requirements of section 7410 of this title and this part. The Administrator may reasonably adjust the dates otherwise applicable under such requirements to such revision (except for attainment dates that have not yet elapsed), to the extent necessary to achieve a consistent application of such require

ments. In order to facilitate submittal by the States of adequate and approvable plans consist

ent with the applicable requirements of this chapter, the Administrator shall, as appropriate and from time to time, issue written guidelines, interpretations, and information to the States which shall be available to the public, taking into consideration any such guidelines, interpre

tations, or information provided before Novem

ber 15, 1990. (e) Future modification of standard If the Administrator relaxes a national pri

mary ambient air quality standard after Novem

ber 15, 1990, the Administrator shall, within 12 months after the relaxation, promulgate re

quirements applicable to all areas which have not attained that standard as of the date of such relaxation. Such requirements shall provide for controls which are not less stringent than the controls applicable to areas designated non

attainment before such relaxation. (July 14, 1955, ch. 360, title I, §172, as added Pub. L. 95–95, title I, §129(b), Aug. 7, 1977, 91 Stat. 746; amended Pub. L. 95–190, §14(a)(55), (56), Nov. 16, 1977, 91 Stat. 1402; Pub. L. 101–549, title I, §102(b), Nov. 15, 1990, 104 Stat. 2412.)

A MENDMENTS 1990—Pub. L. 101–549 amended section generally, sub

stituting present provisions for provisions which relat

ed to: in subsec. (a), expeditious attainment of national ambient air quality standards; in subsec. (b), requisite provisions of plan; and in subsec. (c), attainment of ap

plicable standard not later than July 1, 1987. 1977—Subsec. (b)(4). Pub. L. 95–190, §14(a)(55), sub

stituted ‘‘subsection (a) of this section’’ for ‘‘paragraph (1)’’. Subsec. (c). Pub. L. 95–190, §14(a)(56), substituted ‘‘De

cember 31’’ for ‘‘July 1’’.

N ONATTAINMENT A REAS Section 129(a) of Pub. L. 95–95, as amended by Pub. L. 95–190, §14(b)(2), (3), Nov. 16, 1977, 91 Stat. 1404, provided that: ‘‘(1) Before July 1, 1979, the interpretative regulation of the Administrator of the Environmental Protection Agency published in 41 Federal Register 55524–30, De

cember 21, 1976, as may be modified by rule of the Ad

ministrator, shall apply except that the baseline to be used for determination of appropriate emission offsets under such regulation shall be the applicable imple

mentation plan of the State in effect at the time of ap

plication for a permit by a proposed major stationary source (within the meaning of section 302 of the Clean Air Act) [section 7602 of this title]. ‘‘(2) Before July 1, 1979, the requirements of the regu

lation referred to in paragraph (1) shall be waived by the Administrator with respect to any pollutant if he determines that the State has— ‘‘(A) an inventory of emissions of the applicable pollutant for each nonattainment area (as defined in section 171 of the Clean Air Act [section 7501 of this title]) that identifies the type, quantity, and source of such pollutant so as to provide information suffi

cient to demonstrate that the requirements of sub

paragraph (C) are being met;Page 6314 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7503

1 See References in Text note below. 2 So in original. The word ‘‘and’’ probably should not appear. ‘‘(B) an enforceable permit program which— ‘‘(i) requires new or modified major stationary sources to meet emission limitations at least as stringent as required under the permit require

ments referred to in paragraphs (2) and (3) of sec

tion 173 of the Clean Air Act [section 7503 of this title] (relating to lowest achievable emission rate and compliance by other sources) and which assures compliance with the annual reduction requirements of subparagraph (C); and ‘‘(ii) requires existing sources to achieve such re

duction in emissions in the area as may be obtained through the adoption, at a minimum of reasonably available control technology, and ‘‘(C) a program which requires reductions in total allowable emissions in the area prior to July 1, 1979, so as to provide for the same level of emission reduc

tion as would result from the application of the regu

lation referred to in paragraph (1). The Administrator shall terminate such waiver if in his judgment the reduction in emissions actually being at

tained is less than the reduction on which the waiver was conditioned pursuant to subparagraph (C), or if the Administrator determines that the State is no longer in compliance with any requirement of this paragraph. Upon application by the State, the Administrator may reinstate a waiver terminated under the preceding sen

tence if he is satisfied that such State is in compliance with all requirements of this subsection. ‘‘(3) Operating permits may be issued to those appli

cants who were properly granted construction permits, in accordance with the law and applicable regulations in effect at the time granted, for construction of a new or modified source in areas exceeding national primary air quality standards on or before the date of the enact

ment of this Act [Aug. 7, 1977] if such construction per

mits were granted prior to the date of the enactment of this Act and the person issued any such permit is able to demonstrate that the emissions from the source will be within the limitations set forth in such construction permit.’’

S TATE I MPLEMENTATION P LAN R EVISION Section 129(c) of Pub. L. 95–95, as amended by Pub. L. 95–190, §14(b)(4), Nov. 16, 1977, 91 Stat. 1405, provided that: ‘‘Notwithstanding the requirements of section 406(d)(2) [set out as an Effective Date of 1977 Amend

ment note under section 7401 of this title] (relating to date required for submission of certain implementation plan revisions), for purposes of section 110(a)(2) of the Clean Air Act [section 7410(a)(2) of this title] each State in which there is any nonattainment area (as de

fined in part D of title I of the Clean Air Act) [this part] shall adopt and submit an implementation plan revision which meets the requirements of section 110(a)(2)(I) [section 7410(a)(2)(I) of this title] and part D of title I of the Clean Air Act [this part] not later than January 1, 1979. In the case of any State for which a plan revision adopted and submitted before such date has made the demonstration required under section 172(a)(2) of the Clean Air Act [subsec. (a)(2) of this sec

tion] (respecting impossibility of attainment before 1983), such State shall adopt and submit to the Admin

istrator a plan revision before July 1, 1982, which meets the requirements of section 172(b) and (c) of such Act [subsecs. (b) and (c) of this section].’’
§ 7503. Permit requirements (a) In general The permit program required by section 7502(b)(6) 1 of this title shall provide that permits to construct and operate may be issued if— (1) in accordance with regulations issued by the Administrator for the determination of baseline emissions in a manner consistent with the assumptions underlying the applica

ble implementation plan approved under sec

tion 7410 of this title and this part, the permit

ting agency determines that— (A) by the time the source is to commence operation, sufficient offsetting emissions re

ductions have been obtained, such that total allowable emissions from existing sources in the region, from new or modified sources which are not major emitting facilities, and from the proposed source will be sufficiently less than total emissions from existing sources (as determined in accordance with the regulations under this paragraph) prior to the application for such permit to con

struct or modify so as to represent (when considered together with the plan provisions required under section 7502 of this title) rea

sonable further progress (as defined in sec

tion 7501 of this title); or (B) in the case of a new or modified major stationary source which is located in a zone (within the nonattainment area) identified by the Administrator, in consultation with the Secretary of Housing and Urban Devel

opment, as a zone to which economic devel

opment should be targeted, that emissions of such pollutant resulting from the proposed new or modified major stationary source will not cause or contribute to emissions levels which exceed the allowance permitted for such pollutant for such area from new or modified major stationary sources under section 7502(c) of this title; (2) the proposed source is required to comply with the lowest achievable emission rate; (3) the owner or operator of the proposed new or modified source has demonstrated that all major stationary sources owned or oper

ated by such person (or by any entity control

ling, controlled by, or under common control with such person) in such State are subject to emission limitations and are in compliance, or on a schedule for compliance, with all applica

ble emission limitations and standards under this chapter; and 2 (4) the Administrator has not determined that the applicable implementation plan is not being adequately implemented for the non

attainment area in which the proposed source is to be constructed or modified in accordance with the requirements of this part; and (5) an analysis of alternative sites, sizes, production processes, and environmental con

trol techniques for such proposed source dem

onstrates that benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification. Any emission reductions required as a pre

condition of the issuance of a permit under para

graph (1) shall be federally enforceable before such permit may be issued. (b) Prohibition on use of old growth allowances Any growth allowance included in an applica

ble implementation plan to meet the require

ments of section 7502(b)(5) of this title (as in ef

-Page 6315 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7503

fect immediately before November 15, 1990) shall not be valid for use in any area that received or receives a notice under section 7410(a)(2)(H)(ii) of this title (as in effect immediately before No

vember 15, 1990) or under section 7410(k)(1) of this title that its applicable implementation plan containing such allowance is substantially inadequate. (c) Offsets (1) The owner or operator of a new or modified major stationary source may comply with any offset requirement in effect under this part for increased emissions of any air pollutant only by obtaining emission reductions of such air pollut

ant from the same source or other sources in the same nonattainment area, except that the State may allow the owner or operator of a source to obtain such emission reductions in another non

attainment area if (A) the other area has an equal or higher nonattainment classification than the area in which the source is located and (B) emissions from such other area contribute to a violation of the national ambient air quality standard in the nonattainment area in which the source is located. Such emission reductions shall be, by the time a new or modified source commences operation, in effect and enforceable and shall assure that the total tonnage of in

creased emissions of the air pollutant from the new or modified source shall be offset by an equal or greater reduction, as applicable, in the actual emissions of such air pollutant from the same or other sources in the area. (2) Emission reductions otherwise required by this chapter shall not be creditable as emissions reductions for purposes of any such offset re

quirement. Incidental emission reductions which are not otherwise required by this chapter shall be creditable as emission reductions for such purposes if such emission reductions meet the requirements of paragraph (1). (d) Control technology information The State shall provide that control tech

nology information from permits issued under this section will be promptly submitted to the Administrator for purposes of making such in

formation available through the RACT/BACT/ LAER clearinghouse to other States and to the general public. (e) Rocket engines or motors The permitting authority of a State shall allow a source to offset by alternative or inno

vative means emission increases from rocket en

gine and motor firing, and cleaning related to such firing, at an existing or modified major source that tests rocket engines or motors under the following conditions: (1) Any modification proposed is solely for the purpose of expanding the testing of rocket engines or motors at an existing source that is permitted to test such engines on November 15, 1990. (2) The source demonstrates to the satisfac

tion of the permitting authority of the State that it has used all reasonable means to obtain and utilize offsets, as determined on an annual basis, for the emissions increases beyond al

lowable levels, that all available offsets are being used, and that sufficient offsets are not available to the source. (3) The source has obtained a written finding from the Department of Defense, Department of Transportation, National Aeronautics and Space Administration or other appropriate Federal agency, that the testing of rocket mo

tors or engines at the facility is required for a program essential to the national security. (4) The source will comply with an alter

native measure, imposed by the permitting au

thority, designed to offset any emission in

creases beyond permitted levels not directly offset by the source. In lieu of imposing any alternative offset measures, the permitting authority may impose an emissions fee to be paid to such authority of a State which shall be an amount no greater than 1.5 times the av

erage cost of stationary source control meas

ures adopted in that area during the previous 3 years. The permitting authority shall utilize the fees in a manner that maximizes the emis

sions reductions in that area. (July 14, 1955, ch. 360, title I, §173, as added Pub. L. 95–95, title I, §129(b), Aug. 7, 1977, 91 Stat. 748; amended Pub. L. 95–190, §14(a)(57), (58), Nov. 16, 1977, 91 Stat. 1403; Pub. L. 101–549, title I, §102(c), Nov. 15, 1990, 104 Stat. 2415.)

R EFERENCES IN T EXT Section 7502(b) of this title, referred to in subsec. (a), was amended generally by Pub. L. 101–549, title I, §102(b), Nov. 15, 1990, 104 Stat. 2412, and, as so amended, does not contain a par. (6). See section 7502(c)(5) of this title.

A MENDMENTS 1990—Pub. L. 101–549, §102(c)(1), made technical amendment to section catchline. Pub. L. 101–549, §102(c)(2), (8), designated existing pro

visions as subsec. (a), inserted heading, and substituted ‘‘(1) shall be federally enforceable’’ for ‘‘(1)(A) shall be legally binding’’ in last sentence. Subsec. (a)(1). Pub. L. 101–549, §102(c)(3), inserted at beginning ‘‘in accordance with regulations issued by the Administrator for the determination of baseline emissions in a manner consistent with the assumptions underlying the applicable implementation plan ap

proved under section 7410 of this title and this part,’’. Subsec. (a)(1)(A). Pub. L. 101–549, §102(c)(4), inserted ‘‘sufficient offsetting emissions reductions have been obtained, such that’’ after ‘‘to commence operation,’’ and substituted ‘‘(as determined in accordance with the regulations under this paragraph)’’ for ‘‘allowed under the applicable implementation plan’’. Subsec. (a)(1)(B). Pub. L. 101–549, §102(c)(5), inserted at beginning ‘‘in the case of a new or modified major stationary source which is located in a zone (within the nonattainment area) identified by the Administrator, in consultation with the Secretary of Housing and Urban Development, as a zone to which economic de

velopment should be targeted,’’ and substituted ‘‘7502(c)’’ for ‘‘7502(b)’’. Subsec. (a)(4). Pub. L. 101–549, §102(c)(6), inserted at beginning ‘‘the Administrator has not determined that’’, substituted ‘‘not being adequately imple

mented’’ for ‘‘being carried out’’, and substituted ‘‘; and’’ for period at end. Subsec. (a)(5). Pub. L. 101–549, §102(c)(7), added par. (5). Subsec. (b). Pub. L. 101–549, §102(c)(9), added subsec. (b). Subsecs. (c) to (e). Pub. L. 101–549, §102(c)(10), added subsecs. (c) to (e). 1977—Par. (1)(A). Pub. L. 95–190, §14(a)(57), inserted ‘‘or modified’’ after ‘‘from new’’ and ‘‘applicable’’ be

fore ‘‘implementation plan’’, and substituted ‘‘source’’ for ‘‘facility’’ wherever appearing.Page 6316 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7504

Par. (4). Pub. L. 95–190, §14(a)(58), added par. (4).

F AILURE T O A TTAIN N ATIONAL P RIMARY A MBIENT A IR Q UALITY S TANDARDS U NDER C LEAN A IR A CT Pub. L. 100–202, §101(f) [title II], Dec. 22, 1987, 101 Stat. 1329–187, 1329–199, provided that: ‘‘No restriction or pro

hibition on construction, permitting, or funding under sections 110(a)(2)(I), 173(4), 176(a), 176(b), or 316 of the Clean Air Act [sections 7410(a)(2)(I), 7503(4), 7506(a), (b), 7616 of this title] shall be imposed or take effect during the period prior to August 31, 1988, by reason of (1) the failure of any nonattainment area to attain the na

tional primary ambient air quality standard under the Clean Air Act [this chapter] for photochemical oxi

dants (ozone) or carbon monoxide (or both) by Decem

ber 31, 1987, (2) the failure of any State to adopt and submit to the Administrator of the Environmental Pro

tection Agency an implementation plan that meets the requirements of part D of title I of such Act [this part] and provides for attainment of such standards by De

cember 31, 1987, (3) the failure of any State or des

ignated local government to implement the applicable implementation plan, or (4) any combination of the foregoing. During such period and consistent with the preceding sentence, the issuance of a permit (including required offsets) under section 173 of such Act [this sec

tion] for the construction or modification of a source in a nonattainment area shall not be denied solely or par

tially by reason of the reference contained in section 171(l) of such Act [section 7501(1) of this title] to the ap

plicable date established in section 172(a) [section 7502(a) of this title]. This subsection [probably means the first 3 sentences of this note] shall not apply to any restriction or prohibition in effect under sections 110(a)(2)(I), 173(4), 176(a), 176(b), or 316 of such Act prior to the enactment of this section [Dec. 22, 1987]. Prior to August 31, 1988, the Administrator of the Environ

mental Protection Agency shall evaluate air quality data and make determinations with respect to which areas throughout the nation have attained, or failed to attain, either or both of the national primary ambient air quality standards referred to in subsection (a) [probably means the first 3 sentences of this note] and shall take appropriate steps to designate those areas failing to attain either or both of such standards as nonattainment areas within the meaning of part D of title I of the Clean Air Act.’’
§ 7504. Planning procedures (a) In general For any ozone, carbon monoxide, or PM–10 nonattainment area, the State containing such area and elected officials of affected local gov

ernments shall, before the date required for sub

mittal of the inventory described under sections 7511a(a)(1) and 7512a(a)(1) of this title, jointly re

view and update as necessary the planning pro

cedures adopted pursuant to this subsection as in effect immediately before November 15, 1990, or develop new planning procedures pursuant to this subsection, as appropriate. In preparing such procedures the State and local elected offi

cials shall determine which elements of a re

vised implementation plan will be developed, adopted, and implemented (through means in

cluding enforcement) by the State and which by local governments or regional agencies, or any combination of local governments, regional agencies, or the State. The implementation plan required by this part shall be prepared by an or

ganization certified by the State, in consulta

tion with elected officials of local governments and in accordance with the determination under the second sentence of this subsection. Such or

ganization shall include elected officials of local governments in the affected area, and represent

atives of the State air quality planning agency, the State transportation planning agency, the metropolitan planning organization designated to conduct the continuing, cooperative and com

prehensive transportation planning process for the area under section 134 of title 23, the organi

zation responsible for the air quality mainte

nance planning process under regulations imple

menting this chapter, and any other organiza

tion with responsibilities for developing, sub

mitting, or implementing the plan required by this part. Such organization may be one that carried out these functions before November 15, 1990.
(b) Coordination The preparation of implementation plan provi

sions and subsequent plan revisions under the continuing transportation-air quality planning process described in section 7408(e) of this title shall be coordinated with the continuing, coop

erative and comprehensive transportation plan

ning process required under section 134 of title 23, and such planning processes shall take into account the requirements of this part. (c) Joint planning
In the case of a nonattainment area that is in

cluded within more than one State, the affected States may jointly, through interstate compact or otherwise, undertake and implement all or part of the planning procedures described in this section. (July 14, 1955, ch. 360, title I, §174, as added Pub. L. 95–95, title I, §129(b), Aug. 7, 1977, 91 Stat. 748; amended Pub. L. 101–549, title I, §102(d), Nov. 15, 1990, 104 Stat. 2417.)

A MENDMENTS 1990—Pub. L. 101–549 amended section generally, sub

stituting present provisions for provisions which relat

ed to: in subsec. (a), preparation of implementation plan by designated organization; and in subsec. (b), co

ordination of plan preparation.

§ 7505. Environmental Protection Agency grants
(a) Plan revision development costs The Administrator shall make grants to any organization of local elected officials with transportation or air quality maintenance plan

ning responsibilities recognized by the State under section 7504(a) of this title for payment of the reasonable costs of developing a plan revi

sion under this part. (b) Uses of grant funds The amount granted to any organization under subsection (a) of this section shall be 100 percent of any additional costs of developing a plan revision under this part for the first two fiscal years following receipt of the grant under this paragraph, and shall supplement any funds available under Federal law to such organiza

tion for transportation or air quality mainte

nance planning. Grants under this section shall not be used for construction. (July 14, 1955, ch. 360, title I, §175, as added Pub. L. 95–95, title I, §129(b), Aug. 7, 1977, 91 Stat. 749.)Page 6317 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7506

§ 7505a. Maintenance plans
(a) Plan revision Each State which submits a request under sec

tion 7407(d) of this title for redesignation of a nonattainment area for any air pollutant as an area which has attained the national primary ambient air quality standard for that air pollut

ant shall also submit a revision of the applicable State implementation plan to provide for the maintenance of the national primary ambient air quality standard for such air pollutant in the area concerned for at least 10 years after the re

designation. The plan shall contain such addi

tional measures, if any, as may be necessary to ensure such maintenance. (b) Subsequent plan revisions 8 years after redesignation of any area as an attainment area under section 7407(d) of this title, the State shall submit to the Adminis

trator an additional revision of the applicable State implementation plan for maintaining the national primary ambient air quality standard for 10 years after the expiration of the 10-year period referred to in subsection (a) of this sec

tion. (c) Nonattainment requirements applicable pending plan approval Until such plan revision is approved and an area is redesignated as attainment for any area designated as a nonattainment area, the re

quirements of this part shall continue in force and effect with respect to such area. (d) Contingency provisions Each plan revision submitted under this sec

tion shall contain such contingency provisions as the Administrator deems necessary to assure that the State will promptly correct any viola

tion of the standard which occurs after the re

designation of the area as an attainment area. Such provisions shall include a requirement that the State will implement all measures with respect to the control of the air pollutant con

cerned which were contained in the State imple

mentation plan for the area before redesignation of the area as an attainment area. The failure of any area redesignated as an attainment area to maintain the national ambient air quality standard concerned shall not result in a require

ment that the State revise its State implemen

tation plan unless the Administrator, in the Ad

ministrator’s discretion, requires the State to submit a revised State implementation plan. (July 14, 1955, ch. 360, title I, §175A, as added Pub. L. 101–549, title I, §102(e), Nov. 15, 1990, 104 Stat. 2418.)

§ 7506. Limitations on certain Federal assistance (a), (b) Repealed. Pub. L. 101–549, title I, § 110(4), Nov. 15, 1990, 104 Stat. 2470
(c) Activities not conforming to approved or pro

mulgated plans (1) No department, agency, or instrumentality of the Federal Government shall engage in, sup

port in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated under section 7410 of this title. No metropolitan planning organization designated under section 134 of title 23, shall give its approval to any project, program, or plan which does not con

form to an implementation plan approved or promulgated under section 7410 of this title. The assurance of conformity to such an implementa

tion plan shall be an affirmative responsibility of the head of such department, agency, or in

strumentality. Conformity to an implementa

tion plan means— (A) conformity to an implementation plan’s purpose of eliminating or reducing the sever

ity and number of violations of the national ambient air quality standards and achieving expeditious attainment of such standards; and (B) that such activities will not— (i) cause or contribute to any new viola

tion of any standard in any area; (ii) increase the frequency or severity of any existing violation of any standard in
any area; or (iii) delay timely attainment of any stand

ard or any required interim emission reduc

tions or other milestones in any area. The determination of conformity shall be based on the most recent estimates of emissions, and such estimates shall be determined from the most recent population, employment, travel and congestion estimates as determined by the met

ropolitan planning organization or other agency authorized to make such estimates. (2) Any transportation plan or program devel

oped pursuant to title 23 or chapter 53 of title 49 shall implement the transportation provisions of any applicable implementation plan approved under this chapter applicable to all or part of the area covered by such transportation plan or program. No Federal agency may approve, ac

cept or fund any transportation plan, program or project unless such plan, program or project has been found to conform to any applicable im

plementation plan in effect under this chapter. In particular— (A) no transportation plan or transportation improvement program may be adopted by a metropolitan planning organization des

ignated under title 23 or chapter 53 of title 49, or be found to be in conformity by a metro

politan planning organization until a final de

termination has been made that emissions ex

pected from implementation of such plans and programs are consistent with estimates of emissions from motor vehicles and necessary emissions reductions contained in the applica

ble implementation plan, and that the plan or program will conform to the requirements of paragraph (1)(B); (B) no metropolitan planning organization or other recipient of funds under title 23 or chapter 53 of title 49 shall adopt or approve a transportation improvement program of projects until it determines that such program provides for timely implementation of trans

portation control measures consistent with schedules included in the applicable imple

mentation plan; (C) a transportation project may be adopted or approved by a metropolitan planning orga

nization or any recipient of funds designatedPage 6318 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7506

1 See References in Text note below. under title 23 or chapter 53 of title 49, or found in conformity by a metropolitan planning or

ganization or approved, accepted, or funded by the Department of Transportation only if it meets either the requirements of subpara

graph (D) or the following requirements— (i) such a project comes from a conforming plan and program; (ii) the design concept and scope of such project have not changed significantly since the conformity finding regarding the plan and program from which the project derived; and (iii) the design concept and scope of such project at the time of the conformity deter

mination for the program was adequate to determine emissions. (D) Any project not referred to in subpara

graph (C) shall be treated as conforming to the applicable implementation plan only if it is demonstrated that the projected emissions from such project, when considered together with emissions projected for the conforming transportation plans and programs within the nonattainment area, do not cause such plans and programs to exceed the emission reduc

tion projections and schedules assigned to such plans and programs in the applicable im

plementation plan. (E) The appropriate metropolitan planning organization shall redetermine conformity of existing transportation plans and programs not later than 2 years after the date on which the Administrator— (i) finds a motor vehicle emissions budget to be adequate in accordance with section 93.118(e)(4) of title 40, Code of Federal Regu

lations (as in effect on October 1, 2004); (ii) approves an implementation plan that establishes a motor vehicle emissions budget if that budget has not yet been determined to be adequate in accordance with clause (i);

or (iii) promulgates an implementation plan that establishes or revises a motor vehicle emissions budget. (3) Until such time as the implementation plan revision referred to in paragraph (4)(C) 1 is approved, conformity of such plans, programs, and projects will be demonstrated if— (A) the transportation plans and programs— (i) are consistent with the most recent es

timates of mobile source emissions; (ii) provide for the expeditious implemen

tation of transportation control measures in the applicable implementation plan; and (iii) with respect to ozone and carbon mon

oxide nonattainment areas, contribute to annual emissions reductions consistent with sections 7511a(b)(1) and 7512a(a)(7) of this title; and (B) the transportation projects— (i) come from a conforming transportation plan and program as defined in subparagraph (A) or for 12 months after November 15, 1990, from a transportation program found to con

form within 3 years prior to November 15, 1990; and (ii) in carbon monoxide nonattainment areas, eliminate or reduce the severity and number of violations of the carbon monoxide standards in the area substantially affected by the project. With regard to subparagraph (B)(ii), such de

termination may be made as part of either the conformity determination for the transpor

tation program or for the individual project taken as a whole during the environmental re

view phase of project development. (4) C RITERIA AND PROCEDURES FOR DETERMINING CONFORMITY .— (A) I N GENERAL .—The Administrator shall promulgate, and periodically update, criteria and procedures for determining conformity (except in the case of transportation plans, programs, and projects) of, and for keeping the Administrator informed about, the activities referred to in paragraph (1). (B) T RANSPORTATION PLANS , PROGRAMS , AND PROJECTS .—The Administrator, with the con

currence of the Secretary of Transportation, shall promulgate, and periodically update, cri

teria and procedures for demonstrating and as

suring conformity in the case of transpor

tation plans, programs, and projects. (C) C IVIL ACTION TO COMPEL PROMULGATION .— A civil action may be brought against the Ad

ministrator and the Secretary of Transpor

tation under section 7604 of this title to com

pel promulgation of such criteria and proce

dures and the Federal district court shall have jurisdiction to order such promulgation. (D) The procedures and criteria shall, at a minimum— (i) address the consultation procedures to be undertaken by metropolitan planning or

ganizations and the Secretary of Transpor

tation with State and local air quality agen

cies and State departments of transpor

tation before such organizations and the Secretary make conformity determinations; (ii) address the appropriate frequency for making conformity determinations, but the frequency for making conformity determina

tions on updated transportation plans and programs shall be every 4 years, except in a case in which— (I) the metropolitan planning organiza

tion elects to update a transportation plan or program more frequently; or (II) the metropolitan planning organiza

tion is required to determine conformity in accordance with paragraph (2)(E); and (iii) address how conformity determina

tions will be made with respect to mainte

nance plans. (E) I NCLUSION OF CRITERIA AND PROCEDURES IN SIP .—Not later than 2 years after August 10, 2005, the procedures under subparagraph (A) shall include a requirement that each State include in the State implementation plan cri

teria and procedures for consultation required by subparagraph (D)(i), and enforcement and enforceability (pursuant to sections 93.125(c) and 93.122(a)(4)(ii) of title 40, Code of Federal Regulations) in accordance with the Adminis

trator’s criteria and procedures for consulta

tion, enforcement and enforceability.Page 6319 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7506

2 So in original. Probably should be ‘‘paragraph (5),’’. (F) Compliance with the rules of the Admin

istrator for determining the conformity of transportation plans, programs, and projects funded or approved under title 23 or chapter 53 of title 49 to State or Federal implementation plans shall not be required for traffic signal synchronization projects prior to the funding, approval or implementation of such projects. The supporting regional emissions analysis for any conformity determination made with re

spect to a transportation plan, program, or project shall consider the effect on emissions of any such project funded, approved, or imple

mented prior to the conformity determina

tion. (5) A PPLICABILITY .—This subsection shall apply only with respect to— (A) a nonattainment area and each pollutant for which the area is designated as a non

attainment area; and (B) an area that was designated as a non

attainment area but that was later redesig

nated by the Administrator as an attainment area and that is required to develop a mainte

nance plan under section 7505a of this title with respect to the specific pollutant for which the area was designated nonattainment. (6) Notwithstanding paragraph 5, 2 this sub

section shall not apply with respect to an area designated nonattainment under section 7407(d)(1) of this title until 1 year after that area is first designated nonattainment for a specific national ambient air quality standard. This paragraph only applies with respect to the na

tional ambient air quality standard for which an area is newly designated nonattainment and does not affect the area’s requirements with re

spect to all other national ambient air quality standards for which the area is designated non

attainment or has been redesignated from non

attainment to attainment with a maintenance plan pursuant to section 7505a 1 of this title (in

cluding any pre-existing national ambient air quality standard for a pollutant for which a new or revised standard has been issued). (7) C ONFORMITY HORIZON FOR TRANSPORTATION PLANS .— (A) I N GENERAL .—Each conformity deter

mination required under this section for a transportation plan under section 134(i) of title 23 or section 5303(i) of title 49 shall re

quire a demonstration of conformity for the period ending on either the final year of the transportation plan, or at the election of the metropolitan planning organization, after con

sultation with the air pollution control agen

cy and solicitation of public comments and consideration of such comments, the longest of the following periods: (i) The first 10-year period of any such transportation plan. (ii) The latest year in the implementation plan applicable to the area that contains a motor vehicle emission budget. (iii) The year after the completion date of a regionally significant project if the project is included in the transportation improve

ment program or the project requires ap

proval before the subsequent conformity de

termination. (B) R EGIONAL EMISSIONS ANALYSIS .—The con

formity determination shall be accompanied by a regional emissions analysis for the last year of the transportation plan and for any year shown to exceed emission budgets by a prior analysis, if such year extends beyond the applicable period as determined under sub

paragraph (A). (C) E XCEPTION .—In any case in which an area has a revision to an implementation plan under section 7505a(b) of this title and the Ad

ministrator has found the motor vehicles emissions budgets from that revision to be adequate in accordance with section 93.118(e)(4) of title 40, Code of Federal Regula

tions (as in effect on October 1, 2004), or has approved the revision, the demonstration of conformity at the election of the metropolitan planning organization, after consultation with the air pollution control agency and solicita

tion of public comments and consideration of such comments, shall be required to extend only through the last year of the implementa

tion plan required under section 7505a(b) of this title. (D) E FFECT OF ELECTION .—Any election by a metropolitan planning organization under this paragraph shall continue in effect until the metropolitan planning organization elects otherwise. (E) A IR POLLUTION CONTROL AGENCY DE

FINED .—In this paragraph, the term ‘‘air pollu

tion control agency’’ means an air pollution control agency (as defined in section 7602(b) of this title) that is responsible for developing plans or controlling air pollution within the area covered by a transportation plan. (8) S UBSTITUTION OF TRANSPORTATION CONTROL MEASURES .— (A) I N GENERAL .—Transportation control measures that are specified in an implementa

tion plan may be replaced or added to the im

plementation plan with alternate or addi

tional transportation control measures— (i) if the substitute measures achieve equivalent or greater emissions reductions than the control measure to be replaced, as demonstrated with an emissions impact analysis that is consistent with the current methodology used for evaluating the re

placed control measure in the implementa

tion plan; (ii) if the substitute control measures are implemented— (I) in accordance with a schedule that is consistent with the schedule provided for control measures in the implementation plan; or (II) if the implementation plan date for implementation of the control measure to be replaced has passed, as soon as prac

ticable after the implementation plan date but not later than the date on which emis

sion reductions are necessary to achieve the purpose of the implementation plan; (iii) if the substitute and additional con

trol measures are accompanied with evi

dence of adequate personnel and funding andPage 6320 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7506

3 So in original. Probably should be ‘‘Notwithstanding’’. authority under State or local law to imple

ment, monitor, and enforce the control
measures; (iv) if the substitute and additional con

trol measures were developed through a col

laborative process that included— (I) participation by representatives of all affected jurisdictions (including local air pollution control agencies, the State air pollution control agency, and State and local transportation agencies); (II) consultation with the Administrator; and (III) reasonable public notice and oppor

tunity for comment; and (v) if the metropolitan planning organiza

tion, State air pollution control agency, and the Administrator concur with the equiva

lency of the substitute or additional control

measures. (B) A DOPTION .—(i) Concurrence by the met

ropolitan planning organization, State air pol

lution control agency and the Administrator as required by subparagraph (A)(v) shall con

stitute adoption of the substitute or addi

tional control measures so long as the require

ments of subparagraphs (A)(i), (A)(ii), (A)(iii) and (A)(iv) are met. (ii) Once adopted, the substitute or addi

tional control measures become, by operation of law, part of the State implementation plan and become federally enforceable. (iii) Within 90 days of its concurrence under subparagraph (A)(v), the State air pollution control agency shall submit the substitute or additional control measure to the Adminis

trator for incorporation in the codification of the applicable implementation plan. Nothwithstanding 3 any other provision of this chapter, no additional State process shall be necessary to support such revision to the ap

plicable plan. (C) N O REQUIREMENT FOR EXPRESS PERMIS

SION .—The substitution or addition of a trans

portation control measure in accordance with this paragraph and the funding or approval of such a control measure shall not be contingent on the existence of any provision in the appli

cable implementation plan that expressly per

mits such a substitution or addition. (D) N O REQUIREMENT FOR NEW CONFORMITY DETERMINATION .—The substitution or addition of a transportation control measure in accord

ance with this paragraph shall not require— (i) a new conformity determination for the transportation plan; or (ii) a revision of the implementation plan. (E) C ONTINUATION OF CONTROL MEASURE BEING REPLACED .—A control measure that is being replaced by a substitute control measure under this paragraph shall remain in effect until the substitute control measure is adopt

ed by the State pursuant to subparagraph (B). (F) E FFECT OF ADOPTION .—Adoption of a sub

stitute control measure shall constitute re

scission of the previously applicable control

measure. (9) L APSE OF CONFORMITY .—If a conformity de

termination required under this subsection for a transportation plan under section 134(i) of title 23 or section 5303(i) of title 49 or a transpor

tation improvement program under section 134(j) of such title 23 or under section 5303(j) of such title 49 is not made by the applicable dead

line and such failure is not corrected by addi

tional measures to either reduce motor vehicle emissions sufficient to demonstrate compliance with the requirements of this subsection within 12 months after such deadline or other measures sufficient to correct such failures, the transpor

tation plan shall lapse. (10) L APSE .—In this subsection, the term ‘‘lapse’’ means that the conformity determina

tion for a transportation plan or transportation improvement program has expired, and thus there is no currently conforming transportation plan or transportation improvement program. (d) Priority of achieving and maintaining na

tional primary ambient air quality standards Each department, agency, or instrumentality of the Federal Government having authority to conduct or support any program with air-quality related transportation consequences shall give priority in the exercise of such authority, con

sistent with statutory requirements for alloca

tion among States or other jurisdictions, to the implementation of those portions of plans pre

pared under this section to achieve and main

tain the national primary ambient air-quality standard. This paragraph extends to, but is not limited to, authority exercised under chapter 53 of title 49, title 23, and the Housing and Urban Development Act. (July 14, 1955, ch. 360, title I, §176, as added Pub. L. 95–95, title I, §129(b), Aug. 7, 1977, 91 Stat. 749; amended Pub. L. 95–190, §14(a)(59), Nov. 16, 1977, 91 Stat. 1403; Pub. L. 101–549, title I, §§101(f), 110(4), Nov. 15, 1990, 104 Stat. 2409, 2470; Pub. L. 104–59, title III, §305(b), Nov. 28, 1995, 109 Stat. 580; Pub. L. 104–260, §1, Oct. 9, 1996, 110 Stat. 3175; Pub. L. 106–377, §1(a)(1) [title III], Oct. 27, 2000, 114 Stat. 1441, 1441A–44; Pub. L. 109–59, title VI, §6011(a)–(f), Aug. 10, 2005, 119 Stat. 1878–1881.)

R EFERENCES IN T EXT Paragraph (4) of subsec. (c), referred to in subsec. (c)(3), was amended by Pub. L. 109–59, title VI, §6011(f), Aug. 10, 2005, 119 Stat. 1881, to redesignate subpar. (C) as (E), strike it out, and add new subpars. (C) and (E). See 2005 Amendment notes below. Section 7505a of this title, referred to in subsec. (c)(6), was in the original ‘‘section 175(A)’’ and was translated as reading ‘‘section 175A’’, meaning section 175A of act July 14, 1955, which is classified to section 7505a of this title, to reflect the probable intent of Congress. The Housing and Urban Development Act, referred to in subsec. (d), may be the name for a series of acts shar

ing the same name but enacted in different years by Pub. L. 89–117, Aug. 10, 1965, 79 Stat. 451; Pub. L. 90–448, Aug. 1, 1968, 82 Stat. 476; Pub. L. 91–152, Dec. 24, 1969, 83 Stat. 379; and Pub. L. 91–609, Dec. 31, 1970, 84 Stat. 1770, respectively. For complete classification of these Acts to the Code, see Short Title notes set out under section 1701 of Title 12, Banks and Banking, and Tables.

C ODIFICATION In subsecs. (c)(2) and (d), ‘‘chapter 53 of title 49’’ sub

stituted for ‘‘the Urban Mass Transportation Act [49 App. U.S.C. 1601 et seq.]’’ and in subsec. (c)(4)(F) sub

stituted for ‘‘Federal Transit Act’’ on authority of Pub. L. 103–272, §6(b), July 5, 1994, 108 Stat. 1378 (the first section of which enacted subtitles II, III, and V to X ofPage 6321 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7506a

Title 49, Transportation), and of Pub. L. 102–240, title III, §3003(b), Dec. 18, 1991, 105 Stat. 2088, which provided that references in laws to the Urban Mass Transpor

tation Act of 1964 be deemed to be references to the Federal Transit Act.

A MENDMENTS
2005—Subsec. (c)(2)(E). Pub. L. 109–59, §6011(a), added subpar. (E). Subsec. (c)(4). Pub. L. 109–59, §6011(f)(1)–(3), inserted par. (4) and subpar. (A) headings, in first sentence sub

stituted ‘‘The Administrator shall promulgate, and pe

riodically update,’’ for ‘‘No later than one year after November 15, 1990, the Administrator shall promul

gate’’, designated second sentence as subpar. (B), in

serted heading, substituted ‘‘The Administrator, with the concurrence of the Secretary of Transportation, shall promulgate, and periodically update,’’ for ‘‘No later than one year after November 15, 1990, the Admin

istrator, with the concurrence of the Secretary of Transportation, shall promulgate’’, designated third sentence as subpar. (C), inserted heading, substituted ‘‘A civil action’’ for ‘‘A suit’’, and redesignated former subpars. (B) to (D) as (D) to (F), respectively. Subsec. (c)(4)(B)(ii). Pub. L. 109–59, §6011(b), amended cl. (ii) generally. Prior to amendment, cl. (ii) read as follows: ‘‘address the appropriate frequency for making conformity determinations, but in no case shall such determinations for transportation plans and programs be less frequent than every three years; and’’. Subsec. (c)(4)(E). Pub. L. 109–59, §6011(f)(4), added sub

par. (E) and struck out former subpar. (E) which read as follows: ‘‘Such procedures shall also include a re

quirement that each State shall submit to the Admin

istrator and the Secretary of Transportation within 24 months of November 15, 1990, a revision to its imple

mentation plan that includes criteria and procedures for assessing the conformity of any plan, program, or project subject to the conformity requirements of this subsection.’’ Subsec. (c)(7) to (10). Pub. L. 109–59, §6011(c)–(e), added pars. (7) to (10). 2000—Subsec. (c)(6). Pub. L. 106–377 added par. (6). 1996—Subsec. (c)(4)(D). Pub. L. 104–260 added subpar. (D). 1995—Subsec. (c)(5). Pub. L. 104–59 added par. (5). 1990—Subsecs. (a), (b). Pub. L. 101–549, §110(4), struck out subsec. (a) which related to approval of projects or award of grants, and subsec. (b) which related to imple

mentation of approved or promulgated plans. Subsec. (c). Pub. L. 101–549, §101(f), designated exist

ing provisions as par. (1), struck out ‘‘(1)’’, ‘‘(2)’’, ‘‘(3)’’, and ‘‘(4)’’ before ‘‘engage in’’, ‘‘support in’’, ‘‘license or’’, and ‘‘approve, any’’, respectively, substituted ‘‘conform to an implementation plan after it’’ for ‘‘con

form to a plan after it’’, ‘‘conform to an implementa

tion plan approved’’ for ‘‘conform to a plan approved’’, and ‘‘conformity to such an implementation plan shall’’ for ‘‘conformity to such a plan shall’’, inserted ‘‘Conformity to an implementation plan means—’’ fol

lowed immediately by subpars. (A) and (B) and closing provisions relating to determination of conformity being based on recent estimates of emissions and the determination of such estimates, and added pars. (2) to (4). 1977—Subsec. (a)(1). Pub. L. 95–190 inserted ‘‘na

tional’’ before ‘‘primary’’.

R EGULATIONS
Pub. L. 109–59, title VI, §6011(g), Aug. 10, 2005, 119 Stat. 1882, provided that: ‘‘Not later than 2 years after the date of enactment of this Act [Aug. 10, 2005], the Administrator of the Environmental Protection Agen

cy shall promulgate revised regulations to implement the changes made by this section [amending this sec

tion].’’ § 7506a. Interstate transport commissions (a) Authority to establish interstate transport re

gions Whenever, on the Administrator’s own motion or by petition from the Governor of any State, the Administrator has reason to believe that the interstate transport of air pollutants from one or more States contributes significantly to a violation of a national ambient air quality standard in one or more other States, the Ad

ministrator may establish, by rule, a transport region for such pollutant that includes such States. The Administrator, on the Administra

tor’s own motion or upon petition from the Gov

ernor of any State, or upon the recommendation of a transport commission established under subsection (b) of this section, may— (1) add any State or portion of a State to any region established under this subsection whenever the Administrator has reason to be

lieve that the interstate transport of air pol

lutants from such State significantly contrib

utes to a violation of the standard in the transport region, or (2) remove any State or portion of a State from the region whenever the Administrator has reason to believe that the control of emis

sions in that State or portion of the State pur

suant to this section will not significantly contribute to the attainment of the standard in any area in the region. The Administrator shall approve or disapprove any such petition or recommendation within 18 months of its receipt. The Administrator shall establish appropriate proceedings for public par

ticipation regarding such petitions and motions, including notice and comment. (b) Transport commissions (1) Establishment
Whenever the Administrator establishes a transport region under subsection (a) of this section, the Administrator shall establish a transport commission comprised of (at a mini

mum) each of the following members: (A) The Governor of each State in the re

gion or the designee of each such Governor. (B) The Administrator or the Administra

tor’s designee. (C) The Regional Administrator (or the Administrator’s designee) for each Regional Office for each Environmental Protection Agency Region affected by the transport re

gion concerned. (D) An air pollution control official rep

resenting each State in the region, ap

pointed by the Governor. Decisions of, and recommendations and re

quests to, the Administrator by each transport commission may be made only by a majority vote of all members other than the Adminis

trator and the Regional Administrators (or designees thereof). (2) Recommendations The transport commission shall assess the degree of interstate transport of the pollutant or precursors to the pollutant throughout the transport region, assess strategies for mitigat

ing the interstate pollution, and recommendPage 6322 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7507

to the Administrator such measures as the Commission determines to be necessary to en

sure that the plans for the relevant States meet the requirements of section 7410(a)(2)(D) of this title. Such commission shall not be subject to the provisions of the Federal Advi

sory Committee Act (5 U.S.C. App.). (c) Commission requests A transport commission established under subsection (b) of this section may request the Administrator to issue a finding under section 7410(k)(5) of this title that the implementation plan for one or more of the States in the trans

port region is substantially inadequate to meet the requirements of section 7410(a)(2)(D) of this title. The Administrator shall approve, dis

approve, or partially approve and partially dis

approve such a request within 18 months of its receipt and, to the extent the Administrator ap

proves such request, issue the finding under sec

tion 7410(k)(5) of this title at the time of such approval. In acting on such request, the Admin

istrator shall provide an opportunity for public participation and shall address each specific rec

ommendation made by the commission. Ap

proval or disapproval of such a request shall constitute final agency action within the mean

ing of section 7607(b) of this title. (July 14, 1955, ch. 360, title I, §176A, as added Pub. L. 101–549, title I, §102(f)(1), Nov. 15, 1990, 104 Stat. 2419.)

R EFERENCES IN T EXT The Federal Advisory Committee Act, referred to in subsec. (b)(2), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, as amended, which is set out in the Appendix to Title 5, Government Organization and Employees.
§ 7507. New motor vehicle emission standards in nonattainment areas
Notwithstanding section 7543(a) of this title, any State which has plan provisions approved under this part may adopt and enforce for any model year standards relating to control of emissions from new motor vehicles or new motor vehicle engines and take such other ac

tions as are referred to in section 7543(a) of this title respecting such vehicles if— (1) such standards are identical to the Cali

fornia standards for which a waiver has been granted for such model year, and (2) California and such State adopt such standards at least two years before commence

ment of such model year (as determined by regulations of the Administrator). Nothing in this section or in subchapter II of this chapter shall be construed as authorizing any such State to prohibit or limit, directly or indirectly, the manufacture or sale of a new motor vehicle or motor vehicle engine that is certified in California as meeting California standards, or to take any action of any kind to create, or have the effect of creating, a motor vehicle or motor vehicle engine different than a motor vehicle or engine certified in California under California standards (a ‘‘third vehicle’’) or otherwise create such a ‘‘third vehicle’’. (July 14, 1955, ch. 360, title I, §177, as added Pub. L. 95–95, title I, §129(b), Aug. 7, 1977, 91 Stat. 750; amended Pub. L. 101–549, title II, §232, Nov. 15, 1990, 104 Stat. 2529.)

A MENDMENTS 1990—Pub. L. 101–549 added sentence at end prohibit

ing States from limiting or prohibiting sale or manu

facture of new vehicles or engines certified in Califor

nia as having met California standards and from taking any actions where effect of those actions would be to create a ‘‘third vehicle’’.
§ 7508. Guidance documents
The Administrator shall issue guidance docu

ments under section 7408 of this title for pur

poses of assisting States in implementing re

quirements of this part respecting the lowest achievable emission rate. Such a document shall be published not later than nine months after August 7, 1977, and shall be revised at least every two years thereafter. (July 14, 1955, ch. 360, title I, §178, as added Pub. L. 95–95, title I, §129(b), Aug. 7, 1977, 91 Stat. 750.) § 7509. Sanctions and consequences of failure to attain (a) State failure For any implementation plan or plan revision required under this part (or required in response to a finding of substantial inadequacy as de

scribed in section 7410(k)(5) of this title), if the Administrator— (1) finds that a State has failed, for an area designated nonattainment under section 7407(d) of this title, to submit a plan, or to submit 1 or more of the elements (as deter

mined by the Administrator) required by the provisions of this chapter applicable to such an area, or has failed to make a submission for such an area that satisfies the minimum cri

teria established in relation to any such ele

ment under section 7410(k) of this title, (2) disapproves a submission under section 7410(k) of this title, for an area designated nonattainment under section 7407 of this title, based on the submission’s failure to meet one or more of the elements required by the provi

sions of this chapter applicable to such an
area, (3)(A) determines that a State has failed to make any submission as may be required under this chapter, other than one described under paragraph (1) or (2), including an ade

quate maintenance plan, or has failed to make any submission, as may be required under this chapter, other than one described under para

graph (1) or (2), that satisfies the minimum criteria established in relation to such submis

sion under section 7410(k)(1)(A) of this title, or (B) disapproves in whole or in part a submis

sion described under subparagraph (A), or (4) finds that any requirement of an ap

proved plan (or approved part of a plan) is not being implemented, unless such deficiency has been corrected within 18 months after the finding, disapproval, or de

termination referred to in paragraphs (1), (2), (3), and (4), one of the sanctions referred to in sub

section (b) of this section shall apply, as se

lected by the Administrator, until the Adminis

trator determines that the State has come intoPage 6323 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7509

compliance, except that if the Administrator finds a lack of good faith, sanctions under both paragraph (1) and paragraph (2) of subsection (b) of this section shall apply until the Adminis

trator determines that the State has come into compliance. If the Administrator has selected one of such sanctions and the deficiency has not been corrected within 6 months thereafter, sanc

tions under both paragraph (1) and paragraph (2) of subsection (b) of this section shall apply until the Administrator determines that the State has come into compliance. In addition to any other sanction applicable as provided in this sec

tion, the Administrator may withhold all or part of the grants for support of air pollution planning and control programs that the Admin

istrator may award under section 7405 of this title. (b) Sanctions
The sanctions available to the Administrator as provided in subsection (a) of this section are as follows: (1) Highway sanctions (A) The Administrator may impose a prohi

bition, applicable to a nonattainment area, on the approval by the Secretary of Transpor

tation of any projects or the awarding by the Secretary of any grants, under title 23 other than projects or grants for safety where the Secretary determines, based on accident or other appropriate data submitted by the State, that the principal purpose of the project is an improvement in safety to resolve a demonstrated safety problem and likely will result in a significant reduction in, or avoid

ance of, accidents. Such prohibition shall be

come effective upon the selection by the Ad

ministrator of this sanction. (B) In addition to safety, projects or grants that may be approved by the Secretary, not

withstanding the prohibition in subparagraph (A), are the following— (i) capital programs for public transit; (ii) construction or restriction of certain roads or lanes solely for the use of passenger buses or high occupancy vehicles; (iii) planning for requirements for employ

ers to reduce employee work-trip-related ve

hicle emissions; (iv) highway ramp metering, traffic sig

nalization, and related programs that im

prove traffic flow and achieve a net emission reduction; (v) fringe and transportation corridor parking facilities serving multiple occu

pancy vehicle programs or transit oper

ations; (vi) programs to limit or restrict vehicle use in downtown areas or other areas of emission concentration particularly during periods of peak use, through road use charges, tolls, parking surcharges, or other pricing mechanisms, vehicle restricted zones or periods, or vehicle registration programs; (vii) programs for breakdown and accident scene management, nonrecurring conges

tion, and vehicle information systems, to re

duce congestion and emissions; and (viii) such other transportation-related programs as the Administrator, in consulta

tion with the Secretary of Transportation, finds would improve air quality and would not encourage single occupancy vehicle ca

pacity. In considering such measures, the State should seek to ensure adequate access to downtown, other commercial, and residential areas, and avoid increasing or relocating emis

sions and congestion rather than reducing them.
(2) Offsets In applying the emissions offset require

ments of section 7503 of this title to new or modified sources or emissions units for which a permit is required under this part, the ratio of emission reductions to increased emissions shall be at least 2 to 1.
(c) Notice of failure to attain (1) As expeditiously as practicable after the applicable attainment date for any nonattain

ment area, but not later than 6 months after such date, the Administrator shall determine, based on the area’s air quality as of the attain

ment date, whether the area attained the stand

ard by that date. (2) Upon making the determination under paragraph (1), the Administrator shall publish a notice in the Federal Register containing such determination and identifying each area that the Administrator has determined to have failed to attain. The Administrator may revise or sup

plement such determination at any time based on more complete information or analysis con

cerning the area’s air quality as of the attain

ment date. (d) Consequences for failure to attain (1) Within 1 year after the Administrator pub

lishes the notice under subsection (c)(2) of this section (relating to notice of failure to attain), each State containing a nonattainment area shall submit a revision to the applicable imple

mentation plan meeting the requirements of paragraph (2) of this subsection. (2) The revision required under paragraph (1) shall meet the requirements of section 7410 of this title and section 7502 of this title. In addi

tion, the revision shall include such additional measures as the Administrator may reasonably prescribe, including all measures that can be feasibly implemented in the area in light of technological achievability, costs, and any nonair quality and other air quality-related health and environmental impacts. (3) The attainment date applicable to the revi

sion required under paragraph (1) shall be the same as provided in the provisions of section 7502(a)(2) of this title, except that in applying such provisions the phrase ‘‘from the date of the notice under section 7509(c)(2) of this title’’ shall be substituted for the phrase ‘‘from the date such area was designated nonattainment under section 7407(d) of this title’’ and for the phrase ‘‘from the date of designation as nonattain

ment’’. (July 14, 1955, ch. 360, title I, §179, as added Pub. L. 101–549, title I, §102(g), Nov. 15, 1990, 104 Stat. 2420.)Page 6324 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7509a

1 So in original. Probably should be ‘‘this’’.

2 So in original. Section 7512(b) of this title does not contain a par. (9). § 7509a. International border areas (a) Implementation plans and revisions Notwithstanding any other provision of law, an implementation plan or plan revision re

quired under this chapter shall be approved by the Administrator if— (1) such plan or revision meets all the re

quirements applicable to it under the 1 chapter other than a requirement that such plan or re

vision demonstrate attainment and mainte

nance of the relevant national ambient air quality standards by the attainment date specified under the applicable provision of this chapter, or in a regulation promulgated under such provision, and (2) the submitting State establishes to the satisfaction of the Administrator that the im

plementation plan of such State would be ade

quate to attain and maintain the relevant na

tional ambient air quality standards by the at

tainment date specified under the applicable provision of this chapter, or in a regulation promulgated under such provision, but for emissions emanating from outside of the United States. (b) Attainment of ozone levels Notwithstanding any other provision of law, any State that establishes to the satisfaction of the Administrator that, with respect to an ozone nonattainment area in such State, such State would have attained the national ambient air quality standard for ozone by the applicable at

tainment date, but for emissions emanating from outside of the United States, shall not be subject to the provisions of section 7511(a)(2) or (5) of this title or section 7511d of this title. (c) Attainment of carbon monoxide levels Notwithstanding any other provision of law, any State that establishes to the satisfaction of the Administrator, with respect to a carbon monoxide nonattainment area in such State, that such State has attained the national ambi

ent air quality standard for carbon monoxide by the applicable attainment date, but for emis

sions emanating from outside of the United States, shall not be subject to the provisions of section 7512(b)(2) or (9) 2 of this title. (d) Attainment of PM–10 levels Notwithstanding any other provision of law, any State that establishes to the satisfaction of the Administrator that, with respect to a PM–10 nonattainment area in such State, such State would have attained the national ambient air quality standard for carbon monoxide by the ap

plicable attainment date, but for emissions ema

nating from outside the United States, shall not be subject to the provisions of section 7513(b)(2) of this title. (July 14, 1955, ch. 360, title I, §179B, as added Pub. L. 101–549, title VIII, §818, Nov. 15, 1990, 104 Stat. 2697.)

E STABLISHMENT OF P ROGRAM T O M ONITOR AND I M

PROVE A IR Q UALITY IN R EGIONS A LONG B ORDER B E

TWEEN U NITED S TATES AND M EXICO Section 815 of Pub. L. 101–549 provided that: ‘‘(a) I N G ENERAL .—The Administrator of the Environ

mental Protection Agency (hereinafter referred to as the ‘Administrator’) is authorized, in cooperation with the Department of State and the affected States, to ne

gotiate with representatives of Mexico to authorize a program to monitor and improve air quality in regions along the border between the United States and Mex

ico. The program established under this section shall not extend beyond July 1, 1995. ‘‘(b) M ONITORING AND R EMEDIATION .— ‘‘(1) M ONITORING .—The monitoring component of the program conducted under this section shall iden

tify and determine sources of pollutants for which na

tional ambient air quality standards (hereinafter re

ferred to as ‘NAAQS’) and other air quality goals have been established in regions along the border be

tween the United States and Mexico. Any such mon

itoring component of the program shall include, but not be limited to, the collection of meteorological data, the measurement of air quality, the compila

tion of an emissions inventory, and shall be sufficient to the extent necessary to successfully support the use of a state-of-the-art mathematical air modeling analysis. Any such monitoring component of the pro

gram shall collect and produce data projecting the level of emission reductions necessary in both Mexico and the United States to bring about attainment of both primary and secondary NAAQS, and other air quality goals, in regions along the border in the United States. Any such monitoring component of the program shall include to the extent possible, data from monitoring programs undertaken by other par

ties. ‘‘(2) R EMEDIATION .—The Administrator is author

ized to negotiate with appropriate representatives of Mexico to develop joint remediation measures to re

duce the level of airborne pollutants to achieve and maintain primary and secondary NAAQS, and other air quality goals, in regions along the border between the United States and Mexico. Such joint remedi

ation measures may include, but not be limited to measures included in the Environmental Protection Agency’s Control Techniques and Control Technology documents. Any such remediation program shall also identify those control measures implementation of which in Mexico would be expedited by the use of ma

terial and financial assistance of the United States. ‘‘(c) A NNUAL R EPORTS .—The Administrator shall, each year the program authorized in this section is in operation, report to Congress on the progress of the program in bringing nonattainment areas along the border of the United States into attainment with pri

mary and secondary NAAQS. The report issued by the Administrator under this paragraph shall include rec

ommendations on funding mechanisms to assist in im

plementation of monitoring and remediation efforts. ‘‘(d) F UNDING AND P ERSONNEL .—The Administrator may, where appropriate, make available, subject to the appropriations, such funds, personnel, and equipment as may be necessary to implement the provisions of this section. In those cases where direct financial as

sistance of the United States is provided to implement monitoring and remediation programs in Mexico, the Administrator shall develop grant agreements with ap

propriate representatives of Mexico to assure the accu

racy and completeness of monitoring data and the per

formance of remediation measures which are financed by the United States. With respect to any control measures within Mexico funded by the United States, the Administrator shall, to the maximum extent prac

ticable, utilize resources of Mexico where such utiliza

tion would reduce costs to the United States. Such funding agreements shall include authorization for the Administrator to— ‘‘(1) review and agree to plans for monitoring and remediation; ‘‘(2) inspect premises, equipment and records to in

sure compliance with the agreements established under and the purposes set forth in this section; and ‘‘(3) where necessary, develop grant agreements with affected States to carry out the provisions of this section.’’Page 6325 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511

SUBPART 2

— ADDITIONAL PROVISIONS FOR OZONE

NONATTAINMENT AREAS
§ 7511. Classifications and attainment dates (a) Classification and attainment dates for 1989 nonattainment areas (1) Each area designated nonattainment for ozone pursuant to section 7407(d) of this title shall be classified at the time of such designa

tion, under table 1, by operation of law, as a Marginal Area, a Moderate Area, a Serious Area, a Severe Area, or an Extreme Area based on the design value for the area. The design value shall be calculated according to the interpretation methodology issued by the Administrator most recently before November 15, 1990. For each area classified under this subsection, the primary standard attainment date for ozone shall be as expeditiously as practicable but not later than the date provided in table 1.

TABLE 1

Area class Design value* Primary standard attainment date**

Marginal

.. 0.121 up to 0.138

... 3 years after Novem

ber 15, 1990 Moderate

.. 0.138 up to 0.160

... 6 years after Novem

ber 15, 1990 Serious

..... 0.160 up to 0.180

... 9 years after Novem

ber 15, 1990 Severe

...... 0.180 up to 0.280

... 15 years after Novem

ber 15, 1990 Extreme

... 0.280 and above

... 20 years after Novem

ber 15, 1990
*The design value is measured in parts per million (ppm). **The primary standard attainment date is measured from November 15, 1990. (2) Notwithstanding table 1, in the case of a se

vere area with a 1988 ozone design value between 0.190 and 0.280 ppm, the attainment date shall be 17 years (in lieu of 15 years) after November 15, 1990. (3) At the time of publication of the notice under section 7407(d)(4) of this title (relating to area designations) for each ozone nonattainment area, the Administrator shall publish a notice announcing the classification of such ozone non

attainment area. The provisions of section 7502(a)(1)(B) of this title (relating to lack of no

tice and comment and judicial review) shall apply to such classification. (4) If an area classified under paragraph (1) (Table 1) would have been classified in another category if the design value in the area were 5 percent greater or 5 percent less than the level on which such classification was based, the Ad

ministrator may, in the Administrator’s discre

tion, within 90 days after the initial classifica

tion, by the procedure required under paragraph (3), adjust the classification to place the area in such other category. In making such adjust

ment, the Administrator may consider the num

ber of exceedances of the national primary am

bient air quality standard for ozone in the area, the level of pollution transport between the area and other affected areas, including both intra

state and interstate transport, and the mix of sources and air pollutants in the area. (5) Upon application by any State, the Admin

istrator may extend for 1 additional year (here

inafter referred to as the ‘‘Extension Year’’) the date specified in table 1 of paragraph (1) of this subsection if— (A) the State has complied with all require

ments and commitments pertaining to the area in the applicable implementation plan, and (B) no more than 1 exceedance of the na

tional ambient air quality standard level for ozone has occurred in the area in the year pre

ceding the Extension Year. No more than 2 one-year extensions may be is

sued under this paragraph for a single non

attainment area. (b) New designations and reclassifications (1) New designations to nonattainment Any area that is designated attainment or unclassifiable for ozone under section 7407(d)(4) of this title, and that is subsequently redesignated to nonattainment for ozone under section 7407(d)(3) of this title, shall, at the time of the redesignation, be classified by operation of law in accordance with table 1 under subsection (a) of this section. Upon its classification, the area shall be subject to the same requirements under section 7410 of this title, subpart 1 of this part, and this subpart that would have applied had the area been so classified at the time of the notice under sub

section (a)(3) of this section, except that any absolute, fixed date applicable in connection with any such requirement is extended by op

eration of law by a period equal to the length of time between November 15, 1990, and the date the area is classified under this para

graph. (2) Reclassification upon failure to attain (A) Within 6 months following the applicable attainment date (including any extension thereof) for an ozone nonattainment area, the Administrator shall determine, based on the area’s design value (as of the attainment date), whether the area attained the standard by that date. Except for any Severe or Ex

treme area, any area that the Administrator finds has not attained the standard by that date shall be reclassified by operation of law in accordance with table 1 of subsection (a) of this section to the higher of— (i) the next higher classification for the
area, or (ii) the classification applicable to the area’s design value as determined at the time of the notice required under subpara

graph (B).

No area shall be reclassified as Extreme under clause (ii). (B) The Administrator shall publish a notice in the Federal Register, no later than 6 months following the attainment date, identi

fying each area that the Administrator has de

termined under subparagraph (A) as having failed to attain and identifying the reclassi

fication, if any, described under subparagraph (A). (3) Voluntary reclassification The Administrator shall grant the request of any State to reclassify a nonattainment areaPage 6326 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511a

1 So in original. Probably should be ‘‘terms’’. in that State in accordance with table 1 of subsection (a) of this section to a higher clas

sification. The Administrator shall publish a notice in the Federal Register of any such re

quest and of action by the Administrator granting the request. (4) Failure of Severe Areas to attain standard (A) If any Severe Area fails to achieve the national primary ambient air quality standard for ozone by the applicable attainment date (including any extension thereof), the fee pro

visions under section 7511d of this title shall apply within the area, the percent reduction requirements of section 7511a(c)(2)(B) and (C) of this title (relating to reasonable further progress demonstration and NO x control) shall continue to apply to the area, and the State shall demonstrate that such percent reduction has been achieved in each 3-year interval after such failure until the standard is attained. Any failure to make such a demonstration shall be subject to the sanctions provided under this part. (B) In addition to the requirements of sub

paragraph (A), if the ozone design value for a Severe Area referred to in subparagraph (A) is above 0.140 ppm for the year of the applicable attainment date, or if the area has failed to achieve its most recent milestone under sec

tion 7511a(g) of this title, the new source re

view requirements applicable under this sub

part in Extreme Areas shall apply in the area and the term 1 ‘‘major source’’ and ‘‘major sta

tionary source’’ shall have the same meaning as in Extreme Areas. (C) In addition to the requirements of sub

paragraph (A) for those areas referred to in subparagraph (A) and not covered by subpara

graph (B), the provisions referred to in sub

paragraph (B) shall apply after 3 years from the applicable attainment date unless the area has attained the standard by the end of such 3- year period. (D) If, after November 15, 1990, the Adminis

trator modifies the method of determining compliance with the national primary ambi

ent air quality standard, a design value or other indicator comparable to 0.140 in terms of its relationship to the standard shall be used in lieu of 0.140 for purposes of applying the provisions of subparagraphs (B) and (C). (c) References to terms (1) Any reference in this subpart to a ‘‘Mar

ginal Area’’, a ‘‘Moderate Area’’, a ‘‘Serious Area’’, a ‘‘Severe Area’’, or an ‘‘Extreme Area’’ shall be considered a reference to a Marginal Area, a Moderate Area, a Serious Area, a Severe Area, or an Extreme Area as respectively classi

fied under this section. (2) Any reference in this subpart to ‘‘next higher classification’’ or comparable terms shall be considered a reference to the classification related to the next higher set of design values in table 1. (July 14, 1955, ch. 360, title I, §181, as added Pub. L. 101–549, title I, §103, Nov. 15, 1990, 104 Stat. 2423.) E XEMPTIONS FOR S TRIPPER W ELLS Section 819 of Pub. L. 101–549 provided that: ‘‘Not

withstanding any other provision of law, the amend

ments to the Clean Air Act made by section 103 of the Clean Air Act Amendments of 1990 [enacting this sec

tion and sections 7511a to 7511f of this title] (relating to additional provisions for ozone nonattainment areas), by section 104 of such amendments [enacting sections 7512 and 7512a of this title] (relating to additional pro

visions for carbon monoxide nonattainment areas), by section 105 of such amendments [enacting sections 7513 to 7513b of this title and amending section 7476 of this title] (relating to additional provisions for PM–10 non

attainment areas), and by section 106 of such amend

ments [enacting sections 7514 and 7514a of this title] (relating to additional provisions for areas designated as nonattainment for sulfur oxides, nitrogen dioxide, and lead) shall not apply with respect to the production of and equipment used in the exploration, production, development, storage or processing of— ‘‘(1) oil from a stripper well property, within the meaning of the June 1979 energy regulations (within the meaning of section 4996(b)(7) of the Internal Reve

nue Code of 1986 [26 U.S.C. 4996(b)(7)], as in effect be

fore the repeal of such section); and ‘‘(2) stripper well natural gas, as defined in section 108(b) of the Natural Gas Policy Act of 1978 (15 U.S.C. 3318(b)).[,] except to the extent that provisions of such amend

ments cover areas designated as Serious pursuant to part D of title I of the Clean Air Act [this part] and having a population of 350,000 or more, or areas des

ignated as Severe or Extreme pursuant to such part D.’’ § 7511a. Plan submissions and requirements (a) Marginal Areas Each State in which all or part of a Marginal Area is located shall, with respect to the Mar

ginal Area (or portion thereof, to the extent specified in this subsection), submit to the Ad

ministrator the State implementation plan revi

sions (including the plan items) described under this subsection except to the extent the State has made such submissions as of November 15, 1990. (1) Inventory Within 2 years after November 15, 1990, the State shall submit a comprehensive, accurate, current inventory of actual emissions from all sources, as described in section 7502(c)(3) of this title, in accordance with guidance pro

vided by the Administrator. (2) Corrections to the State implementation plan Within the periods prescribed in this para

graph, the State shall submit a revision to the State implementation plan that meets the fol

lowing requirements— (A) Reasonably available control technology corrections For any Marginal Area (or, within the Ad

ministrator’s discretion, portion thereof) the State shall submit, within 6 months of the date of classification under section 7511(a) of this title, a revision that includes such pro

visions to correct requirements in (or add re

quirements to) the plan concerning reason

ably available control technology as were re

quired under section 7502(b) of this title (as in effect immediately before November 15, 1990), as interpreted in guidance issued by the Administrator under section 7408 of this title before November 15, 1990.Page 6327 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511a

1 So in original. Probably should be ‘‘subparagraph’’. (B) Savings clause for vehicle inspection and maintenance (i) For any Marginal Area (or, within the Administrator’s discretion, portion thereof), the plan for which already includes, or was required by section 7502(b)(11)(B) of this title (as in effect immediately before November 15, 1990) to have included, a specific schedule for implementation of a vehicle emission control inspection and maintenance pro

gram, the State shall submit, immediately after November 15, 1990, a revision that in

cludes any provisions necessary to provide for a vehicle inspection and maintenance program of no less stringency than that of either the program defined in House Report Numbered 95–294, 95th Congress, 1st Session, 281–291 (1977) as interpreted in guidance of the Administrator issued pursuant to sec

tion 7502(b)(11)(B) of this title (as in effect immediately before November 15, 1990) or the program already included in the plan, which

ever is more stringent. (ii) Within 12 months after November 15, 1990, the Administrator shall review, revise, update, and republish in the Federal Reg

ister the guidance for the States for motor vehicle inspection and maintenance pro

grams required by this chapter, taking into consideration the Administrator’s investiga

tions and audits of such program. The guid

ance shall, at a minimum, cover the fre

quency of inspections, the types of vehicles to be inspected (which shall include leased vehicles that are registered in the non

attainment area), vehicle maintenance by owners and operators, audits by the State, the test method and measures, including whether centralized or decentralized, inspec

tion methods and procedures, quality of in

spection, components covered, assurance that a vehicle subject to a recall notice from a manufacturer has complied with that no

tice, and effective implementation and en

forcement, including ensuring that any re

testing of a vehicle after a failure shall in

clude proof of corrective action and provid

ing for denial of vehicle registration in the case of tampering or misfueling. The guid

ance which shall be incorporated in the ap

plicable State implementation plans by the States shall provide the States with con

tinued reasonable flexibility to fashion ef

fective, reasonable, and fair programs for the affected consumer. No later than 2 years after the Administrator promulgates regula

tions under section 7521(m)(3) of this title (relating to emission control diagnostics), the State shall submit a revision to such program to meet any requirements that the Administrator may prescribe under that sec

tion. (C) Permit programs Within 2 years after November 15, 1990, the State shall submit a revision that includes each of the following: (i) Provisions to require permits, in ac

cordance with sections 7502(c)(5) and 7503 of this title, for the construction and oper

ation of each new or modified major sta

tionary source (with respect to ozone) to be located in the area. (ii) Provisions to correct requirements in (or add requirements to) the plan concern

ing permit programs as were required under section 7502(b)(6) of this title (as in effect immediately before November 15, 1990), as interpreted in regulations of the Administrator promulgated as of Novem

ber 15, 1990. (3) Periodic inventory (A) General requirement No later than the end of each 3-year period after submission of the inventory under paragraph (1) until the area is redesignated to attainment, the State shall submit a re

vised inventory meeting the requirements of subsection (a)(1) of this section. (B) Emissions statements (i) Within 2 years after November 15, 1990, the State shall submit a revision to the State implementation plan to require that the owner or operator of each stationary source of oxides of nitrogen or volatile or

ganic compounds provide the State with a statement, in such form as the Adminis

trator may prescribe (or accept an equiva

lent alternative developed by the State), for classes or categories of sources, showing the actual emissions of oxides of nitrogen and volatile organic compounds from that source. The first such statement shall be submitted within 3 years after November 15, 1990. Subsequent statements shall be submit

ted at least every year thereafter. The state

ment shall contain a certification that the information contained in the statement is accurate to the best knowledge of the indi

vidual certifying the statement. (ii) The State may waive the application of clause (i) to any class or category of station

ary sources which emit less than 25 tons per year of volatile organic compounds or oxides of nitrogen if the State, in its submissions under subparagraphs 1 (1) or (3)(A), provides an inventory of emissions from such class or category of sources, based on the use of the emission factors established by the Adminis

trator or other methods acceptable to the Administrator. (4) General offset requirement For purposes of satisfying the emission off

set requirements of this part, the ratio of total emission reductions of volatile organic com

pounds to total increased emissions of such air pollutant shall be at least 1.1 to 1. The Administrator may, in the Administrator’s discretion, require States to submit a schedule for submitting any of the revisions or other items required under this subsection. The re

quirements of this subsection shall apply in lieu of any requirement that the State submit a demonstration that the applicable implementa

tion plan provides for attainment of the ozone standard by the applicable attainment date in any Marginal Area. Section 7502(c)(9) of thisPage 6328 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511a

title (relating to contingency measures) shall not apply to Marginal Areas. (b) Moderate Areas Each State in which all or part of a Moderate Area is located shall, with respect to the Mod

erate Area, make the submissions described under subsection (a) of this section (relating to Marginal Areas), and shall also submit the revi

sions to the applicable implementation plan de

scribed under this subsection. (1) Plan provisions for reasonable further progress (A) General rule (i) By no later than 3 years after November 15, 1990, the State shall submit a revision to the applicable implementation plan to pro

vide for volatile organic compound emission reductions, within 6 years after November 15, 1990, of at least 15 percent from baseline emissions, accounting for any growth in emissions after 1990. Such plan shall provide for such specific annual reductions in emis

sions of volatile organic compounds and ox

ides of nitrogen as necessary to attain the national primary ambient air quality stand

ard for ozone by the attainment date appli

cable under this chapter. This subparagraph shall not apply in the case of oxides of nitro

gen for those areas for which the Adminis

trator determines (when the Administrator approves the plan or plan revision) that ad

ditional reductions of oxides of nitrogen would not contribute to attainment. (ii) A percentage less than 15 percent may be used for purposes of clause (i) in the case of any State which demonstrates to the sat

isfaction of the Administrator that— (I) new source review provisions are ap

plicable in the nonattainment areas in the same manner and to the same extent as re

quired under subsection (e) of this section in the case of Extreme Areas (with the ex

ception that, in applying such provisions, the terms ‘‘major source’’ and ‘‘major sta

tionary source’’ shall include (in addition to the sources described in section 7602 of this title) any stationary source or group of sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 5 tons per year of volatile organic compounds); (II) reasonably available control tech

nology is required for all existing major sources (as defined in subclause (I)); and (III) the plan reflecting a lesser percent

age than 15 percent includes all measures that can feasibly be implemented in the area, in light of technological achiev

ability. To qualify for a lesser percentage under this clause, a State must demonstrate to the sat

isfaction of the Administrator that the plan for the area includes the measures that are achieved in practice by sources in the same source category in nonattainment areas of the next higher category. (B) Baseline emissions For purposes of subparagraph (A), the term ‘‘baseline emissions’’ means the total amount of actual VOC or NO x emissions from all anthropogenic sources in the area during the calendar year 1990, excluding emissions that would be eliminated under the regula

tions described in clauses (i) and (ii) of sub

paragraph (D). (C) General rule for creditability of reduc

tions Except as provided under subparagraph (D), emissions reductions are creditable to

ward the 15 percent required under subpara

graph (A) to the extent they have actually occurred, as of 6 years after November 15, 1990, from the implementation of measures required under the applicable implementa

tion plan, rules promulgated by the Admin

istrator, or a permit under subchapter V of this chapter. (D) Limits on creditability of reductions Emission reductions from the following measures are not creditable toward the 15 percent reductions required under subpara

graph (A): (i) Any measure relating to motor vehi

cle exhaust or evaporative emissions pro

mulgated by the Administrator by Janu

ary 1, 1990. (ii) Regulations concerning Reid Vapor Pressure promulgated by the Adminis

trator by November 15, 1990, or required to be promulgated under section 7545(h) of this title. (iii) Measures required under subsection (a)(2)(A) of this section (concerning correc

tions to implementation plans prescribed under guidance by the Administrator). (iv) Measures required under subsection (a)(2)(B) of this section to be submitted immediately after November 15, 1990 (con

cerning corrections to motor vehicle in

spection and maintenance programs). (2) Reasonably available control technology The State shall submit a revision to the ap

plicable implementation plan to include provi

sions to require the implementation of reason

ably available control technology under sec

tion 7502(c)(1) of this title with respect to each of the following: (A) Each category of VOC sources in the area covered by a CTG document issued by the Administrator between November 15, 1990, and the date of attainment. (B) All VOC sources in the area covered by any CTG issued before November 15, 1990. (C) All other major stationary sources of VOCs that are located in the area. Each revision described in subparagraph (A) shall be submitted within the period set forth by the Administrator in issuing the relevant CTG document. The revisions with respect to sources described in subparagraphs (B) and (C) shall be submitted by 2 years after November 15, 1990, and shall provide for the implementa

tion of the required measures as expeditiously as practicable but no later than May 31, 1995. (3) Gasoline vapor recovery (A) General rule Not later than 2 years after November 15, 1990, the State shall submit a revision to thePage 6329 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511a

2 So in original. Probably should be section ‘‘7625’’.

3 So in original. Probably should be ‘‘increased’’. applicable implementation plan to require all owners or operators of gasoline dispens

ing systems to install and operate, by the date prescribed under subparagraph (B), a system for gasoline vapor recovery of emis

sions from the fueling of motor vehicles. The Administrator shall issue guidance as appro

priate as to the effectiveness of such system. This subparagraph shall apply only to facili

ties which sell more than 10,000 gallons of gasoline per month (50,000 gallons per month in the case of an independent small business marketer of gasoline as defined in section 7625–1 2 of this title). (B) Effective date The date required under subparagraph (A) shall be— (i) 6 months after the adoption date, in the case of gasoline dispensing facilities for which construction commenced after November 15, 1990; (ii) one year after the adoption date, in the case of gasoline dispensing facilities which dispense at least 100,000 gallons of gasoline per month, based on average monthly sales for the 2-year period before the adoption date; or (iii) 2 years after the adoption date, in the case of all other gasoline dispensing fa

cilities. Any gasoline dispensing facility described under both clause (i) and clause (ii) shall meet the requirements of clause (i). (C) Reference to terms For purposes of this paragraph, any ref

erence to the term ‘‘adoption date’’ shall be considered a reference to the date of adop

tion by the State of requirements for the in

stallation and operation of a system for gas

oline vapor recovery of emissions from the fueling of motor vehicles. (4) Motor vehicle inspection and maintenance For all Moderate Areas, the State shall sub

mit, immediately after November 15, 1990, a revision to the applicable implementation plan that includes provisions necessary to pro

vide for a vehicle inspection and maintenance program as described in subsection (a)(2)(B) of this section (without regard to whether or not the area was required by section 7502(b)(11)(B) of this title (as in effect immediately before November 15, 1990) to have included a specific schedule for implementation of such a pro

gram). (5) General offset requirement For purposes of satisfying the emission off

set requirements of this part, the ratio of total emission reductions of volatile organic com

pounds to total increase 3 emissions of such air pollutant shall be at least 1.15 to 1. (c) Serious Areas Except as otherwise specified in paragraph (4), each State in which all or part of a Serious Area is located shall, with respect to the Serious Area (or portion thereof, to the extent specified in this subsection), make the submissions de

scribed under subsection (b) of this section (re

lating to Moderate Areas), and shall also submit the revisions to the applicable implementation plan (including the plan items) described under this subsection. For any Serious Area, the terms ‘‘major source’’ and ‘‘major stationary source’’ include (in addition to the sources described in section 7602 of this title) any stationary source or group of sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 50 tons per year of volatile organic compounds. (1) Enhanced monitoring In order to obtain more comprehensive and representative data on ozone air pollution, not later than 18 months after November 15, 1990, the Administrator shall promulgate rules, after notice and public comment, for enhanced monitoring of ozone, oxides of nitrogen, and volatile organic compounds. The rules shall, among other things, cover the location and maintenance of monitors. Immediately follow

ing the promulgation of rules by the Adminis

trator relating to enhanced monitoring, the State shall commence such actions as may be necessary to adopt and implement a program based on such rules, to improve monitoring for ambient concentrations of ozone, oxides of ni

trogen and volatile organic compounds and to improve monitoring of emissions of oxides of nitrogen and volatile organic compounds. Each State implementation plan for the area shall contain measures to improve the ambi

ent monitoring of such air pollutants. (2) Attainment and reasonable further progress demonstrations Within 4 years after November 15, 1990, the State shall submit a revision to the applicable implementation plan that includes each of the following: (A) Attainment demonstration A demonstration that the plan, as revised, will provide for attainment of the ozone na

tional ambient air quality standard by the applicable attainment date. This attainment demonstration must be based on photo

chemical grid modeling or any other analyt

ical method determined by the Adminis

trator, in the Administrator’s discretion, to be at least as effective. (B) Reasonable further progress demonstra

tion A demonstration that the plan, as revised, will result in VOC emissions reductions from the baseline emissions described in sub

section (b)(1)(B) of this section equal to the following amount averaged over each con

secutive 3-year period beginning 6 years after November 15, 1990, until the attain

ment date: (i) at least 3 percent of baseline emis

sions each year; or (ii) an amount less than 3 percent of such baseline emissions each year, if the State demonstrates to the satisfaction of the Ad

ministrator that the plan reflecting suchPage 6330 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511a

lesser amount includes all measures that can feasibly be implemented in the area, in light of technological achievability. To lessen the 3 percent requirement under clause (ii), a State must demonstrate to the satisfaction of the Administrator that the plan for the area includes the measures that are achieved in practice by sources in the same source category in nonattainment areas of the next higher classification. Any determination to lessen the 3 percent re

quirement shall be reviewed at each mile

stone under subsection (g) of this section and revised to reflect such new measures (if any) achieved in practice by sources in the same category in any State, allowing a rea

sonable time to implement such measures. The emission reductions described in this subparagraph shall be calculated in accord

ance with subsection (b)(1)(C) and (D) of this section (concerning creditability of reduc

tions). The reductions creditable for the pe

riod beginning 6 years after November 15, 1990, shall include reductions that occurred before such period, computed in accordance with subsection (b)(1) of this section, that exceed the 15-percent amount of reductions required under subsection (b)(1)(A) of this section. (C) NO x control The revision may contain, in lieu of the demonstration required under subparagraph (B), a demonstration to the satisfaction of the Administrator that the applicable imple

mentation plan, as revised, provides for re

ductions of emissions of VOC’s and oxides of nitrogen (calculated according to the cred

itability provisions of subsection (b)(1)(C) and (D) of this section), that would result in a reduction in ozone concentrations at least equivalent to that which would result from the amount of VOC emission reductions re

quired under subparagraph (B). Within 1 year after November 15, 1990, the Administrator shall issue guidance concerning the condi

tions under which NO x control may be sub

stituted for VOC control or may be com

bined with VOC control in order to maximize the reduction in ozone air pollution. In ac

cord with such guidance, a lesser percentage of VOCs may be accepted as an adequate demonstration for purposes of this sub

section. (3) Enhanced vehicle inspection and mainte

nance program (A) Requirement for submission Within 2 years after November 15, 1990, the State shall submit a revision to the applica

ble implementation plan to provide for an enhanced program to reduce hydrocarbon emissions and NO x emissions from in-use motor vehicles registered in each urbanized area (in the nonattainment area), as defined by the Bureau of the Census, with a 1980 pop

ulation of 200,000 or more. (B) Effective date of State programs; guid

ance The State program required under sub

paragraph (A) shall take effect no later than 2 years from November 15, 1990, and shall comply in all respects with guidance pub

lished in the Federal Register (and from time to time revised) by the Administrator for enhanced vehicle inspection and mainte

nance programs. Such guidance shall in

clude— (i) a performance standard achievable by a program combining emission testing, in

cluding on-road emission testing, with in

spection to detect tampering with emis

sion control devices and misfueling for all light-duty vehicles and all light-duty trucks subject to standards under section 7521 of this title; and (ii) program administration features nec

essary to reasonably assure that adequate management resources, tools, and prac

tices are in place to attain and maintain the performance standard. Compliance with the performance standard under clause (i) shall be determined using a method to be established by the Adminis

trator. (C) State program The State program required under sub

paragraph (A) shall include, at a minimum, each of the following elements— (i) Computerized emission analyzers, in

cluding on-road testing devices. (ii) No waivers for vehicles and parts covered by the emission control perform

ance warranty as provided for in section 7541(b) of this title unless a warranty rem

edy has been denied in writing, or for tam

pering-related repairs. (iii) In view of the air quality purpose of the program, if, for any vehicle, waivers are permitted for emissions-related repairs not covered by warranty, an expenditure to qualify for the waiver of an amount of $450 or more for such repairs (adjusted an

nually as determined by the Administrator on the basis of the Consumer Price Index in the same manner as provided in sub

chapter V of this chapter). (iv) Enforcement through denial of vehi

cle registration (except for any program in operation before November 15, 1990, whose enforcement mechanism is demonstrated to the Administrator to be more effective than the applicable vehicle registration program in assuring that noncomplying vehicles are not operated on public roads). (v) Annual emission testing and nec

essary adjustment, repair, and mainte

nance, unless the State demonstrates to the satisfaction of the Administrator that a biennial inspection, in combination with other features of the program which ex

ceed the requirements of this chapter, will result in emission reductions which equal or exceed the reductions which can be ob

tained through such annual inspections. (vi) Operation of the program on a cen

tralized basis, unless the State dem

onstrates to the satisfaction of the Admin

istrator that a decentralized program will be equally effective. An electronically con

nected testing system, a licensing system,Page 6331 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511a

4 So in original. No subpar. (B) has been enacted. or other measures (or any combination thereof) may be considered, in accordance with criteria established by the Adminis

trator, as equally effective for such pur

poses. (vii) Inspection of emission control diag

nostic systems and the maintenance or re

pair of malfunctions or system deteriora

tion identified by or affecting such diag

nostics systems. Each State shall biennially prepare a report to the Administrator which assesses the emission reductions achieved by the pro

gram required under this paragraph based on data collected during inspection and repair of vehicles. The methods used to assess the emission reductions shall be those estab

lished by the Administrator. (4) Clean-fuel vehicle programs (A) Except to the extent that substitute pro

visions have been approved by the Adminis

trator under subparagraph (B), the State shall submit to the Administrator, within 42 months of November 15, 1990, a revision to the applicable implementation plan for each area described under part C of subchapter II of this chapter to include such measures as may be necessary to ensure the effectiveness of the applicable provisions of the clean-fuel vehicle program prescribed under part C of subchapter II of this chapter, including all measures nec

essary to make the use of clean alternative fuels in clean-fuel vehicles (as defined in part C of subchapter II of this chapter) economic from the standpoint of vehicle owners. Such a revision shall also be submitted for each area that opts into the clean fuel-vehicle program as provided in part C of subchapter II of this chapter. (B) The Administrator shall approve, as a substitute for all or a portion of the clean-fuel vehicle program prescribed under part C of subchapter II of this chapter, any revision to the relevant applicable implementation plan that in the Administrator’s judgment will achieve long-term reductions in ozone-produc

ing and toxic air emissions equal to those achieved under part C of subchapter II of this chapter, or the percentage thereof attrib

utable to the portion of the clean-fuel vehicle program for which the revision is to sub

stitute. The Administrator may approve such revision only if it consists exclusively of pro

visions other than those required under this chapter for the area. Any State seeking ap

proval of such revision must submit the revi

sion to the Administrator within 24 months of November 15, 1990. The Administrator shall ap

prove or disapprove any such revision within 30 months of November 15, 1990. The Adminis

trator shall publish the revision submitted by a State in the Federal Register upon receipt. Such notice shall constitute a notice of pro

posed rulemaking on whether or not to ap

prove such revision and shall be deemed to comply with the requirements concerning no

tices of proposed rulemaking contained in sec

tions 553 through 557 of title 5 (related to no

tice and comment). Where the Administrator approves such revision for any area, the State need not submit the revision required by sub

paragraph (A) for the area with respect to the portions of the Federal clean-fuel vehicle pro

gram for which the Administrator has ap

proved the revision as a substitute. (C) If the Administrator determines, under section 7509 of this title, that the State has failed to submit any portion of the program required under subparagraph (A), then, in ad

dition to any sanctions available under sec

tion 7509 of this title, the State may not re

ceive credit, in any demonstration of attain

ment or reasonable further progress for the area, for any emission reductions from imple

mentation of the corresponding aspects of the Federal clean-fuel vehicle requirements estab

lished in part C of subchapter II of this chap

ter.
(5) Transportation control (A) 4 Beginning 6 years after November 15, 1990, and each third year thereafter, the State shall submit a demonstration as to whether current aggregate vehicle mileage, aggregate vehicle emissions, congestion levels, and other relevant parameters are consistent with those used for the area’s demonstration of attain

ment. Where such parameters and emissions levels exceed the levels projected for purposes of the area’s attainment demonstration, the State shall within 18 months develop and sub

mit a revision of the applicable implementa

tion plan that includes a transportation con

trol measures program consisting of measures from, but not limited to, section 7408(f) of this title that will reduce emissions to levels that are consistent with emission levels projected in such demonstration. In considering such measures, the State should ensure adequate access to downtown, other commercial, and residential areas and should avoid measures that increase or relocate emissions and con

gestion rather than reduce them. Such revi

sion shall be developed in accordance with guidance issued by the Administrator pursu

ant to section 7408(e) of this title and with the requirements of section 7504(b) of this title and shall include implementation and funding schedules that achieve expeditious emissions reductions in accordance with implementation plan projections.

(6) De minimis rule The new source review provisions under this part shall ensure that increased emissions of volatile organic compounds resulting from any physical change in, or change in the method of operation of, a stationary source located in the area shall not be considered de minimis for purposes of determining the applicability of the permit requirements established by this chapter unless the increase in net emissions of such air pollutant from such source does not exceed 25 tons when aggregated with all other net increases in emissions from the source over any period of 5 consecutive calendar years which includes the calendar year in which such increase occurred.Page 6332 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511a

5 So in original. Probably should be ‘‘subsections’’. (7) Special rule for modifications of sources emitting less than 100 tons In the case of any major stationary source of volatile organic compounds located in the area (other than a source which emits or has the potential to emit 100 tons or more of volatile organic compounds per year), whenever any change (as described in section 7411(a)(4) of this title) at that source results in any in

crease (other than a de minimis increase) in emissions of volatile organic compounds from any discrete operation, unit, or other pollut

ant emitting activity at the source, such in

crease shall be considered a modification for purposes of section 7502(c)(5) of this title and section 7503(a) of this title, except that such increase shall not be considered a modification for such purposes if the owner or operator of the source elects to offset the increase by a greater reduction in emissions of volatile or

ganic compounds concerned from other oper

ations, units, or activities within the source at an internal offset ratio of at least 1.3 to 1. If the owner or operator does not make such election, such change shall be considered a modification for such purposes, but in apply

ing section 7503(a)(2) of this title in the case of any such modification, the best available con

trol technology (BACT), as defined in section 7479 of this title, shall be substituted for the lowest achievable emission rate (LAER). The Administrator shall establish and publish poli

cies and procedures for implementing the pro

visions of this paragraph. (8) Special rule for modifications of sources emitting 100 tons or more In the case of any major stationary source of volatile organic compounds located in the area which emits or has the potential to emit 100 tons or more of volatile organic compounds per year, whenever any change (as described in section 7411(a)(4) of this title) at that source results in any increase (other than a de mini

mis increase) in emissions of volatile organic compounds from any discrete operation, unit, or other pollutant emitting activity at the source, such increase shall be considered a modification for purposes of section 7502(c)(5) of this title and section 7503(a) of this title, ex

cept that if the owner or operator of the source elects to offset the increase by a great

er reduction in emissions of volatile organic compounds from other operations, units, or activities within the source at an internal off

set ratio of at least 1.3 to 1, the requirements of section 7503(a)(2) of this title (concerning the lowest achievable emission rate (LAER)) shall not apply. (9) Contingency provisions In addition to the contingency provisions re

quired under section 7502(c)(9) of this title, the plan revision shall provide for the implemen

tation of specific measures to be undertaken if the area fails to meet any applicable mile

stone. Such measures shall be included in the plan revision as contingency measures to take effect without further action by the State or the Administrator upon a failure by the State to meet the applicable milestone. (10) General offset requirement For purposes of satisfying the emission off

set requirements of this part, the ratio of total emission reductions of volatile organic com

pounds to total increase emissions of such air pollutant shall be at least 1.2 to 1. Any reference to ‘‘attainment date’’ in sub

section (b) of this section, which is incorporated by reference into this subsection, shall refer to the attainment date for serious areas. (d) Severe Areas Each State in which all or part of a Severe Area is located shall, with respect to the Severe Area, make the submissions described under subsection (c) of this section (relating to Serious Areas), and shall also submit the revisions to the applicable implementation plan (including the plan items) described under this subsection. For any Severe Area, the terms ‘‘major source’’ and ‘‘major stationary source’’ include (in addi

tion to the sources described in section 7602 of this title) any stationary source or group of sources located within a contiguous area and under common control that emits, or has the po

tential to emit, at least 25 tons per year of vola

tile organic compounds. (1) Vehicle miles traveled (A) Within 2 years after November 15, 1990, the State shall submit a revision that identi

fies and adopts specific enforceable transpor

tation control strategies and transportation control measures to offset any growth in emis

sions from growth in vehicle miles traveled or numbers of vehicle trips in such area and to attain reduction in motor vehicle emissions as necessary, in combination with other emission reduction requirements of this subpart, to comply with the requirements of subsection 5 (b)(2)(B) and (c)(2)(B) of this section (pertain

ing to periodic emissions reduction require

ments). The State shall consider measures specified in section 7408(f) of this title, and choose from among and implement such meas

ures as necessary to demonstrate attainment with the national ambient air quality stand

ards; in considering such measures, the State should ensure adequate access to downtown, other commercial, and residential areas and should avoid measures that increase or relo

cate emissions and congestion rather than re

duce them. (B) The State may also, in its discretion, submit a revision at any time requiring em

ployers in such area to implement programs to reduce work-related vehicle trips and miles travelled by employees. Such revision shall be developed in accordance with guidance issued by the Administrator pursuant to section 7408(f) of this title and may require that em

ployers in such area increase average pas

senger occupancy per vehicle in commuting trips between home and the workplace during peak travel periods. The guidance of the Ad

ministrator may specify average vehicle occu

pancy rates which vary for locations within a nonattainment area (suburban, center city, business district) or among nonattainmentPage 6333 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511a

6 So in original. Probably should be ‘‘paragraphs’’.

7 So in original. Probably should be ‘‘de minimis’’.

8 So in original. Probably should be ‘‘include’’. areas reflecting existing occupancy rates and the availability of high occupancy modes. Any State required to submit a revision under this subparagraph (as in effect before December 23, 1995) containing provisions requiring employ

ers to reduce work-related vehicle trips and miles travelled by employees may, in accord

ance with State law, remove such provisions from the implementation plan, or withdraw its submission, if the State notifies the Adminis

trator, in writing, that the State has under

taken, or will undertake, one or more alter

native methods that will achieve emission re

ductions equivalent to those to be achieved by the removed or withdrawn provisions. (2) Offset requirement For purposes of satisfying the offset require

ments pursuant to this part, the ratio of total emission reductions of VOCs to total increased emissions of such air pollutant shall be at least 1.3 to 1, except that if the State plan re

quires all existing major sources in the non

attainment area to use best available control technology (as defined in section 7479(3) of this title) for the control of volatile organic com

pounds, the ratio shall be at least 1.2 to 1. (3) Enforcement under section 7511d By December 31, 2000, the State shall submit a plan revision which includes the provisions required under section 7511d of this title. Any reference to the term ‘‘attainment date’’ in subsection (b) or (c) of this section, which is in

corporated by reference into this subsection (d), shall refer to the attainment date for Severe Areas. (e) Extreme Areas Each State in which all or part of an Extreme Area is located shall, with respect to the Ex

treme Area, make the submissions described under subsection (d) of this section (relating to Severe Areas), and shall also submit the revi

sions to the applicable implementation plan (in

cluding the plan items) described under this sub

section. The provisions of clause (ii) of sub

section (c)(2)(B) of this section (relating to re

ductions of less than 3 percent), the provisions of paragaphs 6 (6), (7) and (8) of subsection (c) of this section (relating to de minimus 7 rule and modification of sources), and the provisions of clause (ii) of subsection (b)(1)(A) of this section (relating to reductions of less than 15 percent) shall not apply in the case of an Extreme Area. For any Extreme Area, the terms ‘‘major source’’ and ‘‘major stationary source’’ in

cludes 8 (in addition to the sources described in section 7602 of this title) any stationary source or group of sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 10 tons per year of volatile organic compounds. (1) Offset requirement For purposes of satisfying the offset require

ments pursuant to this part, the ratio of total emission reductions of VOCs to total increased emissions of such air pollutant shall be at least 1.5 to 1, except that if the State plan re

quires all existing major sources in the non

attainment area to use best available control technology (as defined in section 7479(3) of this title) for the control of volatile organic com

pounds, the ratio shall be at least 1.2 to 1. (2) Modifications Any change (as described in section 7411(a)(4) of this title) at a major stationary source which results in any increase in emissions from any discrete operation, unit, or other pollutant emitting activity at the source shall be considered a modification for purposes of section 7502(c)(5) of this title and section 7503(a) of this title, except that for purposes of complying with the offset requirement pursu

ant to section 7503(a)(1) of this title, any such increase shall not be considered a modification if the owner or operator of the source elects to offset the increase by a greater reduction in emissions of the air pollutant concerned from other discrete operations, units, or activities within the source at an internal offset ratio of at least 1.3 to 1. The offset requirements of this part shall not be applicable in Extreme Areas to a modification of an existing source if such modification consists of installation of equipment required to comply with the appli

cable implementation plan, permit, or this chapter. (3) Use of clean fuels or advanced control tech

nology For Extreme Areas, a plan revision shall be submitted within 3 years after November 15, 1990, to require, effective 8 years after Novem

ber 15, 1990, that each new, modified, and exist

ing electric utility and industrial and com

mercial boiler which emits more than 25 tons per year of oxides of nitrogen— (A) burn as its primary fuel natural gas, methanol, or ethanol (or a comparably low polluting fuel), or (B) use advanced control technology (such as catalytic control technology or other comparably effective control methods) for reduction of emissions of oxides of nitrogen. For purposes of this subsection, the term ‘‘pri

mary fuel’’ means the fuel which is used 90 percent or more of the operating time. This paragraph shall not apply during any natural gas supply emergency (as defined in title III of the Natural Gas Policy Act of 1978 [15 U.S.C. 3361 et seq.]). (4) Traffic control measures during heavy traf

fic hours For Extreme Areas, each implementation plan revision under this subsection may con

tain provisions establishing traffic control measures applicable during heavy traffic hours to reduce the use of high polluting vehicles or heavy-duty vehicles, notwithstanding any other provision of law. (5) New technologies The Administrator may, in accordance with section 7410 of this title, approve provisions of an implementation plan for an Extreme Area which anticipate development of new controlPage 6334 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511a

techniques or improvement of existing control technologies, and an attainment demonstra

tion based on such provisions, if the State demonstrates to the satisfaction of the Ad

ministrator that— (A) such provisions are not necessary to achieve the incremental emission reductions required during the first 10 years after No

vember 15, 1990; and (B) the State has submitted enforceable commitments to develop and adopt contin

gency measures to be implemented as set forth herein if the anticipated technologies do not achieve planned reductions. Such contingency measures shall be submitted to the Administrator no later than 3 years be

fore proposed implementation of the plan pro

visions and approved or disapproved by the Ad

ministrator in accordance with section 7410 of this title. The contingency measures shall be adequate to produce emission reductions suffi

cient, in conjunction with other approved plan provisions, to achieve the periodic emission reductions required by subsection (b)(1) or (c)(2) of this section and attainment by the ap

plicable dates. If the Administrator deter

mines that an Extreme Area has failed to achieve an emission reduction requirement set forth in subsection (b)(1) or (c)(2) of this sec

tion, and that such failure is due in whole or part to an inability to fully implement provi

sions approved pursuant to this subsection, the Administrator shall require the State to implement the contingency measures to the extent necessary to assure compliance with subsections (b)(1) and (c)(2) of this section. Any reference to the term ‘‘attainment date’’ in subsection (b), (c), or (d) of this section which is incorporated by reference into this subsection, shall refer to the attainment date for Extreme Areas. (f) NO x requirements (1) The plan provisions required under this subpart for major stationary sources of volatile organic compounds shall also apply to major stationary sources (as defined in section 7602 of this title and subsections (c), (d), and (e) of this section) of oxides of nitrogen. This subsection shall not apply in the case of oxides of nitrogen for those sources for which the Administrator determines (when the Administrator approves a plan or plan revision) that net air quality bene

fits are greater in the absence of reductions of oxides of nitrogen from the sources concerned. This subsection shall also not apply in the case of oxides of nitrogen for— (A) nonattainment areas not within an ozone transport region under section 7511c of this title, if the Administrator determines (when the Administrator approves a plan or plan re

vision) that additional reductions of oxides of nitrogen would not contribute to attainment of the national ambient air quality standard for ozone in the area, or (B) nonattainment areas within such an ozone transport region if the Administrator determines (when the Administrator approves a plan or plan revision) that additional reduc

tions of oxides of nitrogen would not produce net ozone air quality benefits in such region. The Administrator shall, in the Administrator’s determinations, consider the study required under section 7511f of this title. (2)(A) If the Administrator determines that ex

cess reductions in emissions of NO x would be achieved under paragraph (1), the Administrator may limit the application of paragraph (1) to the extent necessary to avoid achieving such excess reductions. (B) For purposes of this paragraph, excess re

ductions in emissions of NO x are emission reduc

tions for which the Administrator determines that net air quality benefits are greater in the absence of such reductions. Alternatively, for purposes of this paragraph, excess reductions in emissions of NO x are, for— (i) nonattainment areas not within an ozone transport region under section 7511c of this title, emission reductions that the Adminis

trator determines would not contribute to at

tainment of the national ambient air quality standard for ozone in the area, or (ii) nonattainment areas within such ozone transport region, emission reductions that the Administrator determines would not produce net ozone air quality benefits in such region. (3) At any time after the final report under section 7511f of this title is submitted to Con

gress, a person may petition the Administrator for a determination under paragraph (1) or (2) with respect to any nonattainment area or any ozone transport region under section 7511c of this title. The Administrator shall grant or deny such petition within 6 months after its filing with the Administrator. (g) Milestones (1) Reductions in emissions 6 years after November 15, 1990, and at inter

vals of every 3 years thereafter, the State shall determine whether each nonattainment area (other than an area classified as Marginal or Moderate) has achieved a reduction in emis

sions during the preceding intervals equiva

lent to the total emission reductions required to be achieved by the end of such interval pur

suant to subsection (b)(1) of this section and the corresponding requirements of subsections (c)(2)(B) and (C), (d), and (e) of this section. Such reduction shall be referred to in this sec

tion as an applicable milestone. (2) Compliance demonstration
For each nonattainment area referred to in paragraph (1), not later than 90 days after the date on which an applicable milestone occurs (not including an attainment date on which a milestone occurs in cases where the standard has been attained), each State in which all or part of such area is located shall submit to the Administrator a demonstration that the mile

stone has been met. A demonstration under this paragraph shall be submitted in such form and manner, and shall contain such informa

tion and analysis, as the Administrator shall require, by rule. The Administrator shall de

termine whether or not a State’s demonstra

tion is adequate within 90 days after the Ad

ministrator’s receipt of a demonstration which contains the information and analysis required by the Administrator.Page 6335 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511a

(3) Serious and Severe Areas; State election
If a State fails to submit a demonstration under paragraph (2) for any Serious or Severe Area within the required period or if the Ad

ministrator determines that the area has not met any applicable milestone, the State shall elect, within 90 days after such failure or de

termination— (A) to have the area reclassified to the next higher classification, (B) to implement specific additional meas

ures adequate, as determined by the Admin

istrator, to meet the next milestone as pro

vided in the applicable contingency plan, or (C) to adopt an economic incentive pro

gram as described in paragraph (4). If the State makes an election under subpara

graph (B), the Administrator shall, within 90 days after the election, review such plan and shall, if the Administrator finds the contin

gency plan inadequate, require further meas

ures necessary to meet such milestone. Once the State makes an election, it shall be deemed accepted by the Administrator as meeting the election requirement. If the State fails to make an election required under this paragraph within the required 90-day period or within 6 months thereafter, the area shall be reclassified to the next higher classification by operation of law at the expiration of such 6-month period. Within 12 months after the date required for the State to make an elec

tion, the State shall submit a revision of the applicable implementation plan for the area that meets the requirements of this para

graph. The Administrator shall review such plan revision and approve or disapprove the re

vision within 9 months after the date of its submission. (4) Economic incentive program (A) An economic incentive program under this paragraph shall be consistent with rules published by the Administrator and sufficient, in combination with other elements of the State plan, to achieve the next milestone. The State program may include a nondiscrim

inatory system, consistent with applicable law regarding interstate commerce, of State estab

lished emissions fees or a system of market

able permits, or a system of State fees on sale or manufacture of products the use of which contributes to ozone formation, or any combi

nation of the foregoing or other similar meas

ures. The program may also include incentives and requirements to reduce vehicle emissions and vehicle miles traveled in the area, includ

ing any of the transportation control meas

ures identified in section 7408(f) of this title. (B) Within 2 years after November 15, 1990, the Administrator shall publish rules for the programs to be adopted pursuant to subpara

graph (A). Such rules shall include model plan provisions which may be adopted for reducing emissions from permitted stationary sources, area sources, and mobile sources. The guide

lines shall require that any revenues gen

erated by the plan provisions adopted pursu

ant to subparagraph (A) shall be used by the State for any of the following: (i) Providing incentives for achieving emission reductions. (ii) Providing assistance for the develop

ment of innovative technologies for the con

trol of ozone air pollution and for the devel

opment of lower-polluting solvents and sur

face coatings. Such assistance shall not pro

vide for the payment of more than 75 percent of either the costs of any project to develop such a technology or the costs of develop

ment of a lower-polluting solvent or surface coating. (iii) Funding the administrative costs of State programs under this chapter. Not more than 50 percent of such revenues may be used for purposes of this clause. (5) Extreme Areas
If a State fails to submit a demonstration under paragraph (2) for any Extreme Area within the required period, or if the Adminis

trator determines that the area has not met any applicable milestone, the State shall, within 9 months after such failure or deter

mination, submit a plan revision to implement an economic incentive program which meets the requirements of paragraph (4). The Admin

istrator shall review such plan revision and approve or disapprove the revision within 9 months after the date of its submission. (h) Rural transport areas (1) Notwithstanding any other provision of section 7511 of this title or this section, a State containing an ozone nonattainment area that does not include, and is not adjacent to, any part of a Metropolitan Statistical Area or, where one exists, a Consolidated Metropolitan Statistical Area (as defined by the United States Bureau of the Census), which area is treated by the Administrator, in the Administrator’s dis

cretion, as a rural transport area within the meaning of paragraph (2), shall be treated by op

eration of law as satisfying the requirements of this section if it makes the submissions required under subsection (a) of this section (relating to marginal areas). (2) The Administrator may treat an ozone non

attainment area as a rural transport area if the Administrator finds that sources of VOC (and, where the Administrator determines relevant, NO x ) emissions within the area do not make a significant contribution to the ozone concentra

tions measured in the area or in other areas. (i) Reclassified areas Each State containing an ozone nonattain

ment area reclassified under section 7511(b)(2) of this title shall meet such requirements of sub

sections (b) through (d) of this section as may be applicable to the area as reclassified, according to the schedules prescribed in connection with such requirements, except that the Adminis

trator may adjust any applicable deadlines (other than attainment dates) to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions. (j) Multi-State ozone nonattainment areas (1) Coordination among States Each State in which there is located a por

tion of a single ozone nonattainment area which covers more than one State (hereinafter in this section referred to as a ‘‘multi-State ozone nonattainment area’’) shall—Page 6336 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511b

(A) take all reasonable steps to coordinate, substantively and procedurally, the revi

sions and implementation of State imple

mentation plans applicable to the nonattain

ment area concerned; and (B) use photochemical grid modeling or any other analytical method determined by the Administrator, in his discretion, to be at least as effective. The Administrator may not approve any revi

sion of a State implementation plan submitted under this part for a State in which part of a multi-State ozone nonattainment area is lo

cated if the plan revision for that State fails to comply with the requirements of this sub

section. (2) Failure to demonstrate attainment If any State in which there is located a por

tion of a multi-State ozone nonattainment area fails to provide a demonstration of at

tainment of the national ambient air quality standard for ozone in that portion within the required period, the State may petition the Administrator to make a finding that the State would have been able to make such dem

onstration but for the failure of one or more other States in which other portions of the area are located to commit to the implemen

tation of all measures required under this sec

tion (relating to plan submissions and require

ments for ozone nonattainment areas). If the Administrator makes such finding, the provi

sions of section 7509 of this title (relating to sanctions) shall not apply, by reason of the failure to make such demonstration, in the portion of the multi-State ozone nonattain

ment area within the State submitting such petition. (July 14, 1955, ch. 360, title I, §182, as added Pub. L. 101–549, title I, §103, Nov. 15, 1990, 104 Stat. 2426; amended Pub. L. 104–70, §1, Dec. 23, 1995, 109 Stat. 773.)

R EFERENCES IN T EXT The Natural Gas Policy Act of 1978, referred to in sub

sec. (e)(3), is Pub. L. 95–621, Nov. 9, 1978, 92 Stat. 3350, as amended. Title III of the Act is classified generally to subchapter III (§3361 et seq.) of chapter 60 of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 3301 of Title 15 and Tables.

A MENDMENTS 1995—Subsec. (d)(1)(B). Pub. L. 104–70 amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘Within 2 years after November 15, 1990, the State shall submit a revision requiring employers in such area to implement programs to reduce work-relat

ed vehicle trips and miles traveled by employees. Such revision shall be developed in accordance with guidance issued by the Administrator pursuant to section 7408(f) of this title and shall, at a minimum, require that each employer of 100 or more persons in such area increase average passenger occupancy per vehicle in commuting trips between home and the workplace during peak travel periods by not less than 25 percent above the av

erage vehicle occupancy for all such trips in the area at the time the revision is submitted. The guidance of the Administrator may specify average vehicle occupancy rates which vary for locations within a nonattainment area (suburban, center city, business district) or among nonattainment areas reflecting existing occupancy rates and the availability of high occupancy modes. The revision shall provide that each employer subject to a vehicle occupancy requirement shall submit a compliance plan within 2 years after the date the revi

sion is submitted which shall convincingly dem

onstrate compliance with the requirements of this paragraph not later than 4 years after such date.’’

M ORATORIUM ON C ERTAIN E MISSIONS T ESTING

R EQUIREMENTS Pub. L. 104–59, title III, §348, Nov. 28, 1995, 109 Stat. 617, provided that: ‘‘(a) I N G ENERAL .—The Administrator of the Environ

mental Protection Agency (hereinafter in this section referred to as the ‘Administrator’) shall not require adoption or implementation by a State of a test-only I/ M240 enhanced vehicle inspection and maintenance pro

gram as a means of compliance with section 182 or 187 of the Clean Air Act (42 U.S.C. 7511a; 7512a), but the Ad

ministrator may approve such a program if a State chooses to adopt the program as a means of compliance with such section. ‘‘(b) L IMITATION ON P LAN D ISAPPROVAL .—The Admin

istrator shall not disapprove or apply an automatic dis

count to a State implementation plan revision under section 182 or 187 of the Clean Air Act (42 U.S.C. 7511a; 7512a) on the basis of a policy, regulation, or guidance providing for a discount of emissions credits because the inspection and maintenance program in such plan revision is decentralized or a test-and-repair program. ‘‘(c) E MISSIONS R EDUCTION C REDITS .— ‘‘(1) S TATE PLAN REVISION ; APPROVAL .—Within 120 days of the date of the enactment of this subsection [Nov. 28, 1995], a State may submit an implementa

tion plan revision proposing an interim inspection and maintenance program under section 182 or 187 of the Clean Air Act (42 U.S.C. 7511a; 7512a). The Admin

istrator shall approve the program based on the full amount of credits proposed by the State for each ele

ment of the program if the proposed credits reflect good faith estimates by the State and the revision is otherwise in compliance with such Act. If, within such 120-day period, the State submits to the Admin

istrator proposed revisions to the implementation plan, has all of the statutory authority necessary to implement the revisions, and has proposed a regula

tion to make the revisions, the Administrator may approve the revisions without regard to whether or not such regulation has been issued as a final regula

tion by the State. ‘‘(2) E XPIRATION OF INTERIM APPROVAL .—The interim approval shall expire on the earlier of (A) the last day of the 18-month period beginning on the date of the interim approval, or (B) the date of final approval. The interim approval may not be extended. ‘‘(3) F INAL APPROVAL .—The Administrator shall grant final approval of the revision based on the cred

its proposed by the State during or after the period of interim approval if data collected on the operation of the State program demonstrates that the credits are appropriate and the revision is otherwise in com

pliance with the Clean Air Act [42 U.S.C. 7401 et seq.]. ‘‘(4) B ASIS OF APPROVAL ; NO AUTOMATIC DISCOUNT .— Any determination with respect to interim or full ap

proval shall be based on the elements of the program and shall not apply any automatic discount because the program is decentralized or a test-and-repair pro

gram.’’
§ 7511b. Federal ozone measures (a) Control techniques guidelines for VOC

sources Within 3 years after November 15, 1990, the Ad

ministrator shall issue control techniques guide

lines, in accordance with section 7408 of this title, for 11 categories of stationary sources of VOC emissions for which such guidelines have not been issued as of November 15, 1990, not in

-Page 6337 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511b

cluding the categories referred to in paragraphs (3) and (4) of subsection (b) of this section. The Administrator may issue such additional con

trol techniques guidelines as the Administrator deems necessary. (b) Existing and new CTGS (1) Within 36 months after November 15, 1990, and periodically thereafter, the Administrator shall review and, if necessary, update control technique guidance issued under section 7408 of this title before November 15, 1990. (2) In issuing the guidelines the Administrator shall give priority to those categories which the Administrator considers to make the most sig

nificant contribution to the formation of ozone air pollution in ozone nonattainment areas, in

cluding hazardous waste treatment, storage, and disposal facilities which are permitted under subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.]. Thereafter the Adminis

trator shall periodically review and, if nec

essary, revise such guidelines. (3) Within 3 years after November 15, 1990, the Administrator shall issue control techniques guidelines in accordance with section 7408 of this title to reduce the aggregate emissions of volatile organic compounds into the ambient air from aerospace coatings and solvents. Such con

trol techniques guidelines shall, at a minimum, be adequate to reduce aggregate emissions of volatile organic compounds into the ambient air from the application of such coatings and sol

vents to such level as the Administrator deter

mines may be achieved through the adoption of best available control measures. Such control technology guidance shall provide for such re

ductions in such increments and on such sched

ules as the Administrator determines to be rea

sonable, but in no event later than 10 years after the final issuance of such control technology guidance. In developing control technology guid

ance under this subsection, the Administrator shall consult with the Secretary of Defense, the Secretary of Transportation, and the Adminis

trator of the National Aeronautics and Space Administration with regard to the establish

ment of specifications for such coatings. In eval

uating VOC reduction strategies, the guidance shall take into account the applicable require

ments of section 7412 of this title and the need to protect stratospheric ozone. (4) Within 3 years after November 15, 1990, the Administrator shall issue control techniques guidelines in accordance with section 7408 of this title to reduce the aggregate emissions of volatile organic compounds and PM–10 into the ambient air from paints, coatings, and solvents used in shipbuilding operations and ship repair. Such control techniques guidelines shall, at a minimum, be adequate to reduce aggregate emissions of volatile organic compounds and PM–10 into the ambient air from the removal or application of such paints, coatings, and sol

vents to such level as the Administrator deter

mines may be achieved through the adoption of the best available control measures. Such con

trol techniques guidelines shall provide for such reductions in such increments and on such schedules as the Administrator determines to be reasonable, but in no event later than 10 years after the final issuance of such control tech

nology guidance. In developing control tech

niques guidelines under this subsection, the Ad

ministrator shall consult with the appropriate Federal agencies. (c) Alternative control techniques Within 3 years after November 15, 1990, the Ad

ministrator shall issue technical documents which identify alternative controls for all cat

egories of stationary sources of volatile organic compounds and oxides of nitrogen which emit, or have the potential to emit 25 tons per year or more of such air pollutant. The Administrator shall revise and update such documents as the Administrator determines necessary. (d) Guidance for evaluating cost-effectiveness Within 1 year after November 15, 1990, the Ad

ministrator shall provide guidance to the States to be used in evaluating the relative cost-effec

tiveness of various options for the control of emissions from existing stationary sources of air pollutants which contribute to nonattain

ment of the national ambient air quality stand

ards for ozone.
(e) Control of emissions from certain sources
(1) Definitions For purposes of this subsection—
(A) Best available controls
The term ‘‘best available controls’’ means the degree of emissions reduction that the Administrator determines, on the basis of technological and economic feasibility, health, environmental, and energy impacts, is achievable through the application of the most effective equipment, measures, proc

esses, methods, systems or techniques, in

cluding chemical reformulation, product or feedstock substitution, repackaging, and di

rections for use, consumption, storage, or disposal. (B) Consumer or commercial product The term ‘‘consumer or commercial prod

uct’’ means any substance, product (includ

ing paints, coatings, and solvents), or article (including any container or packaging) held by any person, the use, consumption, stor

age, disposal, destruction, or decomposition of which may result in the release of volatile organic compounds. The term does not in

clude fuels or fuel additives regulated under section 7545 of this title, or motor vehicles, non-road vehicles, and non-road engines as defined under section 7550 of this title. (C) Regulated entities The term ‘‘regulated entities’’ means— (i) manufacturers, processors, wholesale distributors, or importers of consumer or commercial products for sale or distribu

tion in interstate commerce in the United States; or (ii) manufacturers, processors, wholesale distributors, or importers that supply the entities listed under clause (i) with such products for sale or distribution in inter

state commerce in the United States.Page 6338 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511b

(2) Study and report (A) Study The Administrator shall conduct a study of the emissions of volatile organic com

pounds into the ambient air from consumer and commercial products (or any combina

tion thereof) in order to— (i) determine their potential to contrib

ute to ozone levels which violate the na

tional ambient air quality standard for ozone; and (ii) establish criteria for regulating con

sumer and commercial products or classes or categories thereof which shall be sub

ject to control under this subsection. The study shall be completed and a report submitted to Congress not later than 3 years after November 15, 1990. (B) Consideration of certain factors In establishing the criteria under subpara

graph (A)(ii), the Administrator shall take into consideration each of the following: (i) The uses, benefits, and commercial demand of consumer and commercial prod

ucts. (ii) The health or safety functions (if any) served by such consumer and com

mercial products. (iii) Those consumer and commercial products which emit highly reactive vola

tile organic compounds into the ambient air. (iv) Those consumer and commercial products which are subject to the most cost-effective controls. (v) The availability of alternatives (if any) to such consumer and commercial products which are of comparable costs, considering health, safety, and environ

mental impacts. (3) Regulations to require emission reductions (A) In general Upon submission of the final report under paragraph (2), the Administrator shall list those categories of consumer or commercial products that the Administrator determines, based on the study, account for at least 80 percent of the VOC emissions, on a reactiv

ity-adjusted basis, from consumer or com

mercial products in areas that violate the NAAQS for ozone. Credit toward the 80 per

cent emissions calculation shall be given for emission reductions from consumer or com

mercial products made after November 15, 1990. At such time, the Administrator shall divide the list into 4 groups establishing pri

orities for regulation based on the criteria established in paragraph (2). Every 2 years after promulgating such list, the Adminis

trator shall regulate one group of categories until all 4 groups are regulated. The regula

tions shall require best available controls as defined in this section. Such regulations may exempt health use products for which the Administrator determines there is no suitable substitute. In order to carry out this section, the Administrator may, by reg

ulation, control or prohibit any activity, in

cluding the manufacture or introduction into commerce, offering for sale, or sale of any consumer or commercial product which results in emission of volatile organic com

pounds into the ambient air. (B) Regulated entities Regulations under this subsection may be imposed only with respect to regulated enti

ties. (C) Use of CTGS For any consumer or commercial product the Administrator may issue control tech

niques guidelines under this chapter in lieu of regulations required under subparagraph (A) if the Administrator determines that such guidance will be substantially as effec

tive as regulations in reducing emissions of volatile organic compounds which contrib

ute to ozone levels in areas which violate the national ambient air quality standard for ozone. (4) Systems of regulation The regulations under this subsection may include any system or systems of regulation as the Administrator may deem appropriate, in

cluding requirements for registration and la

beling, self-monitoring and reporting, prohibi

tions, limitations, or economic incentives (in

cluding marketable permits and auctions of emissions rights) concerning the manufacture, processing, distribution, use, consumption, or disposal of the product. (5) Special fund Any amounts collected by the Administrator under such regulations shall be deposited in a special fund in the United States Treasury for licensing and other services, which thereafter shall be available until expended, subject to annual appropriation Acts, solely to carry out the activities of the Administrator for which such fees, charges, or collections are estab

lished or made. (6) Enforcement Any regulation established under this sub

section shall be treated, for purposes of en

forcement of this chapter, as a standard under section 7411 of this title and any violation of such regulation shall be treated as a violation of a requirement of section 7411(e) of this title. (7) State administration Each State may develop and submit to the Administrator a procedure under State law for implementing and enforcing regulations pro

mulgated under this subsection. If the Admin

istrator finds the State procedure is adequate, the Administrator shall approve such proce

dure. Nothing in this paragraph shall prohibit the Administrator from enforcing any applica

ble regulations under this subsection. (8) Size, etc. No regulations regarding the size, shape, or labeling of a product may be promulgated, un

less the Administrator determines such regu

lations to be useful in meeting any national ambient air quality standard. (9) State consultation Any State which proposes regulations other than those adopted under this subsection shallPage 6339 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511b

1 So in original. Probably should be capitalized. consult with the Administrator regarding whether any other State or local subdivision has promulgated or is promulgating regula

tions on any products covered under this part. The Administrator shall establish a clearing

house of information, studies, and regulations proposed and promulgated regarding products covered under this subsection and disseminate such information collected as requested by State or local subdivisions. (f) Tank vessel standards (1) Schedule for standards (A) Within 2 years after November 15, 1990, the Administrator, in consultation with the Secretary of the Department in which the Coast Guard is operating, shall promulgate standards applicable to the emission of VOCs and any other air pollutant from loading and unloading of tank vessels (as that term is de

fined in section 2101 of title 46) which the Ad

ministrator finds causes, or contributes to, air pollution that may be reasonably anticipated to endanger public health or welfare. Such standards shall require the application of rea

sonably available control technology, consid

ering costs, any nonair-quality benefits, envi

ronmental impacts, energy requirements and safety factors associated with alternative con

trol techniques. To the extent practicable such standards shall apply to loading and un

loading facilities and not to tank vessels. (B) Any regulation prescribed under this subsection (and any revision thereof) shall take effect after such period as the Adminis

trator finds (after consultation with the Sec

retary of the department 1 in which the Coast Guard is operating) necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period, except that the effective date shall not be more than 2 years after promulgation of such regulations. (2) Regulations on equipment safety Within 6 months after November 15, 1990, the Secretary of the Department in which the Coast Guard is operating shall issue regula

tions to ensure the safety of the equipment and operations which are to control emissions from the loading and unloading of tank ves

sels, under section 3703 of title 46 and section 1225 of title 33. The standards promulgated by the Administrator under paragraph (1) and the regulations issued by a State or political sub

division regarding emissions from the loading and unloading of tank vessels shall be consist

ent with the regulations regarding safety of the Department in which the Coast Guard is operating. (3) Agency authority (A) The Administrator shall ensure compli

ance with the tank vessel emission standards prescribed under paragraph (1)(A). The Sec

retary of the Department in which the Coast Guard is operating shall also ensure compli

ance with the tank vessel standards prescribed under paragraph (1)(A). (B) The Secretary of the Department in which the Coast Guard is operating shall en

sure compliance with the regulations issued under paragraph (2). (4) State or local standards After the Administrator promulgates stand

ards under this section, no State or political subdivision thereof may adopt or attempt to enforce any standard respecting emissions from tank vessels subject to regulation under paragraph (1) unless such standard is no less stringent than the standards promulgated under paragraph (1). (5) Enforcement Any standard established under paragraph (1)(A) shall be treated, for purposes of enforce

ment of this chapter, as a standard under sec

tion 7411 of this title and any violation of such standard shall be treated as a violation of a re

quirement of section 7411(e) of this title. (g) Ozone design value study The Administrator shall conduct a study of whether the methodology in use by the Environ

mental Protection Agency as of November 15, 1990, for establishing a design value for ozone provides a reasonable indicator of the ozone air quality of ozone nonattainment areas. The Ad

ministrator shall obtain input from States, local subdivisions thereof, and others. The study shall be completed and a report submitted to Con

gress not later than 3 years after November 15, 1990. The results of the study shall be subject to peer and public review before submitting it to Congress. (h) Vehicles entering ozone nonattainment areas (1) Authority regarding ozone inspection and maintenance testing (A) In general No noncommercial motor vehicle reg

istered in a foreign country and operated by a United States citizen or by an alien who is a permanent resident of the United States, or who holds a visa for the purposes of em

ployment or educational study in the United States, may enter a covered ozone non

attainment area from a foreign country bor

dering the United States and contiguous to the nonattainment area more than twice in a single calendar-month period, if State law has requirements for the inspection and maintenance of such vehicles under the ap

plicable implementation plan in the non

attainment area. (B) Applicability Subparagraph (A) shall not apply if the op

erator presents documentation at the United States border entry point establishing that the vehicle has complied with such inspec

tion and maintenance requirements as are in effect and are applicable to motor vehicles of the same type and model year. (2) Sanctions for violations The President may impose and collect from the operator of any motor vehicle who vio

lates, or attempts to violate, paragraph (1) a civil penalty of not more than $200 for the sec

-Page 6340 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511c

ond violation or attempted violation and $400 for the third and each subsequent violation or attempted violation. (3) State election The prohibition set forth in paragraph (1) shall not apply in any State that elects to be exempt from the prohibition. Such an election shall take effect upon the President’s receipt of written notice from the Governor of the State notifying the President of such election. (4) Alternative approach The prohibition set forth in paragraph (1) shall not apply in a State, and the President may implement an alternative approach, if— (A) the Governor of the State submits to the President a written description of an al

ternative approach to facilitate the compli

ance, by some or all foreign-registered motor vehicles, with the motor vehicle in

spection and maintenance requirements that

are— (i) related to emissions of air pollutants; (ii) in effect under the applicable imple

mentation plan in the covered ozone non

attainment area; and (iii) applicable to motor vehicles of thesame types and model years as the foreignregistered motor vehicles; and (B) the President approves the alternative approach as facilitating compliance with the motor vehicle inspection and maintenance requirements referred to in subparagraph (A). (5) Definition of covered ozone nonattainment

area In this section, the term ‘‘covered ozone nonattainment area’’ means a Serious Area, as classified under section 7511 of this title as of October 27, 1998. (July 14, 1955, ch. 360, title I, §183, as added Pub. L. 101–549, title I, §103, Nov. 15, 1990, 104 Stat. 2443; amended Pub. L. 105–286, §2, Oct. 27, 1998, 112 Stat. 2773.)

R EFERENCES IN T EXT The Solid Waste Disposal Act, referred to in subsec. (b)(2), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94–580, §2, Oct. 21, 1976, 90 Stat. 2795. Subtitle C of the Act is classified generally to subchapter III (§6921 et seq.) of chapter 82 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables.

A MENDMENTS 1998—Subsec. (h). Pub. L. 105–286 added subsec. (h).

E FFECTIVE D ATE OF 1998 A MENDMENT ; P UBLICATION OF P ROHIBITION Pub. L. 105–286, §3, Oct. 27, 1998, 112 Stat. 2774, pro

vided that: ‘‘(a) I N G ENERAL .—The amendment made by section 2 [amending this section] takes effect 180 days after the date of the enactment of this Act [Oct. 27, 1998]. Noth

ing in that amendment shall require action that is in

consistent with the obligations of the United States under any international agreement. ‘‘(b) I NFORMATION .—As soon as practicable after the date of the enactment of this Act, the appropriate agency of the United States shall distribute informa

tion to publicize the prohibition set forth in the amend

ment made by section 2.’’

T RANSFER OF F UNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat

ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu

rity, and the Department of Homeland Security Reor

ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
§ 7511c. Control of interstate ozone air pollution (a) Ozone transport regions A single transport region for ozone (within the meaning of section 7506a(a) of this title), com

prised of the States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hamp

shire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and the Consolidated Metropolitan Statistical Area that includes the District of Columbia, is hereby established by operation of law. The provisions of section 7506a(a)(1) and (2) of this title shall apply with respect to the transport region established under this section and any other transport re

gion established for ozone, except to the extent inconsistent with the provisions of this section. The Administrator shall convene the commis

sion required (under section 7506a(b) of this title) as a result of the establishment of such re

gion within 6 months of November 15, 1990. (b) Plan provisions for States in ozone transport regions (1) In accordance with section 7410 of this title, not later than 2 years after November 15, 1990 (or 9 months after the subsequent inclusion of a State in a transport region established for ozone), each State included within a transport region established for ozone shall submit a State implementation plan or revision thereof to the Administrator which requires the following— (A) that each area in such State that is in an ozone transport region, and that is a metro

politan statistical area or part thereof with a population of 100,000 or more comply with the provisions of section 7511a(c)(2)(A) of this title (pertaining to enhanced vehicle inspection and maintenance programs); and (B) implementation of reasonably available control technology with respect to all sources of volatile organic compounds in the State covered by a control techniques guideline is

sued before or after November 15, 1990. (2) Within 3 years after November 15, 1990, the Administrator shall complete a study identify

ing control measures capable of achieving emis

sion reductions comparable to those achievable through vehicle refueling controls contained in section 7511a(b)(3) of this title, and such meas

ures or such vehicle refueling controls shall be implemented in accordance with the provisions of this section. Notwithstanding other deadlines in this section, the applicable implementation plan shall be revised to reflect such measures within 1 year of completion of the study. For purposes of this section any stationary source that emits or has the potential to emit at leastPage 6341 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511d

1 So in original. Probably should not be capitalized.

2 So in original. Probably should be ‘‘this’’. 50 tons per year of volatile organic compounds shall be considered a major stationary source and subject to the requirements which would be applicable to major stationary sources if the area were classified as a Moderate nonattain

ment area. (c) Additional control measures (1) Recommendations Upon petition of any State within a trans

port region established for ozone, and based on a majority vote of the Governors on the Com

mission 1 (or their designees), the Commission 1 may, after notice and opportunity for public comment, develop recommendations for addi

tional control measures to be applied within all or a part of such transport region if the commission determines such measures are necessary to bring any area in such region into attainment by the dates provided by this subpart. The commission shall transmit such recommendations to the Administrator. (2) Notice and review
Whenever the Administrator receives recom

mendations prepared by a commission pursu

ant to paragraph (1) (the date of receipt of which shall hereinafter in this section be re

ferred to as the ‘‘receipt date’’), the Adminis

trator shall— (A) immediately publish in the Federal Register a notice stating that the recom

mendations are available and provide an op

portunity for public hearing within 90 days beginning on the receipt date; and (B) commence a review of the recom

mendations to determine whether the con

trol measures in the recommendations are necessary to bring any area in such region into attainment by the dates provided by this subpart and are otherwise consistent with this chapter. (3) Consultation In undertaking the review required under paragraph (2)(B), the Administrator shall con

sult with members of the commission of the affected States and shall take into account the data, views, and comments received pursu

ant to paragraph (2)(A). (4) Approval and disapproval Within 9 months after the receipt date, the Administrator shall (A) determine whether to approve, disapprove, or partially disapprove and partially approve the recommendations; (B) notify the commission in writing of such approval, disapproval, or partial disapproval; and (C) publish such determination in the Fed

eral Register. If the Administrator dis

approves or partially disapproves the recom

mendations, the Administrator shall specify— (i) why any disapproved additional control measures are not necessary to bring any area in such region into attainment by the dates provided by this subpart or are other

wise not consistent with the 2 chapter; and (ii) recommendations concerning equal or more effective actions that could be taken by the commission to conform the dis

approved portion of the recommendations to the requirements of this section. (5) Finding Upon approval or partial approval of recom

mendations submitted by a commission, the Administrator shall issue to each State which is included in the transport region and to which a requirement of the approved plan ap

plies, a finding under section 7410(k)(5) of this title that the implementation plan for such State is inadequate to meet the requirements of section 7410(a)(2)(D) of this title. Such find

ing shall require each such State to revise its implementation plan to include the approved additional control measures within one year after the finding is issued. (d) Best available air quality monitoring and modeling For purposes of this section, not later than 6 months after November 15, 1990, the Adminis

trator shall promulgate criteria for purposes of determining the contribution of sources in one area to concentrations of ozone in another area which is a nonattainment area for ozone. Such criteria shall require that the best available air quality monitoring and modeling techniques be used for purposes of making such determina

tions. (July 14, 1955, ch. 360, title I, §184, as added Pub. L. 101–549, title I, §103, Nov. 15, 1990, 104 Stat. 2448.)

§ 7511d. Enforcement for Severe and Extreme ozone nonattainment areas for failure to at

tain
(a) General rule Each implementation plan revision required under section 7511a(d) and (e) of this title (relat

ing to the attainment plan for Severe and Ex

treme ozone nonattainment areas) shall provide that, if the area to which such plan revision ap

plies has failed to attain the national primary ambient air quality standard for ozone by the applicable attainment date, each major station

ary source of VOCs located in the area shall, ex

cept as otherwise provided under subsection (c) of this section, pay a fee to the State as a pen

alty for such failure, computed in accordance with subsection (b) of this section, for each cal

endar year beginning after the attainment date, until the area is redesignated as an attainment area for ozone. Each such plan revision should include procedures for assessment and collection of such fees. (b) Computation of fee (1) Fee amount The fee shall equal $5,000, adjusted in accord

ance with paragraph (3), per ton of VOC emit

ted by the source during the calendar year in excess of 80 percent of the baseline amount, computed under paragraph (2). (2) Baseline amount For purposes of this section, the baseline amount shall be computed, in accordance with such guidance as the Administrator may pro

vide, as the lower of the amount of actual VOCPage 6342 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511e

emissions (‘‘actuals’’) or VOC emissions al

lowed under the permit applicable to the source (or, if no such permit has been issued for the attainment year, the amount of VOC emissions allowed under the applicable imple

mentation plan (‘‘allowables’’)) during the at

tainment year. Notwithstanding the preceding sentence, the Administrator may issue guid

ance authorizing the baseline amount to be de

termined in accordance with the lower of aver

age actuals or average allowables, determined over a period of more than one calendar year. Such guidance may provide that such average calculation for a specific source may be used if that source’s emissions are irregular, cyclical, or otherwise vary significantly from year to
year. (3) Annual adjustment The fee amount under paragraph (1) shall be adjusted annually, beginning in the year be

ginning after 1990, in accordance with section 7661a(b)(3)(B)(v) of this title (relating to infla

tion adjustment). (c) Exception Notwithstanding any provision of this section, no source shall be required to pay any fee under subsection (a) of this section with respect to emissions during any year that is treated as an Extension Year under section 7511(a)(5) of this title. (d) Fee collection by Administrator
If the Administrator has found that the fee provisions of the implementation plan do not meet the requirements of this section, or if the Administrator makes a finding that the State is not administering and enforcing the fee required under this section, the Administrator shall, in addition to any other action authorized under this subchapter, collect, in accordance with pro

cedures promulgated by the Administrator, the unpaid fees required under subsection (a) of this section. If the Administrator makes such a find

ing under section 7509(a)(4) of this title, the Ad

ministrator may collect fees for periods before the determination, plus interest computed in ac

cordance with section 6621(a)(2) of title 26 (relat

ing to computation of interest on underpayment of Federal taxes), to the extent the Adminis

trator finds such fees have not been paid to the State. The provisions of clauses (ii) through (iii) of section 7661a(b)(3)(C) of this title (relating to penalties and use of the funds, respectively) shall apply with respect to fees collected under this subsection. (e) Exemptions for certain small areas For areas with a total population under 200,000 which fail to attain the standard by the applica

ble attainment date, no sanction under this sec

tion or under any other provision of this chapter shall apply if the area can demonstrate, consist

ent with guidance issued by the Administrator, that attainment in the area is prevented be

cause of ozone or ozone precursors transported from other areas. The prohibition applies only in cases in which the area has met all require

ments and implemented all measures applicable to the area under this chapter. (July 14, 1955, ch. 360, title I, §185, as added Pub. L. 101–549, title I, §103, Nov. 15, 1990, 104 Stat. 2450.)

§ 7511e. Transitional areas
If an area designated as an ozone nonattain

ment area as of November 15, 1990, has not vio

lated the national primary ambient air quality standard for ozone for the 36-month period com

mencing on January 1, 1987, and ending on De

cember 31, 1989, the Administrator shall suspend the application of the requirements of this sub

part to such area until December 31, 1991. By June 30, 1992, the Administrator shall determine by order, based on the area’s design value as of the attainment date, whether the area attained such standard by December 31, 1991. If the Ad

ministrator determines that the area attained the standard, the Administrator shall require, as part of the order, the State to submit a mainte

nance plan for the area within 12 months of such determination. If the Administrator determines that the area failed to attain the standard, the Administrator shall, by June 30, 1992, designate the area as nonattainment under section 7407(d)(4) of this title. (July 14, 1955, ch. 360, title I, §185A, as added Pub. L. 101–549, title I, §103, Nov. 15, 1990, 104 Stat. 2451.)

§ 7511f. NO x and VOC study
The Administrator, in conjunction with the National Academy of Sciences, shall conduct a study on the role of ozone precursors in tropo

spheric ozone formation and control. The study shall examine the roles of NO x and VOC emission reductions, the extent to which NO x reductions may contribute (or be counterproductive) to achievement of attainment in different non

attainment areas, the sensitivity of ozone to the control of NO x , the availability and extent of controls for NO x , the role of biogenic VOC emis

sions, and the basic information required for air quality models. The study shall be completed and a proposed report made public for 30 days comment within 1 year of November 15, 1990, and a final report shall be submitted to Congress within 15 months after November 15, 1990. The Administrator shall utilize all available infor

mation and studies, as well as develop addi

tional information, in conducting the study re

quired by this section. (July 14, 1955, ch. 360, title I, §185B, as added Pub. L. 101–549, title I, §103, Nov. 15, 1990, 104 Stat. 2452.)

SUBPART 3

— ADDITIONAL PROVISIONS FOR CARBON

MONOXIDE NONATTAINMENT AREAS
§ 7512. Classification and attainment dates (a) Classification by operation of law and attain

ment dates for nonattainment areas (1) Each area designated nonattainment for carbon monoxide pursuant to section 7407(d) of this title shall be classified at the time of such designation under table 1, by operation of law, as a Moderate Area or a Serious Area based on the design value for the area. The design value shall be calculated according to the interpreta

-Page 6343 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7512a

1 So in original. Probably should be ‘‘TABLE 1’’. tion methodology issued by the Administrator most recently before November 15, 1990. For each area classified under this subsection, the primary standard attainment date for carbon monoxide shall be as expeditiously as prac

ticable but not later than the date provided in table 1:

TABLE 3 1

Area classification Design value Primary standard attainment date

Moderate

......... 9.1–16.4 ppm

....... December 31, 1995 Serious

............. 16.5 and above

... December 31, 2000

(2) At the time of publication of the notice re

quired under section 7407 of this title (designat

ing carbon monoxide nonattainment areas), the Administrator shall publish a notice announcing the classification of each such carbon monoxide nonattainment area. The provisions of section 7502(a)(1)(B) of this title (relating to lack of no

tice-and-comment and judicial review) shall apply with respect to such classification. (3) If an area classified under paragraph (1), table 1, would have been classified in another category if the design value in the area were 5 percent greater or 5 percent less than the level on which such classification was based, the Ad

ministrator may, in the Administrator’s discre

tion, within 90 days after November 15, 1990, by the procedure required under paragraph (2), ad

just the classification of the area. In making such adjustment, the Administrator may con

sider the number of exceedances of the national primary ambient air quality standard for carbon monoxide in the area, the level of pollution transport between the area and the other af

fected areas, and the mix of sources and air pol

lutants in the area. The Administrator may make the same adjustment for purposes of para

graphs (2), (3), (6), and (7) of section 7512a(a) of this title. (4) Upon application by any State, the Admin

istrator may extend for 1 additional year (here

inafter in this subpart referred to as the ‘‘Exten

sion Year’’) the date specified in table 1 of sub

section (a) of this section if— (A) the State has complied with all require

ments and commitments pertaining to the area in the applicable implementation plan, and (B) no more than one exceedance of the na

tional ambient air quality standard level for carbon monoxide has occurred in the area in the year preceding the Extension Year. No more than 2 one-year extensions may be is

sued under this paragraph for a single non

attainment area. (b) New designations and reclassifications (1) New designations to nonattainment Any area that is designated attainment or unclassifiable for carbon monoxide under sec

tion 7407(d)(4) of this title, and that is subse

quently redesignated to nonattainment for carbon monoxide under section 7407(d)(3) of this title, shall, at the time of the redesigna

tion, be classified by operation of law in ac

cordance with table 1 under subsections (a)(1) and (a)(4) of this section. Upon its classifica

tion, the area shall be subject to the same re

quirements under section 7410 of this title, subpart 1 of this part, and this subpart that would have applied had the area been so classi

fied at the time of the notice under subsection (a)(2) of this section, except that any absolute, fixed date applicable in connection with any such requirement is extended by operation of law by a period equal to the length of time be

tween November 15, 1990, and the date the area is classified. (2) Reclassification of Moderate Areas upon failure to attain (A) General rule Within 6 months following the applicable attainment date for a carbon monoxide non

attainment area, the Administrator shall de

termine, based on the area’s design value as of the attainment date, whether the area has attained the standard by that date. Any Moderate Area that the Administrator finds has not attained the standard by that date shall be reclassified by operation of law in accordance with table 1 of subsection (a)(1) of this section as a Serious Area. (B) Publication of notice The Administrator shall publish a notice in the Federal Register, no later than 6 months following the attainment date, iden

tifying each area that the Administrator has determined, under subparagraph (A), as hav

ing failed to attain and identifying the re

classification, if any, described under sub

paragraph (A). (c) References to terms Any reference in this subpart to a ‘‘Moderate Area’’ or a ‘‘Serious Area’’ shall be considered a reference to a Moderate Area or a Serious Area, respectively, as classified under this section. (July 14, 1955, ch. 360, title I, §186, as added Pub. L. 101–549, title I, §104, Nov. 15, 1990, 104 Stat. 2452.) § 7512a. Plan submissions and requirements (a) Moderate Areas Each State in which all or part of a Moderate Area is located shall, with respect to the Mod

erate Area (or portion thereof, to the extent specified in guidance of the Administrator is

sued before November 15, 1990), submit to the Administrator the State implementation plan revisions (including the plan items) described under this subsection, within such periods as are prescribed under this subsection, except to the extent the State has made such submissions as of November 15, 1990: (1) Inventory No later than 2 years from November 15, 1990, the State shall submit a comprehensive, accurate, current inventory of actual emis

sions from all sources, as described in section 7502(c)(3) of this title, in accordance with guid

ance provided by the Administrator. (2)(A) Vehicle miles traveled No later than 2 years after November 15, 1990, for areas with a design value above 12.7Page 6344 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7512a

1 So in original. Subsec. (a)(1) of this section does not contain a subpar. (B). ppm at the time of classification, the plan re

vision shall contain a forecast of vehicle miles traveled in the nonattainment area concerned for each year before the year in which the plan projects the national ambient air quality standard for carbon monoxide to be attained in the area. The forecast shall be based on guidance which shall be published by the Ad

ministrator, in consultation with the Sec

retary of Transportation, within 6 months after November 15, 1990. The plan revision shall provide for annual updates of the fore

casts to be submitted to the Administrator to

gether with annual reports regarding the ex

tent to which such forecasts proved to be accu

rate. Such annual reports shall contain esti

mates of actual vehicle miles traveled in each year for which a forecast was required. (B) Special rule for Denver Within 2 years after November 15, 1990, in the case of Denver, the State shall submit a revision that includes the transportation con

trol measures as required in section 7511a(d)(1)(A) of this title except that such re

vision shall be for the purpose of reducing CO emissions rather than volatile organic com

pound emissions. If the State fails to include any such measure, the implementation plan shall contain an explanation of why such measure was not adopted and what emissions reduction measure was adopted to provide a comparable reduction in emissions, or reasons why such reduction is not necessary to attain the national primary ambient air quality standard for carbon monoxide. (3) Contingency provisions No later than 2 years after November 15, 1990, for areas with a design value above 12.7 ppm at the time of classification, the plan re

vision shall provide for the implementation of specific measures to be undertaken if any esti

mate of vehicle miles traveled in the area which is submitted in an annual report under paragraph (2) exceeds the number predicted in the most recent prior forecast or if the area fails to attain the national primary ambient air quality standard for carbon monoxide by the primary standard attainment date. Such measures shall be included in the plan revision as contingency measures to take effect with

out further action by the State or the Admin

istrator if the prior forecast has been exceeded by an updated forecast or if the national standard is not attained by such deadline. (4) Savings clause for vehicle inspection and maintenance provisions of the State imple

mentation plan Immediately after November 15, 1990, for any Moderate Area (or, within the Administrator’s discretion, portion thereof), the plan for which is of the type described in section 7511a(a)(2)(B) of this title any provisions nec

essary to ensure that the applicable imple

mentation plan includes the vehicle inspection and maintenance program described in section 7511a(a)(2)(B) of this title. (5) Periodic inventory No later than September 30, 1995, and no later than the end of each 3 year period there

after, until the area is redesignated to attain

ment, a revised inventory meeting the require

ments of subsection (a)(1) of this section. (6) Enhanced vehicle inspection and mainte

nance No later than 2 years after November 15, 1990, in the case of Moderate Areas with a de

sign value greater than 12.7 ppm at the time of classification, a revision that includes provi

sions for an enhanced vehicle inspection and maintenance program as required in section 7511a(c)(3) of this title (concerning serious ozone nonattainment areas), except that such program shall be for the purpose of reducing carbon monoxide rather than hydrocarbon emissions. (7) Attainment demonstration and specific an

nual emission reductions In the case of Moderate Areas with a design value greater than 12.7 ppm at the time of classification, no later than 2 years after No

vember 15, 1990, a revision to provide, and a demonstration that the plan as revised will provide, for attainment of the carbon mon

oxide NAAQS by the applicable attainment date and provisions for such specific annual emission reductions as are necessary to attain the standard by that date. The Administrator may, in the Administrator’s discretion, require States to submit a schedule for submitting any of the revisions or other items required under this subsection. In the case of Moderate Areas with a design value of 12.7 ppm or lower at the time of classification, the requirements of this subsection shall apply in lieu of any requirement that the State submit a demonstration that the applicable implementa

tion plan provides for attainment of the carbon monoxide standard by the applicable attainment date. (b) Serious Areas (1) In general Each State in which all or part of a Serious Area is located shall, with respect to the Seri

ous Area, make the submissions (other than those required under subsection (a)(1)(B) 1 of this section) applicable under subsection (a) of this section to Moderate Areas with a design value of 12.7 ppm or greater at the time of classification, and shall also submit the revi

sion and other items described under this sub

section. (2) Vehicle miles traveled Within 2 years after November 15, 1990, the State shall submit a revision that includes the transportation control measures as required in section 7511a(d)(1) of this title except that such revision shall be for the purpose of reduc

ing CO emissions rather than volatile organic compound emissions. In the case of any such area (other than an area in New York State) which is a covered area (as defined in section 7586(a)(2)(B) of this title) for purposes of the Clean Fuel Fleet program under part C of sub

chapter II of this chapter, if the State fails toPage 6345 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7512a

include any such measure, the implementation plan shall contain an explanation of why such measure was not adopted and what emissions reduction measure was adopted to provide a comparable reduction in emissions, or reasons why such reduction is not necessary to attain the national primary ambient air quality standard for carbon monoxide. (3) Oxygenated gasoline (A) Within 2 years after November 15, 1990, the State shall submit a revision to require that gasoline sold, supplied, offered for sale or supply, dispensed, transported or introduced into commerce in the larger of— (i) the Consolidated Metropolitan Statis

tical Area (as defined by the United States Office of Management and Budget) (CMSA) in which the area is located, or (ii) if the area is not located in a CMSA, the Metropolitan Statistical Area (as de

fined by the United States Office of Manage

ment and Budget) in which the area is lo

cated, be blended, during the portion of the year in which the area is prone to high ambient con

centrations of carbon monoxide (as deter

mined by the Administrator), with fuels con

taining such level of oxygen as is necessary, in combination with other measures, to provide for attainment of the carbon monoxide na

tional ambient air quality standard by the ap

plicable attainment date and maintenance of the national ambient air quality standard thereafter in the area. The revision shall pro

vide that such requirement shall take effect no later than October 1, 1993, and shall include a program for implementation and enforce

ment of the requirement consistent with guid

ance to be issued by the Administrator. (B) Notwithstanding subparagraph (A), the revision described in this paragraph shall not be required for an area if the State dem

onstrates to the satisfaction of the Adminis

trator that the revision is not necessary to provide for attainment of the carbon monoxide national ambient air quality standard by the applicable attainment date and maintenance of the national ambient air quality standard thereafter in the area. (c) Areas with significant stationary source emis

sions of CO (1) Serious Areas
In the case of Serious Areas in which sta

tionary sources contribute significantly to carbon monoxide levels (as determined under rules issued by the Administrator), the State shall submit a plan revision within 2 years after November 15, 1990, which provides that the term ‘‘major stationary source’’ includes (in addition to the sources described in section 7602 of this title) any stationary source which emits, or has the potential to emit, 50 tons per year or more of carbon monoxide. (2) Waivers for certain areas The Administrator may, on a case-by-case basis, waive any requirements that pertain to transportation controls, inspection and main

tenance, or oxygenated fuels where the Ad

ministrator determines by rule that mobile sources of carbon monoxide do not contribute significantly to carbon monoxide levels in the

area. (3) Guidelines Within 6 months after November 15, 1990, the Administrator shall issue guidelines for and rules determining whether stationary sources contribute significantly to carbon monoxide levels in an area. (d) CO milestone (1) Milestone demonstration By March 31, 1996, each State in which all or part of a Serious Area is located shall submit to the Administrator a demonstration that the area has achieved a reduction in emissions of CO equivalent to the total of the specific an

nual emission reductions required by Decem

ber 31, 1995. Such reductions shall be referred to in this subsection as the milestone. (2) Adequacy of demonstration A demonstration under this paragraph shall be submitted in such form and manner, and shall contain such information and analysis, as the Administrator shall require. The Ad

ministrator shall determine whether or not a State’s demonstration is adequate within 90 days after the Administrator’s receipt of a demonstration which contains the information and analysis required by the Administrator. (3) Failure to meet emission reduction mile

stone
If a State fails to submit a demonstration under paragraph (1) within the required period, or if the Administrator notifies the State that the State has not met the milestone, the State shall, within 9 months after such a failure or notification, submit a plan revision to imple

ment an economic incentive and transpor

tation control program as described in section 7511a(g)(4) of this title. Such revision shall be sufficient to achieve the specific annual reduc

tions in carbon monoxide emissions set forth in the plan by the attainment date. (e) Multi-State CO nonattainment areas (1) Coordination among States Each State in which there is located a por

tion of a single nonattainment area for carbon monoxide which covers more than one State (‘‘multi-State nonattainment area’’) shall take all reasonable steps to coordinate, sub

stantively and procedurally, the revisions and implementation of State implementation plans applicable to the nonattainment area concerned. The Administrator may not ap

prove any revision of a State implementation plan submitted under this part for a State in which part of a multi-State nonattainment area is located if the plan revision for that State fails to comply with the requirements of this subsection. (2) Failure to demonstrate attainment If any State in which there is located a por

tion of a multi-State nonattainment area fails to provide a demonstration of attainment of the national ambient air quality standard forPage 6346 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7513

carbon monoxide in that portion within the period required under this part the State may petition the Administrator to make a finding that the State would have been able to make such demonstration but for the failure of one or more other States in which other portions of the area are located to commit to the im

plementation of all measures required under this section (relating to plan submissions for carbon monoxide nonattainment areas). If the Administrator makes such finding, in the por

tion of the nonattainment area within the State submitting such petition, no sanction shall be imposed under section 7509 of this title or under any other provision of this chap

ter, by reason of the failure to make such demonstration. (f) Reclassified areas Each State containing a carbon monoxide non

attainment area reclassified under section 7512(b)(2) of this title shall meet the require

ments of subsection (b) of this section, as may be applicable to the area as reclassified, accord

ing to the schedules prescribed in connection with such requirements, except that the Admin

istrator may adjust any applicable deadlines (other than the attainment date) where such deadlines are shown to be infeasible. (g) Failure of Serious Area to attain standard
If the Administrator determines under section 7512(b)(2) of this title that the national primary ambient air quality standard for carbon mon

oxide has not been attained in a Serious Area by the applicable attainment date, the State shall submit a plan revision for the area within 9 months after the date of such determination. The plan revision shall provide that a program of incentives and requirements as described in section 7511a(g)(4) of this title shall be applica

ble in the area, and such program, in combina

tion with other elements of the revised plan, shall be adequate to reduce the total tonnage of emissions of carbon monoxide in the area by at least 5 percent per year in each year after ap

proval of the plan revision and before attain

ment of the national primary ambient air qual

ity standard for carbon monoxide. (July 14, 1955, ch. 360, title I, §187, as added Pub. L. 101–549, title I, §104, Nov. 15, 1990, 104 Stat. 2454.)

M ORATORIUM ON C ERTAIN E MISSIONS T ESTING

R EQUIREMENTS For provisions prohibiting Administrator of Environ

mental Protection Agency from requiring adoption or implementation by State of test-only I/M240 enhanced vehicle inspection and maintenance program as means of compliance with this section, with further provisions relating to plan disapproval and emissions reduction credits, see section 348 of Pub. L. 104–59, set out as a note under section 7511a of this title.

SUBPART 4

— ADDITIONAL PROVISIONS FOR PARTICULATE MATTER NONATTAINMENT AREAS
§ 7513. Classifications and attainment dates (a) Initial classifications Every area designated nonattainment for PM–10 pursuant to section 7407(d) of this title shall be classified at the time of such designa

tion, by operation of law, as a moderate PM–10 nonattainment area (also referred to in this sub

part as a ‘‘Moderate Area’’) at the time of such designation. At the time of publication of the notice under section 7407(d)(4) of this title (re

lating to area designations) for each PM–10 non

attainment area, the Administrator shall pub

lish a notice announcing the classification of such area. The provisions of section 7502(a)(1)(B) of this title (relating to lack of notice-and-com

ment and judicial review) shall apply with re

spect to such classification. (b) Reclassification as Serious (1) Reclassification before attainment date The Administrator may reclassify as a Seri

ous PM–10 nonattainment area (identified in this subpart also as a ‘‘Serious Area’’) any area that the Administrator determines can

not practicably attain the national ambient air quality standard for PM–10 by the attain

ment date (as prescribed in subsection (c) of this section) for Moderate Areas. The Admin

istrator shall reclassify appropriate areas as Serious by the following dates: (A) For areas designated nonattainment for PM–10 under section 7407(d)(4) of this title, the Administrator shall propose to re

classify appropriate areas by June 30, 1991, and take final action by December 31, 1991. (B) For areas subsequently designated non

attainment, the Administrator shall reclas

sify appropriate areas within 18 months after the required date for the State’s submission of a SIP for the Moderate Area. (2) Reclassification upon failure to attain Within 6 months following the applicable at

tainment date for a PM–10 nonattainment area, the Administrator shall determine whether the area attained the standard by that date. If the Administrator finds that any Moderate Area is not in attainment after the applicable attainment date— (A) the area shall be reclassified by oper

ation of law as a Serious Area; and (B) the Administrator shall publish a no

tice in the Federal Register no later than 6 months following the attainment date, iden

tifying the area as having failed to attain and identifying the reclassification de

scribed under subparagraph (A). (c) Attainment dates Except as provided under subsection (d) of this section, the attainment dates for PM–10 non

attainment areas shall be as follows: (1) Moderate Areas For a Moderate Area, the attainment date shall be as expeditiously as practicable but no later than the end of the sixth calendar year after the area’s designation as nonattainment, except that, for areas designated nonattain

ment for PM–10 under section 7407(d)(4) of this title, the attainment date shall not extend be

yond December 31, 1994. (2) Serious Areas For a Serious Area, the attainment date shall be as expeditiously as practicable but no later than the end of the tenth calendar yearPage 6347 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7513a

1 So in original. Probably should be ‘‘subsection’’. 1 So in original. Probably should be ‘‘subsection’’. beginning after the area’s designation as non

attainment, except that, for areas designated nonattainment for PM–10 under section 7407(d)(4) of this title, the date shall not ex

tend beyond December 31, 2001. (d) Extension of attainment date for Moderate Areas Upon application by any State, the Adminis

trator may extend for 1 additional year (herein

after referred to as the ‘‘Extension Year’’) the date specified in paragraph 1 (c)(1) if— (1) the State has complied with all require

ments and commitments pertaining to the area in the applicable implementation plan; and (2) no more than one exceedance of the 24- hour national ambient air quality standard level for PM–10 has occurred in the area in the year preceding the Extension Year, and the annual mean concentration of PM–10 in the area for such year is less than or equal to the standard level. No more than 2 one-year extensions may be is

sued under the subsection for a single nonattain

ment area. (e) Extension of attainment date for Serious Areas Upon application by any State, the Adminis

trator may extend the attainment date for a Se

rious Area beyond the date specified under sub

section (c) of this section, if attainment by the date established under subsection (c) of this sec

tion would be impracticable, the State has com

plied with all requirements and commitments pertaining to that area in the implementation plan, and the State demonstrates to the satis

faction of the Administrator that the plan for that area includes the most stringent measures that are included in the implementation plan of any State or are achieved in practice in any State, and can feasibly be implemented in the area. At the time of such application, the State must submit a revision to the implementation plan that includes a demonstration of attain

ment by the most expeditious alternative date practicable. In determining whether to grant an extension, and the appropriate length of time for any such extension, the Administrator may consider the nature and extent of nonattain

ment, the types and numbers of sources or other emitting activities in the area (including the in

fluence of uncontrollable natural sources and transboundary emissions from foreign coun

tries), the population exposed to concentrations in excess of the standard, the presence and con

centration of potentially toxic substances in the mix of particulate emissions in the area, and the technological and economic feasibility of var

ious control measures. The Administrator may not approve an extension until the State sub

mits an attainment demonstration for the area. The Administrator may grant at most one such extension for an area, of no more than 5 years. (f) Waivers for certain areas The Administrator may, on a case-by-case basis, waive any requirement applicable to any Serious Area under this subpart where the Ad

ministrator determines that anthropogenic sources of PM–10 do not contribute significantly to the violation of the PM–10 standard in the area. The Administrator may also waive a spe

cific date for attainment of the standard where the Administrator determines that non

anthropogenic sources of PM–10 contribute sig

nificantly to the violation of the PM–10 stand

ard in the area. (July 14, 1955, ch. 360, title I, §188, as added Pub. L. 101–549, title I, §105(a), Nov. 15, 1990, 104 Stat. 2458.)
§ 7513a. Plan provisions and schedules for plan submissions (a) Moderate Areas (1) Plan provisions Each State in which all or part of a Mod

erate Area is located shall submit, according to the applicable schedule under paragraph (2), an implementation plan that includes each of the following: (A) For the purpose of meeting the re

quirements of section 7502(c)(5) of this title, a permit program providing that permits meeting the requirements of section 7503 of this title are required for the construction and operation of new and modified major stationary sources of PM–10. (B) Either (i) a demonstration (including air quality modeling) that the plan will pro

vide for attainment by the applicable attain

ment date; or (ii) a demonstration that at

tainment by such date is impracticable. (C) Provisions to assure that reasonably available control measures for the control of PM–10 shall be implemented no later than December 10, 1993, or 4 years after designa

tion in the case of an area classified as mod

erate after November 15, 1990. (2) Schedule for plan submissions A State shall submit the plan required under subparagraph (1) no later than the following: (A) Within 1 year of November 15, 1990, for areas designated nonattainment under sec

tion 7407(d)(4) of this title, except that the provision required under subparagraph (1)(A) shall be submitted no later than June 30, 1992. (B) 18 months after the designation as non

attainment, for those areas designated non

attainment after the designations prescribed under section 7407(d)(4) of this title. (b) Serious Areas (1) Plan provisions In addition to the provisions submitted to meet the requirements of paragraph 1 (a)(1) (re

lating to Moderate Areas), each State in which all or part of a Serious Area is located shall submit an implementation plan for such area that includes each of the following: (A) A demonstration (including air quality modeling)— (i) that the plan provides for attainment of the PM–10 national ambient air qualityPage 6348 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7513b

standard by the applicable attainment date, or (ii) for any area for which the State is seeking, pursuant to section 7513(e) of this title, an extension of the attainment date beyond the date set forth in section 7513(c) of this title, that attainment by that date would be impracticable, and that the plan provides for attainment by the most expe

ditious alternative date practicable. (B) Provisions to assure that the best available control measures for the control of PM–10 shall be implemented no later than 4 years after the date the area is classified (or reclassified) as a Serious Area. (2) Schedule for plan submissions
A State shall submit the demonstration re

quired for an area under paragraph (1)(A) no later than 4 years after reclassification of the area to Serious, except that for areas reclassi

fied under section 7513(b)(2) of this title, the State shall submit the attainment demonstra

tion within 18 months after reclassification to Serious. A State shall submit the provisions described under paragraph (1)(B) no later than 18 months after reclassification of the area as a Serious Area. (3) Major sources For any Serious Area, the terms ‘‘major source’’ and ‘‘major stationary source’’ in

clude any stationary source or group of sta

tionary sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 70 tons per year of PM–10. (c) Milestones (1) Plan revisions demonstrating attainment submitted to the Administrator for approval under this subpart shall contain quantitative milestones which are to be achieved every 3 years until the area is redesignated attainment and which demonstrate reasonable further progress, as defined in section 7501(1) of this title, toward attainment by the applicable date. (2) Not later than 90 days after the date on which a milestone applicable to the area occurs, each State in which all or part of such area is located shall submit to the Administrator a demonstration that all measures in the plan ap

proved under this section have been imple

mented and that the milestone has been met. A demonstration under this subsection shall be submitted in such form and manner, and shall contain such information and analysis, as the Administrator shall require. The Administrator shall determine whether or not a State’s dem

onstration under this subsection is adequate within 90 days after the Administrator’s receipt of a demonstration which contains the informa

tion and analysis required by the Administrator. (3) If a State fails to submit a demonstration under paragraph (2) with respect to a milestone within the required period or if the Adminis

trator determines that the area has not met any applicable milestone, the Administrator shall require the State, within 9 months after such failure or determination to submit a plan revi

sion that assures that the State will achieve the next milestone (or attain the national ambient air quality standard for PM–10, if there is no next milestone) by the applicable date. (d) Failure to attain
In the case of a Serious PM–10 nonattainment area in which the PM–10 standard is not at

tained by the applicable attainment date, the State in which such area is located shall, after notice and opportunity for public comment, sub

mit within 12 months after the applicable at

tainment date, plan revisions which provide for attainment of the PM–10 air quality standard and, from the date of such submission until at

tainment, for an annual reduction in PM–10 or PM–10 precursor emissions within the area of not less than 5 percent of the amount of such emissions as reported in the most recent inven

tory prepared for such area. (e) PM–10 precursors The control requirements applicable under plans in effect under this part for major station

ary sources of PM–10 shall also apply to major stationary sources of PM–10 precursors, except where the Administrator determines that such sources do not contribute significantly to PM–10 levels which exceed the standard in the area. The Administrator shall issue guidelines regard

ing the application of the preceding sentence. (July 14, 1955, ch. 360, title I, §189, as added Pub. L. 101–549, title I, §105(a), Nov. 15, 1990, 104 Stat. 2460.)
§ 7513b. Issuance of RACM and BACM guidance
The Administrator shall issue, in the same manner and according to the same procedure as guidance is issued under section 7408(c) of this title, technical guidance on reasonably available control measures and best available control measures for urban fugitive dust, and emissions from residential wood combustion (including curtailments and exemptions from such curtail

ments) and prescribed silvicultural and agricul

tural burning, no later than 18 months following November 15, 1990. The Administrator shall also examine other categories of sources contribut

ing to nonattainment of the PM–10 standard, and determine whether additional guidance on reasonably available control measures and best available control measures is needed, and issue any such guidance no later than 3 years after November 15, 1990. In issuing guidelines and making determinations under this section, the Administrator (in consultation with the State) shall take into account emission reductions achieved, or expected to be achieved, under sub

chapter IV–A of this chapter and other provi

sions of this chapter. (July 14, 1955, ch. 360, title I, §190, as added Pub. L. 101–549, title I, §105(a), Nov. 15, 1990, 104 Stat. 2462.)

SUBPART 5

— ADDITIONAL PROVISIONS FOR AREAS DESIGNATED NONATTAINMENT FOR SULFUR OX

IDES , NITROGEN DIOXIDE , OR LEAD
§ 7514. Plan submission deadlines
(a) Submission Any State containing an area designated or re

designated under section 7407(d) of this title asPage 6349 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

nonattainment with respect to the national pri

mary ambient air quality standards for sulfur oxides, nitrogen dioxide, or lead subsequent to November 15, 1990, shall submit to the Adminis

trator, within 18 months of the designation, an applicable implementation plan meeting the re

quirements of this part. (b) States lacking fully approved State imple

mentation plans Any State containing an area designated non

attainment with respect to national primary ambient air quality standards for sulfur oxides or nitrogen dioxide under section 7407(d)(1)(C)(i) of this title, but lacking a fully approved imple

mentation plan complying with the require

ments of this chapter (including this part) as in effect immediately before November 15, 1990, shall submit to the Administrator, within 18 months of November 15, 1990, an implementation plan meeting the requirements of subpart 1 (ex

cept as otherwise prescribed by section 7514a of this title). (July 14, 1955, ch. 360, title I, §191, as added Pub. L. 101–549, title I, §106, Nov. 15, 1990, 104 Stat. 2463.)

§ 7514a. Attainment dates
(a) Plans under section 7514(a) Implementation plans required under section 7514(a) of this title shall provide for attainment of the relevant primary standard as expedi

tiously as practicable but no later than 5 years from the date of the nonattainment designation. (b) Plans under section 7514(b) Implementation plans required under section 7514(b) of this title shall provide for attainment of the relevant primary national ambient air quality standard within 5 years after November 15, 1990. (c) Inadequate plans Implementation plans for nonattainment areas for sulfur oxides or nitrogen dioxide with plans that were approved by the Administrator before November 15, 1990, but, subsequent to such approval, were found by the Administrator to be substantially inadequate, shall provide for attainment of the relevant primary standard within 5 years from the date of such finding. (July 14, 1955, ch. 360, title I, §192, as added Pub. L. 101–549, title I, §106, Nov. 15, 1990, 104 Stat. 2463.)

SUBPART 6

— SAVINGS PROVISIONS
§ 7515. General savings clause
Each regulation, standard, rule, notice, order and guidance promulgated or issued by the Ad

ministrator under this chapter, as in effect be

fore November 15, 1990, shall remain in effect ac

cording to its terms, except to the extent other

wise provided under this chapter, inconsistent with any provision of this chapter, or revised by the Administrator. No control requirement in effect, or required to be adopted by an order, settlement agreement, or plan in effect before November 15, 1990, in any area which is a non

attainment area for any air pollutant may be modified after November 15, 1990, in any manner unless the modification insures equivalent or greater emission reductions of such air pollut

ant. (July 14, 1955, ch. 360, title I, §193, as added Pub. L. 101–549, title I, §108( l ), Nov. 15, 1990, 104 Stat. 2469.)

SUBCHAPTER II—EMISSION STANDARDS

FOR MOVING SOURCES

P ART A—M OTOR V EHICLE E MISSION AND F UEL

S TANDARDS
§ 7521. Emission standards for new motor vehi

cles or new motor vehicle engines (a) Authority of Administrator to prescribe by regulation Except as otherwise provided in subsection (b) of this section— (1) The Administrator shall by regulation pre

scribe (and from time to time revise) in accord

ance with the provisions of this section, stand

ards applicable to the emission of any air pollut

ant from any class or classes of new motor vehi

cles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endan

ger public health or welfare. Such standards shall be applicable to such vehicles and engines for their useful life (as determined under sub

section (d) of this section, relating to useful life of vehicles for purposes of certification), wheth

er such vehicles and engines are designed as complete systems or incorporate devices to pre

vent or control such pollution. (2) Any regulation prescribed under paragraph (1) of this subsection (and any revision thereof) shall take effect after such period as the Admin

istrator finds necessary to permit the develop

ment and application of the requisite tech

nology, giving appropriate consideration to the cost of compliance within such period. (3)(A) I N GENERAL .—(i) Unless the standard is changed as provided in subparagraph (B), regula

tions under paragraph (1) of this subsection ap

plicable to emissions of hydrocarbons, carbon monoxide, oxides of nitrogen, and particulate matter from classes or categories of heavy-duty vehicles or engines manufactured during or after model year 1983 shall contain standards which reflect the greatest degree of emission reduction achievable through the application of tech

nology which the Administrator determines will be available for the model year to which such standards apply, giving appropriate consider

ation to cost, energy, and safety factors associ

ated with the application of such technology. (ii) In establishing classes or categories of ve

hicles or engines for purposes of regulations under this paragraph, the Administrator may base such classes or categories on gross vehicle weight, horsepower, type of fuel used, or other appropriate factors. (B) R EVISED STANDARDS FOR HEAVY DUTY TRUCKS .—(i) On the basis of information avail

able to the Administrator concerning the effects of air pollutants emitted from heavy-duty vehi

cles or engines and from other sources of mobile source related pollutants on the public healthPage 6350 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

1 See References in Text note below. and welfare, and taking costs into account, the Administrator may promulgate regulations under paragraph (1) of this subsection revising any standard promulgated under, or before the date of, the enactment of the Clean Air Act Amendments of 1990 (or previously revised under this subparagraph) and applicable to classes or categories of heavy-duty vehicles or engines. (ii) Effective for the model year 1998 and there

after, the regulations under paragraph (1) of this subsection applicable to emissions of oxides of nitrogen (NO x ) from gasoline and diesel-fueled heavy duty trucks shall contain standards which provide that such emissions may not exceed 4.0 grams per brake horsepower hour (gbh). (C) L EAD TIME AND STABILITY .—Any standard promulgated or revised under this paragraphand applicable to classes or categories of heavyduty vehicles or engines shall apply for a period of no less than 3 model years beginning no ear

lier than the model year commencing 4 years after such revised standard is promulgated. (D) R EBUILDING PRACTICES .—The Adminis

trator shall study the practice of rebuilding heavy-duty engines and the impact rebuilding has on engine emissions. On the basis of that study and other information available to the Administrator, the Administrator may prescribe requirements to control rebuilding practices, in

cluding standards applicable to emissions from any rebuilt heavy-duty engines (whether or not the engine is past its statutory useful life), which in the Administrator’s judgment cause, or contribute to, air pollution which may reason

ably be anticipated to endanger public health or welfare taking costs into account. Any regula

tion shall take effect after a period the Adminis

trator finds necessary to permit the develop

ment and application of the requisite control measures, giving appropriate consideration to the cost of compliance within the period and en

ergy and safety factors. (E) M OTORCYCLES .—For purposes of this para

graph, motorcycles and motorcycle enginesshall be treated in the same manner as heavyduty vehicles and engines (except as otherwise permitted under section 7525(f)(1) 1 of this title) unless the Administrator promulgates a rule re

classifying motorcycles as light-duty vehicles within the meaning of this section or unless the Administrator promulgates regulations under subsection (a) of this section applying standards applicable to the emission of air pollutants from motorcycles as a separate class or category. In any case in which such standards are promul

gated for such emissions from motorcycles as a separate class or category, the Administrator, in promulgating such standards, shall consider the need to achieve equivalency of emission re

ductions between motorcycles and other motor vehicles to the maximum extent practicable. (4)(A) Effective with respect to vehicles and engines manufactured after model year 1978, no emission control device, system, or element of design shall be used in a new motor vehicle or new motor vehicle engine for purposes of com

plying with requirements prescribed under this subchapter if such device, system, or element of design will cause or contribute to an unreason

able risk to public health, welfare, or safety in its operation or function. (B) In determining whether an unreasonable risk exists under subparagraph (A), the Adminis

trator shall consider, among other factors, (i) whether and to what extent the use of any de

vice, system, or element of design causes, in

creases, reduces, or eliminates emissions of any unregulated pollutants; (ii) available methods for reducing or eliminating any risk to public health, welfare, or safety which may be associ

ated with the use of such device, system, or ele

ment of design, and (iii) the availability of other devices, systems, or elements of design which may be used to conform to requirements pre

scribed under this subchapter without causing or contributing to such unreasonable risk. The Administrator shall include in the consideration required by this paragraph all relevant informa

tion developed pursuant to section 7548 of this title. (5)(A) If the Administrator promulgates final regulations which define the degree of control required and the test procedures by which com

pliance could be determined for gasoline vapor recovery of uncontrolled emissions from the fueling of motor vehicles, the Administrator shall, after consultation with the Secretary of Transportation with respect to motor vehicle safety, prescribe, by regulation, fill pipe stand

ards for new motor vehicles in order to insure effective connection between such fill pipe and any vapor recovery system which the Adminis

trator determines may be required to comply with such vapor recovery regulations. In pro

mulgating such standards the Administrator shall take into consideration limits on fill pipe diameter, minimum design criteria for nozzle re

tainer lips, limits on the location of the un

leaded fuel restrictors, a minimum access zone surrounding a fill pipe, a minimum pipe or noz

zle insertion angle, and such other factors as he deems pertinent. (B) Regulations prescribing standards under subparagraph (A) shall not become effective until the introduction of the model year for which it would be feasible to implement such standards, taking into consideration the re

straints of an adequate leadtime for design and production. (C) Nothing in subparagraph (A) shall (i) pre

vent the Administrator from specifying different nozzle and fill neck sizes for gasoline with addi

tives and gasoline without additives or (ii) per

mit the Administrator to require a specific loca

tion, configuration, modeling, or styling of the motor vehicle body with respect to the fuel tank fill neck or fill nozzle clearance envelope. (D) For the purpose of this paragraph, the term ‘‘fill pipe’’ shall include the fuel tank fill pipe, fill neck, fill inlet, and closure. (6) O NBOARD VAPOR RECOVERY .—Within 1 year after November 15, 1990, the Administrator shall, after consultation with the Secretary of Trans

portation regarding the safety of vehicle-based (‘‘onboard’’) systems for the control of vehicle refueling emissions, promulgate standards under this section requiring that new light-duty vehi

cles manufactured beginning in the fourth model year after the model year in which the standards are promulgated and thereafter shallPage 6351 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

be equipped with such systems. The standards required under this paragraph shall apply to a percentage of each manufacturer’s fleet of new light-duty vehicles beginning with the fourth model year after the model year in which the standards are promulgated. The percentage shall be as specified in the following table:

I MPLEMENTATION S CHEDULE FOR O NBOARD V APOR

R ECOVERY R EQUIREMENTS

Model year commencing after standards promulgated Percentage*

Fourth

.................................................... 40 Fifth

....................................................... 80 After Fifth

.............................................. 100
*Percentages in the table refer to a percentage of the manufacturer’s sales volume. The standards shall require that such systems provide a minimum evaporative emission cap

ture efficiency of 95 percent. The requirements of section 7511a(b)(3) of this title (relating to stage II gasoline vapor recovery) for areas clas

sified under section 7511 of this title as moderate for ozone shall not apply after promulgation of such standards and the Administrator may, by rule, revise or waive the application of the re

quirements of such section 7511a(b)(3) of this title for areas classified under section 7511 of this title as Serious, Severe, or Extreme for ozone, as appropriate, after such time as the Ad

ministrator determines that onboard emissions control systems required under this paragraph are in widespread use throughout the motor ve

hicle fleet. (b) Emissions of carbon monoxide, hydrocarbons, and oxides of nitrogen; annual report to Con

gress; waiver of emission standards; research objectives (1)(A) The regulations under subsection (a) of this section applicable to emissions of carbon monoxide and hydrocarbons from light-duty ve

hicles and engines manufactured during model years 1977 through 1979 shall contain standards which provide that such emissions from such ve

hicles and engines may not exceed 1.5 grams per vehicle mile of hydrocarbons and 15.0 grams per vehicle mile of carbon monoxide. The regula

tions under subsection (a) of this section appli

cable to emissions of carbon monoxide from light-duty vehicles and engines manufactured during the model year 1980 shall contain stand

ards which provide that such emissions may not exceed 7.0 grams per vehicle mile. The regula

tions under subsection (a) of this section appli

cable to emissions of hydrocarbons from lightduty vehicles and engines manufactured during or after model year 1980 shall contain standards which require a reduction of at least 90 percent from emissions of such pollutant allowable under the standards under this section applica

ble to light-duty vehicles and engines manufac

tured in model year 1970. Unless waived as pro

vided in paragraph (5), 1 regulations under sub

section (a) of this section applicable to emis

sions of carbon monoxide from light-duty vehi

cles and engines manufactured during or after the model year 1981 shall contain standards which require a reduction of at least 90 percent from emissions of such pollutant allowable under the standards under this section applica

ble to light-duty vehicles and engines manufac

tured in model year 1970. (B) The regulations under subsection (a) of this section applicable to emissions of oxides of nitrogen from light-duty vehicles and engines manufactured during model years 1977 through 1980 shall contain standards which provide that such emissions from such vehicles and engines may not exceed 2.0 grams per vehicle mile. The regulations under subsection (a) of this section applicable to emissions of oxides of nitrogen from light-duty vehicles and engines manufac

tured during the model year 1981 and thereafter shall contain standards which provide that such emissions from such vehicles and engines may not exceed 1.0 gram per vehicle mile. The Ad

ministrator shall prescribe standards in lieu of those required by the preceding sentence, which provide that emissions of oxides of nitrogen may not exceed 2.0 grams per vehicle mile for any light-duty vehicle manufactured during model years 1981 and 1982 by any manufacturer whose production, by corporate identity, for calendar year 1976 was less than three hundred thousand light-duty motor vehicles worldwide if the Ad

ministrator determines that— (i) the ability of such manufacturer to meet emission standards in the 1975 and subsequent model years was, and is, primarily dependent upon technology developed by other manufac

turers and purchased from such manufactur

ers; and (ii) such manufacturer lacks the financial resources and technological ability to develop such technology. (C) The Administrator may promulgate regu

lations under subsection (a)(1) of this section re

vising any standard prescribed or previously re

vised under this subsection, as needed to protect public health or welfare, taking costs, energy, and safety into account. Any revised standard shall require a reduction of emissions from the standard that was previously applicable. Any such revision under this subchapter may provide for a phase-in of the standard. It is the intent of Congress that the numerical emission standards specified in subsections (a)(3)(B)(ii), (g), (h), and (i) of this section shall not be modified by the Administrator after November 15, 1990, for any model year before the model year 2004. (2) Emission standards under paragraph (1), and measurement techniques on which such standards are based (if not promulgated prior to November 15, 1990), shall be promulgated by reg

ulation within 180 days after November 15, 1990. (3) For purposes of this part— (A)(i) The term ‘‘model year’’ with reference to any specific calendar year means the manu

facturer’s annual production period (as deter

mined by the Administrator) which includes January 1 of such calendar year. If the manu

facturer has no annual production period, the term ‘‘model year’’ shall mean the calendar
year. (ii) For the purpose of assuring that vehicles and engines manufactured before the begin

ning of a model year were not manufactured for purposes of circumventing the effective date of a standard required to be prescribed by subsection (b) of this section, the Adminis

-Page 6352 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

2 So in original. Probably should be ‘‘(4)’’.

3 So in original. Probably should be ‘‘paragraph’’. trator may prescribe regulations defining ‘‘model year’’ otherwise than as provided in clause (i). (B) Repealed. Pub. L. 101–549, title II, §230(1), Nov. 15, 1990, 104 Stat. 2529. (C) The term ‘‘heavy duty vehicle’’ means a truck, bus, or other vehicle manufactured pri

marily for use on the public streets, roads, and highways (not including any vehicle operated exclusively on a rail or rails) which has a gross vehicle weight (as determined under reg

ulations promulgated by the Administrator) in excess of six thousand pounds. Such term in

cludes any such vehicle which has special fea

tures enabling off-street or off-highway oper

ation and use. (3) 2 Upon the petition of any manufacturer, the Administrator, after notice and opportunity for public hearing, may waive the standard re

quired under subparagraph (B) of paragraph (1) to not exceed 1.5 grams of oxides of nitrogen pervehicle mile for any class or category of lightduty vehicles or engines manufactured by such manufacturer during any period of up to four model years beginning after the model year 1980 if the manufacturer demonstrates that such waiver is necessary to permit the use of an inno

vative power train technology, or innovative emission control device or system, in such class or category of vehicles or engines and that such technology or system was not utilized by more than 1 percent of the light-duty vehicles sold in the United States in the 1975 model year. Such waiver may be granted only if the Adminis

trator determines— (A) that such waiver would not endanger public health, (B) that there is a substantial likelihood that the vehicles or engines will be able to comply with the applicable standard under this section at the expiration of the waiver, and (C) that the technology or system has a po

tential for long-term air quality benefit and has the potential to meet or exceed the aver

age fuel economy standard applicable under the Energy Policy and Conservation Act [42 U.S.C. 6201 et seq.] upon the expiration of the waiver. No waiver under this subparagraph 3 granted to any manufacturer shall apply to more than 5 percent of such manufacturer’s production or more than fifty thousand vehicles or engines, whichever is greater. (c) Feasibility study and investigation by Na

tional Academy of Sciences; reports to Ad

ministrator and Congress; availability of in

formation (1) The Administrator shall undertake to enter into appropriate arrangements with the Na

tional Academy of Sciences to conduct a com

prehensive study and investigation of the tech

nological feasibility of meeting the emissions standards required to be prescribed by the Ad

ministrator by subsection (b) of this section. (2) Of the funds authorized to be appropriated to the Administrator by this chapter, such amounts as are required shall be available to carry out the study and investigation authorized by paragraph (1) of this subsection. (3) In entering into any arrangement with the National Academy of Sciences for conducting the study and investigation authorized by para

graph (1) of this subsection, the Administrator shall request the National Academy of Sciences to submit semiannual reports on the progress of its study and investigation to the Administrator and the Congress, beginning not later than July 1, 1971, and continuing until such study and in

vestigation is completed. (4) The Administrator shall furnish to such Academy at its request any information which the Academy deems necessary for the purpose of conducting the investigation and study author

ized by paragraph (1) of this subsection. For the purpose of furnishing such information, the Ad

ministrator may use any authority he has under this chapter (A) to obtain information from any person, and (B) to require such person to con

duct such tests, keep such records, and make such reports respecting research or other activi

ties conducted by such person as may be reason

ably necessary to carry out this subsection. (d) Useful life of vehicles The Administrator shall prescribe regulations under which the useful life of vehicles and en

gines shall be determined for purposes of sub

section (a)(1) of this section and section 7541 of this title. Such regulations shall provide that except where a different useful life period is specified in this subchapter useful life shall— (1) in the case of light duty vehicles and light duty vehicle engines and light-duty trucks up to 3,750 lbs. LVW and up to 6,000 lbs. GVWR, be a period of use of five years or fifty thousand miles (or the equivalent), whichever first occurs, except that in the case of any re

quirement of this section which first becomes applicable after November 15, 1990, where the useful life period is not otherwise specified for such vehicles and engines, the period shall be 10 years or 100,000 miles (or the equivalent), whichever first occurs, with testing for pur

poses of in-use compliance under section 7541 of this title up to (but not beyond) 7 years or 75,000 miles (or the equivalent), whichever first occurs; (2) in the case of any other motor vehicle or motor vehicle engine (other than motorcycles or motorcycle engines), be a period of use set forth in paragraph (1) unless the Adminis

trator determines that a period of use of greater duration or mileage is appropriate; and (3) in the case of any motorcycle or motor

cycle engine, be a period of use the Adminis

trator shall determine. (e) New power sources or propulsion systems In the event of a new power source or propul

sion system for new motor vehicles or new motor vehicle engines is submitted for certifi

cation pursuant to section 7525(a) of this title, the Administrator may postpone certification until he has prescribed standards for any air pol

lutants emitted by such vehicle or engine which in his judgment cause, or contribute to, air pol

lution which may reasonably be anticipated toPage 6353 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

4 Another subsec. (f) is set out after subsec. (m). endanger the public health or welfare but for which standards have not been prescribed under subsection (a) of this section.
(f) 4 High altitude regulations (1) The high altitude regulation in effect with respect to model year 1977 motor vehicles shall not apply to the manufacture, distribution, or sale of 1978 and later model year motor vehicles. Any future regulation affecting the sale or dis

tribution of motor vehicles or engines manufac

tured before the model year 1984 in high altitude areas of the country shall take effect no earlier than model year 1981. (2) Any such future regulation applicable to high altitude vehicles or engines shall not re

quire a percentage of reduction in the emissions of such vehicles which is greater than the re

quired percentage of reduction in emissions from motor vehicles as set forth in subsection (b) of this section. This percentage reduction shall be determined by comparing any proposed high altitude emission standards to high alti

tude emissions from vehicles manufactured dur

ing model year 1970. In no event shall regula

tions applicable to high altitude vehicles manu

factured before the model year 1984 establish a numerical standard which is more stringent than that applicable to vehicles certified under non-high altitude conditions. (3) Section 7607(d) of this title shall apply to any high altitude regulation referred to in para

graph (2) and before promulgating any such reg

ulation, the Administrator shall consider and make a finding with respect to— (A) the economic impact upon consumers, individual high altitude dealers, and the auto

mobile industry of any such regulation, in

cluding the economic impact which was expe

rienced as a result of the regulation imposed during model year 1977 with respect to high al

titude certification requirements; (B) the present and future availability of emission control technology capable of meet

ing the applicable vehicle and engine emission requirements without reducing model avail

ability; and (C) the likelihood that the adoption of such a high altitude regulation will result in any significant improvement in air quality in any area to which it shall apply. (g) Light-duty trucks up to 6,000 lbs. GVWR and light-duty vehicles; standards for model years after 1993 (1) NMHC, CO, and NO x Effective with respect to the model year 1994 and thereafter, the regulations under sub

section (a) of this section applicable to emis

sions of nonmethane hydrocarbons (NMHC), carbon monoxide (CO), and oxides of nitrogen (NO x ) from light-duty trucks (LDTs) of up to 6,000 lbs. gross vehicle weight rating (GVWR) and light-duty vehicles (LDVs) shall contain standards which provide that emissions from a percentage of each manufacturer’s sales vol

ume of such vehicles and trucks shall comply with the levels specified in table G. The per

centage shall be as specified in the implemen

tation schedule below:

TABLE G

— EMISSION STANDARDS FOR NMHC , CO , AND NO x FROM LIGHT

- DUTY TRUCKS OF UP TO 6 , 000 LBS

. GVWR AND LIGHT

- DUTY VEHICLES

Vehicle type Column A Column B

(5 yrs/50,000 mi) (10 yrs/100,000 mi)

NMHC CO NO x NMHC CO NO x LDTs (0–3,750 lbs. LVW) and light-duty vehicles

.............................. 0.25 3.4 0.4* 0.31 4.2 0.6* LDTs (3,751–5,750 lbs. LVW)

.............................................................. 0.32 4.4 0.7** 0.40 5.5 0.97
Standards are expressed in grams per mile (gpm). For standards under column A, for purposes of certification under section 7525 of this title, the applicable useful life shall be 5 years or 50,000 miles (or the equivalent), whichever first occurs. For standards under column B, for purposes of certification under section 7525 of this title, the applicable useful life shall be 10 years or 100,000 miles (or the equivalent), whichever first occurs. *In the case of diesel-fueled LDTs (0–3,750 lvw) and light-duty vehicles, before the model year 2004, in lieu of the 0.4 and 0.6 standards for NO x , the applicable standards for NO x shall be 1.0 gpm for a useful life of 5 years or 50,000 miles (or the equivalent), whichever first occurs, and 1.25 gpm for a useful life of 10 years or 100,000 miles (or the equivalent) whichever first occurs. **This standard does not apply to diesel-fueled LDTs (3,751–5,750 lbs. LVW).

I MPLEMENTATION S CHEDULE FOR T ABLE G

S TANDARDS

Model year Percentage*

1994

......................................................... 40 1995

......................................................... 80 after 1995

................................................. 100
*Percentages in the table refer to a percentage of each manufacturer’s sales volume. (2) PM Standard Effective with respect to model year 1994 and thereafter in the case of light-duty vehicles, and effective with respect to the model year 1995 and thereafter in the case of light-duty trucks (LDTs) of up to 6,000 lbs. gross vehicle weight rating (GVWR), the regulations under subsection (a) of this section applicable to emissions of particulate matter (PM) from such vehicles and trucks shall contain stand

ards which provide that such emissions from a percentage of each manufacturer’s sales vol

ume of such vehicles and trucks shall not ex

ceed the levels specified in the table below. The percentage shall be as specified in the Im

plementation Schedule below.Page 6354 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

PM S TANDARD FOR LDT S OF UP TO 6,000 LBS

.

GVWR

Useful life period Standard

5/50,000

.................................................... 0.08 gpm 10/100,000

................................................. 0.10 gpm

The applicable useful life, for purposes of certifi

cation under section 7525 of this title and for purposes of in-use compliance under section 7541 of this title, shall be 5 years or 50,000 miles (or the equivalent), whichever first occurs, in the case of the 5/50,000 stand

ard. The applicable useful life, for purposes of certifi

cation under section 7525 of this title and for purposes of in-use compliance under section 7541 of this title, shall be 10 years or 100,000 miles (or the equivalent), whichever first occurs in the case of the 10/100,000 standard.

I MPLEMENTATION S CHEDULE FOR PM S TANDARDS

Model year Light-duty vehicles LDTs

1994

................................. 40%* 1995

................................. 80%* 40%* 1996

................................. 100%* 80%* I MPLEMENTATION S CHEDULE FOR PM S TANDARDS —C ONTINUED

Model year Light-duty vehicles LDTs

after 1996

......................... 100%* 100%*
*Percentages in the table refer to a percentage of each manufacturer’s sales volume. (h) Light-duty trucks of more than 6,000 lbs. GVWR; standards for model years after 1995 Effective with respect to the model year 1996 and thereafter, the regulations under subsection (a) of this section applicable to emissions of nonmethane hydrocarbons (NMHC), carbon mon

oxide (CO), oxides of nitrogen (NO x ), and particu

late matter (PM) from light-duty trucks (LDTs) of more than 6,000 lbs. gross vehicle weight rat

ing (GVWR) shall contain standards which pro

vide that emissions from a specified percentage of each manufacturer’s sales volume of such trucks shall comply with the levels specified in table H. The specified percentage shall be 50 per

cent in model year 1996 and 100 percent there

after.

TABLE H

— EMISSION STANDARDS FOR NMHC AND CO FROM GASOLINE AND DIESEL FUELED LIGHT

- DUTY TRUCKS OF MORE THAN 6 , 000 LBS

. GVWR

LDT Test weight Column A Column B

(5 yrs/50,000 mi) (11 yrs/120,000 mi)

NMHC CO NO x NMHC CO NO x PM

3,751–5,750 lbs. TW

........................................................................ 0.32 4.4 0.7* 0.46 6.4 0.98 0.10 Over 5,750 lbs. TW

........................................................................ 0.39 5.0 1.1* 0.56 7.3 1.53 0.12
Standards are expressed in grams per mile (GPM). For standards under column A, for purposes of certification under section 7525 of this title, the applicable useful life shall be 5 years or 50,000 miles (or the equivalent) whichever first occurs. For standards under column B, for purposes of certification under section 7525 of this title, the applicable useful life shall be 11 years or 120,000 miles (or the equivalent), whichever first occurs. *Not applicable to diesel-fueled LDTs.
(i) Phase II study for certain light-duty vehicles and light-duty trucks (1) The Administrator, with the participation of the Office of Technology Assessment, shall study whether or not further reductions in emis

sions from light-duty vehicles and light-duty trucks should be required pursuant to this sub

chapter. The study shall consider whether to es

tablish with respect to model years commencing after January 1, 2003, the standards and usefullife period for gasoline and diesel-fueled lightduty vehicles and light-duty trucks with a load

ed vehicle weight (LVW) of 3,750 lbs. or less spec

ified in the following table:

TABLE 3

— PENDING EMISSION STANDARDS FOR GASO

LINE AND DIESEL FUELED LIGHT

- DUTY VEHICLES AND LIGHT

- DUTY TRUCKS 3 , 750 LBS

. LVW OR LESS

Pollutant Emission level*

NMHC

........................................... 0.125 GPM NO x ............................................... 0.2 GPM CO

................................................ 1.7 GPM
*Emission levels are expressed in grams per mile (GPM). For vehicles and engines subject to this sub

section for purposes of subsection (d) of this section and any reference thereto, the useful life of such vehi

cles and engines shall be a period of 10 years or 100,000 miles (or the equivalent), whichever first occurs. Such study shall also consider other standards and useful life periods which are more stringent or less stringent than those set forth in table 3 (but more stringent than those referred to in subsections (g) and (h) of this section). (2)(A) As part of the study under paragraph (1), the Administrator shall examine the need for further reductions in emissions in order to at

tain or maintain the national ambient air qual

ity standards, taking into consideration the waiver provisions of section 7543(b) of this title. As part of such study, the Administrator shall also examine— (i) the availability of technology (including the costs thereof), in the case of light-duty ve

hicles and light-duty trucks with a loaded ve

hicle weight (LVW) of 3,750 lbs. or less, for meeting more stringent emission standards than those provided in subsections (g) and (h) of this section for model years commencing not earlier than after January 1, 2003, and not later than model year 2006, including the lead time and safety and energy impacts of meet

ing more stringent emission standards; and (ii) the need for, and cost effectiveness of, obtaining further reductions in emissions from such light-duty vehicles and light-duty trucks, taking into consideration alternative means of attaining or maintaining the national primaryPage 6355 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

ambient air quality standards pursuant to State implementation plans and other require

ments of this chapter, including their feasibil

ity and cost effectiveness. (B) The Administrator shall submit a report to Congress no later than June 1, 1997, containing the results of the study under this subsection, including the results of the examination con

ducted under subparagraph (A). Before submit

tal of such report the Administrator shall pro

vide a reasonable opportunity for public com

ment and shall include a summary of such com

ments in the report to Congress. (3)(A) Based on the study under paragraph (1) the Administrator shall determine, by rule, within 3 calendar years after the report is sub

mitted to Congress, but not later than December 31, 1999, whether— (i) there is a need for further reductions in emissions as provided in paragraph (2)(A); (ii) the technology for meeting more strin

gent emission standards will be available, as provided in paragraph (2)(A)(i), in the case of light-duty vehicles and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs. or less, for model years commencing not earlier than January 1, 2003, and not later than model year 2006, considering the factors listed in paragraph (2)(A)(i); and (iii) obtaining further reductions in emis

sions from such vehicles will be needed and cost effective, taking into consideration alter

natives as provided in paragraph (2)(A)(ii). The rulemaking under this paragraph shall com

mence within 3 months after submission of the report to Congress under paragraph (2)(B). (B) If the Administrator determines under sub

paragraph (A) that— (i) there is no need for further reductions in emissions as provided in paragraph (2)(A); (ii) the technology for meeting more strin

gent emission standards will not be available as provided in paragraph (2)(A)(i), in the case of light-duty vehicles and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs. or less, for model years commencing not earlier than January 1, 2003, and not later than model year 2006, considering the factors listed in paragraph (2)(A)(i); or (iii) obtaining further reductions in emis

sions from such vehicles will not be needed or cost effective, taking into consideration alter

natives as provided in paragraph (2)(A)(ii), the Administrator shall not promulgate more stringent standards than those in effect pursu

ant to subsections (g) and (h) of this section. Nothing in this paragraph shall prohibit the Ad

ministrator from exercising the Administrator’s authority under subsection (a) of this section topromulgate more stringent standards for lightduty vehicles and light-duty trucks with a load

ed vehicle weight (LVW) of 3,750 lbs. or less at any other time thereafter in accordance with subsection (a) of this section. (C) If the Administrator determines under sub

paragraph (A) that— (i) there is a need for further reductions in emissions as provided in paragraph (2)(A); (ii) the technology for meeting more strin

gent emission standards will be available, as provided in paragraph (2)(A)(i), in the case of light-duty vehicles and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs. or less, for model years commencing not earlier than January 1, 2003, and not later than model year 2006, considering the factors listed in paragraph (2)(A)(i); and (iii) obtaining further reductions in emis

sions from such vehicles will be needed and cost effective, taking into consideration alter

natives as provided in paragraph (2)(A)(ii), the Administrator shall either promulgate the standards (and useful life periods) set forth in Table 3 in paragraph (1) or promulgate alter

native standards (and useful life periods) which are more stringent than those referred to in sub

sections (g) and (h) of this section. Any such standards (or useful life periods) promulgated by the Administrator shall take effect with respect to any such vehicles or engines no earlier than the model year 2003 but not later than model year 2006, as determined by the Administrator in the rule. (D) Nothing in this paragraph shall be con

strued by the Administrator or by a court as a presumption that any standards (or useful life period) set forth in Table 3 shall be promulgated in the rulemaking required under this para

graph. The action required of the Administrator in accordance with this paragraph shall be treated as a nondiscretionary duty for purposes of section 7604(a)(2) of this title (relating to citi

zen suits). (E) Unless the Administrator determines not to promulgate more stringent standards as pro

vided in subparagraph (B) or to postpone the ef

fective date of standards referred to in Table 3 in paragraph (1) or to establish alternative standards as provided in subparagraph (C), effec

tive with respect to model years commencing after January 1, 2003, the regulations under sub

section (a) of this section applicable to emis

sions of nonmethane hydrocarbons (NMHC), ox

ides of nitrogen (NO x ), and carbon monoxide (CO) from motor vehicles and motor vehicle en

gines in the classes specified in Table 3 in para

graph (1) above shall contain standards which provide that emissions may not exceed the pend

ing emission levels specified in Table 3 in para

graph (1). (j) Cold CO standard (1) Phase I Not later than 12 months after November 15, 1990, the Administrator shall promulgate regu

lations under subsection (a) of this section ap

plicable to emissions of carbon monoxide from 1994 and later model year light-duty vehicles and light-duty trucks when operated at 20 de

grees Fahrenheit. The regulations shall con

tain standards which provide that emissions of carbon monoxide from a manufacturer’s vehi

cles when operated at 20 degrees Fahrenheit may not exceed, in the case of light-duty vehi

cles, 10.0 grams per mile, and in the case of light-duty trucks, a level comparable in strin

gency to the standard applicable to light-duty vehicles. The standards shall take effect after model year 1993 according to a phase-in sched

ule which requires a percentage of each manu

facturer’s sales volume of light-duty vehiclesPage 6356 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

and light-duty trucks to comply with applica

ble standards after model year 1993. The per

centage shall be as specified in the following table:

P HASE -I N S CHEDULE FOR C OLD S TART S TANDARDS

Model Year Percentage

1994

......................................................... 40 1995

......................................................... 80 1996 and after

.......................................... 100

(2) Phase II (A) Not later than June 1, 1997, the Adminis

trator shall complete a study assessing the need for further reductions in emissions of carbon monoxide and the maximum reductions in such emissions achievable from model year 2001 and later model year light-duty vehicles and light-duty trucks when operated at 20 de

grees Fahrenheit. (B)(i) If as of June 1, 1997, 6 or more non

attainment areas have a carbon monoxide de

sign value of 9.5 ppm or greater, the regula

tions under subsection (a)(1) of this section ap

plicable to emissions of carbon monoxide frommodel year 2002 and later model year lightduty vehicles and light-duty trucks shall con

tain standards which provide that emissions of carbon monoxide from such vehicles and trucks when operated at 20 degrees Fahrenheit may not exceed 3.4 grams per mile (gpm) in the case of light-duty vehicles and 4.4 grams per mile (gpm) in the case of light-duty trucks up to 6,000 GVWR and a level comparable in stringency in the case of light-duty trucks 6,000 GVWR and above. (ii) In determining for purposes of this sub

paragraph whether 6 or more nonattainment areas have a carbon monoxide design value of 9.5 ppm or greater, the Administrator shall ex

clude the areas of Steubenville, Ohio, and Osh

kosh, Wisconsin. (3) Useful-life for phase I and phase II stand

ards
In the case of the standards referred to in paragraphs (1) and (2), for purposes of certifi

cation under section 7525 of this title and inuse compliance under section 7541 of this title, the applicable useful life period shall be 5 years or 50,000 miles, whichever first occurs, except that the Administrator may extend such useful life period (for purposes of section 7525 of this title, or section 7541 of this title, or both) if he determines that it is feasible for vehicles and engines subject to such standards to meet such standards for a longer useful life. If the Administrator extends such useful life period, the Administrator may make an appro

priate adjustment of applicable standards for such extended useful life. No such extended useful life shall extend beyond the useful life period provided in regulations under sub

section (d) of this section. (4) Heavy-duty vehicles and engines The Administrator may also promulgate regulations under subsection (a)(1) of this sec

tion applicable to emissions of carbon mon

oxide from heavy-duty vehicles and engines when operated at cold temperatures. (k) Control of evaporative emissions The Administrator shall promulgate (and from time to time revise) regulations applicable to evaporative emissions of hydrocarbons from all gasoline-fueled motor vehicles— (1) during operation; and (2) over 2 or more days of nonuse; under ozone-prone summertime conditions (as determined by regulations of the Adminis

trator). The regulations shall take effect as ex

peditiously as possible and shall require the greatest degree of emission reduction achievable by means reasonably expected to be available for production during any model year to which the regulations apply, giving appropriate consid

eration to fuel volatility, and to cost, energy, and safety factors associated with the applica

tion of the appropriate technology. The Admin

istrator shall commence a rulemaking under this subsection within 12 months after Novem

ber 15, 1990. If final regulations are not promul

gated under this subsection within 18 months after November 15, 1990, the Administrator shall submit a statement to the Congress containing an explanation of the reasons for the delay and a date certain for promulgation of such final regulations in accordance with this chapter. Such date certain shall not be later than 15 months after the expiration of such 18 month deadline. ( l ) Mobile source-related air toxics (1) Study Not later than 18 months after November 15, 1990, the Administrator shall complete a study of the need for, and feasibility of, controlling emissions of toxic air pollutants which are un

regulated under this chapter and associated with motor vehicles and motor vehicle fuels, and the need for, and feasibility of, controlling such emissions and the means and measures for such controls. The study shall focus on those categories of emissions that pose the greatest risk to human health or about which significant uncertainties remain, including emissions of benzene, formaldehyde, and 1,3 butadiene. The proposed report shall be avail

able for public review and comment and shall include a summary of all comments. (2) Standards Within 54 months after November 15, 1990, the Administrator shall, based on the study under paragraph (1), promulgate (and from time to time revise) regulations under sub

section (a)(1) of this section or section 7545(c)(1) of this title containing reasonable re

quirements to control hazardous air pollutants from motor vehicles and motor vehicle fuels. The regulations shall contain standards for such fuels or vehicles, or both, which the Ad

ministrator determines reflect the greatest de

gree of emission reduction achievable through the application of technology which will be available, taking into consideration the stand

ards established under subsection (a) of this section, the availability and costs of the tech

nology, and noise, energy, and safety factors, and lead time. Such regulations shall not be inconsistent with standards under subsection (a) of this section. The regulations shall, at aPage 6357 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

5 So in original. Probably should be ‘‘(n)’’. minimum, apply to emissions of benzene and formaldehyde. (m) Emissions control diagnostics (1) Regulations Within 18 months after November 15, 1990, the Administrator shall promulgate regula

tions under subsection (a) of this section re

quiring manufacturers to install on all new light duty vehicles and light duty trucks diag

nostics systems capable of— (A) accurately identifying for the vehicle’s useful life as established under this section, emission-related systems deterioration or malfunction, including, at a minimum, the catalytic converter and oxygen sensor, which could cause or result in failure of the vehicles to comply with emission standards established under this section, (B) alerting the vehicle’s owner or opera

tor to the likely need for emission-related components or systems maintenance or re

pair, (C) storing and retrieving fault codes spec

ified by the Administrator, and (D) providing access to stored information in a manner specified by the Administrator. The Administrator may, in the Administra

tor’s discretion, promulgate regulations re

quiring manufacturers to install such onboard diagnostic systems on heavy-duty vehicles and engines. (2) Effective date The regulations required under paragraph (1) of this subsection shall take effect in model year 1994, except that the Administrator may waive the application of such regulations for model year 1994 or 1995 (or both) with respect to any class or category of motor vehicles if the Administrator determines that it would be infeasible to apply the regulations to that class or category in such model year or years, consistent with corresponding regulations or policies adopted by the California Air Re

sources Board for such systems. (3) State inspection The Administrator shall by regulation re

quire States that have implementation plans containing motor vehicle inspection and main

tenance programs to amend their plans within 2 years after promulgation of such regulations to provide for inspection of onboard diag

nostics systems (as prescribed by regulations under paragraph (1) of this subsection) and for the maintenance or repair of malfunctions or system deterioration identified by or affecting such diagnostics systems. Such regulations shall not be inconsistent with the provisions for warranties promulgated under section 7541(a) and (b) of this title. (4) Specific requirements In promulgating regulations under this sub

section, the Administrator shall require— (A) that any connectors through which the emission control diagnostics system is ac

cessed for inspection, diagnosis, service, or repair shall be standard and uniform on all motor vehicles and motor vehicle engines; (B) that access to the emission control diagnostics system through such connectors shall be unrestricted and shall not require any access code or any device which is only available from a vehicle manufacturer; and (C) that the output of the data from the emission control diagnostics system through such connectors shall be usable without the need for any unique decoding information or device. (5) Information availability The Administrator, by regulation, shall re

quire (subject to the provisions of section 7542(c) of this title regarding the protection of methods or processes entitled to protection as trade secrets) manufacturers to provide promptly to any person engaged in the repair

ing or servicing of motor vehicles or motor ve

hicle engines, and the Administrator for use by any such persons, with any and all informa

tion needed to make use of the emission con

trol diagnostics system prescribed under this subsection and such other information includ

ing instructions for making emission related diagnosis and repairs. No such information may be withheld under section 7542(c) of this title if that information is provided (directly or indirectly) by the manufacturer to fran

chised dealers or other persons engaged in the repair, diagnosing, or servicing of motor vehi

cles or motor vehicle engines. Such informa

tion shall also be available to the Adminis

trator, subject to section 7542(c) of this title, in carrying out the Administrator’s respon

sibilities under this section. (f) 5 Model years after 1990 For model years prior to model year 1994, the regulations under subsection (a) of this section applicable to buses other than those subject to standards under section 7554 of this title shall contain a standard which provides that emis

sions of particulate matter (PM) from such buses may not exceed the standards set forth in the following table:

PM STANDARD FOR BUSES

Model year Standard*

1991

......................................................... 0.25 1992

......................................................... 0.25 1993 and thereafter

................................. 0.10
*Standards are expressed in grams per brake horse

power hour (g/bhp/hr). (July 14, 1955, ch. 360, title II, §202, as added Pub. L. 89–272, title I, §101(8), Oct. 20, 1965, 79 Stat. 992; amended Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 499; Pub. L. 91–604, §6(a), Dec. 31, 1970, 84 Stat. 1690; Pub. L. 93–319, §5, June 22, 1974, 88 Stat. 258; Pub. L. 95–95, title II, §§201, 202(b), 213(b), 214(a), 215–217, 224(a), (b), (g), title IV, §401(d), Aug. 7, 1977, 91 Stat. 751–753, 758–761, 765, 767, 769, 791; Pub. L. 95–190, §14(a)(60)–(65), (b)(5), Nov. 16, 1977, 91 Stat. 1403, 1405; Pub. L. 101–549, title II, §§201–207, 227(b), 230(1)–(5), Nov. 15, 1990, 104 Stat. 2472–2481, 2507, 2529.)

R EFERENCES IN T EXT
The enactment of the Clean Air Act Amendments of 1990, referred to in subsec. (a)(3)(B), probably means thePage 6358 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

enactment of Pub. L. 101–549, Nov. 15, 1990, 104 Stat. 2399, which was approved Nov. 15, 1990. For complete classification of this Act to the Code, see Short Title note set out under section 7401 of this title and Tables. Section 7525(f)(1) of this title, referred to in subsec. (a)(3)(E), was redesignated section 7525(f) of this title by Pub. L. 101–549, title II, §230(8), Nov. 15, 1990, 104 Stat. 2529. Paragraph (5) of subsec. (b), referred to in subsec. (b)(1)(A), related to waivers for model years 1981 and 1982, and was repealed by Pub. L. 101–549, title II, §230(3), Nov. 15, 1990, 104 Stat. 2529. See 1990 Amendment note below. The Energy Policy and Conservation Act, referred to in subsec. (b)(3)(C), is Pub. L. 94–163, Dec. 22, 1975, 89 Stat. 871, as amended, which is classified principally to chapter 77 (§6201 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6201 of this title and Tables.

C ODIFICATION Section was formerly classified to section 1857f–1 of this title.

A MENDMENTS 1990—Subsec. (a)(3)(A). Pub. L. 101–549, §201(1), added subpar. (A) and struck out former subpar. (A) which re

lated to promulgation of regulations applicable to re

duction of emissions from heavy-duty vehicles or en

gines manufactured during and after model year 1979 in the case of carbon monoxide, hydrocarbons, and oxides of nitrogen, and from vehicles manufactured during and after model year 1981 in the case of particulate matter. Subsec. (a)(3)(B). Pub. L. 101–549, §201(1), added sub

par. (B) and struck out former subpar. (B) which read as follows: ‘‘During the period of June 1 through De

cember 31, 1978, in the case of hydrocarbons and carbon monoxide, or during the period of June 1 through De

cember 31, 1980, in the case of oxides of nitrogen, and during each period of June 1 through December 31 of each third year thereafter, the Administrator may, after notice and opportunity for a public hearing pro

mulgate regulations revising any standard prescribed as provided in subparagraph (A)(ii) for any class or cat

egory of heavy-duty vehicles or engines. Such standard shall apply only for the period of three model years be

ginning four model years after the model year in which such revised standard is promulgated. In revising any standard under this subparagraph for any such three model year period, the Administrator shall determine the maximum degree of emission reduction which can be achieved by means reasonably expected to be avail

able for production of such period and shall prescribe a revised emission standard in accordance with such de

termination. Such revised standard shall require a re

duction of emissions from any standard which applies in the previous model year.’’ Subsec. (a)(3)(C). Pub. L. 101–549, §201(1), added sub

par. (C) and struck out former subpar. (C) which read as follows: ‘‘Action revising any standard for any period may be taken by the Administrator under subpara

graph (B) only if he finds— ‘‘(i) that compliance with the emission standards otherwise applicable for such model year cannot be achieved by technology, processes, operating meth

ods, or other alternatives reasonably expected to be available for production for such model year without increasing cost or decreasing fuel economy to an ex

cessive and unreasonable degree; and ‘‘(ii) the National Academy of Sciences has not, pursuant to its study and investigation under sub

section (c) of this section, issued a report substan

tially contrary to the findings of the Administrator under clause (i).’’ Subsec. (a)(3)(D). Pub. L. 101–549, §201(1), added sub

par. (D) and struck out former subpar. (D) which read as follows: ‘‘A report shall be made to the Congress with respect to any standard revised under subpara

graph (B) which shall contain— ‘‘(i) a summary of the health effects found, or be

lieved to be associated with, the pollutant covered by such standard, ‘‘(ii) an analysis of the cost-effectiveness of other strategies for attaining and maintaining national ambient air quality standards and carrying out regu

lations under part C of subchapter I (relating to sig

nificant deterioration) in relation to the cost-effec

tiveness for such purposes of standards which, but for such revision, would apply. ‘‘(iii) a summary of the research and development efforts and progress being made by each manufac

turer for purposes of meeting the standards promul

gated as provided in subparagraph (A)(ii) or, if appli

cable, subparagraph (E), and ‘‘(iv) specific findings as to the relative costs of compliance, and relative fuel economy, which may be expected to result from the application for any model year of such revised standard and the application for such model year of the standard, which, but for such revision, would apply.’’ Subsec. (a)(3)(E), (F). Pub. L. 101–549, §201, redesig

nated subpar. (F) as (E), inserted heading, and struck out former subpar. (E) which read as follows: ‘‘(i) The Administrator shall conduct a continuing pollutant-specific study concerning the effects of each air pollutant emitted from heavy-duty vehicles or en

gines and from other sources of mobile source related pollutants on the public health and welfare. The results of such study shall be published in the Federal Register and reported to the Congress not later than June 1, 1978, in the case of hydrocarbons and carbon monoxide, and June 1, 1980, in the case of oxides of nitrogen, and before June 1 of each third year thereafter. ‘‘(ii) On the basis of such study and such other infor

mation as is available to him (including the studies under section 7548 of this title), the Administrator may, after notice and opportunity for a public hearing, promulgate regulations under paragraph (1) of this sub

section changing any standard prescribed in subpara

graph (A)(ii) (or revised under subparagraph (B) or pre

viously changed under this subparagraph). No such changed standard shall apply for any model year before the model year four years after the model year during which regulations containing such changed standard are promulgated.’’ Subsec. (a)(4)(A), (B). Pub. L. 101–549, §227(b), sub

stituted ‘‘requirements prescribed under this sub

chapter’’ for ‘‘standards prescribed under this sub

section’’. Subsec. (a)(6). Pub. L. 101–549, §202, amended par. (6) generally. Prior to amendment, par. (6) read as follows: ‘‘The Administrator shall determine the feasibility and desirability of requiring new motor vehicles to utilize onboard hydrocarbon control technology which would avoid the necessity of gasoline vapor recovery of un

controlled emissions emanating from the fueling of motor vehicles. The Administrator shall compare the costs and effectiveness of such technology to that of implementing and maintaining vapor recovery systems (taking into consideration such factors as fuel econ

omy, economic costs of such technology, administra

tive burdens, and equitable distribution of costs). If the Administrator finds that it is feasible and desirable to employ such technology, he shall, after consultation with the Secretary of Transportation with respect to motor vehicle safety, prescribe, by regulation, stand

ards requiring the use of onboard hydrocarbon tech

nology which shall not become effective until the in

troduction to the model year for which it would be fea

sible to implement such standards, taking into consid

eration compliance costs and the restraints of an ade

quate lead time for design and production.’’ Subsec. (b)(1)(C). Pub. L. 101–549, §203(c), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: ‘‘Effective with respect to vehicles and engines manufactured after model year 1978 (or in the case of heavy-duty vehicles or engines, such later model year as the Administrator determines is the ear

liest feasible model year), the test procedure promul

-Page 6359 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

gated under paragraph (2) for measurement of evapo

rative emissions of hydrocarbons shall require that such emissions be measured from the vehicle or engine as a whole. Regulations to carry out this subparagraph shall be promulgated not later than two hundred and seventy days after August 7, 1977.’’ Subsec. (b)(2). Pub. L. 101–549, §203(d), amended par. (2) generally. Prior to amendment, par. (2) read as fol

lows: ‘‘Emission standards under paragraph (1), and measurement techniques on which such standards are based (if not promulgated prior to December 31, 1970), shall be prescribed by regulation within 180 days after such date.’’ Subsec. (b)(3). Pub. L. 101–549, §230(4), redesignated par. (6) relating to waiver of standards for oxides of ni

trogen as par. (3), struck out subpar. (A) designation before ‘‘Upon the petition’’, redesignated former cls. (i) to (iii) as subpars. (A) to (C), respectively, and struck out former subpar. (B) which authorized the Adminis

trator to waive the standard under subsec. (b)(1)(B) of this section for emissions of oxides of nitrogen from light-duty vehicles and engines beginning in model year 1981 after providing notice and opportunity for a public hearing, and set forth conditions under which a waiver could be granted. Subsec. (b)(3)(B). Pub. L. 101–549, §230(1), in the par. (3) defining terms for purposes of this part struck out subpar. (B) which defined ‘‘light duty vehicles and en

gines’’. Subsec. (b)(4). Pub. L. 101–549, §230(2), struck out par. (4) which read as follows: ‘‘On July 1 of 1971, and of each year thereafter, the Administrator shall report to the Congress with respect to the development of systems necessary to implement the emission standards estab

lished pursuant to this section. Such reports shall in

clude information regarding the continuing effects of such air pollutants subject to standards under this sec

tion on the public health and welfare, the extent and progress of efforts being made to develop the necessary systems, the costs associated with development and ap

plication of such systems, and following such hearings as he may deem advisable, any recommendations for additional congressional action necessary to achieve the purposes of this chapter. In gathering information for the purposes of this paragraph and in connection with any hearing, the provisions of section 7607(a) of this title (relating to subpenas) shall apply.’’ Subsec. (b)(5). Pub. L. 101–549, §230(3), struck out par. (5) which related to waivers for model years 1981 and 1982 of the effective date of the emissions standard re

quired under par. (1)(A) for carbon monoxide applicable to light-duty vehicles and engines manufactured in those model years. Subsec. (b)(6). Pub. L. 101–549, §230(4), redesignated par. (6) as (3). Subsec. (b)(7). Pub. L. 101–549, §230(5), struck out par. (7) which read as follows: ‘‘The Congress hereby de

clares and establishes as a research objective, the de

velopment of propulsion systems and emission control technology to achieve standards which represent a re

duction of at least 90 per centum from the average emissions of oxides of nitrogen actually measured from light duty motor vehicles manufactured in model year 1971 not subject to any Federal or State emission standard for oxides of nitrogen. The Administrator shall, by regulations promulgated within one hundred and eighty days after August 7, 1977, require each man

ufacturer whose sales represent at least 0.5 per centum of light duty motor vehicle sales in the United States, to build and, on a regular basis, demonstrate the oper

ation of light duty motor vehicles that meet this re

search objective, in addition to any other applicable standards or requirements for other pollutants under this chapter. Such demonstration vehicles shall be sub

mitted to the Administrator no later than model year 1979 and in each model year thereafter. Such dem

onstration shall, in accordance with applicable regula

tions, to the greatest extent possible, (A) be designed to encourage the development of new powerplant and emission control technologies that are fuel efficient, (B) assure that the demonstration vehicles are or could reasonably be expected to be within the productive ca

pability of the manufacturers, and (C) assure the utili

zation of optimum engine, fuel, and emission control systems.’’ Subsec. (d). Pub. L. 101–549, §203(b)(1), substituted ‘‘provide that except where a different useful life period is specified in this subchapter’’ for ‘‘provide that’’. Subsec. (d)(1). Pub. L. 101–549, §203(b)(2), (3), inserted ‘‘and light-duty trucks up to 3,750 lbs. LVW and up to 6,000 lbs. GVWR’’ after ‘‘engines’’ and substituted for semicolon at end ‘‘, except that in the case of any re

quirement of this section which first becomes applica

ble after November 15, 1990, where the useful life period is not otherwise specified for such vehicles and engines, the period shall be 10 years or 100,000 miles (or the equivalent), whichever first occurs, with testing for purposes of in-use compliance under section 7541 of this title up to (but not beyond) 7 years or 75,000 miles (or the equivalent), whichever first occurs;’’. Subsec. (f). Pub. L. 101–549, §207(b), added (after sub

sec. (m) at end) subsec. (f) relating to regulations appli

cable to buses for model years after 1990. Subsecs. (g) to (i). Pub. L. 101–549, §203(a), added sub

secs. (g) to (i). Subsecs. (j) to (m). Pub. L. 101–549, §§204–207(a), added subsecs. (j) to (m). 1977—Subsec. (a)(1). Pub. L. 95–190, §14(a)(60), restruc

tured subsec. (a) by providing for designation of par. (1) to precede ‘‘The Administrator’’ in place of ‘‘Except as’’. Pub. L. 95–95, §401(d)(1), substituted ‘‘Except as other

wise provided in subsection (b) of this section the Ad

ministrator’’ for ‘‘The Administrator’’, ‘‘cause, or con

tribute to, air pollution which may reasonably be an

ticipated to endanger public health or welfare’’ for ‘‘causes or contributes to, or is likely to cause or con

tribute to, air pollution which endangers the public health or welfare’’, and ‘‘useful life (as determined under subsection (d) of this section, relating to useful life of vehicles for purposes of certification), whether such vehicles and engines are designed as complete sys

tems or incorporate devices’’ for ‘‘useful life (as deter

mined under subsection (d) of this section) whether such vehicles and engines are designed as complete sys

tems or incorporated devices’’. Subsec. (a)(2). Pub. L. 95–95, §214(a), substituted ‘‘pre

scribed under paragraph (1) of this subsection’’ for ‘‘prescribed under this subsection’’. Subsec. (a)(3). Pub. L. 95–95, §224(a), added par. (3). Subsec. (a)(3)(B). Pub. L. 95–190, §14(a)(61), (62), sub

stituted provisions setting forth applicable periods of from June 1 through Dec. 31, 1978, June 1 through Dec. 31, 1980, and during each period of June 1 through Dec. 31 of each third year thereafter, for provisions setting forth applicable periods of from June 1 through Dec. 31, 1979, and during each period of June 1 through Dec. 31 of each third year after 1979, and substituted ‘‘from any’’ for ‘‘of from any’’. Subsec. (a)(3)(E). Pub. L. 95–190, §14(a)(63), substituted ‘‘1978, in the case of hydrocarbons and carbon mon

oxide, and June 1, 1980, in the case of oxides of nitro

gen’’ for ‘‘1979,’’. Subsec. (a)(4). Pub. L. 95–95, §214(a), added par. (4). Subsec. (a)(5). Pub. L. 95–95, §215, added par. (5). Subsec. (a)(6). Pub. L. 95–95, §216, added par. (6). Subsec. (b)(1)(A). Pub. L. 95–95, §201(a), substituted provisions setting the standards for emissions from light-duty vehicles and engines manufactured during the model years 1977 through 1980 for provisions which had set the standards for emissions from light-duty ve

hicles and engines manufactured during the model years 1975 and 1976, substituted ‘‘model year 1980’’ for ‘‘model year 1977’’ in provisions requiring a reduction of at least 90 per centum from the emissions allowable under standards for model year 1970, and inserted provi

sions that, unless waived as provided in par. (5), the standards for vehicles and engines manufactured during or after the model year 1981 represent a reduction of at least 90 per centum from the emissions allowable under standards for model year 1970.Page 6360 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

Subsec. (b)(1)(B). Pub. L. 95–190, §14(a)(64), (65), sub

stituted ‘‘calendar year 1976’’ for ‘‘model year 1976’’ and in cl. (i) substituted ‘‘other’’ for ‘‘United States’’. Pub. L. 95–95, §201(b), substituted provisions setting the standards for emissions from light-duty vehicles and engines manufactured during the model years 1977 through 1980 for provisions which had set the standards for emissions from light-duty vehicles and engines manufactured during the model years 1975 through 1977, substituted provisions that the standards for model years 1981 and after allow emissions of no more than 1.0 gram per vehicle mile for provisions that the standards for model year 1978 and after require a reduction of at least 90 per centum from the average of emissions actu

ally measured from light-duty vehicles manufactured during model year 1971 which were not subject to any Federal or State emission standards for oxides of nitro

gen, and inserted provisions directing the Adminis

trator to prescribe separate standards for model years 1981 and 1982 for manufacturers whose production, by corporate identity, for model year 1976 was less than three hundred thousand light-duty motor vehicles worldwide if the manufacturer’s capability to meet emission standards depends upon United States tech

nology and if the manufacturer cannot develop one. Subsec. (b)(1)(C). Pub. L. 95–95, §217, added subpar. (C). Subsec. (b)(3)(C). Pub. L. 95–95, §224(b), added subpar. (C). Subsec. (b)(5). Pub. L. 95–95, §201(c), substituted pro

visions setting up a procedure under which a manufac

turer may apply for a waiver for model years 1981 and 1982 of the effective date of the emission standards for carbon monoxide required by par. (1)(A) for provisions which had set up a procedure under which a manufac

turer, after Jan. 1, 1975, could apply for a one-year sus

pension of the effective date of any emission standard required by par. (1)(A) for model year 1977. Subsec. (b)(6). Pub. L. 95–95, §201(c), added par. (6). Subsec. (b)(7). Pub. L. 95–95, §202(b), added par. (7). Subsec. (d)(2). Pub. L. 95–95, §224(g), as amended by Pub. L. 95–190, §14(b)(5), to correct typographical error in directory language, inserted ‘‘(other than motor

cycles or motorcycle engines)’’ after ‘‘motor vehicle or motor vehicle engine’’. Subsec. (d)(3). Pub. L. 95–95, §224(g), added par. (3). Subsec. (e). Pub. L. 95–95, §401(d)(2), substituted ‘‘which in his judgment cause, or contribute to, air pol

lution which may reasonably be anticipated to endan

ger’’ for ‘‘which cause or contribute to, or are likely to cause or contribute to, air pollution which endangers’’. Subsec. (f). Pub. L. 95–95, §213(b), added subsec. (f). 1974—Subsec. (b)(1)(A). Pub. L. 93–319, §5(a), sub

stituted ‘‘model year 1977’’ for ‘‘model year 1975’’ in provisions requiring a reduction of at least 90 per cen

tum from the emissions allowable under standards for model year 1970 and inserted provisions covering regu

lations for model years 1975 and 1976. Subsec. (b)(1)(B). Pub. L. 93–319, §5(b), substituted ‘‘model year 1978’’ for ‘‘model year 1976’’ in provisions requiring a reduction of at least 90 per centum from the average of emissions actually measured from vehicles manufactured during model year 1971 and inserted pro

visions covering regulations for model years 1975, 1976, and 1977. Subsec. (b)(5). Pub. L. 93–319, §5(c), (d), substituted in subpar. (A), ‘‘At any time after January 1, 1975’’ for ‘‘At any time after January 1, 1972’’, ‘‘with respect to such manufacturer for light-duty vehicles and engines man

ufactured in model year 1977’’ for ‘‘with respect to such manufacturer’’, ‘‘sixty days’’ for ‘‘60 days’’, ‘‘paragraph (1)(A) of this subsection’’ for ‘‘paragraph (1)(A)’’, and ‘‘vehicles and engines manufactured during model year 1977’’ for ‘‘vehicles and engines manufactured during model year 1975’’, redesignated subpars. (C) to (E) as (B) to (D), respectively, and struck out former subpar. (B) which had allowed manufacturers, at any time after Jan. 1, 1973, to file with the Administrator an applica

tion requesting a 1-year suspension of the effective date of any emission standard required by subsec. (b)(1)(B) with respect to such manufacturer. 1970—Subsec. (a). Pub. L. 91–604 redesignated existing provisions as par. (1), substituted Administrator for Secretary as the issuing authority for standards, in

serted references to the useful life of engines, and sub

stituted the emission of any air pollutant for the emis

sion of any kind of substance as the subject to be regu

lated, and added par. (2). Subsec. (b). Pub. L. 91–604 added subsec. (b). Former subsec. (b) redesignated as par. (2) of subsec. (a). Subsecs. (c) to (e). Pub. L. 91–604 added subsecs. (c) to (e). 1967—Pub. L. 90–148 reenacted section without change.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

S TUDY ON O XIDES OF N ITROGEN F ROM L IGHT -D UTY V EHICLES Section 202(a) of Pub. L. 95–95 provided that the Ad

ministrator of the Environmental Protection Agency conduct a study of the public health implications of at

taining an emission standard on oxides of nitrogen from light-duty vehicles of 0.4 gram per vehicle mile, the cost and technological capability of attaining such standard, and the need for such a standard to protect public health or welfare and that the Administrator submit a report of such study to the Congress, together with recommendations not later than July 1, 1980.

S TUDY OF C ARBON M ONOXIDE I NTRUSION I NTO

S USTAINED -U SE V EHICLES Section 226 of Pub. L. 95–95 provided that the Admin

istrator, in conjunction with the Secretary of Trans

portation, study the problem of carbon monoxide intru

sion into the passenger area of sustained-use motor ve

hicles and that within one year the Administrator re

port to the Congress respecting the results of such study.

C ONTINUING C OMPREHENSIVE S TUDIES AND I NVESTIGATIONS BY N ATIONAL A CADEMY OF S CIENCES Section 403(f) of Pub. L. 95–95 provided that: ‘‘The Ad

ministrator of the Environmental Protection Agency shall undertake to enter into appropriate arrangements with the National Academy of Sciences to conduct con

tinuing comprehensive studies and investigations of the effects on public health and welfare of emissions subject to section 202(a) of the Clean Air Act [subsec. (a) of this section] (including sulfur compounds) and the technological feasibility of meeting emission stand

ards required to be prescribed by the Administrator by section 202(b) of such Act [subsec. (b) of this section]. The Administrator shall report to the Congress within six months of the date of enactment of this section [Aug. 7, 1977] and each year thereafter regarding the status of the contractual arrangements and conditions necessary to implement this paragraph.’’ [For termination, effective May 15, 2000, of provisions relating to annual report to Congress in section 403(f)Page 6361 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

of Pub. L. 95–95, set out above, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and the 2nd item on page 165 of House Document No. 103–7.]

S TUDY ON E MISSION OF S ULFUR -B EARING C OMPOUNDS F ROM M OTOR V EHICLES AND M OTOR V EHICLE AND A IRCRAFT E NGINES Section 403(g) of Pub. L. 95–95 provided that the Ad

ministrator of the Environmental Protection Agency conduct a study and report to the Congress by the dateone year after Aug. 7, 1977, on the emission of sulfurbearing compounds from motor vehicles and motor ve

hicle engines and aircraft engines.

E X . O RD . N O . 13432. C OOPERATION A MONG A GENCIES IN P ROTECTING THE E NVIRONMENT W ITH R ESPECT TO G REENHOUSE G AS E MISSIONS F ROM M OTOR V EHICLES , N ONROAD V EHICLES , AND N ONROAD E NGINES Ex. Ord. No. 13432, May 14, 2007, 72 F.R. 27717, pro

vided: By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: S ECTION 1. Policy . It is the policy of the United States to ensure the coordinated and effective exercise of the authorities of the President and the heads of the De

partment of Transportation, the Department of En

ergy, and the Environmental Protection Agency to pro

tect the environment with respect to greenhouse gas emissions from motor vehicles, nonroad vehicles, and nonroad engines, in a manner consistent with sound science, analysis of benefits and costs, public safety, and economic growth. S EC . 2. Definitions . As used in this order: (a) ‘‘agencies’’ refers to the Department of Transpor

tation, the Department of Energy, and the Environ

mental Protection Agency, and all units thereof, and ‘‘agency’’ refers to any of them; (b) ‘‘alternative fuels’’ has the meaning specified for that term in section 301(2) of the Energy Policy Act of 1992 (42 U.S.C. 13211(2)); (c) ‘‘authorities’’ include the Clean Air Act (42 U.S.C. 7401–7671q), the Energy Policy Act of 1992 (Public Law 102–486), the Energy Policy Act of 2005 (Public Law 109–58), the Energy Policy and Conservation Act (Public Law 94–163), and any other current or future laws or regulations that may authorize or require any of the agencies to take regulatory action that directly or in

directly affects emissions of greenhouse gases from motor vehicles; (d) ‘‘greenhouse gases’’ has the meaning specified for that term in Executive Order 13423 of January 24, 2007; (e) ‘‘motor vehicle’’ has the meaning specified for that term in section 216(2) of the Clean Air Act (42 U.S.C. 7550(2)); (f) ‘‘nonroad engine’’ has the meaning specified for that term in section 216(10) of the Clean Air Act (42 U.S.C. 7550(10)); (g) ‘‘nonroad vehicle’’ has the meaning specified for that term in section 216(11) of the Clean Air Act (42 U.S.C. 7550(11)); (h) ‘‘regulation’’ has the meaning specified for that term in section 3(d) of Executive Order 12866 of Septem

ber 30, 1993, as amended (Executive Order 12866); and (i) ‘‘regulatory action’’ has the meaning specified for that term in section 3(e) of Executive Order 12866. S EC . 3. Coordination Among the Agencies . In carrying out the policy set forth in section 1 of this order, the head of an agency undertaking a regulatory action that can reasonably be expected to directly regulate emis

sions, or to substantially and predictably affect emis

sions, of greenhouse gases from motor vehicles, nonroad vehicles, nonroad engines, or the use of motor vehicle fuels, including alternative fuels, shall: (a) undertake such a regulatory action, to the maxi

mum extent permitted by law and determined by the head of the agency to be practicable, jointly with the other agencies; (b) in undertaking such a regulatory action, consider, in accordance with applicable law, information and rec

ommendations provided by the other agencies; (c) in undertaking such a regulatory action, exercise authority vested by law in the head of such agency ef

fectively, in a manner consistent with the effective ex

ercise by the heads of the other agencies of the author

ity vested in them by law; and (d) obtain, to the extent permitted by law, concur

rence or other views from the heads of the other agen

cies during the development and preparation of the reg

ulatory action and prior to any key decision points during that development and preparation process, and in no event later than 30 days prior to publication of such action. S EC . 4. Duties of the Heads of Agencies . (a) To imple

ment this order, the head of each agency shall: (1) designate appropriate personnel within the agency to (i) direct the agency’s implementation of this order, (ii) ensure that the agency keeps the other agencies and the Office of Management and Budget informed of the agency regulatory actions to which section 3 refers, and (iii) coordinate such actions with the agencies; (2) in coordination as appropriate with the Commit

tee on Climate Change Science and Technology, con

tinue to conduct and share research designed to ad

vance technologies to further the policy set forth in section 1 of this order; (3) facilitate the sharing of personnel and the sharing of information among the agencies to further the pol

icy set forth in section 1 of this order; (4) coordinate with the other agencies to avoid dupli

cation of requests to the public for information from the public in the course of undertaking such regulatory action, consistent with the Paperwork Reduction Act (44 U.S.C. 3501 et seq .); and (5) consult with the Secretary of Agriculture when

ever a regulatory action will have a significant effect on agriculture related to the production or use of etha

nol, biodiesel, or other renewable fuels, including ac

tions undertaken in whole or in part based on authority or requirements in title XV of the Energy Policy Act of 2005, or the amendments made by such title, or when otherwise appropriate or required by law. (b) To implement this order, the heads of the agencies acting jointly may allocate as appropriate among the agencies administrative responsibilities relating to reg

ulatory actions to which section 3 refers, such as publi

cation of notices in the Federal Register and receipt of comments in response to notices. S EC . 5. Duties of the Director of the Office of Manage

ment and Budget and the Chairman of the Council on En

vironmental Quality . (a) The Director of the Office of Management and Budget, with such assistance from the Chairman of the Council on Environmental Quality as the Director may require, shall monitor the implemen

tation of this order by the heads of the agencies and shall report thereon to the President from time to time, and not less often than semiannually, with any recommendations of the Director for strengthening the implementation of this order. (b) To implement this order and further the policy set forth in section 1, the Director of the Office of Manage

ment and Budget may require the heads of the agencies to submit reports to, and coordinate with, such Office on matters related to this order. S EC . 6. General Provisions . (a) This order shall be im

plemented in accordance with applicable law and sub

ject to the availability of appropriations. (b) This order shall not be construed to impair or otherwise affect the functions of the Director of the Of

fice of Management and Budget relating to budget, ad

ministrative, and legislative proposals. (c) This order is not intended to, and does not, create any right, benefit or privilege, substantive or proce

dural, enforceable at law or in equity by any party against the United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other person. G EORGE W. B USH

.Page 6362 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7522

1 So in original. Probably should be followed by a comma. § 7522. Prohibited acts (a) Enumerated prohibitions The following acts and the causing thereof are prohibited— (1) in the case of a manufacturer of new motor vehicles or new motor vehicle engines for distribution in commerce, the sale, or the offering for sale, or the introduction, or deliv

ery for introduction, into commerce, or (in the case of any person, except as provided by regu

lation of the Administrator), the importation into the United States, of any new motor vehi

cle or new motor vehicle engine, manufactured after the effective date of regulations under this part which are applicable to such vehicle or engine unless such vehicle or engine is cov

ered by a certificate of conformity issued (and in effect) under regulations prescribed under this part or part C in the case of clean-fuel ve

hicles (except as provided in subsection (b) of this section); (2)(A) for any person to fail or refuse to per

mit access to or copying of records or to fail to make reports or provide information re

quired under section 7542 of this title; (B) for any person to fail or refuse to permit entry, testing or inspection authorized under section 7525(c) of this title or section 7542 of this title; (C) for any person to fail or refuse to per

form tests, or have tests performed as required under section 7542 of this title; (D) for any manufacturer to fail to make in

formation available as provided by regulation under section 7521(m)(5) of this title; (3)(A) for any person to remove or render in

operative any device or element of design in

stalled on or in a motor vehicle or motor vehi

cle engine in compliance with regulations under this subchapter prior to its sale and de

livery to the ultimate purchaser, or for any person knowingly to remove or render inoper

ative any such device or element of design after such sale and delivery to the ultimate purchaser; or (B) for any person to manufacture or sell, or offer to sell, or install, any part or component intended for use with, or as part of, any motor vehicle or motor vehicle engine, where a prin

cipal effect of the part or component is to by

pass, defeat, or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with regulations under this subchapter, and where the person knows or should know that such part or component is being offered for sale or installed for such use or put to such
use; or (4) for any manufacturer of a new motor ve

hicle or new motor vehicle engine subject to standards prescribed under section 7521 of this title or part C of this subchapter— (A) to sell or lease any such vehicle or en

gine unless such manufacturer has complied with (i) the requirements of section 7541(a) and (b) of this title with respect to such ve

hicle or engine, and unless a label or tag is affixed to such vehicle or engine in accord

ance with section 7541(c)(3) of this title, or (ii) the corresponding requirements of part C of this subchapter in the case of clean fuel vehicles unless the manufacturer has com

plied with the corresponding requirements of part C of this subchapter 1 (B) to fail or refuse to comply with the re

quirements of section 7541(c) or (e) of this title, or the corresponding requirements of part C of this subchapter in the case of clean fuel vehicles 1 (C) except as provided in subsection (c)(3) of section 7541 of this title and the cor

responding requirements of part C of this subchapter in the case of clean fuel vehicles, to provide directly or indirectly in any com

munication to the ultimate purchaser or any subsequent purchaser that the coverage of any warranty under this chapter is condi

tioned upon use of any part, component, or system manufactured by such manufacturer or any person acting for such manufacturer or under his control, or conditioned upon service performed by any such person, or (D) to fail or refuse to comply with the terms and conditions of the warranty under section 7541(a) or (b) of this title or the cor

responding requirements of part C of this subchapter in the case of clean fuel vehicles with respect to any vehicle; or (5) for any person to violate section 7553 of this title, 7554 of this title, or part C of this subchapter or any regulations under section 7553 of this title, 7554 of this title, or part C of this subchapter. No action with respect to any element of design referred to in paragraph (3) (including any ad

justment or alteration of such element) shall be treated as a prohibited act under such paragraph (3) if such action is in accordance with section 7549 of this title. Nothing in paragraph (3) shall be construed to require the use of manufacturer parts in maintaining or repairing any motor ve

hicle or motor vehicle engine. For the purposes of the preceding sentence, the term ‘‘manufac

turer parts’’ means, with respect to a motor ve

hicle engine, parts produced or sold by the man

ufacturer of the motor vehicle or motor vehicle engine. No action with respect to any device or element of design referred to in paragraph (3) shall be treated as a prohibited act under that paragraph if (i) the action is for the purpose of repair or replacement of the device or element, or is a necessary and temporary procedure to re

pair or replace any other item and the device or element is replaced upon completion of the pro

cedure, and (ii) such action thereafter results in the proper functioning of the device or element referred to in paragraph (3). No action with re

spect to any device or element of design referred to in paragraph (3) shall be treated as a prohib

ited act under that paragraph if the action is for the purpose of a conversion of a motor vehicle for use of a clean alternative fuel (as defined in this subchapter) and if such vehicle complies with the applicable standard under section 7521 of this title when operating on such fuel, and if in the case of a clean alternative fuel vehicle (as defined by rule by the Administrator), the de

vice or element is replaced upon completion ofPage 6363 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7522

the conversion procedure and such action re

sults in proper functioning of the device or ele

ment when the motor vehicle operates on con

ventional fuel. (b) Exemptions; refusal to admit vehicle or en

gine into United States; vehicles or engines intended for export (1) The Administrator may exempt any new motor vehicle or new motor vehicle engine, from subsection (a) of this section, upon such terms and conditions as he may find necessary for the purpose of research, investigations, studies, demonstrations, or training, or for reasons of national security. (2) A new motor vehicle or new motor vehicle engine offered for importation or imported by any person in violation of subsection (a) of this section shall be refused admission into the United States, but the Secretary of the Treasury and the Administrator may, by joint regulation, provide for deferring final determination as to admission and authorizing the delivery of such a motor vehicle or engine offered for import to the owner or consignee thereof upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to insure that any such motor vehicle or engine will be brought into conformity with the standards, re

quirements, and limitations applicable to it under this part. The Secretary of the Treasury shall, if a motor vehicle or engine is finally re

fused admission under this paragraph, cause dis

position thereof in accordance with the customs laws unless it is exported, under regulations pre

scribed by such Secretary, within ninety days of the date of notice of such refusal or such addi

tional time as may be permitted pursuant to such regulations, except that disposition in ac

cordance with the customs laws may not be made in such manner as may result, directly or indirectly, in the sale, to the ultimate con

sumer, of a new motor vehicle or new motor ve

hicle engine that fails to comply with applicable standards of the Administrator under this part. (3) A new motor vehicle or new motor vehicle engine intended solely for export, and so labeled or tagged on the outside of the container and on the vehicle or engine itself, shall be subject to the provisions of subsection (a) of this section, except that if the country which is to receive such vehicle or engine has emission standards which differ from the standards prescribed under section 7521 of this title, then such vehicle or en

gine shall comply with the standards of such country which is to receive such vehicle or en

gine. (July 14, 1955, ch. 360, title II, §203, as added Pub. L. 89–272, title I, §101(8), Oct. 20, 1965, 79 Stat. 993; amended Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 499; Pub. L. 91–604, §§7(a), 11(a)(2)(A), 15(c)(2), Dec. 31, 1970, 84 Stat. 1693, 1705, 1713; Pub. L. 95–95, title II, §§206, 211(a), 218(a), (d), 219(a), (b), Aug. 7, 1977, 91 Stat. 755, 757, 761, 762; Pub. L. 95–190, §14(a)(66)–(68), Nov. 16, 1977, 91 Stat. 1403; Pub. L. 101–549, title II, §§228(a), (b), (e), 230(6), Nov. 15, 1990, 104 Stat. 2507, 2511, 2529.)

C ODIFICATION Section was formerly classified to section 1857f–2 of this title. A MENDMENTS 1990—Subsec. (a). Pub. L. 101–549, §228(b)(2), inserted two sentences at end which set forth conditions under which actions with respect to devices or elements of de

sign, referred to in par. (3), would not be deemed pro

hibited acts. Subsec. (a)(1). Pub. L. 101–549, §228(e)(1), inserted ‘‘or part C of this subchapter in the case of clean-fuel vehi

cles’’ before ‘‘(except’’. Subsec. (a)(2). Pub. L. 101–549, §228(a), amended par. (2) generally. Prior to amendment, par. (2) read as fol

lows: ‘‘for any person to fail or refuse to permit access to or copying of records or to fail to make reports or provide information, required under section 7542 of this title or for any person to fail or refuse to permit entry, testing, or inspection authorized under section 7525(c) of this title;’’. Subsec. (a)(3). Pub. L. 101–549, §228(b)(1), amended par. (3) generally. Prior to amendment, par. (3) read as fol

lows: ‘‘(A) for any person to remove or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with regulations under this subchapter prior to its sale and delivery to the ultimate purchaser, or for any man

ufacturer or dealer knowingly to remove or render in

operative any such device or element of design after such sale and delivery to the ultimate purchaser; or ‘‘(B) for any person engaged in the business of repair

ing, servicing, selling, leasing, or trading motor vehi

cles or motor vehicle engines, or who operates a fleet of motor vehicles, knowingly to remove or render inop

erative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compli

ance with regulations under this subchapter following its sale and delivery to the ultimate purchaser; or’’. Subsec. (a)(4). Pub. L. 101–549, §228(e)(2), inserted ‘‘part C of this subchapter’’ after ‘‘section 7521 of this title’’. Subsec. (a)(4)(A). Pub. L. 101–549, §228(e)(3), inserted cl. (i) designation and added cl. (ii). Subsec. (a)(4)(B). Pub. L. 101–549, §228(e)(4), inserted at end ‘‘or the corresponding requirements of part C of this subchapter in the case of clean fuel vehicles’’. Subsec. (a)(4)(C). Pub. L. 101–549, §228(e)(5), inserted ‘‘and the corresponding requirements of part C of this subchapter in the case of clean fuel vehicles’’ after ‘‘section 7541 of this title’’. Subsec. (a)(4)(D). Pub. L. 101–549, §228(e)(6), inserted ‘‘or the corresponding requirements of part C of this subchapter in the case of clean fuel vehicles’’ before ‘‘with respect to any vehicle’’. Subsec. (a)(5). Pub. L. 101–549, §228(e)(7), added par. (5). Subsec. (c). Pub. L. 101–549, §230(6), struck out subsec. (c) which related to exemptions to permit modifica

tions of emission control devices or systems. 1977—Subsec. (a). Pub. L. 95–190, §14(a)(68), in closing text inserted a period after ‘‘section 7549 of this title’’. Pub. L. 95–95, §§206, 211(a), 218(a), 219(a), (b), inserted ‘‘or for any person to fail or refuse to permit entry, testing, or inspection authorized under section 7525(c) of this title’’ in par. (2), designated existing provisions of par. (3) as subpar. (A) and added subpar. (B), added subpars. (C) and (D) in par. (4), and, following par. (4), inserted provisions that no action with respect to any element of design referred to in par. (3) (including ad

justment or alteration of such element) be treated as a prohibited act under par. (3) if the action is in accord

ance with section 7549 of this title and that nothing in par. (3) be construed to require the use of manufacturer parts in maintaining or repairing motor vehicles or motor vehicle engines. Subsec. (a)(3)(B). Pub. L. 95–190, §14(a)(66), substituted ‘‘purchaser;’’ for ‘‘purchaser,’’. Subsec. (a)(4)(C). Pub. L. 95–190, §14(a)(67), inserted ‘‘or’’ after ‘‘such person,’’. Subsec. (b)(3). Pub. L. 95–95, §218(d), substituted ‘‘sec

tion 7521 of this title’’ for ‘‘subsection (a) of this sec

-Page 6364 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7523

1 So in original. Probably should be ‘‘section’’. tion’’ and ‘‘country which is to receive such vehicle or engine’’ for ‘‘country of export’’. 1970—Subsec. (a)(1). Pub. L. 91–604, §7(a)(1), struck out reference to the manufacture of new motor vehicles or new motor vehicle engines for sale, inserted provision for issuance by the Administrator of regulations re

garding exceptions in the case of importation of new motor vehicles or new motor vehicle engines, and sub

stituted ‘‘importation’’ into the United States of such units for ‘‘importation for sale or resale’’ into the United States of such units. Subsec. (a)(2). Pub. L. 91–604, §7(a)(2), substituted ‘‘section 208’’ for ‘‘section 207’’, both of which, for pur

poses of codification, are translated as ‘‘section 7542 of this title’’. Subsec. (a)(3). Pub. L. 91–604, §§7(a)(3), 11(a)(2)(A), sub

stituted ‘‘part’’ for ‘‘subchapter’’ and inserted provi

sions prohibiting the knowing removal or inoperation by manufacturers or dealers of devices or elements of design after sale and delivery to the ultimate pur

chaser. Subsec. (a)(4). Pub. L. 91–604, §7(a)(4), added par. (4). Subsec. (b)(1). Pub. L. 91–604, §§7(a)(5), 15(c)(2), struck out reference to the exemption of a class of new motor vehicles or new motor vehicle engines, struck out the protection of the public health and welfare from the enumeration of purposes for which exemptions may be made, and substituted ‘‘Administrator’’ for ‘‘Sec

retary’’. Subsec. (b)(2). Pub. L. 91–604, §§7(a)(6), 11(a)(2)(A), 15(c)(2), substituted ‘‘Administrator’’ for ‘‘Secretary of Health, Education, and Welfare’’, ‘‘importation or im

ported by any person’’ for ‘‘importation by a manufac

turer’’, and ‘‘part’’ for ‘‘subchapter’’. Subsec. (b)(3). Pub. L. 91–604, §7(a)(7)(A), inserted pro

vision that, if the country of export has emission standards which differ from the standards prescribed under subsec. (a), such vehicle or engine must comply with the standards of such country of export. Subsec. (c). Pub. L. 91–604, §7(a)(7)(B), added subsec. (c). 1967—Subsec. (a). Pub. L. 90–148 substituted ‘‘con

formity with regulations prescribed under this sub

chapter’’ for ‘‘conformity with regulations prescribed under section 7521 of this title’’ in par. (1).

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.
§ 7523. Actions to restrain violations (a) Jurisdiction
The district courts of the United States shall have jurisdiction to restrain violations of sec

tion 7522(a) of this title. (b) Actions brought by or in name of United States; subpenas
Actions to restrain such violations shall be brought by and in the name of the United States. In any such action, subpenas for wit

nesses who are required to attend a district court in any district may run into any other dis

trict. (July 14, 1955, ch. 360, title II, §204, as added Pub. L. 89–272, title I, §101(8), Oct. 20, 1965, 79 Stat. 994; amended Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 500; Pub. L. 91–604, §7(b), Dec. 31, 1970, 84 Stat. 1694; Pub. L. 95–95, title II, §218(b), Aug. 7, 1977, 91 Stat. 761.)

C ODIFICATION Section was formerly classified to section 1857f–3 of this title.

A MENDMENTS 1977—Subsec. (a). Pub. L. 95–95 struck out ‘‘paragraph (1), (2), (3), or (4)’’ after ‘‘restrain violations of’’. 1970—Subsec. (a). Pub. L. 91–604 inserted reference to par. (4) of section 7522(a) of this title. 1967—Pub. L. 90–148 reenacted section without change.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

P ENDING A CTIONS AND P ROCEEDINGS Suits, actions, and other proceedings lawfully com

menced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 amendment note under section 7401 of this title. § 7524. Civil penalties (a) Violations Any person who violates sections 1 7522(a)(1), 7522(a)(4), or 7522(a)(5) of this title or any manu

facturer or dealer who violates section 7522(a)(3)(A) of this title shall be subject to a civil penalty of not more than $25,000. Any per

son other than a manufacturer or dealer who violates section 7522(a)(3)(A) of this title or any person who violates section 7522(a)(3)(B) of this title shall be subject to a civil penalty of not more than $2,500. Any such violation with re

spect to paragraph (1), (3)(A), or (4) of section 7522(a) of this title shall constitute a separate offense with respect to each motor vehicle or motor vehicle engine. Any such violation with respect to section 7522(a)(3)(B) of this title shall constitute a separate offense with respect to each part or component. Any person who vio

lates section 7522(a)(2) of this title shall be sub

ject to a civil penalty of not more than $25,000 per day of violation. (b) Civil actions The Administrator may commence a civil ac

tion to assess and recover any civil penalty under subsection (a) of this section, section 7545(d) of this title, or section 7547(d) of this title. Any action under this subsection may be brought in the district court of the UnitedPage 6365 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7524

States for the district in which the violation is alleged to have occurred or in which the defend

ant resides or has the Administrator’s principal place of business, and the court shall have juris

diction to assess a civil penalty. In determining the amount of any civil penalty to be assessed under this subsection, the court shall take into account the gravity of the violation, the eco

nomic benefit or savings (if any) resulting from the violation, the size of the violator’s business, the violator’s history of compliance with this subchapter, action taken to remedy the viola

tion, the effect of the penalty on the violator’s ability to continue in business, and such other matters as justice may require. In any such ac

tion, subpoenas for witnesses who are required to attend a district court in any district may run into any other district. (c) Administrative assessment of certain pen

alties (1) Administrative penalty authority In lieu of commencing a civil action under subsection (b) of this section, the Adminis

trator may assess any civil penalty prescribed in subsection (a) of this section, section 7545(d) of this title, or section 7547(d) of this title, ex

cept that the maximum amount of penalty sought against each violator in a penalty as

sessment proceeding shall not exceed $200,000, unless the Administrator and the Attorney General jointly determine that a matter in

volving a larger penalty amount is appropriate for administrative penalty assessment. Any such determination by the Administrator and the Attorney General shall not be subject to judicial review. Assessment of a civil penalty under this subsection shall be by an order made on the record after opportunity for a hearing in accordance with sections 554 and 556 of title 5. The Administrator shall issue rea

sonable rules for discovery and other proce

dures for hearings under this paragraph. Be

fore issuing such an order, the Administrator shall give written notice to the person to be assessed an administrative penalty of the Ad

ministrator’s proposal to issue such order and provide such person an opportunity to request such a hearing on the order, within 30 days of the date the notice is received by such person. The Administrator may compromise, or remit, with or without conditions, any administra

tive penalty which may be imposed under this section. (2) Determining amount In determining the amount of any civil pen

alty assessed under this subsection, the Ad

ministrator shall take into account the grav

ity of the violation, the economic benefit or savings (if any) resulting from the violation, the size of the violator’s business, the viola

tor’s history of compliance with this sub

chapter, action taken to remedy the violation, the effect of the penalty on the violator’s abil

ity to continue in business, and such other matters as justice may require. (3) Effect of Administrator’s action (A) Action by the Administrator under this subsection shall not affect or limit the Admin

istrator’s authority to enforce any provision of this chapter; except that any violation, (i) with respect to which the Adminis

trator has commenced and is diligently pros

ecuting an action under this subsection, or (ii) for which the Administrator has issued a final order not subject to further judicial review and the violator has paid a penalty assessment under this subsection, shall not be the subject of civil penalty action under subsection (b) of this section. (B) No action by the Administrator under this subsection shall affect any person’s obli

gation to comply with any section of this chapter. (4) Finality of order
An order issued under this subsection shall become final 30 days after its issuance unless a petition for judicial review is filed under paragraph (5). (5) Judicial review Any person against whom a civil penalty is assessed in accordance with this subsection may seek review of the assessment in the United States District Court for the District of Columbia, or for the district in which the violation is alleged to have occurred, in which such person resides, or where such person’s principal place of business is located, within the 30-day period beginning on the date a civil penalty order is issued. Such person shall si

multaneously send a copy of the filing by cer

tified mail to the Administrator and the At

torney General. The Administrator shall file in the court a certified copy, or certified index, as appropriate, of the record on which the order was issued within 30 days. The court shall not set aside or remand any order issued in accordance with the requirements of this subsection unless there is not substantial evi

dence in the record, taken as a whole, to sup

port the finding of a violation or unless the Administrator’s assessment of the penalty constitutes an abuse of discretion, and the court shall not impose additional civil pen

alties unless the Administrator’s assessment of the penalty constitutes an abuse of discre

tion. In any proceedings, the United States may seek to recover civil penalties assessed under this section. (6) Collection If any person fails to pay an assessment of a civil penalty imposed by the Administrator as provided in this subsection— (A) after the order making the assessment has become final, or (B) after a court in an action brought under paragraph (5) has entered a final judg

ment in favor of the Administrator, the Administrator shall request the Attorney General to bring a civil action in an appro

priate district court to recover the amount as

sessed (plus interest at rates established pur

suant to section 6621(a)(2) of title 26 from the date of the final order or the date of the final judgment, as the case may be). In such an ac

tion, the validity, amount, and appropriate

ness of the penalty shall not be subject to re

view. Any person who fails to pay on a timely basis the amount of an assessment of a civilPage 6366 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7525

penalty as described in the first sentence of this paragraph shall be required to pay, in ad

dition to that amount and interest, the United States’ enforcement expenses, including attor

neys fees and costs for collection proceedings, and a quarterly nonpayment penalty for each quarter during which such failure to pay per

sists. The nonpayment penalty shall be in an amount equal to 10 percent of the aggregate amount of that person’s penalties and non

payment penalties which are unpaid as of the beginning of such quarter. (July 14, 1955, ch. 360, title I, §205, as added Pub. L. 89–272, title I, §101(8), Oct. 20, 1965, 79 Stat. 994; amended Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 500; Pub. L. 91–604, §7(c), Dec. 31, 1970, 84 Stat. 1694; Pub. L. 95–95, title II, §219(c), Aug. 7, 1977, 91 Stat. 762; Pub. L. 101–549, title II, §228(c), Nov. 15, 1990, 104 Stat. 2508.)

C ODIFICATION Section was formerly classified to section 1857f–4 of this title.

A MENDMENTS 1990—Pub. L. 101–549 amended section generally. Prior to amendment, section read as follows: ‘‘Any person who violates paragraph (1), (2), or (4) of section 7522(a) of this title or any manufacturer, dealer, or other per

son who violates paragraph (3)(A) of section 7522(a) of this title shall be subject to a civil penalty of not more than $10,000. Any person who violates paragraph (3)(B) of such section 7522(a) shall be subject to a civil penalty of not more than $2,500. Any such violation with re

spect to paragraph (1), (3), or (4) of section 7522(a) of this title shall constitute a separate offense with re

spect to each motor vehicle or motor vehicle engine.’’ 1977—Pub. L. 95–95 substituted ‘‘Any person who vio

lates paragraph (1), (2), or (4) of section 7522(a) of this title, or any manufacturer, dealer, or other person who violates paragraph (3)(A) of section 7522(a) of this title’’ for ‘‘Any person who violates paragraph (1), (2), (3), or (4) of section 7522(a) of this title’’ in provisions covering the civil penalty of $10,000, and inserted provisions for a civil penalty of not more than $2,500 for violations of par. (3)(B) of section 7522(a) of this title. 1970—Pub. L. 91–604 increased the upper limit of the allowable fine from ‘‘$1,000’’ to ‘‘$10,000’’. 1967—Pub. L. 90–148 reenacted section without change.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.
§ 7525. Motor vehicle and motor vehicle engine compliance testing and certification (a) Testing and issuance of certificate of con

formity (1) The Administrator shall test, or require to be tested in such manner as he deems appro

priate, any new motor vehicle or new motor ve

hicle engine submitted by a manufacturer to de

termine whether such vehicle or engine con

forms with the regulations prescribed under sec

tion 7521 of this title. If such vehicle or engine conforms to such regulations, the Administrator shall issue a certificate of conformity upon such terms, and for such period (not in excess of one year), as he may prescribe. In the case of any original equipment manufacturer (as defined by the Administrator in regulations promulgated before November 15, 1990) of vehicles or vehicle engines whose projected sales in the United States for any model year (as determined by the Administrator) will not exceed 300, the Adminis

trator shall not require, for purposes of deter

mining compliance with regulations under sec

tion 7521 of this title for the useful life of the ve

hicle or engine, operation of any vehicle or en

gine manufactured during such model year for more than 5,000 miles or 160 hours, respectively, unless the Administrator, by regulation, pre

scribes otherwise. The Administrator shall apply any adjustment factors that the Adminis

trator deems appropriate to assure that each ve

hicle or engine will comply during its useful life (as determined under section 7521(d) of this title) with the regulations prescribed under section 7521 of this title. (2) The Administrator shall test any emission control system incorporated in a motor vehicle or motor vehicle engine submitted to him by any person, in order to determine whether such system enables such vehicle or engine to con

form to the standards required to be prescribed under section 7521(b) of this title. If the Admin

istrator finds on the basis of such tests that such vehicle or engine conforms to such stand

ards, the Administrator shall issue a verifica

tion of compliance with emission standards for such system when incorporated in vehicles of a class of which the tested vehicle is representa

tive. He shall inform manufacturers and the Na

tional Academy of Sciences, and make available to the public, the results of such tests. Tests under this paragraph shall be conducted under such terms and conditions (including require

ments for preliminary testing by qualified inde

pendent laboratories) as the Administrator may prescribe by regulations. (3)(A) A certificate of conformity may be is

sued under this section only if the Adminis

trator determines that the manufacturer (or in the case of a vehicle or engine for import, any person) has established to the satisfaction of the Administrator that any emission control device, system, or element of design installed on, or in

corporated in, such vehicle or engine conforms to applicable requirements of section 7521(a)(4) of this title. (B) The Administrator may conduct such tests and may require the manufacturer (or any such person) to conduct such tests and provide such information as is necessary to carry out sub

paragraph (A) of this paragraph. Such require

ments shall include a requirement for prompt reporting of the emission of any unregulated pollutant from a system, device, or element of design if such pollutant was not emitted, or was emitted in significantly lesser amounts, from the vehicle or engine without use of the system, device, or element of design. (4)(A) Not later than 12 months after Novem

ber 15, 1990, the Administrator shall revise the regulations promulgated under this subsection to add test procedures capable of determining whether model year 1994 and later model year light-duty vehicles and light-duty trucks, when properly maintained and used, will pass the in

spection methods and procedures established under section 7541(b) of this title for that modelPage 6367 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7525

year, under conditions reasonably likely to be encountered in the conduct of inspection and maintenance programs, but which those pro

grams cannot reasonably influence or control. The conditions shall include fuel characteris

tics, ambient temperature, and short (30 min

utes or less) waiting periods before tests are conducted. The Administrator shall not grant a certificate of conformity under this subsection for any 1994 or later model year vehicle or en

gine that the Administrator concludes cannot pass the test procedures established under this paragraph. (B) From time to time, the Administrator may revise the regulations promulgated under sub

paragraph (A), as the Administrator deems ap

propriate. (b) Testing procedures; hearing; judicial review; additional evidence (1) In order to determine whether new motor vehicles or new motor vehicle engines being manufactured by a manufacturer do in fact con

form with the regulations with respect to which the certificate of conformity was issued, the Ad

ministrator is authorized to test such vehicles or engines. Such tests may be conducted by the Administrator directly or, in accordance with conditions specified by the Administrator, by the manufacturer. (2)(A)(i) If, based on tests conducted under paragraph (1) on a sample of new vehicles or en

gines covered by a certificate of conformity, the Administrator determines that all or part of the vehicles or engines so covered do not conform with the regulations with respect to which the certificate of conformity was issued and with the requirements of section 7521(a)(4) of this title, he may suspend or revoke such certificate in whole or in part, and shall so notify the man

ufacturer. Such suspension or revocation shall apply in the case of any new motor vehicles or new motor vehicle engines manufactured after the date of such notification (or manufactured before such date if still in the hands of the man

ufacturer), and shall apply until such time as the Administrator finds that vehicles and en

gines manufactured by the manufacturer do con

form to such regulations and requirements. If, during any period of suspension or revocation, the Administrator finds that a vehicle or engine actually conforms to such regulations and re

quirements, he shall issue a certificate of con

formity applicable to such vehicle or engine. (ii) If, based on tests conducted under para

graph (1) on any new vehicle or engine, the Ad

ministrator determines that such vehicle or en

gine does not conform with such regulations and requirements, he may suspend or revoke such certificate insofar as it applies to such vehicle or engine until such time as he finds such vehi

cle or engine actually so conforms with such regulations and requirements, and he shall so notify the manufacturer. (B)(i) At the request of any manufacturer the Administrator shall grant such manufacturer a hearing as to whether the tests have been prop

erly conducted or any sampling methods have been properly applied, and make a determina

tion on the record with respect to any suspen

sion or revocation under subparagraph (A); but suspension or revocation under subparagraph (A) shall not be stayed by reason of such hearing. (ii) In any case of actual controversy as to the validity of any determination under clause (i), the manufacturer may at any time prior to the 60th day after such determination is made file a petition with the United States court of appeals for the circuit wherein such manufacturer re

sides or has his principal place of business for a judicial review of such determination. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Administrator or other officer designated by him for that purpose. The Administrator thereupon shall file in the court the record of the proceedings on which the Administrator based his determination, as pro

vided in section 2112 of title 28. (iii) If the petitioner applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such addi

tional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Ad

ministrator, the court may order such addi

tional evidence (and evidence in rebuttal there

of) to be taken before the Administrator, in such manner and upon such terms and conditions as the court may deem proper. The Administrator may modify his findings as to the facts, or make new findings, by reason of the additional evi

dence so taken and he shall file such modified or new findings, and his recommendation, if any, for the modification or setting aside of his origi

nal determination, with the return of such addi

tional evidence. (iv) Upon the filing of the petition referred to in clause (ii), the court shall have jurisdiction to review the order in accordance with chapter 7 of title 5 and to grant appropriate relief as pro

vided in such chapter. (c) Inspection For purposes of enforcement of this section, officers or employees duly designated by the Ad

ministrator, upon presenting appropriate cre

dentials to the manufacturer or person in charge, are authorized (1) to enter, at reasonable times, any plant or other establishment of such manufacturer, for the purpose of conducting tests of vehicles or engines in the hands of the manufacturer, or (2) to inspect, at reasonable times, records, files, papers, processes, controls, and facilities used by such manufacturer in con

ducting tests under regulations of the Adminis

trator. Each such inspection shall be com

menced and completed with reasonable prompt

ness. (d) Rules and regulations The Administrator shall by regulation estab

lish methods and procedures for making tests under this section. (e) Publication of test results
The Administrator shall make available to the public the results of his tests of any motor vehi

cle or motor vehicle engine submitted by a man

ufacturer under subsection (a) of this section as promptly as possible after December 31, 1970, and at the beginning of each model year which begins thereafter. Such results shall be de

scribed in such nontechnical manner as will rea

-Page 6368 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7525

1 So in original. Probably should be ‘‘light-duty’’. 2 See References in Text note below.

3 So in original. Probably should be ‘‘subsections’’. sonably disclose to prospective ultimate pur

chasers of new motor vehicles and new motor vehicle engines the comparative performance of the vehicles and engines tested in meeting the standards prescribed under section 7521 of this title. (f) High altitude regulations All light duty 1 vehicles and engines manufac

tured during or after model year 1984 and all light-duty trucks manufactured during or after model year 1995 shall comply with the require

ments of section 7521 of this title regardless of the altitude at which they are sold. (g) Nonconformance penalty (1) In the case of any class or category of heavy-duty vehicles or engines to which a stand

ard promulgated under section 7521(a) of this title applies, except as provided in paragraph (2), a certificate of conformity shall be issued under subsection (a) of this section and shall not be suspended or revoked under subsection (b) of this section for such vehicles or engines manu

factured by a manufacturer notwithstanding the failure of such vehicles or engines to meet such standard if such manufacturer pays a non

conformance penalty as provided under regula

tions promulgated by the Administrator after notice and opportunity for public hearing. In the case of motorcycles to which such a standard applies, such a certificate may be issued not

withstanding such failure if the manufacturer pays such a penalty. (2) No certificate of conformity may be issued under paragraph (1) with respect to any class or category of vehicle or engine if the degree by which the manufacturer fails to meet any stand

ard promulgated under section 7521(a) of this title with respect to such class or category ex

ceeds the percentage determined under regula

tions promulgated by the Administrator to be practicable. Such regulations shall require such testing of vehicles or engines being produced as may be necessary to determine the percentage of the classes or categories of vehicles or en

gines which are not in compliance with the reg

ulations with respect to which a certificate of conformity was issued and shall be promulgated not later than one year after August 7, 1977. (3) The regulations promulgated under para

graph (1) shall, not later than one year after Au

gust 7, 1977, provide for nonconformance pen

alties in amounts determined under a formula established by the Administrator. Such pen

alties under such formula— (A) may vary from pollutant-to-pollutant; (B) may vary by class or category or vehicle or engine; (C) shall take into account the extent to which actual emissions of any air pollutant exceed allowable emissions under the stand

ards promulgated under section 7521 of this title; (D) shall be increased periodically in order to create incentives for the development of production vehicles or engines which achieve the required degree of emission reduction; and (E) shall remove any competitive disadvan

tage to manufacturers whose engines or vehi

cles achieve the required degree of emission reduction (including any such disadvantage arising from the application of paragraph (4)). (4) In any case in which a certificate of con

formity has been issued under this subsection, any warranty required under section 7541(b)(2) of this title and any action under section 7541(c) of this title shall be required to be effective only for the emission levels which the Administrator determines that such certificate was issued and not for the emission levels required under the applicable standard. (5) The authorities of section 7542(a) of this title shall apply, subject to the conditions of section 7542(b) 2 of this title, for purposes of this subsection. (h) Review and revision of regulations Within 18 months after November 15, 1990, the Administrator shall review and revise as nec

essary the regulations under subsection 3 (a) and (b) of this section regarding the testing of motor vehicles and motor vehicle engines to insure that vehicles are tested under circumstances which reflect the actual current driving condi

tions under which motor vehicles are used, in

cluding conditions relating to fuel, temperature, acceleration, and altitude. (July 14, 1955, ch. 360, title II, §206, as added Pub. L. 91–604, §8(a), Dec. 31, 1970, 84 Stat. 1694; amended Pub. L. 95–95, title II, §§213(a), 214(b), (c), 220, 224(e), Aug. 7, 1977, 91 Stat. 758–760, 762, 768; Pub. L. 95–190, §14(a)(69), Nov. 16, 1977, 91 Stat. 1403; Pub. L. 101–549, title II, §§208, 230(7), (8), Nov. 15, 1990, 104 Stat. 2483, 2529.)

R EFERENCES IN T EXT Section 7542 of this title, referred to in subsec. (g)(5), was amended generally by Pub. L. 101–549, title II, §211, Nov. 15, 1990, 104 Stat. 2487, and provisions formerly contained in section 7542(b) of this title are contained in section 7542(c).

C ODIFICATION Section was formerly classified to section 1857f–5 of this title.

P RIOR P ROVISIONS A prior section 206 of act July 14, 1955, related to test

ing of motor vehicles and motor vehicle engines and was classified to section 1857f–5 of this title, prior to re

peal by Pub. L. 91–604.

A MENDMENTS 1990—Subsec. (a)(1). Pub. L. 101–549, §208(b), inserted new third sentence and struck out former third sen

tence which read as follows: ‘‘In the case of any manu

facturer of vehicles or vehicle engines whose projected sales in the United States for any model year (as deter

mined by the Administrator) will not exceed three hun

dred, the regulations prescribed by the Administrator concerning testing by the manufacturer for purposes of determining compliance with regulations under section 7521 of this title for the useful life of the vehicle or en

gine shall not require operation of any vehicle or en

gine manufactured during such model year for more than five thousand miles or one hundred and sixty hours, respectively, but the Administrator shall apply such adjustment factors as he deems appropriate to as

sure that each such vehicle or engine will comply dur

-Page 6369 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7541

1 So in original. The word ‘‘its’’ probably should not appear. ing its useful life (as determined under section 7521(d) of this title) with the regulations prescribed under sec

tion 7521 of this title.’’ Subsec. (a)(4). Pub. L. 101–549, §208(a), added par. (4). Subsec. (e). Pub. L. 101–549, §230(7), struck out ‘‘an

nounce in the Federal Register and’’ after ‘‘The Admin

istrator shall’’. Subsec. (f). Pub. L. 101–549, §230(8), struck out par. (1) designation before ‘‘All light duty vehicles’’, inserted reference to all light-duty trucks manufactured during or after model year 1995, and struck out par. (2) which required the Administrator to report to Congress by Oct. 1, 1978, on the economic impact and technological feasibility of the requirements of former par. (1). Subsec. (h). Pub. L. 101–549, §208(c), added subsec. (h). 1977—Subsec. (a)(1). Pub. L. 95–95, §220, inserted provi

sions covering testing by small manufacturers. Subsec. (a)(3). Pub. L. 95–95, §214(b), added par. (3). Subsec. (b)(2)(A)(i). Pub. L. 95–95, §214(c)(1), (2), sub

stituted ‘‘certificate of conformity was issued and with the requirements of section 7521(a)(4) of this title, he may suspend’’ for ‘‘certificate of conformity was issued, he may suspend’’ and ‘‘such regulations and require

ments’’ for ‘‘such regulations’’. Subsec. (b)(2)(A)(ii). Pub. L. 95–95, §214(c)(2), sub

stituted ‘‘such regulations and requirements’’ for ‘‘such regulations’’. Subsec. (f). Pub. L. 95–95, §213(a), added subsec. (f). Subsec. (g). Pub. L. 95–95, §224(e), added subsec. (g). Subsec. (g)(3)(D). Pub. L. 95–190 inserted ‘‘shall’’ be

fore ‘‘be’’.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

E FFECTIVE D ATE Section 8(b) of Pub. L. 91–604 provided that: ‘‘The amendments made by this section [enacting this sec

tion and section 7541 of this title] shall not apply to ve

hicles or engines imported into the United States be

fore the sixtieth day after the date of enactment of this Act [Dec. 31, 1970].’’

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.
§ 7541. Compliance by vehicles and engines in ac

tual use (a) Warranty; certification; payment of replace

ment costs of parts, devices, or components designed for emission control (1) Effective with respect to vehicles and en

gines manufactured in model years beginning more than 60 days after December 31, 1970, the manufacturer of each new motor vehicle and new motor vehicle engine shall warrant to the ultimate purchaser and each subsequent pur

chaser that such vehicle or engine is (A) de

signed, built, and equipped so as to conform at the time of sale with applicable regulations under section 7521 of this title, and (B) free from defects in materials and workmanship which cause such vehicle or engine to fail to conform with applicable regulations for its useful life (as determined under section 7521(d) of this title). In the case of vehicles and engines manufactured in the model year 1995 and thereafter such war

ranty shall require that the vehicle or engine is free from any such defects for the warranty pe

riod provided under subsection (i) of this sec

tion. (2) In the case of a motor vehicle part or motor vehicle engine part, the manufacturer or rebuilder of such part may certify that use of such part will not result in a failure of the vehi

cle or engine to comply with emission standards promulgated under section 7521 of this title. Such certification shall be made only under such regulations as may be promulgated by the Administrator to carry out the purposes of sub

section (b) of this section. The Administrator shall promulgate such regulations no later than two years following August 7, 1977. (3) The cost of any part, device, or component of any light-duty vehicle that is designed for emission control and which in the instructions issued pursuant to subsection (c)(3) of this sec

tion is scheduled for replacement during the useful life of the vehicle in order to maintain compliance with regulations under section 7521 of this title, the failure of which shall not inter

fere with the normal performance of the vehicle, and the expected retail price of which, including installation costs, is greater than 2 percent of the suggested retail price of such vehicle, shall be borne or reimbursed at the time of replace

ment by the vehicle manufacturer and such re

placement shall be provided without cost to the ultimate purchaser, subsequent purchaser, or dealer. The term ‘‘designed for emission con

trol’’ as used in the preceding sentence means a catalytic converter, thermal reactor, or other component installed on or in a vehicle for the sole or primary purpose of reducing vehicle emissions (not including those vehicle compo

nents which were in general use prior to model year 1968 and the primary function of which is not related to emission control). (b) Testing methods and procedures If the Administrator determines that (i) there are available testing methods and procedures to ascertain whether, when in actual use through

out its 1 the warranty period (as determined under subsection (i) of this section), each vehicle and engine to which regulations under section 7521 of this title apply complies with the emis

sion standards of such regulations, (ii) such methods and procedures are in accordance with good engineering practices, and (iii) such meth

ods and procedures are reasonably capable of being correlated with tests conducted under sec

tion 7525(a)(1) of this title, then— (1) he shall establish such methods and pro

cedures by regulation, and (2) at such time as he determines that in

spection facilities or equipment are available for purposes of carrying out testing methods and procedures established under paragraphPage 6370 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7541

(1), he shall prescribe regulations which shall require manufacturers to warrant the emis

sion control device or system of each new motor vehicle or new motor vehicle engine to which a regulation under section 7521 of this title applies and which is manufactured in a model year beginning after the Administrator first prescribes warranty regulations under this paragraph (2). The warranty under such regulations shall run to the ultimate pur

chaser and each subsequent purchaser and shall provide that if— (A) the vehicle or engine is maintained and operated in accordance with instructions under subsection (c)(3) of this section, (B) it fails to conform at any time during its 1 the warranty period (as determined under subsection (i) of this section) to the regulations prescribed under section 7521 of this title, and (C) such nonconformity results in the ulti

mate purchaser (or any subsequent pur

chaser) of such vehicle or engine having to bear any penalty or other sanction (includ

ing the denial of the right to use such vehi

cle or engine) under State or Federal law, then such manufacturer shall remedy such nonconformity under such warranty with the cost thereof to be borne by the manufacturer. No such warranty shall be invalid on the basis of any part used in the maintenance or repair of a vehicle or engine if such part was certified as provided under subsection (a)(2) of this sec

tion. (c) Nonconforming vehicles; plan for remedying nonconformity; instructions for maintenance and use; label or tag Effective with respect to vehicles and engines manufactured during model years beginning more than 60 days after December 31, 1970— (1) If the Administrator determines that a substantial number of any class or category of vehicles or engines, although properly main

tained and used, do not conform to the regula

tions prescribed under section 7521 of this title, when in actual use throughout their use

ful life (as determined under section 7521(d) of this title), he shall immediately notify the manufacturer thereof of such nonconformity, and he shall require the manufacturer to sub

mit a plan for remedying the nonconformity of the vehicles or engines with respect to which such notification is given. The plan shall pro

vide that the nonconformity of any such vehi

cles or engines which are properly used and maintained will be remedied at the expense of the manufacturer. If the manufacturer dis

agrees with such determination of non

conformity and so advises the Administrator, the Administrator shall afford the manufac

turer and other interested persons an oppor

tunity to present their views and evidence in support thereof at a public hearing. Unless, as a result of such hearing the Administrator withdraws such determination of nonconform

ity, he shall, within 60 days after the comple

tion of such hearing, order the manufacturer to provide prompt notification of such non

conformity in accordance with paragraph (2). (2) Any notification required by paragraph (1) with respect to any class or category of ve

hicles or engines shall be given to dealers, ul

timate purchasers, and subsequent purchasers (if known) in such manner and containing such information as the Administrator may by reg

ulations require. (3)(A) The manufacturer shall furnish with each new motor vehicle or motor vehicle en

gine written instructions for the proper main

tenance and use of the vehicle or engine by the ultimate purchaser and such instructions shall correspond to regulations which the Adminis

trator shall promulgate. The manufacturer shall provide in boldface type on the first page of the written maintenance instructions no

tice that maintenance, replacement, or repair of the emission control devices and systems may be performed by any automotive repair establishment or individual using any auto

motive part which has been certified as pro

vided in subsection (a)(2) of this section. (B) The instruction under subparagraph (A) of this paragraph shall not include any condi

tion on the ultimate purchaser’s using, in con

nection with such vehicle or engine, any com

ponent or service (other than a component or service provided without charge under the terms of the purchase agreement) which is identified by brand, trade, or corporate name; or directly or indirectly distinguishing be

tween service performed by the franchised dealers of such manufacturer or any other service establishments with which such manu

facturer has a commercial relationship, and service performed by independent automotive repair facilities with which such manufacturer has no commercial relationship; except that the prohibition of this subsection may be waived by the Administrator if— (i) the manufacturer satisfies the Adminis

trator that the vehicle or engine will func

tion properly only if the component or serv

ice so identified is used in connection with such vehicle or engine, and (ii) the Administrator finds that such a waiver is in the public interest. (C) In addition, the manufacturer shall indi

cate by means of a label or tag permanently affixed to such vehicle or engine that such ve

hicle or engine is covered by a certificate of conformity issued for the purpose of assuring achievement of emissions standards prescribed under section 7521 of this title. Such label or tag shall contain such other information re

lating to control of motor vehicle emissions as the Administrator shall prescribe by regula

tion. (4) I NTERMEDIATE IN

- USE STANDARDS .— (A) M ODEL YEARS 1994 AND 1995 .—For lightduty trucks of up to 6,000 lbs. gross vehicle weight rating (GVWR) and light-duty vehi

cles which are subject to standards under table G of section 7521(g)(1) of this title in model years 1994 and 1995 (40 percent of the manufacturer’s sales volume in model year 1994 and 80 percent in model year 1995), the standards applicable to NMHC, CO, and NO x for purposes of this subsection shall be those set forth in table A below in lieu of the standards for such air pollutants otherwise applicable under this subchapter.Page 6371 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7541

2 So in original. Probably should be ‘‘light-duty’’. TABLE A

— INTERMEDIATE IN

- USE STANDARDS LDTS UP TO 6 , 000 LBS

. GVWR AND LIGHT

- DUTY VEHICLES

Vehicle type NMHC CO NO x Light-duty vehicles

...................... 0.32 3.4 0.4* LDT’s (0–3,750 LVW)

...................... 0.32 5.2 0.4* LDT’s (3,751–5,750 LVW)

................ 0.41 6.7 0.7*
*Not applicable to diesel-fueled vehicles. (B) M ODEL YEARS 1996 AND THEREAFTER .—(i) In the model years 1996 and 1997, light-duty trucks (LDTs) up to 6,000 lbs. gross vehicle weight rating (GVWR) and light-duty vehi

cles which are not subject to final in-use standards under paragraph (5) (60 percent of the manufacturer’s sales volume in model year 1996 and 20 percent in model year 1997) shall be subject to the standards set forth in table A of subparagraph (A) for NMHC, CO, and NO x for purposes of this subsection in lieu of those set forth in paragraph (5). (ii) For LDTs of more than 6,000 lbs. GVWR— (I) in model year 1996 which are subject to the standards set forth in Table H of section 7521(h) of this title (50%); (II) in model year 1997 (100%); and (III) in model year 1998 which are not subject to final in-use standards under paragraph (5) (50%); the standards for NMHC, CO, and NO x for purposes of this subsection shall be those set forth in Table B below in lieu of the stand

ards for such air pollutants otherwise appli

cable under this subchapter.

T ABLE B—I NTERMEDIATE I N -U SE S TANDARDS LDT S M ORE T HAN 6,000 L BS . GVWR

Vehicle type NMHC CO NO x LDTs (3,751–5,750 lbs. TW)

............ 0.40 5.5 0.88* LDTs (over 5,750 lbs. TW)

............ 0.49 6.2 1.38*
*Not applicable to diesel-fueled vehicles. (C) U SEFUL LIFE .—In the case of the in-use standards applicable under this paragraph, for purposes of applying this subsection, the applicable useful life shall be 5 years or 50,000 miles or the equivalent (whichever first occurs). (5) F INAL IN

- USE STANDARDS .—(A) After the model year 1995, for purposes of applying this subsection, in the case of the percentage speci

fied in the implementation schedule below ofeach manufacturer’s sales volume of lightduty trucks of up to 6,000 lbs. gross vehicle weight rating (GVWR) and light duty 2 vehi

cles, the standards for NMHC, CO, and NO x shall be as provided in Table G in section 7521(g) of this title, except that in applying the standards set forth in Table G for purposes of determining compliance with this sub

section, the applicable useful life shall be (i) 5 years or 50,000 miles (or the equivalent) which

ever first occurs in the case of standards appli

cable for purposes of certification at 50,000 miles; and (ii) 10 years or 100,000 miles (or the equivalent), whichever first occurs in the case of standards applicable for purposes of certifi

cation at 100,000 miles, except that no testing shall be done beyond 7 years or 75,000 miles, or the equivalent whichever first occurs.

LDT S UP TO 6,000 L BS . GVWR AND L IGHT -D UTY V EHICLE S CHEDULE FOR I MPLEMENTATION OF F INAL I N -U SE S TANDARDS

Model year Percent

1996

......................................................... 40 1997

......................................................... 80 1998

......................................................... 100

(B) After the model year 1997, for purposes of applying this subsection, in the case of the percentage specified in the implementation schedule below of each manufacturer’s sales volume of light-duty trucks of more than 6,000 lbs. gross vehicle weight rating (GVWR), the standards for NMHC, CO, and NO x shall be as provided in Table H in section 7521(h) of this title, except that in applying the standards set forth in Table H for purposes of determining compliance with this subsection, the applica

ble useful life shall be (i) 5 years or 50,000 miles (or the equivalent) whichever first oc

curs in the case of standards applicable for purposes of certification at 50,000 miles; and (ii) 11 years or 120,000 miles (or the equiva

lent), whichever first occurs in the case of standards applicable for purposes of certifi

cation at 120,000 miles, except that no testing shall be done beyond 7 years or 90,000 miles (or the equivalent) whichever first occurs.

LDT S OF M ORE T HAN 6,000 L BS . GVWR I MPLE

MENTATION S CHEDULE FOR I MPLEMENTATION OF F INAL I N -U SE S TANDARDS

Model year Percent

1998

......................................................... 50 1999

......................................................... 100

(6) D IESEL VEHICLES ; IN

- USE USEFUL LIFE AND TESTING .—(A) In the case of diesel-fueled lightduty trucks up to 6,000 lbs. GVWR and lightduty vehicles, the useful life for purposes of determining in-use compliance with the stand

ards under section 7521(g) of this title for NO x shall be a period of 10 years or 100,000 miles (or the equivalent), whichever first occurs, in the case of standards applicable for purposes of certification at 100,000 miles, except that test

ing shall not be done for a period beyond 7 years or 75,000 miles (or the equivalent) which

ever first occurs. (B) In the case of diesel-fueled light-duty trucks of 6,000 lbs. GVWR or more, the useful life for purposes of determining in-use compli

ance with the standards under section 7521(h) of this title for NO x shall be a period of 11 years or 120,000 miles (or the equivalent), whichever first occurs, in the case of standards applicable for purposes of certification at 120,000 miles, except that testing shall not be done for a period beyond 7 years or 90,000 miles (or the equivalent) whichever first occurs. (d) Dealer costs borne by manufacturer Any cost obligation of any dealer incurred as a result of any requirement imposed by sub

-Page 6372 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7541

3 So in original. The second closing parenthesis probably should not appear. section (a), (b), or (c) of this section shall be borne by the manufacturer. The transfer of any such cost obligation from a manufacturer to any dealer through franchise or other agreement is prohibited. (e) Cost statement If a manufacturer includes in any advertise

ment a statement respecting the cost or value of emission control devices or systems, such manu

facturer shall set forth in such statement the cost or value attributed to such devices or sys

tems by the Secretary of Labor (through the Bu

reau of Labor Statistics). The Secretary of Labor, and his representatives, shall have the same access for this purpose to the books, docu

ments, papers, and records of a manufacturer as the Comptroller General has to those of a recipi

ent of assistance for purposes of section 7611 of this title. (f) Inspection after sale to ultimate purchaser Any inspection of a motor vehicle or a motor vehicle engine for purposes of subsection (c)(1) of this section, after its sale to the ultimate purchaser, shall be made only if the owner of such vehicle or engine voluntarily permits such inspection to be made, except as may be pro

vided by any State or local inspection program. (g) Replacement and maintenance costs borne by

owner For the purposes of this section, the owner of any motor vehicle or motor vehicle engine war

ranted under this section is responsible in the proper maintenance of such vehicle or engine to replace and to maintain, at his expense at any service establishment or facility of his choosing, such items as spark plugs, points, condensers, and any other part, item, or device related to emission control (but not designed for emission control under the terms of the last sentence of subsection (a)(3) of this section)), 3 unless such part, item, or device is covered by any warranty not mandated by this chapter. (h) Dealer certification (1) Upon the sale of each new light-duty motor vehicle by a dealer, the dealer shall furnish to the purchaser a certificate that such motor ve

hicle conforms to the applicable regulations under section 7521 of this title, including notice of the purchaser’s rights under paragraph (2). (2) If at any time during the period for which the warranty applies under subsection (b) of this section, a motor vehicle fails to conform to the applicable regulations under section 7521 of this title as determined under subsection (b) of this section such nonconformity shall be remedied by the manufacturer at the cost of the manufac

turer pursuant to such warranty as provided in subsection (b)(2) of this section (without regard to subparagraph (C) thereof). (3) Nothing in section 7543(a) of this title shall be construed to prohibit a State from testing, or requiring testing of, a motor vehicle after the date of sale of such vehicle to the ultimate pur

chaser (except that no new motor vehicle manu

facturer or dealer may be required to conduct testing under this paragraph). (i) Warranty period (1) In general For purposes of subsection (a)(1) of this sec

tion and subsection (b) of this section, the warranty period, effective with respect to new light-duty trucks and new light-duty vehicles and engines, manufactured in the model year 1995 and thereafter, shall be the first 2 years or 24,000 miles of use (whichever first occurs), ex

cept as provided in paragraph (2). For purposes of subsection (a)(1) of this section and sub

section (b) of this section, for other vehicles and engines the warranty period shall be the period established by the Administrator by regulation (promulgated prior to November 15, 1990) for such purposes unless the Adminis

trator subsequently modifies such regulation. (2) Specified major emission control compo

nents In the case of a specified major emission control component, the warranty period for new light-duty trucks and new light-duty ve

hicles and engines manufactured in the model year 1995 and thereafter for purposes of sub

section (a)(1) of this section and subsection (b) of this section shall be 8 years or 80,000 miles of use (whichever first occurs). As used in this paragraph, the term ‘‘specified major emission control component’’ means only a catalytic converter, an electronic emissions control unit, and an onboard emissions diagnostic de

vice, except that the Administrator may des

ignate any other pollution control device or component as a specified major emission con

trol component if— (A) the device or component was not in general use on vehicles and engines manu

factured prior to the model year 1990; and (B) the Administrator determines that the retail cost (exclusive of installation costs) of such device or component exceeds $200 (in 1989 dollars), adjusted for inflation or defla

tion as calculated by the Administrator at the time of such determination. For purposes of this paragraph, the term ‘‘on

board emissions diagnostic device’’ means any device installed for the purpose of storing or processing emissions related diagnostic infor

mation, but not including any parts or other systems which it monitors except specified major emissions control components. Nothing in this chapter shall be construed to provide that any part (other than a part referred to in the preceding sentence) shall be required to be warranted under this chapter for the period of 8 years or 80,000 miles referred to in this para

graph. (3) Instructions Subparagraph (A) of subsection (b)(2) of this section shall apply only where the Adminis

trator has made a determination that the in

structions concerned conform to the require

ments of subsection (c)(3) of this section. (July 14, 1955, ch. 360, title II, §207, as added Pub. L. 91–604, §8(a), Dec. 31, 1970, 84 Stat. 1696; amended Pub. L. 95–95, title II, §§205, 208–210, 212, Aug. 7, 1977, 91 Stat. 754–756, 758; Pub. L. 95–190, §14(a)(70)–(72), Nov. 16, 1977, 91 Stat. 1403; Pub. L.Page 6373 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7542

101–549, title II, §§209, 210, 230(9), Nov. 15, 1990, 104 Stat. 2484, 2485, 2529.)

C ODIFICATION Section was formerly classified to section 1857f–5a of this title.

P RIOR P ROVISIONS A prior section 207 of act July 14, 1955, was renum

bered section 208 by Pub. L. 91–604 and is classified to section 7542 of this title.

A MENDMENTS 1990—Subsec. (a)(1). Pub. L. 101–549, §209(4), inserted at end ‘‘In the case of vehicles and engines manufac

tured in the model year 1995 and thereafter such war

ranty shall require that the vehicle or engine is free from any such defects for the warranty period provided under subsection (i) of this section.’’ Subsec. (b). Pub. L. 101–549, §209(1), (2), substituted ‘‘the warranty period (as determined under subsection (i) of this section)’’ for ‘‘useful life (as determined under section 7521(d) of this title)’’ in introductory pro

visions and par. (2)(B), and struck out closing provi

sions which read as follows: ‘‘For purposes of the war

ranty under this subsection, for the period after twen

ty-four months or twenty-four thousand miles (which

ever first occurs) the term ‘emission control device or system’ means a catalytic converter, thermal reactor, or other component installed on or in a vehicle for the sole or primary purpose of reducing vehicle emissions. Such term shall not include those vehicle components which were in general use prior to model year 1968.’’ Subsec. (c)(4) to (6). Pub. L. 101–549, §210, added pars. (4) to (6). Subsec. (g). Pub. L. 101–549, §230(9), substituted ‘‘the last sentence of subsection (a)(3) of this section)’’ for ‘‘the last three sentences of subsection (a)(1) of this section’’. Subsec. (i). Pub. L. 101–549, §209(3), added subsec. (i). 1977—Subsec. (a). Pub. L. 95–190, §14(a)(70), designated provisions contained in cl. (3) of subsec. (a), formerly set out as containing cls. (1), (2), and (3), to be par. (3) of subsec. (a) after the amendment by Pub. L. 95–95, §209(b), which designated provisions of former subsec. (a) as par. (1) and former cls. (1) and (2) as (A) and (B) of par. (1) and added a new par. (2). Pub. L. 95–95, §205, added cl. (3). Subsec. (b). Pub. L. 95–95, §209(a), (c), inserted provi

sions to par. (2) that no warranty be held invalid on the basis of any part used in the maintenance or repair of a vehicle or engine if the part was certified as provided in subsec. (a)(2) of this section, and, following par. (2), inserted provisions defining ‘‘emission control device or system’’. Subsec. (c)(3). Pub. L. 95–95, §208, designated existing provisions as subpars. (A) and (C), added requirement for the bold face printing of a required notice on the first page of the written maintenance instructions in subpar. (A), and added subpar. (B). Subsec. (f). Pub. L. 95–190, §14(a)(71), redesignated subsec. (f) as added by Pub. L. 95–95, §212, as (h). Subsec. (g). Pub. L. 95–95, §210, added subsec. (g). Subsec. (h). Pub. L. 95–190, §14(a)(71), redesignated subsec. (f) as added by Pub. L. 95–95, §212, as (h). Subsec. (h)(2). Pub. L. 95–190, §14(a)(72), substituted ‘‘determined under’’ for ‘‘determined and’’.

E FFECTIVE D ATE OF 1990 A MENDMENT Section 209 of Pub. L. 101–549 provided that the amendments made by that section are effective with respect to new motor vehicles and engines manufac

tured in model year 1995 and thereafter.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title. E FFECTIVE D ATE Section not applicable to vehicles or engines im

ported into United States before sixtieth day after Dec. 31, 1970, see section 8(b) of Pub. L. 91–604, set out as a note under section 7525 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.
§ 7542. Information collection (a) Manufacturer’s responsibility Every manufacturer of new motor vehicles or new motor vehicle engines, and every manufac

turer of new motor vehicle or engine parts or components, and other persons subject to the re

quirements of this part or part C of this sub

chapter, shall establish and maintain records, perform tests where such testing is not other

wise reasonably available under this part and part C of this subchapter (including fees for test

ing), make reports and provide information the Administrator may reasonably require to deter

mine whether the manufacturer or other person has acted or is acting in compliance with this part and part C of this subchapter and regula

tions thereunder, or to otherwise carry out the provision of this part and part C of this sub

chapter, and shall, upon request of an officer or employee duly designated by the Administrator, permit such officer or employee at reasonable times to have access to and copy such records. (b) Enforcement authority For the purposes of enforcement of this sec

tion, officers or employees duly designated by the Administrator upon presenting appropriate credentials are authorized— (1) to enter, at reasonable times, any estab

lishment of the manufacturer, or of any person whom the manufacturer engages to perform any activity required by subsection (a) of this section, for the purposes of inspecting or ob

serving any activity conducted pursuant to subsection (a) of this section, and (2) to inspect records, files, papers, proc

esses, controls, and facilities used in perform

ing any activity required by subsection (a) of this section, by such manufacturer or by any person whom the manufacturer engages to perform any such activity. (c) Availability to public; trade secrets Any records, reports, or information obtained under this part or part C of this subchapter shall be available to the public, except that upon a showing satisfactory to the Administrator by any person that records, reports, or information, or a particular portion thereof (other than emis

sion data), to which the Administrator has ac

cess under this section, if made public, would di

-Page 6374 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7543

vulge methods or processes entitled to protec

tion as trade secrets of that person, the Admin

istrator shall consider the record, report, or in

formation or particular portion thereof con

fidential in accordance with the purposes of sec

tion 1905 of title 18. Any authorized representa

tive of the Administrator shall be considered an employee of the United States for purposes of section 1905 of title 18. Nothing in this section shall prohibit the Administrator or authorized representative of the Administrator from dis

closing records, reports or information to other officers, employees or authorized representa

tives of the United States concerned with carry

ing out this chapter or when relevant in any proceeding under this chapter. Nothing in this section shall authorize the withholding of infor

mation by the Administrator or any officer or employee under the Administrator’s control from the duly authorized committees of the Congress. (July 14, 1955, ch. 360, title II, §208, formerly §207, as added Pub. L. 89–272, title I, §101(8), Oct. 20, 1965, 79 Stat. 994; amended Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 501; renumbered and amended Pub. L. 91–604, §§8(a), 10(a), 11(a)(2)(A), 15(c)(2), Dec. 31, 1970, 84 Stat. 1694, 1700, 1705, 1713; Pub. L. 101–549, title II, §211, Nov. 15, 1990, 104 Stat. 2487.)

C ODIFICATION Section was formerly classified to section 1857f–6 of this title.

P RIOR P ROVISIONS A prior section 208 of act July 14, 1955, as added Nov. 21, 1967, Pub. L. 90–148, §2, 81 Stat. 501, was renumbered section 209 by Pub. L. 91–604 and is classified to section 7543 of this title. Another prior section 208 of act July 14, 1955, as added Oct. 20, 1965, Pub. L. 89–272, title I, §101(8), 79 Stat. 994, was renumbered section 212 by Pub. L. 90–148, renum

bered section 213 by Pub. L. 91–604, renumbered 214 by Pub. L. 93–319, and renumbered section 216 by Pub. L. 95–95, and is classified to section 7550 of this title.

A MENDMENTS 1990—Pub. L. 101–549 amended section generally, sub

stituting present provisions for provisions which relat

ed to: in subsec. (a), manufacturer’s responsibility; and in subsec. (b), availability to public except for trade se

crets. 1970—Subsec. (a). Pub. L. 91–604, §§11(a)(2)(A), 15(c)(2), substituted ‘‘Administrator’’ for ‘‘Secretary’’ wherever appearing and ‘‘part’’ for ‘‘subchapter’’. Subsec. (b). Pub. L. 91–604, §§10(a), 15(c)(2), sub

stituted provisions authorizing the Administrator to make available to the public any records, reports, of in

formation obtained under subsec. (a) of this section, ex

cept those shown to the Administrator to be entitled to protection as trade secrets, for provisions that all in

formation reported or otherwise obtained by the Sec

retary or his representative pursuant to subsec. (a) of this section, which information contains or relates to a trade secret or other matter referred to in section 1905 of title 18, be considered confidential for the purpose of such section 1905, and substituted ‘‘Administrator’’ for ‘‘Secretary’’. 1967—Pub. L. 90–148 reenacted section without change.
§ 7543. State standards (a) Prohibition No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. No State shall require cer

tification, inspection, or any other approval re

lating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, ti

tling (if any), or registration of such motor vehi

cle, motor vehicle engine, or equipment. (b) Waiver (1) The Administrator shall, after notice and opportunity for public hearing, waive applica

tion of this section to any State which has adopted standards (other than crankcase emis

sion standards) for the control of emissions from new motor vehicles or new motor vehicle en

gines prior to March 30, 1966, if the State deter

mines that the State standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards. No such waiver shall be granted if the Adminis

trator finds that— (A) the determination of the State is arbi

trary and capricious, (B) such State does not need such State standards to meet compelling and extraor

dinary conditions, or (C) such State standards and accompanying enforcement procedures are not consistent with section 7521(a) of this title. (2) If each State standard is at least as strin

gent as the comparable applicable Federal standard, such State standard shall be deemed to be at least as protective of health and welfare as such Federal standards for purposes of para

graph (1). (3) In the case of any new motor vehicle or new motor vehicle engine to which State standards apply pursuant to a waiver granted under para

graph (1), compliance with such State standards shall be treated as compliance with applicable Federal standards for purposes of this sub

chapter. (c) Certification of vehicle parts or engine parts Whenever a regulation with respect to any motor vehicle part or motor vehicle engine part is in effect under section 7541(a)(2) of this title, no State or political subdivision thereof shall adopt or attempt to enforce any standard or any requirement of certification, inspection, or ap

proval which relates to motor vehicle emissions and is applicable to the same aspect of such part. The preceding sentence shall not apply in the case of a State with respect to which a waiv

er is in effect under subsection (b) of this sec

tion. (d) Control, regulation, or restrictions on reg

istered or licensed motor vehicles Nothing in this part shall preclude or deny to any State or political subdivision thereof the right otherwise to control, regulate, or restrict the use, operation, or movement of registered or licensed motor vehicles. (e) Nonroad engines or vehicles (1) Prohibition on certain State standards No State or any political subdivision thereof shall adopt or attempt to enforce any standard or other requirement relating to the control ofPage 6375 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7544

emissions from either of the following new nonroad engines or nonroad vehicles subject to regulation under this chapter— (A) New engines which are used in con

struction equipment or vehicles or used in farm equipment or vehicles and which are smaller than 175 horsepower. (B) New locomotives or new engines used in locomotives. Subsection (b) of this section shall not apply for purposes of this paragraph. (2) Other nonroad engines or vehicles (A) In the case of any nonroad vehicles or engines other than those referred to in sub

paragraph (A) or (B) of paragraph (1), the Ad

ministrator shall, after notice and oppor

tunity for public hearing, authorize California to adopt and enforce standards and other re

quirements relating to the control of emis

sions from such vehicles or engines if Califor

nia determines that California standards will be, in the aggregate, at least as protective of public health and welfare as applicable Fed

eral standards. No such authorization shall be granted if the Administrator finds that— (i) the determination of California is arbi

trary and capricious, (ii) California does not need such Califor

nia standards to meet compelling and ex

traordinary conditions, or (iii) California standards and accompany

ing enforcement procedures are not consist

ent with this section. (B) Any State other than California which has plan provisions approved under part D of subchapter I of this chapter may adopt and en

force, after notice to the Administrator, for any period, standards relating to control of emissions from nonroad vehicles or engines (other than those referred to in subparagraph (A) or (B) of paragraph (1)) and take such other actions as are referred to in subparagraph (A) of this paragraph respecting such vehicles or engines if— (i) such standards and implementation and enforcement are identical, for the period concerned, to the California standards au

thorized by the Administrator under sub

paragraph (A), and (ii) California and such State adopt such standards at least 2 years before commence

ment of the period for which the standards take effect. The Administrator shall issue regulations to implement this subsection. (July 14, 1955, ch. 360, title II, §209, formerly §208, as added Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 501; renumbered and amended Pub. L. 91–604, §§8(a), 11(a)(2)(A), 15(c)(2), Dec. 31, 1970, 84 Stat. 1694, 1705, 1713; Pub. L. 95–95, title II, §§207, 221, Aug. 7, 1977, 91 Stat. 755, 762; Pub. L. 101–549, title II, §222(b), Nov. 15, 1990, 104 Stat. 2502.)

C ODIFICATION Section was formerly classified to section 1857f–6a of this title.

P RIOR P ROVISIONS A prior section 209 of act July 14, 1955, as added Nov. 21, 1967, Pub. L. 90–148, §2, 81 Stat. 502, was renumbered section 210 by Pub. L. 91–604 and is classified to section 7544 of this title. Another prior section 209 of act July 14, 1955, ch. 360, title II, as added Oct. 20, 1965, Pub. L. 89–272, title I, §101(8), 79 Stat. 995, related to appropriations for the fiscal years ending June 30, 1966, 1967, 1968, and 1969, and was classified to section 1857f–8 of this title, prior to re

peal by Pub. L. 89–675, §2(b), Oct. 15, 1966, 80 Stat. 954.

A MENDMENTS 1990—Subsec. (e). Pub. L. 101–549 added subsec. (e). 1977—Subsec. (b). Pub. L. 95–95, §207, designated exist

ing provisions as par. (1), substituted ‘‘March 30, 1966, if the State determines that the State standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards’’ for ‘‘March 30, 1966, unless he finds that such State does not require standards more stringent than applicable Federal standards to meet compelling the extraor

dinary conditions or that such State standards and ac

companying enforcement procedures are not consistent with section 7521(a) of this title’’, added subpars. (A), (B), and (C), and added pars. (2) and (3). Subsecs. (c), (d). Pub. L. 95–95, §221, added subsec. (c) and redesignated former subsec. (c) as (d). 1970—Subsec. (a). Pub. L. 91–604, §11(a)(2)(A), sub

stituted ‘‘part’’ for ‘‘subchapter’’. Subsec. (b). Pub. L. 91–604, §15(c)(2), substituted ‘‘Ad

ministrator’’ for ‘‘Secretary’’. Subsec. (c). Pub. L. 91–604, §11(a)(2)(A), substituted ‘‘part’’ for ‘‘subchapter’’.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7544. State grants

The Administrator is authorized to make grants to appropriate State agencies in an amount up to two-thirds of the cost of develop

ing and maintaining effective vehicle emission devices and systems inspection and emission testing and control programs, except that— (1) no such grant shall be made for any part of any State vehicle inspection program which does not directly relate to the cost of the air pollution control aspects of such a program; (2) no such grant shall be made unless the Secretary of Transportation has certified to the Administrator that such program is con

sistent with any highway safety program de

veloped pursuant to section 402 of title 23; and (3) no such grant shall be made unless the program includes provisions designed to insure that emission control devices and systems on vehicles in actual use have not been discon

tinued or rendered inoperative. Grants may be made under this section by way of reimbursement in any case in which amountsPage 6376 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

1 So in original. Probably should be ‘‘the’’. have been expended by the State before the date on which any such grant was made. (July 14, 1955, ch. 360, title II, §210, formerly §209, as added Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 502; renumbered and amended Pub. L. 91–604, §§8(a), 10(b), Dec. 31, 1970, 84 Stat. 1694, 1700; Pub. L. 95–95, title II, §204, Aug. 7, 1977, 91 Stat. 754.)

C ODIFICATION Section was formerly classified to section 1857f–6b of this title.

P RIOR P ROVISIONS A prior section 210 of act July 14, 1955, was renum

bered section 211 by Pub. L. 91–604 and is classified to section 7545 of this title.

A MENDMENTS 1977—Pub. L. 95–95 inserted provision allowing grants to be made by way of reimbursement in any case in which amounts have been expended by States before the date on which the grants were made. 1970—Pub. L. 91–604, §10(b), substituted provisions au

thorizing the Administrator to make grants to appro

priate State agencies for the development and mainte

nance of effective vehicle emission devices and systems inspection and emission testing and control programs, for provisions authorizing the Secretary to make grants to appropriate State air pollution control agen

cies for the development of meaningful uniform motor vehicle emission device inspection and emission testing
programs.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title. § 7545. Regulation of fuels (a) Authority of Administrator to regulate The Administrator may by regulation des

ignate any fuel or fuel additive (including any fuel or fuel additive used exclusively in nonroad engines or nonroad vehicles) and, after such date or dates as may be prescribed by him, no manu

facturer or processor of any such fuel or additive may sell, offer for sale, or introduce into com

merce such fuel or additive unless the Adminis

trator has registered such fuel or additive in ac

cordance with subsection (b) of this section. (b) Registration requirement (1) For the purpose of registration of fuels and fuel additives, the Administrator shall require— (A) the manufacturer of any fuel to notify him as to the commercial identifying name and manufacturer of any additive contained in such fuel; the range of concentration of any additive in the fuel; and the purpose-in-use of any such additive; and (B) the manufacturer of any additive to no

tify him as to the chemical composition of such additive. (2) For the purpose of registration of fuels and fuel additives, the Administrator shall, on a reg

ular basis, require the manufacturer of any fuel or fuel additive— (A) to conduct tests to determine potential public health and environmental effects of the fuel or additive (including carcinogenic, tera

togenic, or mutagenic effects); and (B) to furnish the description of any analyt

ical technique that can be used to detect and measure any additive in such fuel, the rec

ommended range of concentration of such ad

ditive, and the recommended purpose-in-use of such additive, and such other information as is reasonable and necessary to determine the emissions resulting from the use of the fuel or additive contained in such fuel, the effect of such fuel or additive on the emission control performance of any vehicle, vehicle engine, nonroad engine or nonroad vehicle, or the ex

tent to which such emissions affect the public health or welfare. Tests under subparagraph (A) shall be conducted in conformity with test procedures and proto

cols established by the Administrator. The re

sult of such tests shall not be considered con

fidential. (3) Upon compliance with the provision of this subsection, including assurances that the Ad

ministrator will receive changes in the informa

tion required, the Administrator shall register such fuel or fuel additive. (4) S TUDY ON CERTAIN FUEL ADDITIVES AND BLENDSTOCKS .— (A) I N GENERAL .—Not later than 2 years after August 8, 2005, the Administrator shall— (i) conduct a study on the effects on public health (including the effects on children, pregnant women, minority or low-income communities, and other sensitive popu

lations), air quality, and water resources of increased use of, and the feasibility of using as substitutes for methyl tertiary butyl ether in gasoline— (I) ethyl tertiary butyl ether; (II) tertiary amyl methyl ether; (III) di-isopropyl ether; (IV) tertiary butyl alcohol; (V) other ethers and heavy alcohols, as determined by then 1 Administrator; (VI) ethanol; (VII) iso-octane; and (VIII) alkylates; and (ii) conduct a study on the effects on pub

lic health (including the effects on children, pregnant women, minority or low-income communities, and other sensitive popu

lations), air quality, and water resources of the adjustment for ethanol-blended reformu

lated gasoline to the volatile organic com

pounds performance requirements that are applicable under paragraphs (1) and (3) of subsection (k) of this section; and (iii) submit to the Committee on Environ

ment and Public Works of the Senate and the Committee on Energy and Commerce of the House of Representatives a report de

scribing the results of the studies under clauses (i) and (ii). (B) C ONTRACTS FOR STUDY .—In carrying out this paragraph, the Administrator may enter into one or more contracts with nongovern

mental entities such as— (i) the national energy laboratories; and (ii) institutions of higher education (as de

fined in section 1001 of title 20).Page 6377 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

2 So in original. Par. (1) does not contain a cl. (A). (c) Offending fuels and fuel additives; control; prohibition (1) The Administrator may, from time to time on the basis of information obtained under sub

section (b) of this section or other information available to him, by regulation, control or pro

hibit the manufacture, introduction into com

merce, offering for sale, or sale of any fuel or fuel additive for use in a motor vehicle, motor vehicle engine, or nonroad engine or nonroad ve

hicle if, in the judgment of the Administrator, any fuel or fuel additive or any emission product of such fuel or fuel additive causes, or contrib

utes, to air pollution or water pollution (includ

ing any degradation in the quality of ground

water) that may reasonably be anticipated to endanger the public health or welfare, or (B) 2 if emission products of such fuel or fuel additive will impair to a significant degree the perform

ance of any emission control device or system which is in general use, or which the Adminis

trator finds has been developed to a point where in a reasonable time it would be in general use were such regulation to be promulgated. (2)(A) No fuel, class of fuels, or fuel additive may be controlled or prohibited by the Adminis

trator pursuant to clause (A) of paragraph (1) ex

cept after consideration of all relevant medical and scientific evidence available to him, includ

ing consideration of other technologically or economically feasible means of achieving emis

sion standards under section 7521 of this title. (B) No fuel or fuel additive may be controlled or prohibited by the Administrator pursuant to clause (B) of paragraph (1) except after consider

ation of available scientific and economic data, including a cost benefit analysis comparing emission control devices or systems which are or will be in general use and require the pro

posed control or prohibition with emission con

trol devices or systems which are or will be in general use and do not require the proposed con

trol or prohibition. On request of a manufac

turer of motor vehicles, motor vehicle engines, fuels, or fuel additives submitted within 10 days of notice of proposed rulemaking, the Adminis

trator shall hold a public hearing and publish findings with respect to any matter he is re

quired to consider under this subparagraph. Such findings shall be published at the time of promulgation of final regulations. (C) No fuel or fuel additive may be prohibited by the Administrator under paragraph (1) unless he finds, and publishes such finding, that in his judgment such prohibition will not cause the use of any other fuel or fuel additive which will produce emissions which will endanger the pub

lic health or welfare to the same or greater de

gree than the use of the fuel or fuel additive pro

posed to be prohibited. (3)(A) For the purpose of obtaining evidence and data to carry out paragraph (2), the Admin

istrator may require the manufacturer of any motor vehicle or motor vehicle engine to furnish any information which has been developed con

cerning the emissions from motor vehicles re

sulting from the use of any fuel or fuel additive, or the effect of such use on the performance of any emission control device or system. (B) In obtaining information under subpara

graph (A), section 7607(a) of this title (relating to subpenas) shall be applicable. (4)(A) Except as otherwise provided in sub

paragraph (B) or (C), no State (or political sub

division thereof) may prescribe or attempt to enforce, for purposes of motor vehicle emission control, any control or prohibition respecting any characteristic or component of a fuel or fuel additive in a motor vehicle or motor vehicle en

gine— (i) if the Administrator has found that no control or prohibition of the characteristic or component of a fuel or fuel additive under paragraph (1) is necessary and has published his finding in the Federal Register, or (ii) if the Administrator has prescribed under paragraph (1) a control or prohibition applicable to such characteristic or compo

nent of a fuel or fuel additive, unless State prohibition or control is identical to the pro

hibition or control prescribed by the Adminis

trator. (B) Any State for which application of section 7543(a) of this title has at any time been waived under section 7543(b) of this title may at any time prescribe and enforce, for the purpose of motor vehicle emission control, a control or pro

hibition respecting any fuel or fuel additive. (C)(i) A State may prescribe and enforce, for purposes of motor vehicle emission control, a control or prohibition respecting the use of a fuel or fuel additive in a motor vehicle or motor vehicle engine if an applicable implementation plan for such State under section 7410 of this title so provides. The Administrator may ap

prove such provision in an implementation plan, or promulgate an implementation plan contain

ing such a provision, only if he finds that the State control or prohibition is necessary to achieve the national primary or secondary am

bient air quality standard which the plan imple

ments. The Administrator may find that a State control or prohibition is necessary to achieve that standard if no other measures that would bring about timely attainment exist, or if other measures exist and are technically possible to implement, but are unreasonable or impractica

ble. The Administrator may make a finding of necessity under this subparagraph even if the plan for the area does not contain an approved demonstration of timely attainment. (ii) The Administrator may temporarily waive a control or prohibition respecting the use of a fuel or fuel additive required or regulated by the Administrator pursuant to subsection (c), (h), (i), (k), or (m) of this section or prescribed in an applicable implementation plan under section 7410 of this title approved by the Administrator under clause (i) of this subparagraph if, after consultation with, and concurrence by, the Sec

retary of Energy, the Administrator determines that— (I) extreme and unusual fuel or fuel additive supply circumstances exist in a State or re

gion of the Nation which prevent the distribu

tion of an adequate supply of the fuel or fuel additive to consumers; (II) such extreme and unusual fuel and fuel additive supply circumstances are the result of a natural disaster, an Act of God, a pipelinePage 6378 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

3 So in original. Two cls. (v) have been enacted. or refinery equipment failure, or another event that could not reasonably have been foreseen or prevented and not the lack of pru

dent planning on the part of the suppliers of the fuel or fuel additive to such State or re

gion; and (III) it is in the public interest to grant the waiver (for example, when a waiver is nec

essary to meet projected temporary shortfalls in the supply of the fuel or fuel additive in a State or region of the Nation which cannot otherwise be compensated for). (iii) If the Administrator makes the deter

minations required under clause (ii), such a tem

porary extreme and unusual fuel and fuel addi

tive supply circumstances waiver shall be per

mitted only if— (I) the waiver applies to the smallest geo

graphic area necessary to address the extreme and unusual fuel and fuel additive supply cir

cumstances; (II) the waiver is effective for a period of 20 calendar days or, if the Administrator deter

mines that a shorter waiver period is ade

quate, for the shortest practicable time period necessary to permit the correction of the ex

treme and unusual fuel and fuel additive sup

ply circumstances and to mitigate impact on air quality; (III) the waiver permits a transitional pe

riod, the exact duration of which shall be de

termined by the Administrator (but which shall be for the shortest practicable period), after the termination of the temporary waiver to permit wholesalers and retailers to blend down their wholesale and retail inventory; (IV) the waiver applies to all persons in the motor fuel distribution system; and (V) the Administrator has given public no

tice to all parties in the motor fuel distribu

tion system, and local and State regulators, in the State or region to be covered by the waiv

er. The term ‘‘motor fuel distribution system’’ as used in this clause shall be defined by the Ad

ministrator through rulemaking. (iv) Within 180 days of August 8, 2005, the Ad

ministrator shall promulgate regulations to im

plement clauses (ii) and (iii). (v) 3 Nothing in this subparagraph shall— (I) limit or otherwise affect the application of any other waiver authority of the Adminis

trator pursuant to this section or pursuant to a regulation promulgated pursuant to this sec

tion; and (II) subject any State or person to an en

forcement action, penalties, or liability solely arising from actions taken pursuant to the is

suance of a waiver under this subparagraph. (v)(I) 3 The Administrator shall have no au

thority, when considering a State implementa

tion plan or a State implementation plan revi

sion, to approve under this paragraph any fuel included in such plan or revision if the effect of such approval increases the total number of fuels approved under this paragraph as of Sep

tember 1, 2004, in all State implementation plans. (II) The Administrator, in consultation with the Secretary of Energy, shall determine the total number of fuels approved under this para

graph as of September 1, 2004, in all State imple

mentation plans and shall publish a list of such fuels, including the States and Petroleum Ad

ministration for Defense District in which they are used, in the Federal Register for public re

view and comment no later than 90 days after August 8, 2005. (III) The Administrator shall remove a fuel from the list published under subclause (II) if a fuel ceases to be included in a State implemen

tation plan or if a fuel in a State implementa

tion plan is identical to a Federal fuel formula

tion implemented by the Administrator, but the Administrator shall not reduce the total number of fuels authorized under the list published under subclause (II). (IV) Subclause (I) shall not limit the Adminis

trator’s authority to approve a control or prohi

bition respecting any new fuel under this para

graph in a State implementation plan or revi

sion to a State implementation plan if such new fuel— (aa) completely replaces a fuel on the list published under subclause (II); or (bb) does not increase the total number of fuels on the list published under subclause (II) as of September 1, 2004.

In the event that the total number of fuels on the list published under subclause (II) at the time of the Administrator’s consideration of a control or prohibition respecting a new fuel is lower than the total number of fuels on such list as of September 1, 2004, the Administrator may approve a control or prohibition respecting a new fuel under this subclause if the Adminis

trator, after consultation with the Secretary of Energy, publishes in the Federal Register after notice and comment a finding that, in the Ad

ministrator’s judgment, such control or prohibi

tion respecting a new fuel will not cause fuel supply or distribution interruptions or have a significant adverse impact on fuel producibility in the affected area or contiguous areas. (V) The Administrator shall have no authority under this paragraph, when considering any par

ticular State’s implementation plan or a revi

sion to that State’s implementation plan, to ap

prove any fuel unless that fuel was, as of the date of such consideration, approved in at least one State implementation plan in the applicable Petroleum Administration for Defense District. However, the Administrator may approve as part of a State implementation plan or State implementation plan revision a fuel with a sum

mertime Reid Vapor Pressure of 7.0 psi. In no event shall such approval by the Administrator cause an increase in the total number of fuels on the list published under subclause (II). (VI) Nothing in this clause shall be construed to have any effect regarding any available au

thority of States to require the use of any fuel additive registered in accordance with sub

section (b) of this section, including any fuel ad

ditive registered in accordance with subsection (b) of this section after August 8, 2005.Page 6379 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

(d) Penalties and injunctions (1) Civil penalties Any person who violates subsection (a), (f), (g), (k), ( l ), (m), (n), or ( o ) of this section or the regulations prescribed under subsection (c), (h), (i), (k), ( l ), (m), (n), or ( o ) of this section or who fails to furnish any information or con

duct any tests required by the Administrator under subsection (b) of this section shall be liable to the United States for a civil penalty of not more than the sum of $25,000 for every day of such violation and the amount of eco

nomic benefit or savings resulting from the violation. Any violation with respect to a reg

ulation prescribed under subsection (c), (k), ( l ), (m), or ( o ) of this section which establishes a regulatory standard based upon a multiday averaging period shall constitute a separate day of violation for each and every day in the averaging period. Civil penalties shall be as

sessed in accordance with subsections (b) and (c) of section 7524 of this title. (2) Injunctive authority
The district courts of the United States shall have jurisdiction to restrain violations of subsections (a), (f), (g), (k), ( l ), (m), (n), and ( o ) of this section and of the regulations pre

scribed under subsections (c), (h), (i), (k), ( l ), (m), (n), and ( o ) of this section, to award other appropriate relief, and to compel the furnish

ing of information and the conduct of tests re

quired by the Administrator under subsection (b) of this section. Actions to restrain such violations and compel such actions shall be brought by and in the name of the United States. In any such action, subpoenas for wit

nesses who are required to attend a district court in any district may run into any other district. (e) Testing of fuels and fuel additives (1) Not later than one year after August 7, 1977, and after notice and opportunity for a pub

lic hearing, the Administrator shall promulgate regulations which implement the authority under subsection (b)(2)(A) and (B) of this section with respect to each fuel or fuel additive which is registered on the date of promulgation of such regulations and with respect to each fuel or fuel additive for which an application for registra

tion is filed thereafter. (2) Regulations under subsection (b) of this section to carry out this subsection shall require that the requisite information be provided to the Administrator by each such manufacturer— (A) prior to registration, in the case of any fuel or fuel additive which is not registered on the date of promulgation of such regulations;

or (B) not later than three years after the date of promulgation of such regulations, in the case of any fuel or fuel additive which is reg

istered on such date. (3) In promulgating such regulations, the Ad

ministrator may— (A) exempt any small business (as defined in such regulations) from or defer or modify the requirements of, such regulations with respect to any such small business; (B) provide for cost-sharing with respect to the testing of any fuel or fuel additive which is manufactured or processed by two or more persons or otherwise provide for shared re

sponsibility to meet the requirements of this section without duplication; or (C) exempt any person from such regulations with respect to a particular fuel or fuel addi

tive upon a finding that any additional testing of such fuel or fuel additive would be duplica

tive of adequate existing testing. (f) New fuels and fuel additives (1)(A) Effective upon March 31, 1977, it shall be unlawful for any manufacturer of any fuel or fuel additive to first introduce into commerce, or to increase the concentration in use of, any fuel or fuel additive for general use in light duty motor vehicles manufactured after model year 1974 which is not substantially similar to any fuel or fuel additive utilized in the certification of any model year 1975, or subsequent model year, vehicle or engine under section 7525 of this title. (B) Effective upon November 15, 1990, it shall be unlawful for any manufacturer of any fuel or fuel additive to first introduce into commerce, or to increase the concentration in use of, any fuel or fuel additive for use by any person in motor vehicles manufactured after model year 1974 which is not substantially similar to any fuel or fuel additive utilized in the certification of any model year 1975, or subsequent model year, vehicle or engine under section 7525 of this title. (2) Effective November 30, 1977, it shall be un

lawful for any manufacturer of any fuel to intro

duce into commerce any gasoline which con

tains a concentration of manganese in excess of .0625 grams per gallon of fuel, except as other

wise provided pursuant to a waiver under para

graph (4). (3) Any manufacturer of any fuel or fuel addi

tive which prior to March 31, 1977, and after Jan

uary 1, 1974, first introduced into commerce or increased the concentration in use of a fuel or fuel additive that would otherwise have been prohibited under paragraph (1)(A) if introduced on or after March 31, 1977 shall, not later than September 15, 1978, cease to distribute such fuel or fuel additive in commerce. During the period beginning 180 days after August 7, 1977, and be

fore September 15, 1978, the Administrator shall prohibit, or restrict the concentration of any fuel additive which he determines will cause or contribute to the failure of an emission control device or system (over the useful life of any ve

hicle in which such device or system is used) to achieve compliance by the vehicle with the emission standards with respect to which it has been certified under section 7525 of this title. (4) The Administrator, upon application of any manufacturer of any fuel or fuel additive, may waive the prohibitions established under para

graph (1) or (3) of this subsection or the limita

tion specified in paragraph (2) of this subsection, if he determines that the applicant has estab

lished that such fuel or fuel additive or a speci

fied concentration thereof, and the emission products of such fuel or fuel additive or specified concentration thereof, will not cause or contrib

ute to a failure of any emission control device or system (over the useful life of the motor vehicle,Page 6380 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

motor vehicle engine, nonroad engine or nonroad vehicle in which such device or system is used) to achieve compliance by the vehicle or engine with the emission standards with respect to which it has been certified pursuant to sec

tions 7525 and 7547(a) of this title. The Adminis

trator shall take final action to grant or deny an application submitted under this paragraph, after public notice and comment, within 270 days of the receipt of such an application. (5) No action of the Administrator under this section may be stayed by any court pending ju

dicial review of such action. (g) Misfueling (1) No person shall introduce, or cause or allow the introduction of, leaded gasoline into any motor vehicle which is labeled ‘‘unleaded gaso

line only,’’ which is equipped with a gasoline tank filler inlet designed for the introduction of unleaded gasoline, which is a 1990 or later model year motor vehicle, or which such person knows or should know is a vehicle designed solely for the use of unleaded gasoline. (2) Beginning October 1, 1993, no person shall introduce or cause or allow the introduction into any motor vehicle of diesel fuel which such person knows or should know contains a con

centration of sulfur in excess of 0.05 percent (by weight) or which fails to meet a cetane index minimum of 40 or such equivalent alternative aromatic level as prescribed by the Adminis

trator under subsection (i)(2) of this section. (h) Reid Vapor Pressure requirements (1) Prohibition Not later than 6 months after November 15, 1990, the Administrator shall promulgate regu

lations making it unlawful for any person dur

ing the high ozone season (as defined by the Administrator) to sell, offer for sale, dispense, supply, offer for supply, transport, or intro

duce into commerce gasoline with a Reid Vapor Pressure in excess of 9.0 pounds per square inch (psi). Such regulations shall also establish more stringent Reid Vapor Pressure standards in a nonattainment area as the Ad

ministrator finds necessary to generally achieve comparable evaporative emissions (on a per-vehicle basis) in nonattainment areas, taking into consideration the enforceability of such standards, the need of an area for emis

sion control, and economic factors. (2) Attainment areas The regulations under this subsection shall not make it unlawful for any person to sell, offer for supply, transport, or introduce into commerce gasoline with a Reid Vapor Pres

sure of 9.0 pounds per square inch (psi) or lower in any area designated under section 7407 of this title as an attainment area. Not

withstanding the preceding sentence, the Ad

ministrator may impose a Reid vapor pressure requirement lower than 9.0 pounds per square inch (psi) in any area, formerly an ozone non

attainment area, which has been redesignated as an attainment area. (3) Effective date; enforcement The regulations under this subsection shall provide that the requirements of this sub

section shall take effect not later than the high ozone season for 1992, and shall include such provisions as the Administrator deter

mines are necessary to implement and enforce the requirements of this subsection. (4) Ethanol waiver For fuel blends containing gasoline and 10 percent denatured anhydrous ethanol, the Reid vapor pressure limitation under this sub

section shall be one pound per square inch (psi) greater than the applicable Reid vapor pressure limitations established under para

graph (1); Provided, however , That a distribu

tor, blender, marketer, reseller, carrier, re

tailer, or wholesale purchaser-consumer shall be deemed to be in full compliance with the provisions of this subsection and the regula

tions promulgated thereunder if it can dem

onstrate (by showing receipt of a certification or other evidence acceptable to the Adminis

trator) that— (A) the gasoline portion of the blend com

plies with the Reid vapor pressure limita

tions promulgated pursuant to this sub

section; (B) the ethanol portion of the blend does not exceed its waiver condition under sub

section (f)(4) of this section; and (C) no additional alcohol or other additive has been added to increase the Reid Vapor Pressure of the ethanol portion of the blend. (5) Exclusion from ethanol waiver (A) Promulgation of regulations Upon notification, accompanied by sup

porting documentation, from the Governor of a State that the Reid vapor pressure limi

tation established by paragraph (4) will in

crease emissions that contribute to air pol

lution in any area in the State, the Adminis

trator shall, by regulation, apply, in lieu of the Reid vapor pressure limitation estab

lished by paragraph (4), the Reid vapor pres

sure limitation established by paragraph (1) to all fuel blends containing gasoline and 10 percent denatured anhydrous ethanol that are sold, offered for sale, dispensed, supplied, offered for supply, transported, or intro

duced into commerce in the area during the high ozone season. (B) Deadline for promulgation The Administrator shall promulgate regu

lations under subparagraph (A) not later than 90 days after the date of receipt of a no

tification from a Governor under that sub

paragraph. (C) Effective date (i) In general With respect to an area in a State for which the Governor submits a notification under subparagraph (A), the regulations under that subparagraph shall take effect on the later of— (I) the first day of the first high ozone season for the area that begins after the date of receipt of the notification; or (II) 1 year after the date of receipt of the notification.Page 6381 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

4 So in original. Probably should be section ‘‘7625–1’’. (ii) Extension of effective date based on de

termination of insufficient supply (I) In general If, after receipt of a notification with respect to an area from a Governor of a State under subparagraph (A), the Ad

ministrator determines, on the Adminis

trator’s own motion or on petition of any person and after consultation with the Secretary of Energy, that the pro

mulgation of regulations described in subparagraph (A) would result in an in

sufficient supply of gasoline in the State, the Administrator, by regula

tion— (aa) shall extend the effective date of the regulations under clause (i) with respect to the area for not more than 1 year; and (bb) may renew the extension under item (aa) for two additional periods, each of which shall not exceed 1 year. (II) Deadline for action on petitions The Administrator shall act on any pe

tition submitted under subclause (I) not later than 180 days after the date of re

ceipt of the petition. (6) Areas covered The provisions of this subsection shall apply only to the 48 contiguous States and the Dis

trict of Columbia. (i) Sulfur content requirements for diesel fuel (1) Effective October 1, 1993, no person shall manufacture, sell, supply, offer for sale or sup

ply, dispense, transport, or introduce into com

merce motor vehicle diesel fuel which contains a concentration of sulfur in excess of 0.05 percent (by weight) or which fails to meet a cetane index minimum of 40. (2) Not later than 12 months after November 15, 1990, the Administrator shall promulgate reg

ulations to implement and enforce the require

ments of paragraph (1). The Administrator may require manufacturers and importers of diesel fuel not intended for use in motor vehicles to dye such fuel in a particular manner in order to segregate it from motor vehicle diesel fuel. The Administrator may establish an equivalent al

ternative aromatic level to the cetane index specification in paragraph (1). (3) The sulfur content of fuel required to be used in the certification of 1991 through 1993 model year heavy-duty diesel vehicles and en

gines shall be 0.10 percent (by weight). The sul

fur content and cetane index minimum of fuel required to be used in the certification of 1994 and later model year heavy-duty diesel vehicles and engines shall comply with the regulations promulgated under paragraph (2). (4) The States of Alaska and Hawaii may be exempted from the requirements of this sub

section in the same manner as provided in sec

tion 7625 4 of this title. The Administrator shall take final action on any petition filed under sec

tion 7625 4 of this title or this paragraph for an exemption from the requirements of this sub

section, within 12 months from the date of the petition.

(j) Lead substitute gasoline additives
(1) After November 15, 1990, any person propos

ing to register any gasoline additive under sub

section (a) of this section or to use any pre

viously registered additive as a lead substitute may also elect to register the additive as a lead substitute gasoline additive for reducing valve seat wear by providing the Administrator with such relevant information regarding product identity and composition as the Administrator deems necessary for carrying out the respon

sibilities of paragraph (2) of this subsection (in addition to other information which may be re

quired under subsection (b) of this section). (2) In addition to the other testing which may be required under subsection (b) of this section, in the case of the lead substitute gasoline addi

tives referred to in paragraph (1), the Adminis

trator shall develop and publish a test procedure to determine the additives’ effectiveness in re

ducing valve seat wear and the additives’ ten

dencies to produce engine deposits and other ad

verse side effects. The test procedures shall be developed in cooperation with the Secretary of Agriculture and with the input of additive man

ufacturers, engine and engine components man

ufacturers, and other interested persons. The Administrator shall enter into arrangements with an independent laboratory to conduct tests of each additive using the test procedures devel

oped and published pursuant to this paragraph. The Administrator shall publish the results of the tests by company and additive name in the Federal Register along with, for comparison purposes, the results of applying the same test procedures to gasoline containing 0.1 gram of lead per gallon in lieu of the lead substitute gas

oline additive. The Administrator shall not rank or otherwise rate the lead substitute additives. Test procedures shall be established within 1 year after November 15, 1990. Additives shall be tested within 18 months of November 15, 1990, or 6 months after the lead substitute additives are identified to the Administrator, whichever is later. (3) The Administrator may impose a user fee to recover the costs of testing of any fuel addi

tive referred to in this subsection. The fee shall be paid by the person proposing to register the fuel additive concerned. Such fee shall not ex

ceed $20,000 for a single fuel additive. (4) There are authorized to be appropriated to the Administrator not more than $1,000,000 for the second full fiscal year after November 15, 1990, to establish test procedures and conduct engine tests as provided in this subsection. Not more than $500,000 per year is authorized to be appropriated for each of the 5 subsequent fiscal
years. (5) Any fees collected under this subsection shall be deposited in a special fund in the United States Treasury for licensing and other services which thereafter shall be available for appro

priation, to remain available until expended, to carry out the Agency’s activities for which the fees were collected.Page 6382 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

5 So in original. See References in Text note below. (k) Reformulated gasoline for conventional vehi

cles (1) EPA regulations (A) In general Not later than November 15, 1991, the Ad

ministrator shall promulgate regulations under this section establishing requirements for reformulated gasoline to be used in gaso

line-fueled vehicles in specified nonattain

ment areas. Such regulations shall require the greatest reduction in emissions of ozone forming volatile organic compounds (during the high ozone season) and emissions of toxic air pollutants (during the entire year) achievable through the reformulation of conventional gasoline, taking into consider

ation the cost of achieving such emission re

ductions, any nonair-quality and other airquality related health and environmental impacts and energy requirements. (B) Maintenance of toxic air pollutant emis

sions reductions from reformulated gaso

line (i) Definition of PADD In this subparagraph the term ‘‘PADD’’ means a Petroleum Administration for De

fense District. (ii) Regulations concerning emissions of toxic air pollutants Not later than 270 days after August 8, 2005, the Administrator shall establish by regulation, for each refinery or importer (other than a refiner or importer in a State that has received a waiver under sec

tion 7543(b) of this title with respect to gasoline produced for use in that State), standards for toxic air pollutants from use of the reformulated gasoline produced or distributed by the refiner or importer that maintain the reduction of the average an

nual aggregate emissions of toxic air pol

lutants for reformulated gasoline produced or distributed by the refiner or importer during calendar years 2001 and 2002 (as de

termined on the basis of data collected by the Administrator with respect to the re

finer or importer). (iii) Standards applicable to specific refin

eries or importers (I) Applicability of standards For any calendar year, the standards applicable to a refiner or importer under clause (ii) shall apply to the quantity of gasoline produced or distributed by the refiner or importer in the calendar year only to the extent that the quantity is less than or equal to the average annual quantity of reformulated gasoline pro

duced or distributed by the refiner or im

porter during calendar years 2001 and 2002. (II) Applicability of other standards For any calendar year, the quantity of gasoline produced or distributed by a re

finer or importer that is in excess of the quantity subject to subclause (I) shall be subject to standards for emissions of toxic air pollutants promulgated under subparagraph (A) and paragraph (3)(B). (iv) Credit program The Administrator shall provide for the granting and use of credits for emissions of toxic air pollutants in the same manner as provided in paragraph (7). (v) Regional protection of toxics reduction baselines (I) In general Not later than 60 days after August 8, 2005, and not later than April 1 of each calendar year that begins after August 8, 2005, the Administrator shall publish in the Federal Register a report that speci

fies, with respect to the previous cal

endar year— (aa) the quantity of reformulated gasoline produced that is in excess of the average annual quantity of refor

mulated gasoline produced in 2001 and 2002; and (bb) the reduction of the average an

nual aggregate emissions of toxic air pollutants in each PADD, based on re

tail survey data or data from other ap

propriate sources. (II) Effect of failure to maintain aggre

gate toxics reductions If, in any calendar year, the reduction of the average annual aggregate emis

sions of toxic air pollutants in a PADD fails to meet or exceed the reduction of the average annual aggregate emissions of toxic air pollutants in the PADD in calendar years 2001 and 2002, the Admin

istrator, not later than 90 days after the date of publication of the report for the calendar year under subclause (I), shall— (aa) identify, to the maximum extent practicable, the reasons for the failure, including the sources, volumes, and characteristics of reformulated gaso

line that contributed to the failure; and (bb) promulgate revisions to the reg

ulations promulgated under clause (ii), to take effect not earlier than 180 days but not later than 270 days after the date of promulgation, to provide that, notwithstanding clause (iii)(II), all re

formulated gasoline produced or dis

tributed at each refiner or importer shall meet the standards applicable under clause (iii)(I) beginning not later than April 1 of the calendar year fol

lowing publication of the report under subclause (I) and in each calendar year thereafter. (vi) Not later than July 1, 2007, the Ad

ministrator shall promulgate final regula

tions to control hazardous air pollutants from motor vehicles and motor vehicle fuels, as provided for in section 80.1045 of title 40, Code of Federal Regulations (as in effect on August 8, 2005), and as authorized under section 7521( l ) 5 of this title. If thePage 6383 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

Administrator promulgates by such date, final regulations to control hazardous air pollutants from motor vehicles and motor vehicle fuels that achieve and maintain greater overall reductions in emissions of air toxics from reformulated gasoline than the reductions that would be achieved under subsection (k)(1)(B) of this section as amended by this clause, then sub

sections (k)(1)(B)(i) through (k)(1)(B)(v) of this section shall be null and void and reg

ulations promulgated thereunder shall be rescinded and have no further effect. (2) General requirements The regulations referred to in paragraph (1) shall require that reformulated gasoline com

ply with paragraph (3) and with each of the following requirements (subject to paragraph (7)): (A) NO x emissions The emissions of oxides of nitrogen (NO x ) from baseline vehicles when using the refor

mulated gasoline shall be no greater than the level of such emissions from such vehi

cles when using baseline gasoline. If the Ad

ministrator determines that compliance with the limitation on emissions of oxides of nitrogen under the preceding sentence is technically infeasible, considering the other requirements applicable under this sub

section to such gasoline, the Administrator may, as appropriate to ensure compliance with this subparagraph, adjust (or waive en

tirely), any other requirements of this para

graph or any requirements applicable under paragraph (3)(A). (B) Benzene content The benzene content of the gasoline shall not exceed 1.0 percent by volume. (C) Heavy metals The gasoline shall have no heavy metals, including lead or manganese. The Adminis

trator may waive the prohibition contained in this subparagraph for a heavy metal (other than lead) if the Administrator deter

mines that addition of the heavy metal to the gasoline will not increase, on an aggre

gate mass or cancer-risk basis, toxic air pol

lutant emissions from motor vehicles. (3) More stringent of formula or performance standards The regulations referred to in paragraph (1) shall require compliance with the more strin

gent of either the requirements set forth in subparagraph (A) or the requirements of sub

paragraph (B) of this paragraph. For purposes of determining the more stringent provision, clause (i) and clause (ii) of subparagraph (B) shall be considered independently. (A) Formula (i) Benzene
The benzene content of the reformulated gasoline shall not exceed 1.0 percent by volume. (ii) Aromatics The aromatic hydrocarbon content of the reformulated gasoline shall not exceed 25 percent by volume. (iii) Lead The reformulated gasoline shall have no lead content. (iv) Detergents The reformulated gasoline shall contain additives to prevent the accumulation of deposits in engines or vehicle fuel supply systems. (B) Performance standard (i) VOC emissions During the high ozone season (as defined by the Administrator), the aggregate emis

sions of ozone forming volatile organic compounds from baseline vehicles when using the reformulated gasoline shall be 15 percent below the aggregate emissions of ozone forming volatile organic compounds from such vehicles when using baseline gasoline. Effective in calendar year 2000 and thereafter, 25 percent shall be sub

stituted for 15 percent in applying this clause, except that the Administrator may adjust such 25 percent requirement to pro

vide for a lesser or greater reduction based on technological feasibility, considering the cost of achieving such reductions in VOC emissions. No such adjustment shall provide for less than a 20 percent reduction below the aggregate emissions of such air pollutants from such vehicles when using baseline gasoline. The reductions required under this clause shall be on a mass basis. (ii) Toxics During the entire year, the aggregate emissions of toxic air pollutants from baseline vehicles when using the reformu

lated gasoline shall be 15 percent below the aggregate emissions of toxic air pollutants from such vehicles when using baseline gasoline. Effective in calendar year 2000 and thereafter, 25 percent shall be sub

stituted for 15 percent in applying this clause, except that the Administrator may adjust such 25 percent requirement to pro

vide for a lesser or greater reduction based on technological feasibility, considering the cost of achieving such reductions in toxic air pollutants. No such adjustment shall provide for less than a 20 percent re

duction below the aggregate emissions of such air pollutants from such vehicles when using baseline gasoline. The reduc

tions required under this clause shall be on a mass basis. Any reduction greater than a specific percent

age reduction required under this subpara

graph shall be treated as satisfying such per

centage reduction requirement. (4) Certification procedures (A) Regulations The regulations under this subsection shall include procedures under which the Ad

ministrator shall certify reformulated gaso

line as complying with the requirements es

tablished pursuant to this subsection. Under such regulations, the Administrator shall es

tablish procedures for any person to petitionPage 6384 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

6 So in original. Probably should be ‘‘properly’’. the Administrator to certify a fuel formula

tion, or slate of fuel formulations. Such pro

cedures shall further require that the Ad

ministrator shall approve or deny such peti

tion within 180 days of receipt. If the Admin

istrator fails to act within such 180-day pe

riod, the fuel shall be deemed certified until the Administrator completes action on the petition. (B) Certification; equivalency The Administrator shall certify a fuel for

mulation or slate of fuel formulations as complying with this subsection if such fuel or fuels— (i) comply with the requirements of paragraph (2), and (ii) achieve equivalent or greater reduc

tions in emissions of ozone forming vola

tile organic compounds and emissions of toxic air pollutants than are achieved by a reformulated gasoline meeting the appli

cable requirements of paragraph (3). (C) EPA determination of emissions level Within 1 year after November 15, 1990, the Administrator shall determine the level of emissions of ozone forming volatile organic compounds and emissions of toxic air pollut

ants emitted by baseline vehicles when oper

ating on baseline gasoline. For purposes of this subsection, within 1 year after Novem

ber 15, 1990, the Administrator shall, by rule, determine appropriate measures of, and methodology for, ascertaining the emissions of air pollutants (including calculations, equipment, and testing tolerances). (5) Prohibition Effective beginning January 1, 1995, each of the following shall be a violation of this sub

section: (A) The sale or dispensing by any person of conventional gasoline to ultimate consum

ers in any covered area. (B) The sale or dispensing by any refiner, blender, importer, or marketer of conven

tional gasoline for resale in any covered area, without (i) segregating such gasoline from reformulated gasoline, and (ii) clearly marking such conventional gasoline as ‘‘con

ventional gasoline, not for sale to ultimate consumer in a covered area’’. Any refiner, blender, importer or marketer who purchases property 6 segregated and marked conventional gasoline, and thereafter labels, represents, or wholesales such gasoline as reformulated gasoline shall also be in viola

tion of this subsection. The Administrator may impose sampling, testing, and record

keeping requirements upon any refiner, blend

er, importer, or marketer to prevent viola

tions of this section. (6) Opt-in areas (A) Classified areas (i) In general Upon the application of the Governor of a State, the Administrator shall apply the prohibition set forth in paragraph (5) in any area in the State classified under sub

part 2 of part D of subchapter I of this chapter as a Marginal, Moderate, Serious, or Severe Area (without regard to whether or not the 1980 population of the area ex

ceeds 250,000). In any such case, the Admin

istrator shall establish an effective date for such prohibition as he deems appro

priate, not later than January 1, 1995, or 1 year after such application is received, whichever is later. The Administrator shall publish such application in the Fed

eral Register upon receipt. (ii) Effect of insufficient domestic capacity to produce reformulated gasoline If the Administrator determines, on the Administrator’s own motion or on petition of any person, after consultation with the Secretary of Energy, that there is insuffi

cient domestic capacity to produce gaso

line certified under this subsection, the Administrator shall, by rule, extend the ef

fective date of such prohibition in Mar

ginal, Moderate, Serious, or Severe Areas referred to in clause (i) for one additional year, and may, by rule, renew such exten

sion for 2 additional one-year periods. The Administrator shall act on any petition submitted under this subparagraph within 6 months after receipt of the petition. The Administrator shall issue such extensions for areas with a lower ozone classification before issuing any such extension for areas with a higher classification. (B) Ozone transport region (i) Application of prohibition (I) In general On application of the Governor of a State in the ozone transport region es

tablished by section 7511c(a) of this title, the Administrator, not later than 180 days after the date of receipt of the ap

plication, shall apply the prohibition specified in paragraph (5) to any area in the State (other than an area classified as a marginal, moderate, serious, or se

vere ozone nonattainment area under subpart 2 of part D of subchapter I of this chapter) unless the Administrator determines under clause (iii) that there is insufficient capacity to supply refor

mulated gasoline. (II) Publication of application As soon as practicable after the date of receipt of an application under subclause (I), the Administrator shall publish the application in the Federal Register. (ii) Period of applicability Under clause (i), the prohibition speci

fied in paragraph (5) shall apply in a State— (I) commencing as soon as practicable but not later than 2 years after the date of approval by the Administrator of the application of the Governor of the State; and (II) ending not earlier than 4 years after the commencement date deter

mined under subclause (I).Page 6385 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

(iii) Extension of commencement date based on insufficient capacity (I) In general If, after receipt of an application from a Governor of a State under clause (i), the Administrator determines, on the Administrator’s own motion or on peti

tion of any person, after consultation with the Secretary of Energy, that there is insufficient capacity to supply refor

mulated gasoline, the Administrator, by regulation— (aa) shall extend the commencement date with respect to the State under clause (ii)(I) for not more than 1 year; and (bb) may renew the extension under item (aa) for 2 additional periods, each of which shall not exceed 1 year. (II) Deadline for action on petitions The Administrator shall act on any pe

tition submitted under subclause (I) not later than 180 days after the date of re

ceipt of the petition. (7) Credits (A) The regulations promulgated under this subsection shall provide for the granting of an appropriate amount of credits to a person who refines, blends, or imports and certifies a gaso

line or slate of gasoline that— (i) has an aromatic hydrocarbon content (by volume) that is less than the maximum aromatic hydrocarbon content required to comply with paragraph (3); or (ii) has a benzene content (by volume) that is less than the maximum benzene content specified in paragraph (2). (B) The regulations described in subpara

graph (A) shall also provide that a person who is granted credits may use such credits, or transfer all or a portion of such credits to an

other person for use within the same non

attainment area, for the purpose of complying with this subsection. (C) The regulations promulgated under sub

paragraphs (A) and (B) shall ensure the en

forcement of the requirements for the issu

ance, application, and transfer of the credits. Such regulations shall prohibit the granting or transfer of such credits for use with respect to any gasoline in a nonattainment area, to the extent the use of such credits would result in any of the following: (i) An average gasoline aromatic hydro

carbon content (by volume) for the non

attainment (taking into account all gasoline sold for use in conventional gasoline-fueled vehicles in the nonattainment area) higher than the average fuel aromatic hydrocarbon content (by volume) that would occur in the absence of using any such credits. (ii) An average benzene content (by vol

ume) for the nonattainment area (taking into account all gasoline sold for use in con

ventional gasoline-fueled vehicles in the nonattainment area) higher than the aver

age benzene content (by volume) that would occur in the absence of using any such cred

its. (8) Anti-dumping rules (A) In general Within 1 year after November 15, 1990, the Administrator shall promulgate regulations applicable to each refiner, blender, or im

porter of gasoline ensuring that gasoline sold or introduced into commerce by such refiner, blender, or importer (other than re

formulated gasoline subject to the require

ments of paragraph (1)) does not result in av

erage per gallon emissions (measured on a mass basis) of (i) volatile organic com

pounds, (ii) oxides of nitrogen, (iii) carbon monoxide, and (iv) toxic air pollutants in ex

cess of such emissions of such pollutants at

tributable to gasoline sold or introduced into commerce in calendar year 1990 by that refiner, blender, or importer. Such regula

tions shall take effect beginning January 1, 1995. (B) Adjustments In evaluating compliance with the require

ments of subparagraph (A), the Adminis

trator shall make appropriate adjustments to insure that no credit is provided for im

provement in motor vehicle emissions con

trol in motor vehicles sold after the calendar year 1990. (C) Compliance determined for each pollut

ant independently In determining whether there is an in

crease in emissions in violation of the prohi

bition contained in subparagraph (A) the Ad

ministrator shall consider an increase in each air pollutant referred to in clauses (i) through (iv) as a separate violation of such prohibition, except that the Administrator shall promulgate regulations to provide that any increase in emissions of oxides of nitro

gen resulting from adding oxygenates to gas

oline may be offset by an equivalent or greater reduction (on a mass basis) in emis

sions of volatile organic compounds, carbon monoxide, or toxic air pollutants, or any combination of the foregoing. (D) Compliance period The Administrator shall promulgate an appropriate compliance period or appro

priate compliance periods to be used for as

sessing compliance with the prohibition con

tained in subparagraph (A). (E) Baseline for determining compliance
If the Administrator determines that no adequate and reliable data exists regarding the composition of gasoline sold or intro

duced into commerce by a refiner, blender, or importer in calendar year 1990, for such refiner, blender, or importer, baseline gaso

line shall be substituted for such 1990 gaso

line in determining compliance with sub

paragraph (A). (9) Emissions from entire vehicle In applying the requirements of this sub

section, the Administrator shall take into ac

count emissions from the entire motor vehi

cle, including evaporative, running, refueling, and exhaust emissions.Page 6386 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

(10) Definitions For purposes of this subsection— (A) Baseline vehicles The term ‘‘baseline vehicles’’ mean rep

resentative model year 1990 vehicles. (B) Baseline gasoline (i) Summertime The term ‘‘baseline gasoline’’ means in the case of gasoline sold during the high ozone period (as defined by the Adminis

trator) a gasoline which meets the follow

ing specifications:

BASELINE GASOLINE FUEL PROPERTIES API Gravity

................................... 57.4 Sulfur, ppm

.................................... 339 Benzene, %

..................................... 1.53 RVP, psi

......................................... 8.7 Octane, R+M/2

................................ 87.3 IBP, F

............................................ 91 10%, F

............................................ 128 50%, F

............................................ 218 90%, F

............................................ 330 End Point, F

.................................. 415 Aromatics, %

................................. 32.0 Olefins, %

....................................... 9.2 Saturates, %

.................................. 58.8 (ii) Wintertime
The Administrator shall establish the specifications of ‘‘baseline gasoline’’ for gasoline sold at times other than the high ozone period (as defined by the Adminis

trator). Such specifications shall be the specifications of 1990 industry average gas

oline sold during such period. (C) Toxic air pollutants The term ‘‘toxic air pollutants’’ means the aggregate emissions of the following: Benzene 1,3 Butadiene Polycyclic organic matter (POM) Acetaldehyde Formaldehyde. (D) Covered area The 9 ozone nonattainment areas having a 1980 population in excess of 250,000 and hav

ing the highest ozone design value during the period 1987 through 1989 shall be ‘‘cov

ered areas’’ for purposes of this subsection. Effective one year after the reclassification of any ozone nonattainment area as a Severe ozone nonattainment area under section 7511(b) of this title, such Severe area shall also be a ‘‘covered area’’ for purposes of this subsection. (E) Reformulated gasoline The term ‘‘reformulated gasoline’’ means any gasoline which is certified by the Ad

ministrator under this section as complying with this subsection. (F) Conventional gasoline The term ‘‘conventional gasoline’’ means any gasoline which does not meet specifica

tions set by a certification under this sub

section. ( l ) Detergents Effective beginning January 1, 1995, no person may sell or dispense to an ultimate consumer in the United States, and no refiner or marketer may directly or indirectly sell or dispense to persons who sell or dispense to ultimate con

sumers in the United States any gasoline which does not contain additives to prevent the accu

mulation of deposits in engines or fuel supply systems. Not later than 2 years after November 15, 1990, the Administrator shall promulgate a rule establishing specifications for such addi

tives. (m) Oxygenated fuels (1) Plan revisions for CO nonattainment areas (A) Each State in which there is located all or part of an area which is designated under subchapter I of this chapter as a nonattain

ment area for carbon monoxide and which has a carbon monoxide design value of 9.5 parts per million (ppm) or above based on data for the 2-year period of 1988 and 1989 and cal

culated according to the most recent interpre

tation methodology issued by the Adminis

trator prior to November 15, 1990, shall submit to the Administrator a State implementation plan revision under section 7410 of this title and part D of subchapter I of this chapter for such area which shall contain the provisions specified under this subsection regarding oxy

genated gasoline. (B) A plan revision which contains such pro

visions shall also be submitted by each State in which there is located any area which, for any 2-year period after 1989 has a carbon mon

oxide design value of 9.5 ppm or above. The re

vision shall be submitted within 18 months after such 2-year period. (2) Oxygenated gasoline in CO nonattainment

areas Each plan revision under this subsection shall contain provisions to require that any gasoline sold, or dispensed, to the ultimate consumer in the carbon monoxide nonattain

ment area or sold or dispensed directly or indi

rectly by fuel refiners or marketers to persons who sell or dispense to ultimate consumers, in the larger of— (A) the Consolidated Metropolitan Statis

tical Area (CMSA) in which the area is lo

cated, or (B) if the area is not located in a CMSA, the Metropolitan Statistical Area in which the area is located, be blended, during the portion of the year in which the area is prone to high ambient con

centrations of carbon monoxide to contain not less than 2.7 percent oxygen by weight (subject to a testing tolerance established by the Ad

ministrator). The portion of the year in which the area is prone to high ambient concentra

tions of carbon monoxide shall be as deter

mined by the Administrator, but shall not be less than 4 months. At the request of a State with respect to any area designated as non

attainment for carbon monoxide, the Adminis

trator may reduce the period specified in the preceding sentence if the State can dem

onstrate that because of meteorological condi

tions, a reduced period will assure that there will be no exceedances of the carbon monoxide standard outside of such reduced period. ForPage 6387 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

7 So in original. Probably should be ‘‘as of’’. 8 So in original. Probably should be section ‘‘7550(2)’’. areas with a carbon monoxide design value of 9.5 ppm or more of 7 November 15, 1990, the re

vision shall provide that such requirement shall take effect no later than November 1, 1992 (or at such other date during 1992 as the Administrator establishes under the preceding provisions of this paragraph). For other areas, the revision shall provide that such require

ment shall take effect no later than November 1 of the third year after the last year of the applicable 2-year period referred to in para

graph (1) (or at such other date during such third year as the Administrator establishes under the preceding provisions of this para

graph) and shall include a program for imple

mentation and enforcement of the require

ment consistent with guidance to be issued by the Administrator.

(3) Waivers (A) The Administrator shall waive, in whole or in part, the requirements of paragraph (2) upon a demonstration by the State to the sat

isfaction of the Administrator that the use of oxygenated gasoline would prevent or inter

fere with the attainment by the area of a na

tional primary ambient air quality standard (or a State or local ambient air quality stand

ard) for any air pollutant other than carbon monoxide. (B) The Administrator shall, upon dem

onstration by the State satisfactory to the Ad

ministrator, waive the requirement of para

graph (2) where the Administrator determines that mobile sources of carbon monoxide do not contribute significantly to carbon monoxide levels in an area. (C)(i) Any person may petition the Adminis

trator to make a finding that there is, or is likely to be, for any area, an inadequate do

mestic supply of, or distribution capacity for, oxygenated gasoline meeting the requirements of paragraph (2) or fuel additives (oxygenates) necessary to meet such requirements. The Ad

ministrator shall act on such petition within 6 months after receipt of the petition. (ii) If the Administrator determines, in re

sponse to a petition under clause (i), that there is an inadequate supply or capacity de

scribed in clause (i), the Administrator shall delay the effective date of paragraph (2) for 1 year. Upon petition, the Administrator may extend such effective date for one additional year. No partial delay or lesser waiver may be granted under this clause. (iii) In granting waivers under this subpara

graph the Administrator shall consider dis

tribution capacity separately from the ade

quacy of domestic supply and shall grant such waivers in such manner as will assure that, if supplies of oxygenated gasoline are limited, areas having the highest design value for car

bon monoxide will have a priority in obtaining oxygenated gasoline which meets the require

ments of paragraph (2). (iv) As used in this subparagraph, the term distribution capacity includes capacity for transportation, storage, and blending. (4) Fuel dispensing systems Any person selling oxygenated gasoline at retail pursuant to this subsection shall be re

quired under regulations promulgated by the Administrator to label the fuel dispensing sys

tem with a notice that the gasoline is oxygen

ated and will reduce the carbon monoxide emissions from the motor vehicle. (5) Guidelines for credit The Administrator shall promulgate guide

lines, within 9 months after November 15, 1990, allowing the use of marketable oxygen credits from gasolines during that portion of the year specified in paragraph (2) with higher oxygen content than required to offset the sale or use of gasoline with a lower oxygen content than required. No credits may be transferred be

tween nonattainment areas. (6) Attainment areas Nothing in this subsection shall be inter

preted as requiring an oxygenated gasoline program in an area which is in attainment for carbon monoxide, except that in a carbon monoxide nonattainment area which is redes

ignated as attainment for carbon monoxide, the requirements of this subsection shall re

main in effect to the extent such program is necessary to maintain such standard there

after in the area. (7) Failure to attain CO standard
If the Administrator determines under sec

tion 7512(b)(2) of this title that the national primary ambient air quality standard for car

bon monoxide has not been attained in a Seri

ous Area by the applicable attainment date, the State shall submit a plan revision for the area within 9 months after the date of such de

termination. The plan revision shall provide that the minimum oxygen content of gasoline referred to in paragraph (2) shall be 3.1 percent by weight unless such requirement is waived in accordance with the provisions of this sub

section. (n) Prohibition on leaded gasoline for highway

use After December 31, 1995, it shall be unlawful for any person to sell, offer for sale, supply, offer for supply, dispense, transport, or introduce into commerce, for use as fuel in any motor vehicle (as defined in section 7554(2) 8 of this title) any gasoline which contains lead or lead additives. ( o ) Renewable fuel program (1) Definitions
In this section: (A) Additional renewable fuel
The term ‘‘additional renewable fuel’’ means fuel that is produced from renewable biomass and that is used to replace or reduce the quantity of fossil fuel present in home heating oil or jet fuel. (B) Advanced biofuel (i) In general
The term ‘‘advanced biofuel’’ means re

newable fuel, other than ethanol derivedPage 6388 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

9 So in original. The word ‘‘and’’ probably should appear.

10 So in original. Probably should be ‘‘non-Federal’’. from corn starch, that has lifecycle green

house gas emissions, as determined by the Administrator, after notice and oppor

tunity for comment, that are at least 50 percent less than baseline lifecycle green

house gas emissions. (ii) Inclusions The types of fuels eligible for consider

ation as ‘‘advanced biofuel’’ may include any of the following: (I) Ethanol derived from cellulose, hemicellulose, or lignin. (II) Ethanol derived from sugar or starch (other than corn starch). (III) Ethanol derived from waste mate

rial, including crop residue, other vege

tative waste material, animal waste, and food waste and yard waste. (IV) Biomass-based diesel. (V) Biogas (including landfill gas and sewage waste treatment gas) produced through the conversion of organic mat

ter from renewable biomass. (VI) Butanol or other alcohols pro

duced through the conversion of organic matter from renewable biomass. (VII) Other fuel derived from cellulosic biomass. (C) Baseline lifecycle greenhouse gas emis

sions The term ‘‘baseline lifecycle greenhouse gas emissions’’ means the average lifecycle greenhouse gas emissions, as determined by the Administrator, after notice and oppor

tunity for comment, for gasoline or diesel (whichever is being replaced by the renew

able fuel) sold or distributed as transpor

tation fuel in 2005. (D) Biomass-based diesel
The term ‘‘biomass-based diesel’’ means renewable fuel that is biodiesel as defined in section 13220(f) of this title and that has lifecycle greenhouse gas emissions, as deter

mined by the Administrator, after notice and opportunity for comment, that are at least 50 percent less than the baseline lifecycle greenhouse gas emissions. Notwith

standing the preceding sentence, renewable fuel derived from co-processing biomass with a petroleum feedstock shall be advanced biofuel if it meets the requirements of sub

paragraph (B), but is not biomass-based die

sel. (E) Cellulosic biofuel
The term ‘‘cellulosic biofuel’’ means re

newable fuel derived from any cellulose, hemicellulose, or lignin that is derived from renewable biomass and that has lifecycle greenhouse gas emissions, as determined by the Administrator, that are at least 60 per

cent less than the baseline lifecycle green

house gas emissions. (F) Conventional biofuel
The term ‘‘conventional biofuel’’ means renewable fuel that is ethanol derived from corn starch. (G) Greenhouse gas The term ‘‘greenhouse gas’’ means carbon dioxide, hydrofluorocarbons, methane, ni

trous oxide, perfluorocarbons, 9 sulfur hexa

fluoride. The Administrator may include any other anthropogenically-emitted gas that is determined by the Administrator, after notice and comment, to contribute to global warming. (H) Lifecycle greenhouse gas emissions The term ‘‘lifecycle greenhouse gas emis

sions’’ means the aggregate quantity of greenhouse gas emissions (including direct emissions and significant indirect emissions such as significant emissions from land use changes), as determined by the Adminis

trator, related to the full fuel lifecycle, in

cluding all stages of fuel and feedstock pro

duction and distribution, from feedstock generation or extraction through the dis

tribution and delivery and use of the fin

ished fuel to the ultimate consumer, where the mass values for all greenhouse gases are adjusted to account for their relative global warming potential. (I) Renewable biomass
The term ‘‘renewable biomass’’ means each of the following: (i) Planted crops and crop residue har

vested from agricultural land cleared or cultivated at any time prior to December 19, 2007, that is either actively managed or fallow, and nonforested. (ii) Planted trees and tree residue fromactively managed tree plantations on nonfederal 10 land cleared at any time prior to December 19, 2007, including land belong

ing to an Indian tribe or an Indian individ

ual, that is held in trust by the United States or subject to a restriction against alienation imposed by the United States. (iii) Animal waste material and animal byproducts. (iv) Slash and pre-commercial thinnings that are from non-federal 10 forestlands, in

cluding forestlands belonging to an Indian tribe or an Indian individual, that are held in trust by the United States or subject to a restriction against alienation imposed by the United States, but not forests or forestlands that are ecological commu

nities with a global or State ranking of critically imperiled, imperiled, or rare pursuant to a State Natural Heritage Pro

gram, old growth forest, or late succes

sional forest. (v) Biomass obtained from the imme

diate vicinity of buildings and other areas regularly occupied by people, or of public infrastructure, at risk from wildfire. (vi) Algae. (vii) Separated yard waste or food waste, including recycled cooking and trap
grease. (J) Renewable fuel
The term ‘‘renewable fuel’’ means fuel that is produced from renewable biomass and that is used to replace or reduce the quantity of fossil fuel present in a transpor

tation fuel.Page 6389 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

(K) Small refinery The term ‘‘small refinery’’ means a refin

ery for which the average aggregate daily crude oil throughput for a calendar year (as determined by dividing the aggregate throughput for the calendar year by the number of days in the calendar year) does not exceed 75,000 barrels. (L) Transportation fuel The term ‘‘transportation fuel’’ means fuel for use in motor vehicles, motor vehicle en

gines, nonroad vehicles, or nonroad engines (except for ocean-going vessels). (2) Renewable fuel program (A) Regulations (i) In general Not later than 1 year after August 8, 2005, the Administrator shall promulgate regulations to ensure that gasoline sold or introduced into commerce in the United States (except in noncontiguous States or territories), on an annual average basis, contains the applicable volume of renew

able fuel determined in accordance with subparagraph (B). Not later than 1 year after December 19, 2007, the Administrator shall revise the regulations under this paragraph to ensure that transportation fuel sold or introduced into commerce in the United States (except in noncontig

uous States or territories), on an annual average basis, contains at least the appli

cable volume of renewable fuel, advancedbiofuel, cellulosic biofuel, and biomassbased diesel, determined in accordance with subparagraph (B) and, in the case of any such renewable fuel produced from new facilities that commence construction after December 19, 2007, achieves at least a 20 percent reduction in lifecycle green

house gas emissions compared to baseline lifecycle greenhouse gas emissions. (ii) Noncontiguous State opt-in (I) In general On the petition of a noncontiguous State or territory, the Administrator may allow the renewable fuel program established under this subsection to apply in the noncontiguous State or ter

ritory at the same time or any time after the Administrator promulgates regulations under this subparagraph.
(II) Other actions In carrying out this clause, the Admin

istrator may— (aa) issue or revise regulations under this paragraph; (bb) establish applicable percentages under paragraph (3); (cc) provide for the generation of credits under paragraph (5); and (dd) take such other actions as are necessary to allow for the application of the renewable fuels program in a noncontiguous State or territory. (iii) Provisions of regulations Regardless of the date of promulgation, the regulations promulgated under clause (i)— (I) shall contain compliance provisions applicable to refineries, blenders, dis

tributors, and importers, as appropriate, to ensure that the requirements of this paragraph are met; but (II) shall not— (aa) restrict geographic areas in which renewable fuel may be used; or (bb) impose any per-gallon obligation for the use of renewable fuel. (iv) Requirement in case of failure to pro

mulgate regulations If the Administrator does not promul

gate regulations under clause (i), the per

centage of renewable fuel in gasoline sold or dispensed to consumers in the United States, on a volume basis, shall be 2.78 per

cent for calendar year 2006. (B) Applicable volumes (i) Calendar years after 2005 (I) Renewable fuel For the purpose of subparagraph (A), the applicable volume of renewable fuel for the calendar years 2006 through 2022 shall be determined in accordance with the following table: Applicable volume of renewable fuel Calendar year: (in billions of gallons): 2006

............................................................. 4.0 2007

............................................................. 4.7 2008

............................................................. 9.0 2009

............................................................. 11.1 2010

............................................................. 12.95 2011

............................................................. 13.95 2012

............................................................. 15.2 2013

............................................................. 16.55 2014

............................................................. 18.15 2015

............................................................. 20.5 2016

............................................................. 22.25 2017

............................................................. 24.0 2018

............................................................. 26.0 2019

............................................................. 28.0 2020

............................................................. 30.0 2021

............................................................. 33.0 2022

............................................................. 36.0 (II) Advanced biofuel For the purpose of subparagraph (A), of the volume of renewable fuel required under subclause (I), the applicable vol

ume of advanced biofuel for the calendar years 2009 through 2022 shall be deter

mined in accordance with the following table: Applicable volume of advanced biofuel Calendar year: (in billions of gallons):Page 6390 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

2009

............................................................. 0.6 2010

............................................................. 0.95 2011

............................................................. 1.35 2012

............................................................. 2.0 2013

............................................................. 2.75 2014

............................................................. 3.75 2015

............................................................. 5.5 2016

............................................................. 7.25 2017

............................................................. 9.0 2018

............................................................. 11.0 2019

............................................................. 13.0 2020

............................................................. 15.0 2021

............................................................. 18.0 2022

............................................................. 21.0 (III) Cellulosic biofuel For the purpose of subparagraph (A), of the volume of advanced biofuel required under subclause (II), the applicable vol

ume of cellulosic biofuel for the calendar years 2010 through 2022 shall be deter

mined in accordance with the following table: Applicable volume of cellulosic biofuel Calendar year: (in billions of gallons): 2010

............................................................. 0.1 2011

............................................................. 0.25 2012

............................................................. 0.5 2013

............................................................. 1.0 2014

............................................................. 1.75 2015

............................................................. 3.0 2016

............................................................. 4.25 2017

............................................................. 5.5 2018

............................................................. 7.0 2019

............................................................. 8.5 2020

............................................................. 10.5 2021

............................................................. 13.5 2022

............................................................. 16.0 (IV) Biomass-based diesel For the purpose of subparagraph (A), of the volume of advanced biofuel required under subclause (II), the applicable vol

ume of biomass-based diesel for the cal

endar years 2009 through 2012 shall be de

termined in accordance with the follow

ing table: Applicable volume ofbiomassbased diesel Calendar year: (in billions of gallons): 2009

............................................................. 0.5 2010

............................................................. 0.65 2011

............................................................. 0.80 2012

............................................................. 1.0 (ii) Other calendar years For the purposes of subparagraph (A), the applicable volumes of each fuel speci

fied in the tables in clause (i) for calendar years after the calendar years specified in the tables shall be determined by the Ad

ministrator, in coordination with the Sec

retary of Energy and the Secretary of Ag

riculture, based on a review of the imple

mentation of the program during calendar years specified in the tables, and an analy

sis of— (I) the impact of the production and use of renewable fuels on the environ

ment, including on air quality, climate change, conversion of wetlands, eco

systems, wildlife habitat, water quality, and water supply; (II) the impact of renewable fuels on the energy security of the United States; (III) the expected annual rate of future commercial production of renewable fuels, including advanced biofuels in each category (cellulosic biofuel and bio

mass-based diesel); (IV) the impact of renewable fuels on the infrastructure of the United States, including deliverability of materials, goods, and products other than renew

able fuel, and the sufficiency of infra

structure to deliver and use renewable fuel; (V) the impact of the use of renewable fuels on the cost to consumers of trans

portation fuel and on the cost to trans

port goods; and (VI) the impact of the use of renewable fuels on other factors, including job cre

ation, the price and supply of agricul

tural commodities, rural economic de

velopment, and food prices. The Administrator shall promulgate rules establishing the applicable volumes under this clause no later than 14 months before the first year for which such applicable volume will apply. (iii) Applicable volume of advanced biofuel For the purpose of making the deter

minations in clause (ii), for each calendar year, the applicable volume of advanced biofuel shall be at least the same percent

age of the applicable volume of renewable fuel as in calendar year 2022. (iv) Applicable volume of cellulosic biofuel For the purpose of making the deter

minations in clause (ii), for each calendar year, the applicable volume of cellulosic biofuel established by the Administrator shall be based on the assumption that the Administrator will not need to issue a waiver for such years under paragraph (7)(D).(v) Minimum applicable volume of biomassbased diesel For the purpose of making the deter

minations in clause (ii), the applicable vol

ume of biomass-based diesel shall not be less than the applicable volume listed in clause (i)(IV) for calendar year 2012. (3) Applicable percentages (A) Provision of estimate of volumes of gaso

line sales
Not later than October 31 of each of cal

endar years 2005 through 2021, the Adminis

trator of the Energy Information Adminis

tration shall provide to the Administrator of the Environmental Protection Agency an es

-Page 6391 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

timate, with respect to the following cal

endar year, of the volumes of transportation fuel, biomass-based diesel, and cellulosic biofuel projected to be sold or introduced into commerce in the United States. (B) Determination of applicable percentages (i) In general
Not later than November 30 of each of calendar years 2005 through 2021, based on the estimate provided under subparagraph (A), the Administrator of the Environ

mental Protection Agency shall determine and publish in the Federal Register, with respect to the following calendar year, the renewable fuel obligation that ensures that the requirements of paragraph (2) are met. (ii) Required elements The renewable fuel obligation deter

mined for a calendar year under clause (i) shall— (I) be applicable to refineries, blenders, and importers, as appropriate; (II) be expressed in terms of a volume percentage of transportation fuel sold or introduced into commerce in the United States; and (III) subject to subparagraph (C)(i), consist of a single applicable percentage that applies to all categories of persons specified in subclause (I). (C) Adjustments In determining the applicable percentage for a calendar year, the Administrator shall make adjustments— (i) to prevent the imposition of redun

dant obligations on any person specified in subparagraph (B)(ii)(I); and (ii) to account for the use of renewable fuel during the previous calendar year by small refineries that are exempt under paragraph (9). (4) Modification of greenhouse gas reduction percentages (A) In general The Administrator may, in the regulations under the last sentence of paragraph (2)(A)(i), adjust the 20 percent, 50 percent, and 60 percent reductions in lifecycle green

house gas emissions specified in paragraphs (2)(A)(i) (relating to renewable fuel), (1)(D) (relating to biomass-based diesel), (1)(B)(i) (relating to advanced biofuel), and (1)(E) (re

lating to cellulosic biofuel) to a lower per

centage. For the 50 and 60 percent reduc

tions, the Administrator may make such an adjustment only if he determines that gener

ally such reduction is not commercially fea

sible for fuels made using a variety of feed

stocks, technologies, and processes to meet the applicable reduction. (B) Amount of adjustment In promulgating regulations under this paragraph, the specified 50 percent reduction in greenhouse gas emissions from advanced biofuel and in biomass-based diesel may not be reduced below 40 percent. The specified 20 percent reduction in greenhouse gas emis

sions from renewable fuel may not be re

duced below 10 percent, and the specified 60 percent reduction in greenhouse gas emis

sions from cellulosic biofuel may not be re

duced below 50 percent. (C) Adjusted reduction levels An adjustment under this paragraph to a percent less than the specified 20 percent greenhouse gas reduction for renewable fuel shall be the minimum possible adjustment, and the adjusted greenhouse gas reduction shall be established by the Administrator at the maximum achievable level, taking costin consideration, for natural gas fired cornbased ethanol plants, allowing for the use of a variety of technologies and processes. An adjustment in the 50 or 60 percent green

house gas levels shall be the minimum pos

sible adjustment for the fuel or fuels con

cerned, and the adjusted greenhouse gas re

duction shall be established at the maximum achievable level, taking cost in consider

ation, allowing for the use of a variety of feedstocks, technologies, and processes. (D) 5-year review Whenever the Administrator makes any adjustment under this paragraph, not later than 5 years thereafter he shall review and revise (based upon the same criteria and standards as required for the initial adjust

ment) the regulations establishing the ad

justed level. (E) Subsequent adjustments After the Administrator has promulgated a final rule under the last sentence of para

graph (2)(A)(i) with respect to the method of determining lifecycle greenhouse gas emis

sions, except as provided in subparagraph (D), the Administrator may not adjust the percent greenhouse gas reduction levels un

less he determines that there has been a sig

nificant change in the analytical methodol

ogy used for determining the lifecycle green

house gas emissions. If he makes such deter

mination, he may adjust the 20, 50, or 60 per

cent reduction levels through rulemaking using the criteria and standards set forth in this paragraph. (F) Limit on upward adjustments If, under subparagraph (D) or (E), the Ad

ministrator revises a percent level adjusted as provided in subparagraphs (A), (B), and (C) to a higher percent, such higher percent may not exceed the applicable percent speci

fied in paragraph (2)(A)(i), (1)(D), (1)(B)(i), or (1)(E). (G) Applicability of adjustments If the Administrator adjusts, or revises, a percent level referred to in this paragraph or makes a change in the analytical methodol

ogy used for determining the lifecycle green

house gas emissions, such adjustment, revi

sion, or change (or any combination thereof) shall only apply to renewable fuel from new facilities that commence construction after the effective date of such adjustment, revi

sion, or change.Page 6392 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

(5) Credit program (A) In general The regulations promulgated under para

graph (2)(A) shall provide— (i) for the generation of an appropriate amount of credits by any person that re

fines, blends, or imports gasoline that con

tains a quantity of renewable fuel that is greater than the quantity required under paragraph (2); (ii) for the generation of an appropriate amount of credits for biodiesel; and (iii) for the generation of credits by small refineries in accordance with para

graph (9)(C). (B) Use of credits A person that generates credits under sub

paragraph (A) may use the credits, or trans

fer all or a portion of the credits to another person, for the purpose of complying with paragraph (2). (C) Duration of credits A credit generated under this paragraph shall be valid to show compliance for the 12 months as of the date of generation. (D) Inability to generate or purchase suffi

cient credits The regulations promulgated under para

graph (2)(A) shall include provisions allow

ing any person that is unable to generate or purchase sufficient credits to meet the re

quirements of paragraph (2) to carry forward a renewable fuel deficit on condition that the person, in the calendar year following the year in which the renewable fuel deficit is created— (i) achieves compliance with the renew

able fuel requirement under paragraph (2); and (ii) generates or purchases additional re

newable fuel credits to offset the renew

able fuel deficit of the previous year. (E) Credits for additional renewable fuel The Administrator may issue regulations providing: (i) for the generation of an appro

priate amount of credits by any person that refines, blends, or imports additional renew

able fuels specified by the Administrator; and (ii) for the use of such credits by the generator, or the transfer of all or a portion of the credits to another person, for the pur

pose of complying with paragraph (2). (6) Seasonal variations in renewable fuel use (A) Study For each of calendar years 2006 through 2012, the Administrator of the Energy Infor

mation Administration shall conduct a study of renewable fuel blending to deter

mine whether there are excessive seasonal variations in the use of renewable fuel. (B) Regulation of excessive seasonal vari

ations If, for any calendar year, the Adminis

trator of the Energy Information Adminis

tration, based on the study under subpara

graph (A), makes the determinations speci

fied in subparagraph (C), the Administrator of the Environmental Protection Agency shall promulgate regulations to ensure that 25 percent or more of the quantity of renew

able fuel necessary to meet the requirements of paragraph (2) is used during each of the 2 periods specified in subparagraph (D) of each subsequent calendar year. (C) Determinations The determinations referred to in subpara

graph (B) are that— (i) less than 25 percent of the quantity of renewable fuel necessary to meet the re

quirements of paragraph (2) has been used during 1 of the 2 periods specified in sub

paragraph (D) of the calendar year; (ii) a pattern of excessive seasonal vari

ation described in clause (i) will continue in subsequent calendar years; and (iii) promulgating regulations or other requirements to impose a 25 percent or more seasonal use of renewable fuels will not prevent or interfere with the attain

ment of national ambient air quality standards or significantly increase the price of motor fuels to the consumer. (D) Periods The 2 periods referred to in this paragraph

are— (i) April through September; and (ii) January through March and October through December. (E) Exclusion
Renewable fuel blended or consumed in calendar year 2006 in a State that has re

ceived a waiver under section 7543(b) of this title shall not be included in the study under subparagraph (A). (F) State exemption from seasonality re

quirements Notwithstanding any other provision of law, the seasonality requirement relating to renewable fuel use established by this para

graph shall not apply to any State that has received a waiver under section 7543(b) of this title or any State dependent on refiner

ies in such State for gasoline supplies. (7) Waivers (A) In general The Administrator, in consultation with the Secretary of Agriculture and the Sec

retary of Energy, may waive the require

ments of paragraph (2) in whole or in part on petition by one or more States, by any per

son subject to the requirements of this sub

section, or by the Administrator on his own motion by reducing the national quantity of renewable fuel required under paragraph (2)— (i) based on a determination by the Ad

ministrator, after public notice and oppor

tunity for comment, that implementation of the requirement would severely harm the economy or environment of a State, a region, or the United States; or (ii) based on a determination by the Ad

ministrator, after public notice and oppor

-Page 6393 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

tunity for comment, that there is an inad

equate domestic supply. (B) Petitions for waivers The Administrator, in consultation with the Secretary of Agriculture and the Sec

retary of Energy, shall approve or dis

approve a petition for a waiver of the re

quirements of paragraph (2) within 90 days after the date on which the petition is re

ceived by the Administrator. (C) Termination of waivers A waiver granted under subparagraph (A) shall terminate after 1 year, but may be re

newed by the Administrator after consulta

tion with the Secretary of Agriculture and the Secretary of Energy. (D) Cellulosic biofuel (i) For any calendar year for which the projected volume of cellulosic biofuel pro

duction is less than the minimum applicable volume established under paragraph (2)(B), as determined by the Administrator based on the estimate provided under paragraph (3)(A), not later than November 30 of the pre

ceding calendar year, the Administrator shall reduce the applicable volume of cel

lulosic biofuel required under paragraph (2)(B) to the projected volume available dur

ing that calendar year. For any calendar year in which the Administrator makes such a reduction, the Administrator may also re

duce the applicable volume of renewable fuel and advanced biofuels requirement estab

lished under paragraph (2)(B) by the same or a lesser volume. (ii) Whenever the Administrator reduces the minimum cellulosic biofuel volume under this subparagraph, the Administrator shall make available for sale cellulosic biofuel credits at the higher of $0.25 per gal

lon or the amount by which $3.00 per gallon exceeds the average wholesale price of a gal

lon of gasoline in the United States. Such amounts shall be adjusted for inflation by the Administrator for years after 2008. (iii) Eighteen months after December 19, 2007, the Administrator shall promulgate regulations to govern the issuance of credits under this subparagraph. The regulations shall set forth the method for determining the exact price of credits in the event of a waiver. The price of such credits shall not be changed more frequently than once each quarter. These regulations shall include such provisions, including limiting the cred

its’ uses and useful life, as the Adminis

trator deems appropriate to assist market li

quidity and transparency, to provide appro

priate certainty for regulated entities and renewable fuel producers, and to limit any potential misuse of cellulosic biofuel credits to reduce the use of other renewable fuels, and for such other purposes as the Adminis

trator determines will help achieve the goals of this subsection. The regulations shall limit the number of cellulosic biofuel credits for any calendar year to the minimum appli

cable volume (as reduced under this subpara

graph) of cellulosic biofuel for that year. (E) Biomass-based diesel (i) Market evaluation The Administrator, in consultation with the Secretary of Energy and the Secretary of Agriculture, shall periodically evaluate the impact of the biomass-based diesel re

quirements established under this para

graph on the price of diesel fuel. (ii) Waiver
If the Administrator determines that there is a significant renewable feedstock disruption or other market circumstancesthat would make the price of biomassbased diesel fuel increase significantly, the Administrator, in consultation with the Secretary of Energy and the Secretary of Agriculture, shall issue an order to reduce, for up to a 60-day period, the quantity of biomass-based diesel required under sub

paragraph (A) by an appropriate quantity that does not exceed 15 percent of the ap

plicable annual requirement for biomassbased diesel. For any calendar year in which the Administrator makes a reduc

tion under this subparagraph, the Admin

istrator may also reduce the applicable volume of renewable fuel and advanced biofuels requirement established under paragraph (2)(B) by the same or a lesser volume. (iii) Extensions
If the Administrator determines that the feedstock disruption or circumstances de

scribed in clause (ii) is continuing beyond the 60-day period described in clause (ii) or this clause, the Administrator, in con

sultation with the Secretary of Energy and the Secretary of Agriculture, may issue an order to reduce, for up to an additional 60- day period, the quantity of biomass-based diesel required under subparagraph (A) by an appropriate quantity that does not ex

ceed an additional 15 percent of the appli

cable annual requirement for biomassbased diesel. (F) Modification of applicable volumes For any of the tables in paragraph (2)(B), if the Administrator waives— (i) at least 20 percent of the applicable volume requirement set forth in any such table for 2 consecutive years; or (ii) at least 50 percent of such volume re

quirement for a single year, the Administrator shall promulgate a rule (within 1 year after issuing such waiver) that modifies the applicable volumes set forth in the table concerned for all years fol

lowing the final year to which the waiver ap

plies, except that no such modification in applicable volumes shall be made for any year before 2016. In promulgating such a rule, the Administrator shall comply with the processes, criteria, and standards set forth in paragraph (2)(B)(ii). (8) Study and waiver for initial year of pro

gram (A) In general Not later than 180 days after August 8, 2005, the Secretary of Energy shall conductPage 6394 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

11 So in original. Subsection (a) does not contain a par. (2). for the Administrator a study assessing whether the renewable fuel requirement under paragraph (2) will likely result in sig

nificant adverse impacts on consumers in 2006, on a national, regional, or State basis. (B) Required evaluations The study shall evaluate renewable fuel— (i) supplies and prices; (ii) blendstock supplies; and (iii) supply and distribution system ca

pabilities. (C) Recommendations by the Secretary Based on the results of the study, the Sec

retary of Energy shall make specific recom

mendations to the Administrator concerning waiver of the requirements of paragraph (2), in whole or in part, to prevent any adverse impacts described in subparagraph (A). (D) Waiver (i) In general Not later than 270 days after August 8, 2005, the Administrator shall, if and to the extent recommended by the Secretary of Energy under subparagraph (C), waive, in whole or in part, the renewable fuel re

quirement under paragraph (2) by reducing the national quantity of renewable fuel re

quired under paragraph (2) in calendar year 2006. (ii) No effect on waiver authority Clause (i) does not limit the authority of the Administrator to waive the require

ments of paragraph (2) in whole, or in part, under paragraph (7). (9) Small refineries (A) Temporary exemption (i) In general The requirements of paragraph (2) shall not apply to small refineries until cal

endar year 2011. (ii) Extension of exemption (I) Study by Secretary of Energy Not later than December 31, 2008, the Secretary of Energy shall conduct for the Administrator a study to determine whether compliance with the require

ments of paragraph (2) would impose a disproportionate economic hardship on small refineries. (II) Extension of exemption In the case of a small refinery that the Secretary of Energy determines under subclause (I) would be subject to a dis

proportionate economic hardship if re

quired to comply with paragraph (2), the Administrator shall extend the exemp

tion under clause (i) for the small refin

ery for a period of not less than 2 addi

tional years. (B) Petitions based on disproportionate eco

nomic hardship (i) Extension of exemption A small refinery may at any time peti

tion the Administrator for an extension of the exemption under subparagraph (A) for the reason of disproportionate economic hardship. (ii) Evaluation of petitions In evaluating a petition under clause (i), the Administrator, in consultation with the Secretary of Energy, shall consider the findings of the study under subparagraph (A)(ii) and other economic factors. (iii) Deadline for action on petitions The Administrator shall act on any peti

tion submitted by a small refinery for a hardship exemption not later than 90 days after the date of receipt of the petition. (C) Credit program If a small refinery notifies the Adminis

trator that the small refinery waives the ex

emption under subparagraph (A), the regula

tions promulgated under paragraph (2)(A) shall provide for the generation of credits by the small refinery under paragraph (5) begin

ning in the calendar year following the date of notification. (D) Opt-in for small refineries A small refinery shall be subject to the re

quirements of paragraph (2) if the small re

finery notifies the Administrator that the small refinery waives the exemption under subparagraph (A). (10) Ethanol market concentration analysis (A) Analysis (i) In general Not later than 180 days after August 8, 2005, and annually thereafter, the Federal Trade Commission shall perform a market concentration analysis of the ethanol pro

duction industry using the HerfindahlHirschman Index to determine whether there is sufficient competition among in

dustry participants to avoid price-setting and other anticompetitive behavior. (ii) Scoring For the purpose of scoring under clause (i) using the Herfindahl-Hirschman Index, all marketing arrangements among indus

try participants shall be considered. (B) Report Not later than December 1, 2005, and annu

ally thereafter, the Federal Trade Commis

sion shall submit to Congress and the Ad

ministrator a report on the results of the market concentration analysis performed under subparagraph (A)(i). (11) Periodic reviews To allow for the appropriate adjustment of the requirements described in subparagraph (B) of paragraph (2), the Administrator shall conduct periodic reviews of— (A) existing technologies; (B) the feasibility of achieving compliance with the requirements; and (C) the impacts of the requirements de

scribed in subsection (a)(2) 11 on each individ

ual and entity described in paragraph (2).Page 6395 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

12 So in original. No subsec. (p) has been enacted. 13 See References in Text note below. (12) Effect on other provisions Nothing in this subsection, or regulations is

sued pursuant to this subsection, shall affect or be construed to affect the regulatory status of carbon dioxide or any other greenhouse gas, or to expand or limit regulatory authority re

garding carbon dioxide or any other green

house gas, for purposes of other provisions (in

cluding section 7475) of this chapter. The pre

vious sentence shall not affect implementa

tion and enforcement of this subsection. (q) 12 Analyses of motor vehicle fuel changes and emissions model (1) Anti-backsliding analysis (A) Draft analysis Not later than 4 years after August 8, 2005, the Administrator shall publish for public comment a draft analysis of the changes in emissions of air pollutants and air quality due to the use of motor vehicle fuel and fuel additives resulting from implementation of the amendments made by the Energy Policy Act of 2005. (B) Final analysis After providing a reasonable opportunity for comment but not later than 5 years after August 8, 2005, the Administrator shall pub

lish the analysis in final form. (2) Emissions model For the purposes of this section, not later than 4 years after August 8, 2005, the Adminis

trator shall develop and finalize an emissions model that reflects, to the maximum extent practicable, the effects of gasoline character

istics or components on emissions from vehi

cles in the motor vehicle fleet during calendar year 2007. (3) Permeation effects study (A) In general Not later than 1 year after August 8, 2005, the Administrator shall conduct a study, and report to Congress the results of the study, on the effects of ethanol content in gasoline on permeation, the process by which fuel molecules migrate through the elastomeric materials (rubber and plastic parts) that make up the fuel and fuel vapor systems of a motor vehicle. (B) Evaporative emissions The study shall include estimates of the increase in total evaporative emissions like

ly to result from the use of gasoline with ethanol content in a motor vehicle, and the fleet of motor vehicles, due to permeation. (r) Fuel and fuel additive importers and importa

tion For the purposes of this section, the term ‘‘manufacturer’’ includes an importer and the term ‘‘manufacture’’ includes importation. (s) Conversion assistance for cellulosic biomass, waste-derived ethanol, approved renewable fuels (1) In general The Secretary of Energy may provide grants to merchant producers of cellulosic biomass ethanol, waste-derived ethanol, and approved renewable fuels in the United States to assist the producers in building eligible production facilities described in paragraph (2) for the production of ethanol or approved renewable fuels. (2) Eligible production facilities A production facility shall be eligible to re

ceive a grant under this subsection if the pro

duction facility— (A) is located in the United States; and (B) uses cellulosic or renewable biomass or waste-derived feedstocks derived from agri

cultural residues, wood residues, municipal solid waste, or agricultural byproducts. (3) Authorization of appropriations There are authorized to be appropriated the following amounts to carry out this sub

section: (A) $100,000,000 for fiscal year 2006. (B) $250,000,000 for fiscal year 2007. (C) $400,000,000 for fiscal year 2008. (4) Definitions For the purposes of this subsection: (A) The term ‘‘approved renewable fuels’’ are fuels and components of fuels that have been approved by the Department of Energy, as defined in section 13211 of this title, which have been made from renewable biomass. (B) The term ‘‘renewable biomass’’ is, as defined in Presidential Executive Order 13134, published in the Federal Register on August 16, 1999, any organic matter that is available on a renewable or recurring basis (excluding old-growth timber), including dedicated energy crops and trees, agricul

tural food and feed crop residues, aquatic plants, animal wastes, wood and wood resi

dues, paper and paper residues, and other vegetative waste materials. Old-growth tim

ber means timber of a forest from the late successional stage of forest development. (t) Blending of compliant reformulated gasolines (1) In general Notwithstanding subsections (h) and (k) of this section and subject to the limitations in paragraph (2) of this subsection, it shall not be a violation of this part 13 for a gasoline re

tailer, during any month of the year, to blend at a retail location batches of ethanol-blended and non-ethanol-blended reformulated gaso

line, provided that— (A) each batch of gasoline to be blended has been individually certified as in compli

ance with subsections (h) and (k) of this sec

tion prior to being blended; (B) the retailer notifies the Administrator prior to such blending, and identifies the exact location of the retail station and the specific tank in which such blending will take place; (C) the retailer retains and, as requested by the Administrator or the Administrator’s designee, makes available for inspection such certifications accounting for all gaso

line at the retail outlet; andPage 6396 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

(D) the retailer does not, between June 1 and September 15 of each year, blend a batch of VOC-controlled, or ‘‘summer’’, gasoline with a batch of non-VOC-controlled, or ‘‘winter’’, gasoline (as these terms are de

fined under subsections (h) and (k) of this section). (2) Limitations (A) Frequency limitation A retailer shall only be permitted to blend batches of compliant reformulated gasoline under this subsection a maximum of two blending periods between May 1 and Septem

ber 15 of each calendar year. (B) Duration of blending period Each blending period authorized under subparagraph (A) shall extend for a period of no more than 10 consecutive calendar days. (3) Surveys A sample of gasoline taken from a retail lo

cation that has blended gasoline within the past 30 days and is in compliance with sub

paragraphs (A), (B), (C), and (D) of paragraph (1) shall not be used in a VOC survey mandated by 40 CFR Part 80. (4) State implementation plans
A State shall be held harmless and shall not be required to revise its State implementation plan under section 7410 of this title to account for the emissions from blended gasoline au

thorized under paragraph (1). (5) Preservation of State law Nothing in this subsection shall— (A) preempt existing State laws or regula

tions regulating the blending of compliant gasolines; or (B) prohibit a State from adopting such re

strictions in the future. (6) Regulations The Administrator shall promulgate, after notice and comment, regulations implement

ing this subsection within 1 year after August 8, 2005. (7) Effective date
This subsection shall become effective 15 months after August 8, 2005, and shall apply to blended batches of reformulated gasoline on or after that date, regardless of whether the im

plementing regulations required by paragraph (6) have been promulgated by the Adminis

trator by that date. (8) Liability No person other than the person responsible for blending under this subsection shall be subject to an enforcement action or penalties under subsection (d) of this section solely aris

ing from the blending of compliant reformu

lated gasolines by the retailers. (9) Formulation of gasoline This subsection does not grant authority to the Administrator or any State (or any sub

division thereof) to require reformulation of gasoline at the refinery to adjust for potential or actual emissions increases due to the blend

ing authorized by this subsection. (u) Standard specifications for biodiesel (1) Unless the American Society for Testing and Materials has adopted a standard for diesel fuel containing 20 percent biodiesel (commonly known as ‘‘B20’’) within 1 year after December 19, 2007, the Administrator shall initiate a rule

making to establish a uniform per gallon fuel standard for such fuel and designate an identi

fication number so that vehicle manufacturers are able to design engines to use fuel meeting such standard. (2) Unless the American Society for Testing and Materials has adopted a standard for diesel fuel containing 5 percent biodiesel (commonly known as ‘‘B5’’) within 1 year after December 19, 2007, the Administrator shall initiate a rule

making to establish a uniform per gallon fuel standard for such fuel and designate an identi

fication so that vehicle manufacturers are able to design engines to use fuel meeting such standard. (3) Whenever the Administrator is required to initiate a rulemaking under paragraph (1) or (2), the Administrator shall promulgate a final rule within 18 months after December 19, 2007. (4) Not later than 180 days after December 19, 2007, the Administrator shall establish an an

nual inspection and enforcement program to en

sure that diesel fuel containing biodiesel sold or distributed in interstate commerce meets the standards established under regulations under this section, including testing and certification for compliance with applicable standards of the American Society for Testing and Materials. There are authorized to be appropriated to carry out the inspection and enforcement program under this paragraph $3,000,000 for each of fiscal years 2008 through 2010. (5) For purposes of this subsection, the term ‘‘biodiesel’’ has the meaning provided by section 13220(f) of this title. (v) Prevention of air quality deterioration (1) Study (A) In general
Not later than 18 months after December 19, 2007, the Administrator shall complete a study to determine whether the renewable fuel volumes required by this section will adversely impact air quality as a result of changes in vehicle and engine emissions of air pollutants regulated under this chapter. (B) Considerations The study shall include consideration of— (i) different blend levels, types of renew

able fuels, and available vehicle tech

nologies; and (ii) appropriate national, regional, and local air quality control measures. (2) Regulations Not later than 3 years after December 19, 2007, the Administrator shall— (A) promulgate fuel regulations to imple

ment appropriate measures to mitigate, to the greatest extent achievable, considering the results of the study under paragraph (1), any adverse impacts on air quality, as the result of the renewable volumes required by this section; orPage 6397 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

(B) make a determination that no such
measures are necessary. (July 14, 1955, ch. 360, title II, §211, formerly §210, as added Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 502; renumbered and amended Pub. L. 91–604, §§8(a), 9(a), Dec. 31, 1970, 84 Stat. 1694, 1698; Pub. L. 92–157, title III, §302(d), (e), Nov. 18, 1971, 85 Stat. 464; Pub. L. 95–95, title II, §§222, 223, title IV, §401(e), Aug. 7, 1977, 91 Stat. 762, 764, 791; Pub. L. 95–190, §14(a)(73), (74), Nov. 16, 1977, 91 Stat. 1403, 1404; Pub. L. 101–549, title II, §§212–221, 228(d), Nov. 15, 1990, 104 Stat. 2488–2500, 2510; Pub. L. 109–58, title XV, §§1501(a)–(c), 1504(a)(1), (b), 1505–1507, 1512, 1513, 1541(a), (b), Aug. 8, 2005, 119 Stat. 1067–1074, 1076, 1077, 1080, 1081, 1088, 1089, 1106, 1107; Pub. L. 110–140, title II, §§201, 202, 203(f), 208, 209, 210(b), 247, 251, Dec. 19, 2007, 121 Stat. 1519, 1521, 1529, 1531, 1532, 1547, 1548.)

R EFERENCES IN T EXT August 8, 2005, referred to in subsec. (c)(4)(C)(v)(II), was in the original ‘‘enactment’’, which was translated as meaning the date of enactment of Pub. L. 109–58, which enacted subsec. (c)(4)(C)(v), to reflect the prob

able intent of Congress. Section 7521( l ) of this title, referred to in subsec. (k)(1)(B)(vi), was in the original ‘‘section 202(1) of the Clean Air Act’’, which was translated as meaning sec

tion 202( l ) of the Clean Air Act, to reflect the probable intent of Congress. The Energy Policy Act of 2005, referred to in subsec. (q)(1)(A), is Pub. L. 109–58, Aug. 8, 2005, 119 Stat. 594. For complete classification of this Act to the Code, see Short Title note set out under section 15801 of this title and Tables. Executive Order 13134, referred to in subsec. (s)(4)(B), which was set out as a note under section 8601 of Title 7, Agriculture, was revoked by Ex. Ord. No. 13423, §11(a)(iii), Jan. 24, 2007, 72 F.R. 3923. This part, referred to in subsec. (t)(1), was in the original ‘‘this subtitle’’ which was translated as ‘‘this part’’, meaning part A of title II of act July 14, 1955, as the probable intent of Congress, because title II of act July 14, 1955, does not contain subtitles.

C ODIFICATION Section was formerly classified to section 1857f–6c of this title.

P RIOR P ROVISIONS A prior section 211 of act July 14, 1955, as added Nov. 21, 1967, Pub. L. 90–148, §2, 81 Stat. 503, provided for a national emissions standards study and was classified to section 1857f–6d of this title, prior to repeal by sec

tion 8(a) of Pub. L. 91–604.

A MENDMENTS 2007—Subsec. (c)(1). Pub. L. 110–140, §208, substituted ‘‘nonroad vehicle if, in the judgment of the Adminis

trator, any fuel or fuel additive or’’ for ‘‘nonroad vehi

cle (A) if in the judgment of the Administrator’’ and ‘‘air pollution or water pollution (including any deg

radation in the quality of groundwater) that’’ for ‘‘air pollution which’’. Subsec. (f)(4). Pub. L. 110–140, §251, amended par. (4) generally. Prior to amendment, par. (4) read as follows: ‘‘The Administrator, upon application of any manufac

turer of any fuel or fuel additive, may waive the prohi

bitions established under paragraph (1) or (3) of this subsection or the limitation specified in paragraph (2) of this subsection, if he determines that the applicant has established that such fuel or fuel additive or a spec

ified concentration thereof, and the emission products of such fuel or additive or specified concentration thereof, will not cause or contribute to a failure of any emission control device or system (over the useful life of any vehicle in which such device or system is used) to achieve compliance by the vehicle with the emission standards with respect to which it has been certified pursuant to section 7525 of this title. If the Adminis

trator has not acted to grant or deny an application under this paragraph within one hundred and eighty days of receipt of such application, the waiver author

ized by this paragraph shall be treated as granted.’’ Subsec. ( o )(1). Pub. L. 110–140, §201, amended par. (1) generally. Prior to amendment, par. (1) defined ‘‘cel

lulosic biomass ethanol’’, ‘‘waste derived ethanol’’, ‘‘re

newable fuel’’, and ‘‘small refinery’’. Subsec. ( o )(2)(A)(i). Pub. L. 110–140, §202(a)(1), inserted at end ‘‘Not later than 1 year after December 19, 2007, the Administrator shall revise the regulations under this paragraph to ensure that transportation fuel sold or introduced into commerce in the United States (ex

cept in noncontiguous States or territories), on an an

nual average basis, contains at least the applicable vol

ume of renewable fuel, advanced biofuel, cellulosic biofuel, and biomass-based diesel, determined in ac

cordance with subparagraph (B) and, in the case of any such renewable fuel produced from new facilities that commence construction after December 19, 2007, achieves at least a 20 percent reduction in lifecycle greenhouse gas emissions compared to baseline lifecycle greenhouse gas emissions.’’ Subsec. ( o )(2)(B). Pub. L. 110–140, §202(a)(2), amended subpar. (B) generally. Prior to amendment, subpar. (B) set forth table of applicable volumes for renewable fuel and related to determination of applicable volumes after the years addressed by the table, including the minimum quantity of renewable fuel to be derived from cellulosic biomass and the method of calculating the minimum applicable volume. Subsec. ( o )(3)(A). Pub. L. 110–140, §202(b)(1), (2), sub

stituted ‘‘2021’’ for ‘‘2011’’ and ‘‘transportation fuel, bio

mass-based diesel, and cellulosic biofuel’’ for ‘‘gaso

line’’. Subsec. ( o )(3)(B)(i). Pub. L. 110–140, §202(b)(3), sub

stituted ‘‘2021’’ for ‘‘2012’’. Subsec. ( o )(3)(B)(ii)(II). Pub. L. 110–140, §202(b)(4), sub

stituted ‘‘transportation fuel’’ for ‘‘gasoline’’. Subsec. ( o )(4). Pub. L. 110–140, §202(c), amended par. (4) generally. Prior to amendment, text read as follows: ‘‘For the purpose of paragraph (2), 1 gallon of cellulosic biomass ethanol or waste derived ethanol shall be con

sidered to be the equivalent of 2.5 gallons of renewable fuel.’’ Subsec. ( o )(5)(E). Pub. L. 110–140, §202(d), added sub

par. (E). Subsec. ( o )(7)(A). Pub. L. 110–140, §202(e)(1), inserted ‘‘, by any person subject to the requirements of this subsection, or by the Administrator on his own mo

tion’’ after ‘‘one or more States’’ in introductory provi

sions. Subsec. ( o )(7)(B). Pub. L. 110–140, §202(e)(1), struck out ‘‘State’’ before ‘‘petition for a waiver’’. Subsec. ( o )(7)(D) to (F). Pub. L. 110–140, §202(e)(2), (3), added subpars. (D) to (F). Subsec. ( o )(11). Pub. L. 110–140, §203(f), added par. (11). Subsec. ( o )(12). Pub. L. 110–140, §210(b), added par. (12). Subsecs. (r), (s). Pub. L. 110–140, §247, redesignated subsecs. (r), relating to conversion assistance for cel

lulosic biomass, waste-derived ethanol, approved re

newable fuels, and (s) as (s) and (t), respectively. Subsec. (u). Pub. L. 110–140, §247, which directed amendment of this section by adding subsec. (u) at the end, was executed by adding subsec. (u) after subsec. (t) to reflect the probable intent of Congress. Subsec. (v). Pub. L. 110–140, §209, added subsec. (v). 2005—Subsec. (b)(2). Pub. L. 109–58, §1505(1)(A), sub

stituted ‘‘shall, on a regular basis,’’ for ‘‘may also’’ in introductory provisions. Subsec. (b)(2)(A). Pub. L. 109–58, §1505(1)(B), added subpar. (A) and struck out former subpar. (A) which read as follows: ‘‘to conduct tests to determine poten

tial public health effects of such fuel or additive (in

cluding, but not limited to, carcinogenic, teratogenic, or mutagenic effects), and’’.Page 6398 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

Subsec. (b)(4). Pub. L. 109–58, §1505(2), added par. (4). Subsec. (c)(4)(C). Pub. L. 109–58, §1541(a), designated existing provisions as cl. (i) and added cls. (ii) to (iv) and (v) relating to waiver authority. Subsec. (c)(4)(C)(v). Pub. L. 109–58, §1541(b), added cl. (v) relating to approval of fuels. Subsec. (d)(1). Pub. L. 109–58, §1501(b)(1), substituted ‘‘(n), or ( o )’’ for ‘‘or (n)’’ in two places in first sentence and ‘‘(m), or ( o )’’ for ‘‘or (m)’’ in second sentence. Subsec. (d)(2). Pub. L. 109–58, §1501(b)(2), substituted ‘‘(n), and ( o )’’ for ‘‘and (n)’’ in two places in first sen

tence. Subsec. (h)(5), (6). Pub. L. 109–58, §1501(c), added par. (5) and redesignated former par. (5) as (6). Subsec. (k)(1). Pub. L. 109–58, §1504(b), designated ex

isting provisions as subpar. (A), inserted heading, sub

stituted ‘‘Not later than November 15, 1991,’’ for ‘‘With

in 1 year after November 15, 1990,’’, and added subpar. (B). Subsec. (k)(2)(A). Pub. L. 109–58, §1504(a)(1)(A)(i), struck out ‘‘(including the oxygen content requirement contained in subparagraph (B))’’ after ‘‘requirements of this paragraph’’. Subsec. (k)(2)(B) to (D). Pub. L. 109–58, §1504(a)(1)(A)(ii), (iii), redesignated subpars. (C) and (D) as (B) and (C), respectively, and struck out heading and text of former subpar. (B). Text read as follows: ‘‘The oxygen content of the gasoline shall equal or exceed 2.0 percent by weight (subject to a testing tolerance estab

lished by the Administrator) except as otherwise re

quired by this chapter. The Administrator may waive, in whole or in part, the application of this subpara

graph for any ozone nonattainment area upon a deter

mination by the Administrator that compliance with such requirement would prevent or interfere with the attainment by the area of a national primary ambient air quality standard.’’ Subsec. (k)(3)(A)(v). Pub. L. 109–58, §1504(a)(1)(B), struck out heading and text of cl. (v). Text read as fol

lows: ‘‘The oxygen content of the reformulated gasoline shall equal or exceed 2.0 percent by weight (subject to a testing tolerance established by the Administrator) except as otherwise required by this chapter.’’ Subsec. (k)(6). Pub. L. 109–58, §1507, redesignated sub

pars. (A) and (B) as cls. (i) and (ii), respectively, of sub

par. (A), inserted subpar. and cl. headings, in cl. (ii) substituted ‘‘clause (i)’’ for ‘‘subparagraph (A)’’ and ‘‘this subparagraph’’ for ‘‘this paragraph’’, and added subpar. (B). Subsec. (k)(7)(A). Pub. L. 109–58, §1504(a)(1)(C)(i), re

designated cls. (ii) and (iii) as (i) and (ii), respectively, and struck out former cl. (i) which read as follows: ‘‘has an oxygen content (by weight) that exceeds the mini

mum oxygen content specified in paragraph (2);’’. Subsec. (k)(7)(C)(ii), (iii). Pub. L. 109–58, §1504(a)(1)(C)(ii), redesignated cl. (iii) as (ii) and struck out former cl. (ii) which read as follows: ‘‘An average gasoline oxygen content (by weight) for the nonattain

ment area (taking into account all gasoline sold for use in conventional gasoline-fueled vehicles in the non

attainment area) lower than the average gasoline oxy

gen content (by weight) that would occur in the ab

sence of using any such credits.’’ Subsec. ( o ). Pub. L. 109–58, §1501(a)(2), added subsec. ( o ). Former subsec. ( o ) redesignated (r) relating to fuel and fuel additive importers and importation. Subsec. (q). Pub. L. 109–58, §1506, which directed amendment of this section by adding subsec. (q) after subsec. (p), was executed by making the addition after subsec. ( o ) to reflect the probable intent of Congress. Subsec. (r). Pub. L. 109–58, §1512, added subsec. (r) re

lating to conversion assistance for cellulosic biomass, waste-derived ethanol, approved renewable fuels. Pub. L. 109–58, §1501(a)(1), redesignated subsec. ( o ) as (r) relating to fuel and fuel additive importers and im

portation. Subsec. (s). Pub. L. 109–58, §1513, added subsec. (s). 1990—Subsec. (a). Pub. L. 101–549, §212, inserted ‘‘(in

cluding any fuel or fuel additive used exclusively in nonroad engines or nonroad vehicles)’’ after ‘‘fuel or fuel additive’’. Subsecs. (b)(2)(B), (c)(1). Pub. L. 101–549, §212(b), (c), inserted reference to nonroad engine or nonroad vehi

cle. Subsec. (c)(4)(A). Pub. L. 101–549, §213(a), substituted ‘‘any characteristic or component of a’’ for ‘‘use of a’’, inserted ‘‘of the characteristic or component of a fuel or fuel additive’’ after ‘‘control or prohibition’’ in cl. (i), and inserted ‘‘characteristic or component of a’’ after ‘‘such’’ in cl. (ii). Subsec. (c)(4)(C). Pub. L. 101–549, §213(b), inserted last two sentences, authorizing Administrator to make a finding that State control or prohibition is necessary to achieve the standard. Subsec. (d). Pub. L. 101–549, §228(d), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: ‘‘Any person who violates subsection (a) or (f) of this section or the regulations prescribed under sub

section (c) of this section or who fails to furnish any in

formation required by the Administrator under sub

section (b) of this section shall forfeit and pay to the United States a civil penalty of $10,000 for each and every day of the continuance of such violation, which shall accrue to the United States and be recovered in a civil suit in the name of the United States, brought in the district where such person has his principal office or in any district in which he does business. The Ad

ministrator may, upon application therefor, remit or mitigate any forfeiture provided for in this subsection and he shall have authority to determine the facts upon all such applications.’’ Subsec. (f)(1). Pub. L. 101–549, §214(a), designated ex

isting provisions as subpar. (A) and added subpar. (B). Subsec. (f)(3). Pub. L. 101–549, §214(b), substituted ref

erence to paragraph (1)(A) for reference to paragraph (1). Subsec. (g). Pub. L. 101–549, §215, amended subsec. (g) generally, substituting present provisions for provi

sions which defined ‘‘gasoline’’, ‘‘refinery’’, and ‘‘small refinery’’ and which limited Administrator’s authority to require small refineries to reduce average lead con

tent per gallon of gasoline. Subsec. (h). Pub. L. 101–549, §216, added subsec. (h). Subsec. (i). Pub. L. 101–549, §217, added subsec. (i). Subsec. (j). Pub. L. 101–549, §218(a), added subsec. (j). Subsecs. (k) to (m). Pub. L. 101–549, §219, added sub

secs. (k) to (m). Subsec. (n). Pub. L. 101–549, §220, added subsec. (n). Subsec. ( o ). Pub. L. 101–549, §221, added subsec. ( o ). 1977—Subsec. (c)(1)(A). Pub. L. 95–95, §401(e), sub

stituted ‘‘if in the judgment of the Administrator any emission product of such fuel or fuel additive causes, or contributes, to air pollution which may reasonably be anticipated to endanger’’ for ‘‘if any emission products of such fuel or fuel additive will endanger’’. Subsec. (d). Pub. L. 95–95, §222(b), inserted ‘‘or (f)’’ after ‘‘Any person who violates subsection (a)’’. Subsecs. (e), (f). Pub. L. 95–95, §222(a), added subsecs. (e) and (f). Subsec. (f)(2). Pub. L. 95–190, §14(a)(73), inserted provi

sion relating to waiver under par. (4) of this subsec., and struck out ‘‘first’’ before ‘‘introduce’’. Subsec. (f)(4). Pub. L. 95–190, §14(a)(74), inserted provi

sion relating to applicability of limitation specified under par. (2) of this subsection. Subsec. (g). Pub. L. 95–95, §223, added subsec. (g). 1971—Subsec. (c)(3)(A). Pub. L. 92–157, §302(d), sub

stituted ‘‘purpose of obtaining’’ for ‘‘purpose of’’. Subsec. (d). Pub. L. 92–157, §302(e), substituted ‘‘sub

section (b)’’ for ‘‘subsection (c)’’ where appearing the second time. 1970—Subsec. (a). Pub. L. 91–604, §9(a), substituted ‘‘Administrator’’ for ‘‘Secretary’’ as the registering au

thority, inserted references to fuel additives, and sub

stituted the selling, offering for sale, and introduction into commerce of fuel or fuel additives, for the delivery for introduction into interstate commerce or delivery to another person who can reasonably be expected to deliver fuel into interstate commerce. Subsec. (b). Pub. L. 91–604, §9(a), designated existing provisions as pars. (1) and (3), added par. (2), and sub

-Page 6399 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

stituted ‘‘Administrator’’ for ‘‘Secretary’’ wherever ap

pearing. Subsec. (c). Pub. L. 91–604, §9(a), substituted provi

sions covering the control or prohibition of offending fuels and fuel additives, for provisions covering trade secrets and substituted ‘‘Administrator’’ for ‘‘Sec

retary’’ wherever appearing. Subsec. (d). Pub. L. 91–604, §9(a), inserted references to failure to obey regulations prescribed under subsec. (c) and failure to furnish information required by the Administrator under subsec. (c), increased the daily civil penalty from $1,000 to $10,000 and substituted ‘‘Ad

ministrator’’ for ‘‘Secretary’’. Subsec. (e). Pub. L. 91–604, §9(a), struck out subsec. (e) which directed the various United States Attorneys to prosecute for the recovery of forfeitures.

E FFECTIVE D ATE OF 2007 A MENDMENT Pub. L. 110–140, title II, §210(c), Dec. 19, 2007, 121 Stat. 1532, provided that: ‘‘The amendments made by this title to section 211( o ) of the Clean Air Act [42 U.S.C. 7545( o )] shall take effect January 1, 2009, except that the Administrator [of the Environmental Protection Agency] shall promulgate regulations to carry out such amendments not later than 1 year after the enactment of this Act [Dec. 19, 2007].’’ Amendment by Pub. L. 110–140 effective on the date that is 1 day after Dec. 19, 2007, see section 1601 of Pub. L. 110–140, set out as an Effective Date note under sec

tion 1824 of Title 2, The Congress.

E FFECTIVE D ATE OF 2005 A MENDMENT Pub. L. 109–58, title XV, §1504(a)(2), Aug. 8, 2005, 119 Stat. 1077, provided that: ‘‘The amendments made by paragraph (1) [amending this section] apply— ‘‘(A) in the case of a State that has received a waiv

er under section 209(b) of the Clean Air Act (42 U.S.C. 7543(b)), beginning on the date of enactment of this Act [Aug. 8, 2005]; and ‘‘(B) in the case of any other State, beginning 270 days after the date of enactment of this Act [Aug. 8, 2005].’’

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

S AVINGS Pub. L. 109–58, title XV, §1504(d), Aug. 8, 2005, 119 Stat. 1079, provided that: ‘‘(1) I N GENERAL .—Nothing in this section [amending this section and enacting provisions set out as notes under this section] or any amendment made by this section affects or prejudices any legal claim or action with respect to regulations promulgated by the Admin

istrator [of the Environmental Protection Agency] be

fore the date of enactment of this Act [Aug. 8, 2005] re

garding— ‘‘(A) emissions of toxic air pollutants from motor vehicles; or ‘‘(B) the adjustment of standards applicable to a specific refinery or importer made under those regu

lations. ‘‘(2) A DJUSTMENT OF STANDARDS .— ‘‘(A) A PPLICABILITY .—The Administrator may apply any adjustments to the standards applicable to a re

finery or importer under subparagraph (B)(iii)(I) of section 211(k)(1) of the Clean Air Act [42 U.S.C. 7545(k)(1)(B)(iii)(I)] (as added by subsection (b)(2)), ex

cept that— ‘‘(i) the Administrator shall revise the adjust

ments to be based only on calendar years 1999 and 2000; ‘‘(ii) any such adjustment shall not be made at a level below the average percentage of reductions of emissions of toxic air pollutants for reformulated gasoline supplied to PADD I during calendar years 1999 and 2000; and ‘‘(iii) in the case of an adjustment based on toxic air pollutant emissions from reformulated gasoline significantly below the national annual average emissions of toxic air pollutants from all reformu

lated gasoline— ‘‘(I) the Administrator may revise the adjust

ment to take account of the scope of the prohibi

tion on methyl tertiary butyl ether imposed by a State; and ‘‘(II) any such adjustment shall require the re

finer or importer, to the maximum extent prac

ticable, to maintain the reduction achieved dur

ing calendar years 1999 and 2000 in the average an

nual aggregate emissions of toxic air pollutants from reformulated gasoline produced or distrib

uted by the refiner or importer.’’

E NVIRONMENTAL AND R ESOURCE C ONSERVATION I MPACTS Pub. L. 110–140, title II, §204, Dec. 19, 2007, 121 Stat. 1529, provided that: ‘‘(a) I N G ENERAL .—Not later than 3 years after the en

actment of this section [Dec. 19, 2007] and every 3 years thereafter, the Administrator of the Environmental Protection Agency, in consultation with the Secretary of Agriculture and the Secretary of Energy, shall assess and report to Congress on the impacts to date and like

ly future impacts of the requirements of section 211( o ) of the Clean Air Act [42 U.S.C. 7545( o )] on the following: ‘‘(1) Environmental issues, including air quality, ef

fects on hypoxia, pesticides, sediment, nutrient and pathogen levels in waters, acreage and function of waters, and soil environmental quality. ‘‘(2) Resource conservation issues, including soil conservation, water availability, and ecosystem health and biodiversity, including impacts on forests, grasslands, and wetlands. ‘‘(3) The growth and use of cultivated invasive or noxious plants and their impacts on the environment and agriculture. In advance of preparing the report required by this sub

section, the Administrator may seek the views of the National Academy of Sciences or another appropriate independent research institute. The report shall in

clude the annual volume of imported renewable fuels and feedstocks for renewable fuels, and the environ

mental impacts outside the United States of producing such fuels and feedstocks. The report required by this subsection shall include recommendations for actions to address any adverse impacts found. ‘‘(b) E FFECT ON A IR Q UALITY AND O THER E NVIRON

MENTAL R EQUIREMENTS .—Except as provided in section 211( o )(12) of the Clean Air Act [42 U.S.C. 7545( o )(12)], nothing in the amendments made by this title to sec

tion 211( o ) of the Clean Air Act shall be construed as superseding, or limiting, any more environmentally protective requirement under the Clean Air Act [42 U.S.C. 7401 et seq.], or under any other provision of State or Federal law or regulation, including any envi

ronmental law or regulation.’’

T RANSITION R ULES Pub. L. 110–140, title II, §210(a), Dec. 19, 2007, 121 Stat. 1532, provided that: ‘‘(1) For calendar year 2008, transportation fuel sold or introduced into commerce in the United States (ex

cept in noncontiguous States or territories), that is produced from facilities that commence construction after the date of enactment of this Act [Dec. 19, 2007] shall be treated as renewable fuel within the meaning of section 211( o ) of the Clean Air Act [42 U.S.C. 7545( o )] only if it achieves at least a 20 percent reduction in lifecycle greenhouse gas emissions compared to base

line lifecycle greenhouse gas emissions. For calendar years 2008 and 2009, any ethanol plant that is fired with natural gas, biomass, or any combination thereof is deemed to be in compliance with such 20 percent reduc

tion requirement and with the 20 percent reduction re

quirement of section 211( o )(1) of the Clean Air Act. The terms used in this subsection shall have the samePage 6400 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

meaning as provided in the amendment made by this Act to section 211( o ) of the Clean Air Act. ‘‘(2) Until January 1, 2009, the Administrator of the Environmental Protection Agency shall implement sec

tion 211( o ) of the Clean Air Act and the rules promul

gated under that section in accordance with the provi

sions of that section as in effect before the enactment of this Act and in accordance with the rules promul

gated before the enactment of this Act, except that for calendar year 2008, the number ‘9.0’ shall be substituted for the number ‘5.4’ in the table in section 211( o )(2)(B) and in the corresponding rules promulgated to carry out those provisions. The Administrator is authorized to take such other actions as may be necessary to carry out this paragraph notwithstanding any other provision of law.’’

S URVEY OF R ENEWABLE F UEL M ARKET Pub. L. 109–58, title XV, §1501(d), Aug. 8, 2005, 119 Stat. 1075, provided that: ‘‘(1) S URVEY AND REPORT .—Not later than December 1, 2006, and annually thereafter, the Administrator of the Environmental Protection Agency (in consultation with the Secretary [of Energy] acting through the Ad

ministrator of the Energy Information Administration) shall— ‘‘(A) conduct, with respect to each conventional gasoline use area and each reformulated gasoline use area in each State, a survey to determine the market shares of— ‘‘(i) conventional gasoline containing ethanol; ‘‘(ii) reformulated gasoline containing ethanol; ‘‘(iii) conventional gasoline containing renewable fuel; and ‘‘(iv) reformulated gasoline containing renewable fuel; and ‘‘(B) submit to Congress, and make publicly avail

able, a report on the results of the survey under sub

paragraph (A). ‘‘(2) R ECORDKEEPING AND REPORTING REQUIREMENTS .— The Administrator of the Environmental Protection Agency (hereinafter in this subsection referred to as the ‘Administrator’) may require any refiner, blender, or importer to keep such records and make such re

ports as are necessary to ensure that the survey con

ducted under paragraph (1) is accurate. The Adminis

trator, to avoid duplicative requirements, shall rely, to the extent practicable, on existing reporting and rec

ordkeeping requirements and other information avail

able to the Administrator including gasoline distribu

tion patterns that include multistate use areas. ‘‘(3) A PPLICABLE LAW .—Activities carried out under this subsection shall be conducted in a manner de

signed to protect confidentiality of individual re

sponses.’’

F INDINGS Pub. L. 109–58, title XV, §1502, Aug. 8, 2005, 119 Stat. 1076, provided that: ‘‘Congress finds that— ‘‘(1) since 1979, methyl tertiary butyl ether (herein

after in this section referred to as ‘MTBE’) has been used nationwide at low levels in gasoline to replace lead as an octane booster or anti-knocking agent; ‘‘(2) Public Law 101–549 (commonly known as the ‘Clean Air Act Amendments of 1990’) (42 U.S.C. 7401 et seq.) [see Tables for classification] established a fuel oxygenate standard under which reformulated gaso

line must contain at least 2 percent oxygen by weight; and ‘‘(3) the fuel industry responded to the fuel oxygen

ate standard established by Public Law 101–549 by making substantial investments in— ‘‘(A) MTBE production capacity; and ‘‘(B) systems to deliver MTBE-containing gaso

line to the marketplace.’’

C LAIMS F ILED A FTER A UGUST 8, 2005
Pub. L. 109–58, title XV, §1503, Aug. 8, 2005, 119 Stat. 1076, provided that: ‘‘Claims and legal actions filed after the date of enactment of this Act [Aug. 8, 2005] re

lated to allegations involving actual or threatened con

tamination of methyl tertiary butyl ether (MTBE) may be removed to the appropriate United States district court.’’

F INDINGS AND S ENSE OF C ONGRESS ON E THANOL U SAGE Pub. L. 100–203, title I, §1508, Dec. 22, 1987, 101 Stat. 1330–29, provided that: ‘‘(a) F INDINGS .—Congress finds that— ‘‘(1) the United States is dependent for a large and growing share of its energy needs on the Middle East at a time when world petroleum reserves are declin

ing; ‘‘(2) the burning of gasoline causes pollution; ‘‘(3) ethanol can be blended with gasoline to produce a cleaner source of fuel; ‘‘(4) ethanol can be produced from grain, a renew

able resource that is in considerable surplus in the United States; ‘‘(5) the conversion of grain into ethanol would re

duce farm program costs and grain surpluses; and ‘‘(6) increasing the quantity of motor fuels that contain at least 10 percent ethanol from current lev

els to 50 percent by 1992 would create thousands of new jobs in ethanol production facilities. ‘‘(b) S ENSE OF C ONGRESS .—It is the sense of Congress that the Administrator of the Environmental Protec

tion Agency should use authority provided under the Clean Air Act (42 U.S.C. 7401 et seq.) to require greater use of ethanol as motor fuel.’’

A GRICULTURAL M ACHINERY : S TUDY OF U NLEADED F UEL Pub. L. 99–198, title XVII, §1765, Dec. 23, 1985, 99 Stat. 1653, directed Administrator of EPA and Secretary of Agriculture jointly to conduct a study of use of fuel containing lead additives, and alternative lubricating additives, in gasoline engines that are used in agricul

tural machinery, and designed to combust fuel contain

ing such additives, study to analyze potential for me

chanical problems (including but not limited to valve recession) that may be associated with use of other fuels in such engines, and not later than Jan. 1, 1987, Administrator and Secretary to publish results of the study, with Administrator to publish in Federal Reg

ister notice of publication of such study and a sum

mary thereof; directed Administrator, after notice and opportunity for hearing, but not later than 6 months after publication of the study, to make findings and recommendations on need for lead additives in gasoline to be used on a farm for farming purposes, including a determination of whether a modification of regulations limiting lead content of gasoline would be appropriate in the case of gasoline used on a farm for farming pur

poses, and submit to President and Congress a report containing the study, a summary of comments received during public hearing (including comments of Sec

retary), and findings and recommendations of Adminis

trator made in accordance with clause (1), such report to be transmitted named congressional committees; di

rected Administrator between Jan. 1, 1986, and Dec. 31, 1987, to monitor actual lead content of leaded gasoline sold in the United States, with Administrator to deter

mine average lead content of such gasoline for each 3- month period between Jan. 1, 1986, and Dec. 31, 1987, and if actual lead content falls below an average of 0.2 of a gram of lead per gallon in any such 3-month period, to report to Congress, and publish a notice thereof in Fed

eral Register; provided that until Jan. 1, 1988, no regu

lation of Administrator issued under this section 211 could require an average lead content per gallon that is less than 0.1 of a gram per gallon; and authorized an ap

propriation.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, orPage 6401 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7546

1 See References in Text note below.

2 So in original. other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.
§ 7546. Renewable fuel
(a) Definitions
In this section: (1) Municipal solid waste The term ‘‘municipal solid waste’’ has the meaning given the term ‘‘solid waste’’ in sec

tion 6903 of this title. (2) RFG State
The term ‘‘RFG State’’ means a State in which is located one or more covered areas (as defined in section 7545(k)(10)(D) of this title). (3) Secretary The term ‘‘Secretary’’ means the Secretary of Energy. (b) Cellulosic biomass ethanol and municipal solid waste loan guarantee program (1) In general Funds may be provided for the cost (as de

fined in the Federal Credit Reform Act of 1990 (2 U.S.C. 661 et seq.)) of loan guarantees issued under title XIV of the Energy Policy Act 1 to carry out commercial demonstration projects for celluosic 2 biomass and sucrose-derived eth

anol. (2) Demonstration projects (A) In general The Secretary shall issue loan guarantees under this section to carry out not more than 4 projects to commercially dem

onstrate the feasibility and viability of pro

ducing cellulosic biomass ethanol or su

crose-derived ethanol, including at least 1 project that uses cereal straw as a feedstock and 1 project that uses municipal solid waste as a feedstock. (B) Design capacity Each project shall have a design capacity to produce at least 30,000,000 gallons of cel

lulosic biomass ethanol each year. (3) Applicant assurances An applicant for a loan guarantee under this section shall provide assurances, satisfactory to the Secretary, that— (A) the project design has been validated through the operation of a continuous proc

ess facility with a cumulative output of at least 50,000 gallons of ethanol; (B) the project has been subject to a full technical review; (C) the project is covered by adequate project performance guarantees; (D) the project, with the loan guarantee, is economically viable; and (E) there is a reasonable assurance of re

payment of the guaranteed loan. (4) Limitations (A) Maximum guarantee Except as provided in subparagraph (B), a loan guarantee under this section may be is

sued for up to 80 percent of the estimated cost of a project, but may not exceed $250,000,000 for a project. (B) Additional guarantees (i) In general The Secretary may issue additional loan guarantees for a project to cover up to 80 percent of the excess of actual project cost over estimated project cost but not to ex

ceed 15 percent of the amount of the origi

nal guarantee. (ii) Principal and interest Subject to subparagraph (A), the Sec

retary shall guarantee 100 percent of the principal and interest of a loan made under subparagraph (A). (5) Equity contributions To be eligible for a loan guarantee under this section, an applicant for the loan guaran

tee shall have binding commitments from eq

uity investors to provide an initial equity con

tribution of at least 20 percent of the total project cost. (6) Insufficient amounts If the amount made available to carry out this section is insufficient to allow the Sec

retary to make loan guarantees for 3 projects described in subsection (b) of this section, the Secretary shall issue loan guarantees for one or more qualifying projects under this section in the order in which the applications for the projects are received by the Secretary. (7) Approval An application for a loan guarantee under this section shall be approved or disapproved by the Secretary not later than 90 days after the application is received by the Secretary. (c) Authorization of appropriations for resource center There is authorized to be appropriated, for a resource center to further develop bioconversion technology using low-cost biomass for the pro

duction of ethanol at the Center for BiomassBased Energy at the Mississippi State Univer

sity and the Oklahoma State University, $4,000,000 for each of fiscal years 2005 through 2007. (d) Renewable fuel production research and de

velopment grants (1) In general The Administrator shall provide grants for the research into, and development and imple

mentation of, renewable fuel production tech

nologies in RFG States with low rates of etha

nol production, including low rates of produc

tion of cellulosic biomass ethanol. (2) Eligibility (A) In general The entities eligible to receive a grant under this subsection are academic institu

-Page 6402 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7547

tions in RFG States, and consortia made up of combinations of academic institutions, in

dustry, State government agencies, or local government agencies in RFG States, that have proven experience and capabilities with relevant technologies. (B) Application To be eligible to receive a grant under this subsection, an eligible entity shall submit to the Administrator an application in such manner and form, and accompanied by such information, as the Administrator may specify. (3) Authorization of appropriations There is authorized to be appropriated to carry out this subsection $25,000,000 for each of fiscal years 2006 through 2010. (e) Cellulosic biomass ethanol conversion assist

ance (1) In general The Secretary may provide grants to mer

chant producers of cellulosic biomass ethanol in the United States to assist the producers in building eligible production facilities de

scribed in paragraph (2) for the production of cellulosic biomass ethanol. (2) Eligible production facilities A production facility shall be eligible to re

ceive a grant under this subsection if the pro

duction facility— (A) is located in the United States; and (B) uses cellulosic biomass feedstocks de

rived from agricultural residues or munici

pal solid waste. (3) Authorization of appropriations There is authorized to be appropriated to carry out this subsection— (A) $250,000,000 for fiscal year 2006; and (B) $400,000,000 for fiscal year 2007. (July 14, 1955, ch. 360, title II, §212, as added Pub. L. 109–58, title XV, §1511, Aug. 8, 2005, 119 Stat. 1086.)

R EFERENCES IN T EXT The Federal Credit Reform Act of 1990, referred to in subsec. (b)(1), is title V of Pub. L. 93–344, as added by Pub. L. 101–508, title XIII, §13201(a), Nov. 5, 1990, 104 Stat. 1388–609, as amended, which is classified generally to subchapter III (§661 et seq.) of chapter 17A of Title 2, The Congress. For complete classification of this Act to the Code, see Short Title note set out under section 621 of Title 2 and Tables. The Energy Policy Act, referred to in subsec. (b)(1), probably means the Energy Policy Act of 2005, Pub. L. 109–58, Aug. 8, 2005, 119 Stat. 594. Title XIV of the Act probably should be a reference to title XV of the Act which relates to ethanol and motor fuels and enacted subchapter XIV (§16501 et seq.) of chapter 149 of this title and sections 6991i to 6991m and 7546 of this title, amended sections 6991 to 6991f, 6991h, 1991i, 7135, 7545, and 13220 of this title, and enacted provisions set out as notes under section 7545 of this title. Title XIV of the Act, which contains miscellaneous provisions, is classi

fied principally to subchapter XIII (§16491 et seq.) of chapter 149 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 15801 of this title and Tables.

P RIOR P ROVISIONS A prior section 7546, act July 14, 1955, ch. 360, title II, §212, as added Dec. 31, 1970, Pub. L. 91–604, §10(c), 84 Stat. 1700; amended Dec. 31, 1970, Pub. L. 91–605, §202(a), 84 Stat. 1739; Apr. 9, 1973, Pub. L. 93–15, §1(b), 87 Stat. 11; June 22, 1974, Pub. L. 93–319, §13(b), 88 Stat. 265, re

lated to low-emission vehicles, prior to repeal by Pub. L. 101–549, title II, §230(10), Nov. 15, 1990, 104 Stat. 2529. A prior section 212 of act July 14, 1955, was renum

bered section 213 by Pub. L. 91–604, renumbered section 214 by Pub. L. 93–319, and renumbered section 216 by Pub. L. 95–95, and is classified to section 7550 of this title.
§ 7547. Nonroad engines and vehicles
(a) Emissions standards (1) The Administrator shall conduct a study of emissions from nonroad engines and nonroad ve

hicles (other than locomotives or engines used in locomotives) to determine if such emissions cause, or significantly contribute to, air pollu

tion which may reasonably be anticipated to en

danger public health or welfare. Such study shall be completed within 12 months of Novem

ber 15, 1990. (2) After notice and opportunity for public hearing, the Administrator shall determine within 12 months after completion of the study under paragraph (1), based upon the results of such study, whether emissions of carbon mon

oxide, oxides of nitrogen, and volatile organic compounds from new and existing nonroad en

gines or nonroad vehicles (other than loco

motives or engines used in locomotives) are sig

nificant contributors to ozone or carbon mon

oxide concentrations in more than 1 area which has failed to attain the national ambient air quality standards for ozone or carbon monoxide. Such determination shall be included in the reg

ulations under paragraph (3). (3) If the Administrator makes an affirmative determination under paragraph (2) the Adminis

trator shall, within 12 months after completion of the study under paragraph (1), promulgate (and from time to time revise) regulations con

taining standards applicable to emissions from those classes or categories of new nonroad en

gines and new nonroad vehicles (other than loco

motives or engines used in locomotives) which in the Administrator’s judgment cause, or con

tribute to, such air pollution. Such standards shall achieve the greatest degree of emission re

duction achievable through the application of technology which the Administrator determines will be available for the engines or vehicles to which such standards apply, giving appropriate consideration to the cost of applying such tech

nology within the period of time available to manufacturers and to noise, energy, and safety factors associated with the application of such technology. In determining what degree of re

duction will be available, the Administrator shall first consider standards equivalent in stringency to standards for comparable motor vehicles or engines (if any) regulated under sec

tion 7521 of this title, taking into account the technological feasibility, costs, safety, noise, and energy factors associated with achieving, as appropriate, standards of such stringency and lead time. The regulations shall apply to the useful life of the engines or vehicles (as deter

mined by the Administrator). (4) If the Administrator determines that any emissions not referred to in paragraph (2) fromPage 6403 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7548

new nonroad engines or vehicles significantly contribute to air pollution which may reason

ably be anticipated to endanger public health or welfare, the Administrator may promulgate (and from time to time revise) such regulations as the Administrator deems appropriate con

taining standards applicable to emissions from those classes or categories of new nonroad en

gines and new nonroad vehicles (other than loco

motives or engines used in locomotives) which in the Administrator’s judgment cause, or con

tribute to, such air pollution, taking into ac

count costs, noise, safety, and energy factors as

sociated with the application of technology which the Administrator determines will be available for the engines and vehicles to which such standards apply. The regulations shall apply to the useful life of the engines or vehicles (as determined by the Administrator). (5) Within 5 years after November 15, 1990, the Administrator shall promulgate regulations containing standards applicable to emissions from new locomotives and new engines used in locomotives. Such standards shall achieve the greatest degree of emission reduction achievable through the application of technology which the Administrator determines will be available for the locomotives or engines to which such stand

ards apply, giving appropriate consideration to the cost of applying such technology within the period of time available to manufacturers and to noise, energy, and safety factors associated with the application of such technology. (b) Effective date
Standards under this section shall take effect at the earliest possible date considering the lead time necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compli

ance within such period and energy and safety. (c) Safe controls Effective with respect to new engines or vehi

cles to which standards under this section apply, no emission control device, system, or element of design shall be used in such a new nonroad en

gine or new nonroad vehicle for purposes of com

plying with such standards if such device, sys

tem, or element of design will cause or contrib

ute to an unreasonable risk to public health, welfare, or safety in its operation or function. In determining whether an unreasonable risk ex

ists, the Administrator shall consider factors in

cluding those described in section 7521(a)(4)(B) of this title. (d) Enforcement
The standards under this section shall be sub

ject to sections 7525, 7541, 7542, and 7543 of this title, with such modifications of the applicable regulations implementing such sections as the Administrator deems appropriate, and shall be enforced in the same manner as standards pre

scribed under section 7521 of this title. The Ad

ministrator shall revise or promulgate regula

tions as may be necessary to determine compli

ance with, and enforce, standards in effect under this section. (July 14, 1955, ch. 360, title II, §213, as added Pub. L. 93–319, §10, June 22, 1974, 88 Stat. 261; amended Pub. L. 101–549, title II, §222(a), Nov. 15, 1990, 104 Stat. 2500.) C ODIFICATION Section was formerly classified to section 1857f–6f of this title.

P RIOR P ROVISIONS A prior section 213 of act July 14, 1955, was renum

bered section 214 by Pub. L. 93–319 and renumbered sec

tion 216 by Pub. L. 95–95, and is classified to section 7550 of this title.

A MENDMENTS 1990—Pub. L. 101–549 amended section generally, sub

stituting present provisions for provisions requiring Administrator and Secretary of Transportation to con

duct study on fuel economy improvement for new motor vehicles manufactured during and after model year 1980.

R EGULATIONS R ELATING TO S TANDARDS T O R EDUCE E MISSIONS Pub. L. 108–199, div. G, title IV, §428(b), Jan. 23, 2004, 118 Stat. 418, provided that: ‘‘Not later than December 1, 2004, the Administrator of the Environmental Protec

tion Agency shall propose regulations under the Clean Air Act [42 U.S.C. 7401 et seq.] that shall contain stand

ards to reduce emissions from new nonroad spark-igni

tion engines smaller than 50 horsepower. Not later than December 31, 2005, the Administrator shall publish in the Federal Register final regulations containing such standards.’’ § 7548. Study of particulate emissions from motor vehicles (a) Study and analysis (1) The Administrator shall conduct a study concerning the effects on health and welfare of particulate emissions from motor vehicles or motor vehicle engines to which section 7521 of this title applies. Such study shall characterize and quantify such emissions and analyze the re

lationship of such emissions to various fuels and fuel additives. (2) The study shall also include an analysis of particulate emissions from mobile sources which are not related to engine emissions (including, but not limited to tire debris, and asbestos from brake lining). (b) Report to Congress The Administrator shall report to the Con

gress the findings and results of the study con

ducted under subsection (a) of this section not later than two years after August 7, 1977. Such report shall also include recommendations for standards or methods to regulate particulate emissions described in paragraph (2) of sub

section (a) of this section. (July 14, 1955, ch. 360, title II, §214, as added Pub. L. 95–95, title II, §224(d), Aug. 7, 1977, 91 Stat. 767.)

P RIOR P ROVISIONS A prior section 214 of act July 14, 1955, was renum

bered section 216 by Pub. L. 95–95 and is classified to section 7550 of this title.

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

S TUDY ON S USPENDED P ARTICULATE M ATTER Section 403(a) of Pub. L. 95–95 directed Administrator of EPA, not later than 18 months after Aug. 7, 1977, inPage 6404 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7549

cooperation with National Academy of Sciences, to study and report to Congress on relationship between size, weight, and chemical composition of suspended particulate matter and nature and degree of endanger

ment to public health or welfare presented by such par

ticulate matter and availability of technology for con

trolling such particulate matter.
§ 7549. High altitude performance adjustments
(a) Instruction of the manufacturer (1) Any action taken with respect to any ele

ment of design installed on or in a motor vehicle or motor vehicle engine in compliance with reg

ulations under this subchapter (including any alteration or adjustment of such element), shall be treated as not in violation of section 7522(a) of this title if such action is performed in ac

cordance with high altitude adjustment instruc

tions provided by the manufacturer under sub

section (b) of this section and approved by the Administrator. (2) If the Administrator finds that adjustments or modifications made pursuant to instructions of the manufacturer under paragraph (1) will not insure emission control performance with re

spect to each standard under section 7521 of this title at least equivalent to that which would re

sult if no such adjustments or modifications were made, he shall disapprove such instruc

tions. Such finding shall be based upon mini

mum engineering evaluations consistent with good engineering practice. (b) Regulations (1) Instructions respecting each class or cat

egory of vehicles or engines to which this sub

chapter applies providing for such vehicle and engine adjustments and modifications as may be necessary to insure emission control perform

ance at different altitudes shall be submitted by the manufacturer to the Administrator pursuant to regulations promulgated by the Adminis

trator. (2) Any knowing violation by a manufacturer of requirements of the Administrator under paragraph (1) shall be treated as a violation by such manufacturer of section 7522(a)(3) of this title for purposes of the penalties contained in section 7524 of this title. (3) Such instructions shall provide, in addition to other adjustments, for adjustments for vehi

cles moving from high altitude areas to low alti

tude areas after the initial registration of such vehicles. (c) Manufacturer parts No instructions under this section respecting adjustments or modifications may require the use of any manufacturer parts (as defined in sec

tion 7522(a) of this title) unless the manufac

turer demonstrates to the satisfaction of the Administrator that the use of such manufac

turer parts is necessary to insure emission con

trol performance. (d) State inspection and maintenance programs Before January 1, 1981 the authority provided by this section shall be available in any high al

titude State (as determined under regulations of the Administrator under regulations promul

gated before August 7, 1977) but after December 31, 1980, such authority shall be available only in any such State in which an inspection and main

tenance program for the testing of motor vehi

cle emissions has been instituted for the por

tions of the State where any national ambient air quality standard for auto-related pollutants has not been attained. (e) High altitude testing (1) The Administrator shall promptly establish at least one testing center (in addition to the testing centers existing on November 15, 1990) located at a site that represents high altitude conditions, to ascertain in a reasonable manner whether, when in actual use throughout their useful life (as determined under section 7521(d) of this title), each class or category of vehicle and engines to which regulations under section 7521 of this title apply conforms to the emissions standards established by such regulations. For purposes of this subsection, the term ‘‘high alti

tude conditions’’ refers to high altitude as de

fined in regulations of the Administrator in ef

fect as of November 15, 1990. (2) The Administrator, in cooperation with the Secretary of Energy and the Administrator of the Federal Transit Administration, and such other agencies as the Administrator deems ap

propriate, shall establish a research and tech

nology assessment center to provide for the de

velopment and evaluation of less-polluting heavy-duty engines and fuels for use in buses, heavy-duty trucks, and non-road engines and ve

hicles, which shall be located at a high-altitude site that represents high-altitude conditions. In establishing and funding such a center, the Ad

ministrator shall give preference to proposals which provide for local cost-sharing of facilities and recovery of costs of operation through utili

zation of such facility for the purposes of this section. (3) The Administrator shall designate at least one center at high-altitude conditions to provide research on after-market emission components, dual-fueled vehicles and conversion kits, the ef

fects of tampering on emissions equipment, test

ing of alternate fuels and conversion kits, and the development of curricula, training courses, and materials to maximize the effectiveness of inspection and maintenance programs as they relate to promoting effective control of vehicle emissions at high-altitude elevations. Pref

erence shall be given to existing vehicle emis

sions testing and research centers that have es

tablished reputations for vehicle emissions re

search and development and training, and that possess in-house Federal Test Procedure capac

ity. (July 14, 1955, ch. 360, title II, §215, as added Pub. L. 95–95, title II, §211(b), Aug. 7, 1977, 91 Stat. 757; amended Pub. L. 95–190, §14(a)(75), Nov. 16, 1977, 91 Stat. 1404; Pub. L. 101–549, title II, §224, Nov. 15, 1990, 104 Stat. 2503; Pub. L. 102–240, title III, §3004(b), Dec. 18, 1991, 105 Stat. 2088.)

C ODIFICATION In subsec. (d), ‘‘August 7, 1977’’ substituted for ‘‘the date of enactment of this Act’’ to reflect the probable intent of Congress that such date of enactment meant the date of enactment of Pub. L. 95–95.

A MENDMENTS 1990—Subsec. (e). Pub. L. 101–549 added subsec. (e).Page 6405 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7551

1 So in original. Probably should be set off by quotation marks. 1977—Subsec. (d). Pub. L. 95–190 substituted ‘‘Decem

ber 31, 1980’’ for ‘‘December 31, 1981’’.

C HANGE OF N AME
‘‘Federal Transit Administration’’ substituted for ‘‘Urban Mass Transportation Administration’’ in sub

sec. (e)(2) pursuant to section 3004(b) of Pub. L. 102–240, set out as a note under section 107 of Title 49, Transpor

tation.

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.
§ 7550. Definitions
As used in this part— (1) The term ‘‘manufacturer’’ as used in sec

tions 7521, 7522, 7525, 7541, and 7542 of this title means any person engaged in the manufactur

ing or assembling of new motor vehicles, new motor vehicle engines, new nonroad vehicles or new nonroad engines, or importing such ve

hicles or engines for resale, or who acts for and is under the control of any such person in connection with the distribution of new motor vehicles, new motor vehicle engines, new nonroad vehicles or new nonroad engines, but shall not include any dealer with respect to new motor vehicles, new motor vehicle en

gines, new nonroad vehicles or new nonroad engines received by him in commerce. (2) The term ‘‘motor vehicle’’ means any self-propelled vehicle designed for transport

ing persons or property on a street or high

way. (3) Except with respect to vehicles or en

gines imported or offered for importation, the term ‘‘new motor vehicle’’ means a motor ve

hicle the equitable or legal title to which has never been transferred to an ultimate pur

chaser; and the term ‘‘new motor vehicle en

gine’’ means an engine in a new motor vehicle or a motor vehicle engine the equitable or legal title to which has never been transferred to the ultimate purchaser; and with respect to imported vehicles or engines, such terms mean a motor vehicle and engine, respectively, man

ufactured after the effective date of a regula

tion issued under section 7521 of this title which is applicable to such vehicle or engine (or which would be applicable to such vehicle or engine had it been manufactured for impor

tation into the United States). (4) The term ‘‘dealer’’ means any person who is engaged in the sale or the distribution of new motor vehicles or new motor vehicle en

gines to the ultimate purchaser. (5) The term ‘‘ultimate purchaser’’ means, with respect to any new motor vehicle or new motor vehicle engine, the first person who in good faith purchases such new motor vehicle or new engine for purposes other than resale. (6) The term ‘‘commerce’’ means (A) com

merce between any place in any State and any place outside thereof; and (B) commerce whol

ly within the District of Columbia. (7) V EHICLE CURB WEIGHT , GROSS VEHICLE WEIGHT RATING , LIGHT

- DUTY TRUCK , LIGHT

- DUTY VEHICLE , AND LOADED VEHICLE WEIGHT .—The terms ‘‘vehicle curb weight’’, ‘‘gross vehicle weight rating’’ (GVWR), ‘‘light-duty truck’’ (LDT), light-duty vehicle, 1 and ‘‘loaded vehicle weight’’ (LVW) have the meaning provided in regulations promulgated by the Administrator and in effect as of November 15, 1990. The ab

breviations in parentheses corresponding to any term referred to in this paragraph shall have the same meaning as the corresponding term. (8) T EST WEIGHT .—The term ‘‘test weight’’ and the abbreviation ‘‘tw’’ mean the vehicle curb weight added to the gross vehicle weight rating (gvwr) and divided by 2. (9) M OTOR VEHICLE OR ENGINE PART MANUFAC

TURER .—The term ‘‘motor vehicle or engine part manufacturer’’ as used in sections 7541 and 7542 of this title means any person en

gaged in the manufacturing, assembling or re

building of any device, system, part, compo

nent or element of design which is installed in or on motor vehicles or motor vehicle engines. (10) N ONROAD ENGINE .—The term ‘‘nonroad engine’’ means an internal combustion engine (including the fuel system) that is not used in a motor vehicle or a vehicle used solely for competition, or that is not subject to stand

ards promulgated under section 7411 of this title or section 7521 of this title. (11) N ONROAD VEHICLE .—The term ‘‘nonroad vehicle’’ means a vehicle that is powered by a nonroad engine and that is not a motor vehicle or a vehicle used solely for competition. (July 14, 1955, ch. 360, title II, §216, formerly §208, as added Pub. L. 89–272, title I, §101(8), Oct. 20, 1965, 79 Stat. 994; renumbered §212, and amended Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 503; renumbered §213, and amended Pub. L. 91–604, §§8(a), 10(d), 11(a)(2)(A), Dec. 31, 1970, 84 Stat. 1694, 1703, 1705; renumbered §214, Pub. L. 93–319, §10, June 22, 1974, 88 Stat. 261; renum

bered §216, Pub. L. 95–95, title II, §224(d), Aug. 7, 1977, 91 Stat. 767; Pub. L. 101–549, title II, §223, Nov. 15, 1990, 104 Stat. 2503.)

C ODIFICATION Section was formerly classified to section 1857f–7 of this title.

A MENDMENTS 1990—Par. (1). Pub. L. 101–549, §223(b), inserted ref

erences to new nonroad vehicles or new nonroad en

gines. Pars. (7) to (11). Pub. L. 101–549, §223(a), added pars. (7) to (11). 1970—Pub. L. 91–604, §11(a)(2)(A), substituted ‘‘part’’ for ‘‘subchapter’’. Par. (1). Pub. L. 91–604, §10(d)(1), inserted reference to section 7521 of this title. Par. (3). Pub. L. 91–604, §10(d)(2), inserted provisions which defined such terms with respect to imported ve

hicles or engines. 1967—Pub. L. 90–148 inserted ‘‘as used in sections 7522, 7525, 7541, and 7542 of this title’’ after ‘‘manufacturer’’ in par. (1).
§ 7551. Omitted

Section, Pub. L. 95–95, title II, §203, Aug. 7, 1977, 91 Stat. 754; Pub. L. 97–375, title I, §106(a), Dec. 21, 1982, 96 Stat. 1820, which required the Administrator of the En

vironmental Protection Agency to report to CongressPage 6406 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7552

1 So in original. Probably should be ‘‘section,’’. respecting the motor vehicle fuel consumption associ

ated with the standards applicable for the immediately preceding model year, terminated, effective May 15, 2000, pursuant to section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance. See, also, the 5th item on page 165 of House Document No. 103–7. Section was enacted as part of the Clean Air Act Amendments of 1977, and not as part of the Clean Air Act which comprises this chapter. § 7552. Motor vehicle compliance program fees (a) Fee collection Consistent with section 9701 of title 31, the Ad

ministrator may promulgate (and from time to time revise) regulations establishing fees to re

cover all reasonable costs to the Administrator associated with— (1) new vehicle or engine certification under section 7525(a) of this title or part C of this subchapter, (2) new vehicle or engine compliance mon

itoring and testing under section 7525(b) of this title or part C of this subchapter, and (3) in-use vehicle or engine compliance mon

itoring and testing under section 7541(c) of this title or part C of this subchapter. The Administrator may establish for all foreign and domestic manufacturers a fee schedule based on such factors as the Administrator finds appropriate and equitable and nondiscrim

inatory, including the number of vehicles or en

gines produced under a certificate of conform

ity. In the case of heavy-duty engine and vehicle manufacturers, such fees shall not exceed a rea

sonable amount to recover an appropriate por

tion of such reasonable costs. (b) Special Treasury fund Any fees collected under this section shall be deposited in a special fund in the United States Treasury for licensing and other services which thereafter shall be available for appropriation, to remain available until expended, to carry out the Agency’s activities for which the fees were collected. (c) Limitation on fund use Moneys in the special fund referred to in sub

section (b) of this section shall not be used until after the first fiscal year commencing after the first July 1 when fees are paid into the fund. (d) Administrator’s testing authority Nothing in this subsection shall be construed to limit the Administrator’s authority to re

quire manufacturer or confirmatory testing as provided in this part. (July 14, 1955, ch. 360, title II, §217, as added Pub. L. 101–549, title II, §225, Nov. 15, 1990, 104 Stat. 2504.) § 7553. Prohibition on production of engines re

quiring leaded gasoline
The Administrator shall promulgate regula

tions applicable to motor vehicle engines and nonroad engines manufactured after model year 1992 that prohibit the manufacture, sale, or in

troduction into commerce of any engine that re

quires leaded gasoline. (July 14, 1955, ch. 360, title II, §218, as added Pub. L. 101–549, title II, §226, Nov. 15, 1990, 104 Stat. 2505.) § 7554. Urban bus standards (a) Standards for model years after 1993 Not later than January 1, 1992, the Adminis

trator shall promulgate regulations under sec

tion 7521(a) of this title applicable to urban buses for the model year 1994 and thereafter. Such standards shall be based on the best tech

nology that can reasonably be anticipated to be available at the time such measures are to be implemented, taking costs, safety, energy, lead time, and other relevant factors into account. Such regulations shall require that such urban buses comply with the provisions of subsection (b) of this section (and subsection (c) of this sub

section, 1 if applicable) in addition to compliance with the standards applicable under section 7521(a) of this title for heavy-duty vehicles of the same type and model year. (b) PM standard (1) 50 percent reduction The standards under section 7521(a) of this title applicable to urban buses shall require that, effective for the model year 1994 and thereafter, emissions of particulate matter (PM) from urban buses shall not exceed 50 per

cent of the emissions of particulate matter (PM) allowed under the emission standard ap

plicable under section 7521(a) of this title as of November 15, 1990, for particulate matter (PM) in the case of heavy-duty diesel vehicles and engines manufactured in the model year 1994. (2) Revised reduction
The Administrator shall increase the level of emissions of particulate matter allowed under the standard referred to in paragraph (1) if the Administrator determines that the 50 percent reduction referred to in paragraph (1) is not technologically achievable, taking into ac

count durability, costs, lead time, safety, and other relevant factors. The Administrator may not increase such level of emissions above 70 percent of the emissions of particulate mat

ter (PM) allowed under the emission standard applicable under section 7521(a) of this title as of November 15, 1990, for particulate matter (PM) in the case of heavy-duty diesel vehicles and engines manufactured in the model year 1994. (3) Determination as part of rule As part of the rulemaking under subsection (a) of this section, the Administrator shall make a determination as to whether the 50 percent reduction referred to in paragraph (1) is technologically achievable, taking into ac

count durability, costs, lead time, safety, and other relevant factors. (c) Low-polluting fuel requirement (1) Annual testing Beginning with model year 1994 buses, the Administrator shall conduct annual tests of a representative sample of operating urban buses subject to the particulate matter (PM) standard applicable pursuant to subsection (b) of this section to determine whether such buses comply with such standard in use over their full useful life.Page 6407 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7571

(2) Promulgation of additional low-polluting fuel requirement (A) If the Administrator determines, based on the testing under paragraph (1), that urban buses subject to the particulate matter (PM) standard applicable pursuant to subsection (b) of this section do not comply with such stand

ard in use over their full useful life, he shall revise the standards applicable to such buses to require (in addition to compliance with the PM standard applicable pursuant to sub

section (b) of this section) that all new urban buses purchased or placed into service by own

ers or operators of urban buses in all metro

politan statistical areas or consolidated met

ropolitan statistical areas with a 1980 popu

lation of 750,000 or more shall be capable of op

erating, and shall be exclusively operated, on low-polluting fuels. The Administrator shall establish the pass-fail rate for purposes of testing under this subparagraph. (B) The Administrator shall promulgate a schedule phasing in any low-polluting fuel re

quirement established pursuant to this para

graph to an increasing percentage of new urban buses purchased or placed into service in each of the first 5 model years commencing 3 years after the determination under subpara

graph (A). Under such schedule 100 percent of new urban buses placed into service in the fifth model year commencing 3 years after the determination under subparagraph (A) shall comply with the low-polluting fuel require

ment established pursuant to this paragraph. (C) The Administrator may extend the re

quirements of this paragraph to metropolitan statistical areas or consolidated metropolitan statistical areas with a 1980 population of less than 750,000, if the Administrator determines that a significant benefit to public health could be expected to result from such exten

sion. (d) Retrofit requirements Not later than 12 months after November 15, 1990, the Administrator shall promulgate regula

tions under section 7521(a) of this title requiring that urban buses which— (1) are operating in areas referred to in sub

paragraph (A) of subsection (c)(2) of this sec

tion (or subparagraph (C) of subsection (c)(2) of this section if the Administrator has taken action under that subparagraph); (2) were not subject to standards in effect under the regulations under subsection (a) of this section; and (3) have their engines replaced or rebuilt after January 1, 1995, shall comply with an emissions standard or emissions control technology requirement es

tablished by the Administrator in such regula

tions. Such emissions standard or emissions control technology requirement shall reflect the best retrofit technology and maintenance prac

tices reasonably achievable. (e) Procedures for administration and enforce

ment The Administrator shall establish, within 18 months after November 15, 1990, and in accord

ance with section 7525(h) of this title, procedures for the administration and enforcement of standards for buses subject to standards under this section, testing procedures, sampling proto

cols, in-use compliance requirements, and cri

teria governing evaluation of buses. Procedures for testing (including, but not limited to, certifi

cation testing) shall reflect actual operating conditions. (f) Definitions For purposes of this section— (1) Urban bus The term ‘‘urban bus’’ has the meaning pro

vided under regulations of the Administrator promulgated under section 7521(a) of this title. (2) Low-polluting fuel The term ‘‘low-polluting fuel’’ means meth

anol, ethanol, propane, or natural gas, or any comparably low-polluting fuel. In determining whether a fuel is comparably low-polluting, the Administrator shall consider both the level of emissions of air pollutants from vehi

cles using the fuel and the contribution of such emissions to ambient levels of air pollut

ants. For purposes of this paragraph, the term ‘‘methanol’’ includes any fuel which contains at least 85 percent methanol unless the Ad

ministrator increases such percentage as he deems appropriate to protect public health and welfare. (July 14, 1955, ch. 360, title II, §219, as added Pub. L. 101–549, title II, §227[(a)], Nov. 15, 1990, 104 Stat. 2505.)

P ART B—A IRCRAFT E MISSION S TANDARDS
§ 7571. Establishment of standards (a) Study; proposed standards; hearings; issu

ance of regulations (1) Within 90 days after December 31, 1970, the Administrator shall commence a study and in

vestigation of emissions of air pollutants from aircraft in order to determine— (A) the extent to which such emissions af

fect air quality in air quality control regions throughout the United States, and (B) the technological feasibility of control

ling such emissions. (2)(A) The Administrator shall, from time to time, issue proposed emission standards applica

ble to the emission of any air pollutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pol

lution which may reasonably be anticipated to endanger public health or welfare. (B)(i) The Administrator shall consult with the Administrator of the Federal Aviation Ad

ministration on aircraft engine emission stand

ards. (ii) The Administrator shall not change the aircraft engine emission standards if such change would significantly increase noise and adversely affect safety. (3) The Administrator shall hold public hear

ings with respect to such proposed standards. Such hearings shall, to the extent practicable, be held in air quality control regions which are most seriously affected by aircraft emissions. Within 90 days after the issuance of such pro

-Page 6408 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7572

posed regulations, he shall issue such regula

tions with such modifications as he deems ap

propriate. Such regulations may be revised from time to time. (b) Effective date of regulations Any regulation prescribed under this section (and any revision thereof) shall take effect after such period as the Administrator finds nec

essary (after consultation with the Secretary of Transportation) to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compli

ance within such period. (c) Regulations which create hazards to aircraft safety Any regulations in effect under this section on August 7, 1977, or proposed or promulgated thereafter, or amendments thereto, with respect to aircraft shall not apply if disapproved by the President, after notice and opportunity for pub

lic hearing, on the basis of a finding by the Sec

retary of Transportation that any such regula

tion would create a hazard to aircraft safety. Any such finding shall include a reasonably spe

cific statement of the basis upon which the find

ing was made. (July 14, 1955, ch. 360, title II, §231, as added Pub. L. 91–604, §11(a)(1), Dec. 31, 1970, 84 Stat. 1703; amended Pub. L. 95–95, title II, §225, title IV, §401(f), Aug. 7, 1977, 91 Stat. 769, 791; Pub. L. 104–264, title IV, §406(b), Oct. 9, 1996, 110 Stat. 3257.)

C ODIFICATION Section was formerly classified to section 1857f–9 of this title.

A MENDMENTS 1996—Subsec. (a)(2). Pub. L. 104–264 designated exist

ing provisions as subpar. (A) and added subpar. (B). 1977—Subsec. (a)(2). Pub. L. 95–95, §401(f), substituted ‘‘The Administrator shall, from time to time, issue pro

posed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare’’ for ‘‘Within 180 days after commencing such study and investigation, the Administrator shall publish a report of such study and investigation and shall issue proposed emission standards applicable to emissions of any air pollutant from any class or classes of aircraft or aircraft engines which in his judgment cause or contribute to or are likely to cause or contribute to air pollution which en

dangers the public health or welfare’’. Subsec. (c). Pub. L. 95–95, §225, substituted ‘‘Any reg

ulations in effect under this section on August 7, 1977, or proposed or promulgated thereafter, or amendments thereto, with respect to aircraft shall not apply if dis

approved by the President, after notice and oppor

tunity for public hearing, on the basis of a finding by the Secretary of Transportation that any such regula

tion would create a hazard to aircraft safety’’ for ‘‘Any regulations under this section, or amendments thereto, with respect to aircraft, shall be prescribed only after consultation with the Secretary of Transportation in order to assure appropriate consideration for aircraft safety’’ and inserted provision that findings include a reasonably specific statement of the basis upon which the finding was made.

E FFECTIVE D ATE OF 1996 A MENDMENT Except as otherwise specifically provided, amend

ment by Pub. L. 104–264 applicable only to fiscal years beginning after Sept. 30, 1996, and not to be construed as affecting funds made available for a fiscal year end

ing before Oct. 1, 1996, see section 3 of Pub. L. 104–264, set out as a note under section 106 of Title 49, Transpor

tation.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

S TUDY AND I NVESTIGATION OF U NINSTALLED A IRCRAFT E NGINES Pub. L. 101–549, title II, §233, Nov. 15, 1990, 104 Stat. 2529, provided that: ‘‘(a) S TUDY .—The Administrator of the Environ

mental Protection Agency and the Secretary of Trans

portation, in consultation with the Secretary of De

fense, shall commence a study and investigation of the testing of uninstalled aircraft engines in enclosed test cells that shall address at a minimum the following is

sues and such other issues as they shall deem appro

priate— ‘‘(1) whether technologies exist to control some or all emissions of oxides of nitrogen from test cells; ‘‘(2) the effectiveness of such technologies; ‘‘(3) the cost of implementing such technologies; ‘‘(4) whether such technologies affect the safety, de

sign, structure, operation, or performance of aircraft engines; ‘‘(5) whether such technologies impair the effective

ness and accuracy of aircraft engine safety design, and performance tests conducted in test cells; and ‘‘(6) the impact of not controlling such oxides of ni

trogen in the applicable nonattainment areas and on other sources, stationary and mobile, on oxides of ni

trogen in such areas. ‘‘(b) R EPORT , A UTHORITY T O R EGULATE .—Not later than 24 months after enactment of the Clean Air Act Amendments of 1990 [Nov. 15, 1990], the Administrator of the Environmental Protection Agency and the Sec

retary of Transportation shall submit to Congress a re

port of the study conducted under this section. Follow

ing the completion of such study, any of the States may adopt or enforce any standard for emissions of ox

ides of nitrogen from test cells only after issuing a pub

lic notice stating whether such standards are in accord

ance with the findings of the study.’’
§ 7572. Enforcement of standards (a) Regulations to insure compliance with stand

ards The Secretary of Transportation, after con

sultation with the Administrator, shall pre

scribe regulations to insure compliance with all standards prescribed under section 7571 of this title by the Administrator. The regulations of the Secretary of Transportation shall include provisions making such standards applicable in the issuance, amendment, modification, suspen

-Page 6409 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7581

1 So in original. The comma probably should not appear. sion, or revocation of any certificate authorized by part A of subtitle VII of title 49 or the De

partment of Transportation Act. Such Secretary shall insure that all necessary inspections are accomplished, and, 1 may execute any power or duty vested in him by any other provision of law in the execution of all powers and duties vested in him under this section. (b) Notice and appeal rights In any action to amend, modify, suspend, or revoke a certificate in which violation of an emission standard prescribed under section 7571 of this title or of a regulation prescribed under subsection (a) of this section is at issue, the cer

tificate holder shall have the same notice and appeal rights as are prescribed for such holders in part A of subtitle VII of title 49 or the Depart

ment of Transportation Act, except that in any appeal to the National Transportation Safety Board, the Board may amend, modify, or revoke the order of the Secretary of Transportation only if it finds no violation of such standard or regulation and that such amendment, modifica

tion, or revocation is consistent with safety in air transportation. (July 14, 1955, ch. 360, title II, §232, as added Pub. L. 91–604, §11(a)(1), Dec. 31, 1970, 84 Stat. 1704.)

R EFERENCES IN T EXT The Department of Transportation Act, referred to in subsecs. (a) and (b), is Pub. L. 89–670, Oct. 15, 1966, 80 Stat. 931, as amended, which was classified principally to sections 1651 to 1660 of former Title 49, Transpor

tation. The Act was repealed and the provisions thereof reenacted in Title 49, Transportation, by Pub. L. 97–449, Jan. 12, 1983, 96 Stat. 2413, and Pub. L. 103–272, July 5, 1994, 108 Stat. 745. The Act was also repealed by Pub. L. 104–287, §7(5), Oct. 11, 1996, 110 Stat. 3400. For disposi

tion of sections of former Title 49, see Table at the be

ginning of Title 49.

C ODIFICATION In subsecs. (a) and (b), ‘‘part A of subtitle VII of title 49’’ substituted for ‘‘the Federal Aviation Act [49 App. U.S.C. 1301 et seq.]’’ and ‘‘the Federal Aviation Act of 1958 [49 App. U.S.C. 1301 et seq.]’’ on authority of Pub. L. 103–272, §6(b), July 5, 1994, 108 Stat. 1378, the first sec

tion of which enacted subtitles II, III, and V to X of Title 49, Transportation. Section was formerly classified to section 1857f–10 of this title.
§ 7573. State standards and controls
No State or political subdivision thereof may adopt or attempt to enforce any standard re

specting emissions of any air pollutant from any aircraft or engine thereof unless such standard is identical to a standard applicable to such air

craft under this part. (July 14, 1955, ch. 360, title II, §233, as added Pub. L. 91–604, §11(a)(1), Dec. 31, 1970, 84 Stat. 1704.)

C ODIFICATION Section was formerly classified to section 1857f–11 of this title.
§ 7574. Definitions
Terms used in this part (other than Adminis

trator) shall have the same meaning as such terms have under section 40102(a) of title 49. (July 14, 1955, ch. 360, title II, §234, as added Pub. L. 91–604, §11(a)(1), Dec. 31, 1970, 84 Stat. 1705.)

C ODIFICATION In text, ‘‘section 40102(a) of title 49’’ substituted for ‘‘section 101 of the Federal Aviation Act of 1958’’ on au

thority of Pub. L. 103–272, §6(b), July 5, 1994, 108 Stat. 1378, the first section of which enacted subtitles II, III, and V to X of Title 49, Transportation. Section was formerly classified to section 1857f–12 of this title.

P ART C—C LEAN F UEL V EHICLES
§ 7581. Definitions
For purposes of this part— (1) Terms defined in part A The definitions applicable to part A under section 7550 of this title shall also apply for purposes of this part. (2) Clean alternative fuel
The term ‘‘clean alternative fuel’’ means any fuel (including methanol, ethanol, or other alcohols (including any mixture thereof containing 85 percent or more by volume of such alcohol with gasoline or other fuels), re

formulated gasoline, diesel, natural gas, lique

fied petroleum gas, and hydrogen) or powersource (including electricity) used in a cleanfuel vehicle that complies with the standards and requirements applicable to such vehicle under this subchapter when using such fuel or power source. In the case of any flexible fuel vehicle or dual fuel vehicle, the term ‘‘clean alternative fuel’’ means only a fuel with re

spect to which such vehicle was certified as a clean-fuel vehicle meeting the standards appli

cable to clean-fuel vehicles under section 7583(d)(2) of this title when operating on clean alternative fuel (or any CARB standards which replaces such standards pursuant to section 7583(e) of this title). (3) NMOG The term nonmethane organic gas (‘‘NMOG’’) means the sum of nonoxygenated and oxygenated hydrocarbons contained in a gas sample, including, at a minimum, all oxy

genated organic gases containing 5 or fewer carbon atoms (i.e., aldehydes, ketones, alco

hols, ethers, etc.), and all known alkanes, alkenes, alkynes, and aromatics containing 12 or fewer carbon atoms. To demonstrate com

pliance with a NMOG standard, NMOG emis

sions shall be measured in accordance with the ‘‘California Non-Methane Organic Gas Test Procedures’’. In the case of vehicles using fuels other than base gasoline, the level of NMOG emissions shall be adjusted based on the reactivity of the emissions relative to ve

hicles using base gasoline. (4) Base gasoline The term ‘‘base gasoline’’ means gasoline which meets the following specifications:
Specifications of Base Gasoline Used as Basis for Reactivity Readjustment: API gravity

....................................... 57.8 Sulfur, ppm

....................................... 317 Color

................................................. Purple Benzene, vol. %

................................. 1.35Page 6410 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7582

Reid vapor pressure

.......................... 8.7 Drivability

........................................ 1195 Antiknock index

............................... 87.3 Distillation, D–86 ° F IBP

.................................................... 92 10%

.................................................... 126 50%

.................................................... 219 90%

.................................................... 327 EP

..................................................... 414 Hydrocarbon Type, Vol. % FIA: Aromatics

......................................... 30.9 Olefins

............................................... 8.2 Saturates

.......................................... 60.9 The Administrator shall modify the defini

tions of NMOG, base gasoline, and the methods for making reactivity adjustments, to conform to the definitions and method used in Califor

nia under the Low-Emission Vehicle and Clean Fuel Regulations of the California Air Re

sources Board, so long as the California defini

tions are, in the aggregate, at least as protec

tive of public health and welfare as the defini

tions in this section.

(5) Covered fleet
The term ‘‘covered fleet’’ means 10 or more motor vehicles which are owned or operated by a single person. In determining the number of vehicles owned or operated by a single per

son for purposes of this paragraph, all motor vehicles owned or operated, leased or other

wise controlled by such person, by any person who controls such person, by any person con

trolled by such person, and by any person under common control with such person shall be treated as owned by such person. The term ‘‘covered fleet’’ shall not include motor vehi

cles held for lease or rental to the general pub

lic, motor vehicles held for sale by motor vehi

cle dealers (including demonstration vehicles), motor vehicles used for motor vehicle manu

facturer product evaluations or tests, law en

forcement and other emergency vehicles, or nonroad vehicles (including farm and con

struction vehicles).

(6) Covered fleet vehicle The term ‘‘covered fleet vehicle’’ means only a motor vehicle which is— (i) in a vehicle class for which standards are applicable under this part; and (ii) in a covered fleet which is centrally fueled (or capable of being centrally fueled). No vehicle which under normal operations is garaged at a personal residence at night shall be considered to be a vehicle which is capable of being centrally fueled within the meaning of this paragraph.

(7) Clean-fuel vehicle
The term ‘‘clean-fuel vehicle’’ means a vehi

cle in a class or category of vehicles which has been certified to meet for any model year the clean-fuel vehicle standards applicable under this part for that model year to clean-fuel ve

hicles in that class or category. (July 14, 1955, ch. 360, title II, §241, as added Pub. L. 101–549, title II, §229(a), Nov. 15, 1990, 104 Stat. 2511.) § 7582. Requirements applicable to clean-fuel ve

hicles

(a) Promulgation of standards Not later than 24 months after November 15, 1990, the Administrator shall promulgate regula

tions under this part containing clean-fuel vehi

cle standards for the clean-fuel vehicles speci

fied in this part.
(b) Other requirements Clean-fuel vehicles of up to 8,500 gvwr subject to standards set forth in this part shall comply with all motor vehicle requirements of this sub

chapter (such as requirements relating to onboard diagnostics, evaporative emissions, etc.)which are applicable to conventional gasolinefueled vehicles of the same category and model year, except as provided in section 7584 of this title with respect to administration and enforce

ment, and except to the extent that any such re

quirement is in conflict with the provisions of this part. Clean-fuel vehicles of 8,500 gvwr or greater subject to standards set forth in this part shall comply with all requirements of this subchapter which are applicable in the case of conventional gasoline-fueled or diesel fueled ve

hicles of the same category and model year, ex

cept as provided in section 7584 of this title with respect to administration and enforcement, and except to the extent that any such requirement is in conflict with the provisions of this part.
(c) In-use useful life and testing(1) In the case of light-duty vehicles and lightduty trucks up to 6,000 lbs gvwr, the useful life for purposes of determining in-use compliance with the standards under section 7583 of this title shall be— (A) a period of 5 years or 50,000 miles (or the equivalent) whichever first occurs, in the case of standards applicable for purposes of certifi

cation at 50,000 miles; and (B) a period of 10 years or 100,000 miles (or the equivalent) whichever first occurs, in the case of standards applicable for purposes ofcertification at 100,000 miles, except that inuse testing shall not be done for a period be

yond 7 years or 75,000 miles (or the equivalent) whichever first occurs. (2) In the case of light-duty trucks of more than 6,000 lbs gvwr, the useful life for purposes of determining in-use compliance with the standards under section 7583 of this title shall be— (A) a period of 5 years or 50,000 miles (or the equivalent) whichever first occurs in the case of standards applicable for purposes of certifi

cation at 50,000 miles; and (B) a period of 11 years or 120,000 miles (or the equivalent) whichever first occurs in the case of standards applicable for purposes ofcertification at 120,000 miles, except that inuse testing shall not be done for a period be

yond 7 years or 90,000 miles (or the equivalent) whichever first occurs. (July 14, 1955, ch. 360, title II, §242, as added Pub. L. 101–549, title II, §229(a), Nov. 15, 1990, 104 Stat. 2513.)Page 6411 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7583

1 So in original. Probably should be ‘‘subsection’’. § 7583. Standards for light-duty clean-fuel vehi

cles

(a) Exhaust standards for light-duty vehicles and certain light-duty trucks

The standards set forth in this subsection shall apply in the case of clean-fuel vehicles which are light-duty trucks of up to 6,000 lbs. gross vehicle weight rating (gvwr) (but not in

cluding light-duty trucks of more than 3,750 lbs. loaded vehicle weight (lvw)) or light-duty vehi

cles:

(1) Phase I
Beginning with model year 1996, for the air pollutants specified in the following table, the clean-fuel vehicle standards under this section shall provide that vehicle exhaust emissions shall not exceed the levels specified in the fol

lowing table:

P HASE I C LEAN F UEL V EHICLE E MISSION S TAND

ARDS FOR L IGHT -D UTY T RUCKS OF UP TO 3,750 L BS . LVW AND UP TO 6,000 L BS . GVWR AND L IGHT -D UTY V EHICLES

Pollutant NMOG CO NO x PM HCHO (formalde

hyde)

50,000 mile standard

. 0.125 3.4 0.4

....... 0.015

100,000 mile standard

. 0.156 4.2 0.6 0.08* 0.018

Standards are expressed in grams per mile (gpm). *Standards for particulates (PM) shall apply only to diesel-fueled vehicles. In the case of the 50,000 mile standards and the 100,000 mile standards, for purposes of certification, the appli

cable useful life shall be 50,000 miles or 100,000 miles, re

spectively.

(2) Phase II
Beginning with model year 2001, for air pol

lutants specified in the following table, the clean-fuel vehicle standards under this section shall provide that vehicle exhaust emissions shall not exceed the levels specified in the fol

lowing table.

P HASE II C LEAN F UEL V EHICLE E MISSION S TAND

ARDS FOR L IGHT -D UTY T RUCKS OF UP TO 3,750 L BS . LVW AND UP TO 6,000 L BS . GVWR AND L IGHT -D UTY V EHICLES

Pollutant NMOG CO NO x PM* HCHO (formalde

hyde)

50,000 mile stand

ard

. 0.075 3.4 0.2

....... 0.015

100,000 mile standard

. 0.090 4.2 0.3 0.08 0.018

Standards are expressed in grams per mile (gpm). *Standards for particulates (PM) shall apply only to diesel-fueled vehicles. In the case of the 50,000 mile standards and the 100,000 mile standards, for purposes of certification, the appli

cable useful life shall be 50,000 miles or 100,000 miles, re

spectively. (b) Exhaust standards for light-duty trucks of more than 3,750 lbs. LVW and up to 5,750 lbs. LVW and up to 6,000 lbs. GVWR The standards set forth in this paragraph 1 shall apply in the case of clean-fuel vehicles which are light-duty trucks of more than 3,750 lbs. loaded vehicle weight (lvw) but not more than 5,750 lbs. lvw and not more than 6,000 lbs. gross weight rating (GVWR): (1) Phase I Beginning with model year 1996, for the air pollutants specified in the following table, the clean-fuel vehicle standards under this section shall provide that vehicle exhaust emissions shall not exceed the levels specified in the fol

lowing table.

P HASE I C LEAN F UEL V EHICLE E MISSION S TAND

ARDS FOR L IGHT -D UTY T RUCKS OF M ORE T HAN 3,750 L BS

. AND UP TO 5,750 L BS . LVW AND UP TO 6,000 L BS . GVWR

Pollutant NMOG CO NO x PM* HCHO (formalde

hyde)

50,000 mile stand

ard

. 0.160 4.4 0.7

....... 0.018

100,000 mile standard

. 0.200 5.5 0.9 0.08 0.023

Standards are expressed in grams per mile (gpm). *Standards for particulates (PM) shall apply only to diesel-fueled vehicles. In the case of the 50,000 mile standards and the 100,000 mile standards, for purposes of certification, the appli

cable useful life shall be 50,000 miles or 100,000 miles, re

spectively. (2) Phase II Beginning with model year 2001, for the air pollutants specified in the following table, the clean-fuel vehicle standards under this section shall provide that vehicle exhaust emissions shall not exceed the levels specified in the fol

lowing table.

P HASE II C LEAN F UEL V EHICLE E MISSION S TAND

ARDS FOR L IGHT -D UTY T RUCKS OF M ORE T HAN 3,750 L BS . LVW AND UP TO 5,750 L BS . LVW AND UP TO 6,000 L BS . GVWR

Pollutant NMOG CO NO x PM* HCHO (formalde

hyde)

50,000 mile stand

ard

. 0.100 4.4 0.4

....... 0.018

100,000 mile standard

. 0.130 5.5 0.5 0.08 0.023

Standards are expressed in grams per mile (gpm). *Standards for particulates (PM) shall apply only to diesel-fueled vehicles. In the case of the 50,000 mile standards and the 100,000 mile standards, for purposes of certification, the appli

cable useful life shall be 50,000 miles or 100,000 miles, re

spectively. (c) Exhaust standards for light-duty trucks greater than 6,000 lbs. GVWR
The standards set forth in this subsection shall apply in the case of clean-fuel vehicles which are light-duty trucks of more than 6,000 lbs. gross weight rating (GVWR) and less than orPage 6412 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7583

2 So in original. Probably should be ‘‘subsections’’. equal to 8,500 lbs. GVWR, beginning with model year 1998. For the air pollutants specified in the following table, the clean-fuel vehicle standards under this section shall provide that vehicle ex

haust emissions of vehicles within the test weight categories specified in the following table shall not exceed the levels specified in such table.

C LEAN F UEL V EHICLE E MISSION S TANDARDS FOR L IGHT D UTY T RUCKS G REATER T HAN 6,000 LBS

. GVWR
Test Weight Category: Up to 3,750 lbs. tw

Pollutant NMOG CO NO x PM* HCHO (formalde

hyde)

50,000 mile standard

. 0.125 3.4 0.4**

....... 0.015

120,000 mile standard

. 0.180 5.0 0.6 0.08 0.022

Test Weight Category: Above 3,750 but not above

5,750 lbs. tw

Pollutant NMOG CO NO x PM* HCHO (formalde

hyde)

50,000 mile standard

. 0.160 4.4 0.7**

....... 0.018

120,000 mile standard

. 0.230 6.4 1.0 0.10 0.027

Test Weight Category: Above 5,750 tw but not

above 8,500 lbs. gvwr

Pollutant NMOG CO NO x PM* HCHO (formalde

hyde)

50,000 mile standard

. 0.195 5.0 1.1**

....... 0.022

120,000 mile standard

. 0.280 7.3 1.5 0.12 0.032

Standards are expressed in grams per mile (gpm). *Standards for particulates (PM) shall apply only to diesel-fueled vehicles. **Standard not applicable to diesel-fueled vehicles. For the 50,000 mile standards and the 120,000 mile standards set forth in the table, the applicable useful life for purposes of certification shall be 50,000 miles or 120,000 miles, respectively. (d) Flexible and dual-fuel vehicles (1) In general
The Administrator shall establish standards and requirements under this section for the model year 1996 and thereafter for vehicles weighing not more than 8,500 lbs. gvwr which are capable of operating on more than one fuel. Such standards shall require that such vehicles meet the exhaust standards applica

ble under subsection 2 (a), (b), and (c) of this section for CO, NO x , and HCHO, and if appro

priate, PM for single-fuel vehicles of the same vehicle category and model year. (2) Exhaust NMOG standard for operation on clean alternative fuel In addition to standards for the pollutants referred to in paragraph (1), the standards es

tablished under paragraph (1) shall require that vehicle exhaust emissions of NMOG not exceed the levels (expressed in grams per mile) specified in the tables below when the vehicle is operated on the clean alternative fuel for which such vehicle is certified:

NMOG S TANDARDS FOR F LEXIBLE - AND D UAL

F UELED V EHICLES W HEN O PERATING ON C LEAN A LTERNATIVE F UEL Light-duty Trucks up to 6,000 lbs. GVWR and

Light-duty vehicles

Vehicle Type Column A (50,000mi.) Standard (gpm) Column B

(100,000mi.) Standard (gpm)

Beginning MY 1996: LDT’s (0–3,750 lbs. LVW) and light-duty vehicles

. 0.125 0.156

LDT’s (3,751–5,750 lbs. LVW)

. 0.160 0.20

Beginning MY 2001: LDT’s (0–3,750 lbs. LVW) and light-duty vehicles

. 0.075 0.090

LDT’s (3,751–5,750 lbs. LVW)

. 0.100 0.130

For standards under column A, for purposes of certifi

cation under section 7525 of this title, the applicable useful life shall be 50,000 miles. For standards under column B, for purposes of certifi

cation under section 7525 of this title, the applicable useful life shall be 100,000 miles.
Light-duty Trucks More than 6,000 lbs. GVWR

Vehicle Type Column A (50,000mi.) Standard Column B

(120,000mi.) Standard

Beginning MY 1998: LDT’s (0–3,750 lbs. TW)

...... 0.125 0.180 LDT’s (3,751–5,750 lbs. TW) 0.160 0.230 LDT’s (above 5,750 lbs. TW) 0.195 0.280
For standards under column A, for purposes of certifi

cation under section 7525 of this title, the applicable useful life shall be 50,000 miles. For standards under column B, for purposes of certifi

cation under section 7525 of this title, the applicable useful life shall be 120,000 miles. (3) NMOG standard for operation on conven

tional fuel
In addition to the standards referred to in paragraph (1), the standards established under paragraph (1) shall require that vehicle ex

haust emissions of NMOG not exceed the lev

els (expressed in grams per mile) specified in the tables below:

NMOG S TANDARDS FOR F LEXIBLE - AND D UAL

F UELED V EHICLES W HEN O PERATING ON C ONVEN

TIONAL F UEL Light-duty Trucks of up to 6,000 lbs. GVWR and

Light-duty vehicles

Vehicle Type Column A (50,000mi.) Standard (gpm) Column B

(100,000mi.) Standard (gpm)

Beginning MY 1996: LDT’s (0–3,750 lbs. LVW) and light-duty vehicles

. 0.25 0.31

LDT’s (3,751–5,750 lbs. LVW)

. 0.32 0.40Page 6413 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7584

NMOG S TANDARDS FOR F LEXIBLE - AND D UAL

F UELED V EHICLES W HEN O PERATING ON C ONVEN

TIONAL F UEL Light-duty Trucks of up to 6,000 lbs. GVWR and

Light-duty vehicles

Vehicle Type Column A (50,000mi.) Standard (gpm) Column B

(100,000mi.) Standard (gpm)

Beginning MY 2001: LDT’s (0–3,750 lbs. LVW) and light-duty vehicles

. 0.125 0.156

LDT’s (3,751–5,750 lbs. LVW)

. 0.160 0.200

For standards under column A, for purposes of certifi

cation under section 7525 of this title, the applicable useful life shall be 50,000 miles. For standards under column B, for purposes of certifi

cation under section 7525 of this title, the applicable useful life shall be 100,000 miles.
Light-duty Trucks of up to 6,000 lbs. GVWR

Vehicle Type Column A (50,000mi.) Standard Column B

(120,000mi.) Standard

Beginning MY 1998: LDT’s (0–3,750 lbs. TW)

...... 0.25 0.36 LDT’s (3,751–5,750 lbs. TW) 0.32 0.46 LDT’s (above 5,750 lbs. TW) 0.39 0.56
For standards under column A, for purposes of certifi

cation under section 7525 of this title, the applicable useful life shall be 50,000 miles. For standards under column B, for purposes of certifi

cation under section 7525 of this title, the applicable useful life shall be 120,000 miles. (e) Replacement by CARB standards (1) Single set of CARB standards If the State of California promulgates regu

lations establishing and implementing a single set of standards applicable in California pursu

ant to a waiver approved under section 7543 of this title to any category of vehicles referred to in subsection (a), (b), (c), or (d) of this sec

tion and such set of standards is, in the aggre

gate, at least as protective of public health and welfare as the otherwise applicable stand

ards set forth in section 7582 of this title and subsection (a), (b), (c), or (d) of this section, such set of California standards shall apply to clean-fuel vehicles in such category in lieu of the standards otherwise applicable under sec

tion 7582 of this title and subsection (a), (b), (c), or (d) of this section, as the case may be. (2) Multiple sets of CARB standards If the State of California promulgates regu

lations establishing and implementing several different sets of standards applicable in Cali

fornia pursuant to a waiver approved under section 7543 of this title to any category of ve

hicles referred to in subsection (a), (b), (c), or (d) of this section and each of such sets of California standards is, in the aggregate, at least as protective of public health and welfare as the otherwise applicable standards set forth in section 7582 of this title and subsection (a), (b), (c), or (d) of this section, such standards shall be treated as ‘‘qualifying California standards’’ for purposes of this paragraph. Where more than one set of qualifying stand

ards are established and administered by the State of California, the least stringent set of qualifying California standards shall apply to the clean-fuel vehicles concerned in lieu of the standards otherwise applicable to such vehi

cles under section 7582 of this title and this section. (f) Less stringent CARB standards
If the Low-Emission Vehicle and Clean Fuels Regulations of the California Air Resources Board applicable to any category of vehicles re

ferred to in subsection (a), (b), (c), or (d) of this section are modified after November 15, 1990, to provide an emissions standard which is less stringent than the otherwise applicable stand

ard set forth in subsection (a), (b), (c), or (d) of this section, or if any effective date contained in such regulations is delayed, such modified standards or such delay (or both, as the case may be) shall apply, for an interim period, in lieu of the standard or effective date otherwise applicable under subsection (a), (b), (c), or (d) of this section to any vehicles covered by such modified standard or delayed effective date. The interim period shall be a period of not more than 2 model years from the effective date otherwise applicable under subsection (a), (b), (c), or (d) of this section. After such interim pe

riod, the otherwise applicable standard set forth in subsection (a), (b), (c), or (d) of this section shall take effect with respect to such vehicles (unless subsequently replaced under subsection (e) of this section). (g) Not applicable to heavy-duty vehiclesNotwithstanding any provision of the LowEmission Vehicle and Clean Fuels Regulations of the California Air Resources Board nothing in this section shall apply to heavy-duty engines in vehicles of more than 8,500 lbs. GVWR. (July 14, 1955, ch. 360, title II, §243, as added Pub. L. 101–549, title II, §229(a), Nov. 15, 1990, 104 Stat. 2514.) § 7584. Administration and enforcement as per California standards

Where the numerical clean-fuel vehicle stand

ards applicable under this part to vehicles of not more than 8,500 lbs. GVWR are the same as nu

merical emission standards applicable in Cali

fornia under the Low-Emission Vehicle and Clean Fuels Regulations of the California Air Resources Board (‘‘CARB’’), such standards shall be administered and enforced by the Adminis

trator— (1) in the same manner and with the same flexibility as the State of California admin

isters and enforces corresponding standards applicable under the Low-Emission Vehicle and Clean Fuels Regulations of the California Air Resources Board (‘‘CARB’’); and (2) subject to the same requirements, and utilizing the same interpretations and policy judgments, as are applicable in the case of such CARB standards, including, but not lim

ited to, requirements regarding certification, production-line testing, and in-use compli

ance, unless the Administrator determines (in promul

gating the rules establishing the clean fuel vehi

-Page 6414 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7585

cle program under this section) that any such administration and enforcement would not meet the criteria for a waiver under section 7543 of this title. Nothing in this section shall apply in the case of standards under section 7585 of this title for heavy-duty vehicles. (July 14, 1955, ch. 360, title II, §244, as added Pub. L. 101–549, title II, §229(a), Nov. 15, 1990, 104 Stat. 2519.)
§ 7585. Standards for heavy-duty clean-fuel vehi

cles (GVWR above 8,500 up to 26,000 lbs.) (a) Model years after 1997; combined NO x and NMHC standard For classes or categories of heavy-duty vehi

cles or engines manufactured for the model year 1998 or thereafter and having a GVWR greater than 8,500 lbs. and up to 26,000 lbs. GVWR, the standards under this part for clean-fuel vehicles shall require that combined emissions of oxides of nitrogen (NO x ) and nonmethane hydrocarbons (NMHC) shall not exceed 3.15 grams per brake horsepower hour (equivalent to 50 percent of the combined emission standards applicable under section 7521 of this title for such air pollutants in the case of a conventional model year 1994 heavy-duty diesel-fueled vehicle or engine). No standard shall be promulgated as provided in this section for any heavy-duty vehicle of more than 26,000 lbs. GVWR. (b) Revised standards that are less stringent (1) The Administrator may promulgate a re

vised less stringent standard for the vehicles or engines referred to in subsection (a) of this sec

tion if the Administrator determines that the 50 percent reduction required under subsection (a) of this section is not technologically feasible for clean diesel-fueled vehicles and engines, taking into account durability, costs, lead time, safety, and other relevant factors. To provide adequate lead time the Administrator shall make a deter

mination with regard to the technological fea

sibility of such 50 percent reduction before De

cember 31, 1993. (2) Any person may at any time petition the Administrator to make a determination under paragraph (1). The Administrator shall act on such a petition within 6 months after the peti

tion is filed. (3) Any revised less stringent standards pro

mulgated as provided in this subsection shall re

quire at least a 30 percent reduction in lieu of the 50 percent reduction referred to in paragraph (1). (July 14, 1955, ch. 360, title II, §245, as added Pub. L. 101–549, title II, §229(a), Nov. 15, 1990, 104 Stat. 2519.)
§ 7586. Centrally fueled fleets (a) Fleet program required for certain nonattain

ment areas (1) SIP revision
Each State in which there is located all or part of a covered area (as defined in paragraph (2)) shall submit, within 42 months after No

vember 15, 1990, a State implementation plan revision under section 7410 of this title and part D of subchapter I of this chapter to estab

lish a clean-fuel vehicle program for fleets under this section. (2) Covered areas For purposes of this subsection, each of the following shall be a ‘‘covered area’’: (A) Ozone nonattainment areas Any ozone nonattainment area with a 1980 population of 250,000 or more classified under subpart 2 of part D of subchapter I of this chapter as Serious, Severe, or Extreme based on data for the calendar years 1987, 1988, and 1989. In determining the ozone nonattain

ment areas to be treated as covered areas pursuant to this subparagraph, the Adminis

trator shall use the most recent interpreta

tion methodology issued by the Adminis

trator prior to November 15, 1990. (B) Carbon monoxide nonattainment areas Any carbon monoxide nonattainment area with a 1980 population of 250,000 or more and a carbon monoxide design value at or above 16.0 parts per million based on data for cal

endar years 1988 and 1989 (as calculated ac

cording to the most recent interpretation methodology issued prior to November 15, 1990, by the United States Environmental Protection Agency), excluding those carbon monoxide nonattainment areas in which mo

bile sources do not contribute significantly to carbon monoxide exceedances. (3) Plan revisions for reclassified areas
In the case of ozone nonattainment areas re

classified as Serious, Severe, or Extreme under part D of subchapter I of this chapter with a 1980 population of 250,000 or more, the State shall submit a plan revision meeting the re

quirements of this subsection within 1 year after reclassification. Such plan revision shall implement the requirements applicable under this subsection at the time of reclassification and thereafter, except that the Administrator may adjust for a limited period the deadlines for compliance where compliance with such deadlines would be infeasible. (4) Consultation; consideration of factors Each State required to submit an implemen

tation plan revision under this subsection shall develop such revision in consultation with fleet operators, vehicle manufacturers, fuel producers and distributors, motor vehicle fuel, and other interested parties, taking into consideration operational range, specialty uses, vehicle and fuel availability, costs, safe

ty, resale values of vehicles and equipment and other relevant factors. (b) Phase-in of requirements The plan revision required under this section shall contain provisions requiring that at least a specified percentage of all new covered fleet ve

hicles in model year 1998 and thereafter pur

chased by each covered fleet operator in each covered area shall be clean-fuel vehicles and shall use clean alternative fuels when operating in the covered area. For the applicable model years (MY) specified in the following table and thereafter, the specified percentage shall be as provided in the table for the vehicle types set forth in the table:Page 6415 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7586

1 So in original. Probably should be ‘‘light-duty’’.

2 So in original. Probably should be ‘‘clean-fuel’’. C LEAN F UEL V EHICLE P HASE

- IN R EQUIREMENTS FOR F LEETS

Vehicle Type MY1998 MY1999 MY2000

Light-duty trucks up to 6,000 lbs. GVWR and light-duty vehicles

.......... 30% 50% 70% Heavy-duty trucks above 8,500 lbs. GVWR

............... 50% 50% 50%
The term MY refers to model year. (c) Accelerated standard for light-duty trucks up to 6,000 lbs. GVWR and light-duty vehicles Notwithstanding the model years for which clean-fuel vehicle standards are applicable as provided in section 7583 of this title, for pur

poses of this section, light duty 1 trucks of up to 6,000 lbs. GVWR and light-duty vehicles manu

factured in model years 1998 through model year 2000 shall be treated as clean-fuel vehicles only if such vehicles comply with the standards ap

plicable under section 7583 of this title for vehi

cles in the same class for the model year 2001. The requirements of subsection (b) of this sec

tion shall take effect on the earlier of the fol

lowing: (1) The first model year after model year 1997 in which new light-duty trucks up to 6,000 lbs. GVWR and light-duty vehicles which com

ply with the model year 2001 standards under section 7583 of this title are offered for sale in California. (2) Model year 2001. Whenever the effective date of subsection (b) of this section is delayed pursuant to paragraph (1) of this subsection, the phase-in schedule under subsection (b) of this section shall be modified to commence with the model year referred to in paragraph (1) in lieu of model year 1998. (d) Choice of vehicles and fuel The plan revision under this subsection shall provide that the choice of clean-fuel vehicles and clean alternative fuels shall be made by the covered fleet operator subject to the require

ments of this subsection. (e) Availability of clean alternative fuel The plan revision shall require fuel providers to make clean alternative fuel available to cov

ered fleet operators at locations at which cov

ered fleet vehicles are centrally fueled. (f) Credits (1) Issuance of credits The State plan revision required under this section shall provide for the issuance by the State of appropriate credits to a fleet operator for any of the following (or any combination thereof): (A) The purchase of more clean-fuel vehi

cles than required under this section. (B) The purchase of clean fuel 2 vehicles which meet more stringent standards estab

lished by the Administrator pursuant to paragraph (4). (C) The purchase of vehicles in categories which are not covered by this section but which meet standards established for such vehicles under paragraph (4). (2) Use of credits; limitations based on weight classes (A) Use of credits Credits under this subsection may be used by the person holding such credits to dem

onstrate compliance with this section or may be traded or sold for use by any other person to demonstrate compliance with other requirements applicable under this section in the same nonattainment area. Credits obtained at any time may be held or banked for use at any later time, and when so used, such credits shall maintain the same value as if used at an earlier date. (B) Limitations based on weight classes Credits issued with respect to the purchase of vehicles of up to 8,500 lbs. GVWR may not be used to demonstrate compliance by any person with the requirements applicable under this subsection to vehicles of more than 8,500 lbs. GVWR. Credits issued with re

spect to the purchase of vehicles of more than 8,500 lbs. GVWR may not be used to demonstrate compliance by any person with the requirements applicable under this sub

section to vehicles weighing up to 8,500 lbs. GVWR. (C) Weighting Credits issued for purchase of a clean fuel 2 vehicle under this subsection shall be ad

justed with appropriate weighting to reflect the level of emission reduction achieved by the vehicle. (3) Regulations and administration Within 12 months after November 15, 1990, the Administrator shall promulgate regula

tions for such credit program. The State shall administer the credit program established under this subsection. (4) Standards for issuing credits for cleaner ve

hicles Solely for purposes of issuing credits under paragraph (1)(B), the Administrator shall es

tablish under this paragraph standards for Ultra-Low Emission Vehicles (‘‘ULEV’’s) and Zero Emissions Vehicles (‘‘ZEV’’s) which shall be more stringent than those otherwise appli

cable to clean-fuel vehicles under this part. The Administrator shall certify clean fuel 2 ve

hicles as complying with such more stringent standards, and administer and enforce such more stringent standards, in the same manner as in the case of the otherwise applicable clean-fuel vehicle standards established under this section. The standards established by the Administrator under this paragraph for vehi

cles under 8,500 lbs. GVWR or greater shall conform as closely as possible to standards which are established by the State of Califor

nia for ULEV and ZEV vehicles in the same class. For vehicles of 8,500 lbs. GVWR or more, the Administrator shall promulgate com

parable standards for purposes of this sub

section. (5) Early fleet credits The State plan revision shall provide credits under this subsection to fleet operators thatPage 6416 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7587

1 So in original. Probably should be ‘‘clean-fuel’’.

2 So in original. Probably should be ‘‘sections’’. purchase vehicles certified to meet clean-fuel vehicle standards under this part during any period after approval of the plan revision and prior to the effective date of the fleet program under this section. (g) Availability to public At any facility owned or operated by a depart

ment, agency, or instrumentality of the United States where vehicles subject to this subsection are supplied with clean alternative fuel, such fuel shall be offered for sale to the public for use in other vehicles during reasonable business times and subject to national security concerns, unless such fuel is commercially available for vehicles in the vicinity of such Federal facili

ties. (h) Transportation control measures The Administrator shall by rule, within 1 year after November 15, 1990, ensure that certaintransportation control measures including timeof-day or day-of-week restrictions, and other similar measures that restrict vehicle usage, do not apply to any clean-fuel vehicle that meets the requirements of this section. This sub

section shall apply notwithstanding subchapter I of this chapter. (July 14, 1955, ch. 360, title II, §246, as added Pub. L. 101–549, title II, §229(a), Nov. 15, 1990, 104 Stat. 2520.)
§ 7587. Vehicle conversions (a) Conversion of existing and new conventional vehicles to clean-fuel vehicles The requirements of section 7586 of this title may be met through the conversion of existing or new gasoline or diesel-powered vehicles to clean-fuel vehicles which comply with the appli

cable requirements of that section. For purposes of such provisions the conversion of a vehicle to clean fuel 1 vehicle shall be treated as the pur

chase of a clean fuel 1 vehicle. Nothing in this part shall be construed to provide that any cov

ered fleet operator subject to fleet vehicle pur

chase requirements under section 7586 of this title shall be required to convert existing or new gasoline or diesel-powered vehicles to clean-fuel vehicles or to purchase converted vehicles. (b) Regulations The Administrator shall, within 24 months after November 15, 1990, consistent with the re

quirements of this subchapter applicable to new vehicles, promulgate regulations governing con

versions of conventional vehicles to clean-fuel vehicles. Such regulations shall establish cri

teria for such conversions which will ensure that a converted vehicle will comply with the stand

ards applicable under this part to clean-fuel ve

hicles. Such regulations shall provide for the ap

plication to such conversions of the same provi

sions of this subchapter (including provisions re

lating to administration enforcement) as are ap

plicable to standards under section 2 7582, 7583, 7584, and 7585 of this title, except that in the case of conversions the Administrator may mod

ify the applicable regulations implementing such provisions as the Administrator deems nec

essary to implement this part. (c) Enforcement Any person who converts conventional vehi

cles to clean fuel 1 vehicles pursuant to sub

section (b) of this section, shall be considered a manufacturer for purposes of sections 7525 and 7541 of this title and related enforcement provi

sions. Nothing in the preceding sentence shall require a person who performs such conversions to warrant any part or operation of a vehicle other than as required under this part. Nothing in this paragraph shall limit the applicability of any other warranty to unrelated parts or oper

ations. (d) Tampering The conversion from a vehicle capable of oper

ating on gasoline or diesel fuel only to a cleanfuel vehicle shall not be considered a violation of section 7522(a)(3) of this title if such conver

sion complies with the regulations promulgated under subsection (b) of this section. (e) Safety The Secretary of Transportation shall, if nec

essary, promulgate rules under applicable motor vehicle laws regarding the safety of vehicles converted from existing and new vehicles to clean-fuel vehicles. (July 14, 1955, ch. 360, title II, §247, as added Pub. L. 101–549, title II, §229(a), Nov. 15, 1990, 104 Stat. 2523.)
§ 7588. Federal agency fleets (a) Additional provisions applicable The provisions of this section shall apply, in addition to the other provisions of this part, in the case of covered fleet vehicles owned or oper

ated by an agency, department, or instrumental

ity of the United States, except as otherwise provided in subsection (e) of this section. (b) Cost of vehicles to Federal agency Notwithstanding the provisions of sections 601–611 of title 40, the Administrator of General Services shall not include the incremental costs of clean-fuel vehicles in the amount to be reim

bursed by Federal agencies if the Administrator of General Services determines that appropria

tions provided pursuant to this paragraph are sufficient to provide for the incremental cost of such vehicles over the cost of comparable con

ventional vehicles. (c) Limitations on appropriations Funds appropriated pursuant to the authoriza

tion under this paragraph shall be applicable only— (1) to the portion of the cost of acquisition, maintenance and operation of vehicles ac

quired under this subparagraph which exceeds the cost of acquisition, maintenance and oper

ation of comparable conventional vehicles; (2) to the portion of the costs of fuel storage and dispensing equipment attributable to such vehicles which exceeds the costs for such pur

poses required for conventional vehicles; and (3) to the portion of the costs of acquisition of clean-fuel vehicles which represents a re

duction in revenue from the disposal of suchPage 6417 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7589

vehicles as compared to revenue resulting from the disposal of comparable conventional vehicles. (d) Vehicle costs The incremental cost of vehicles acquired under this part over the cost of comparable con

ventional vehicles shall not be applied to any calculation with respect to a limitation under law on the maximum cost of individual vehicles which may be required by the United States. (e) Exemptions The requirements of this part shall not apply to vehicles with respect to which the Secretary of Defense has certified to the Administrator that an exemption is needed based on national security consideration. (f) Acquisition requirement Federal agencies, to the extent practicable, shall obtain clean-fuel vehicles from original equipment manufacturers. (g) Authorization of appropriations There are authorized to be appropriated such sums as may be required to carry out the provi

sions of this section: Provided , That such sums as are appropriated for the Administrator of General Services pursuant to the authorization under this section shall be added to the General Supply Fund established in section 321 of title 40. (July 14, 1955, ch. 360, title II, §248, as added Pub. L. 101–549, title II, §229(a), Nov. 15, 1990, 104 Stat. 2524.)

C ODIFICATION In subsec. (b), ‘‘sections 601–611 of title 40’’ sub

stituted for ‘‘section 211 of the Federal Property and Administrative Services Act of 1949’’, and, in subsec. (g), ‘‘the General Supply Fund established in section 321 of title 40’’ substituted for ‘‘the General Supply Fund established in section 109 of the Federal Property and Administrative Services Act of 1949’’, on authority of Pub. L. 107–217, §5(c), Aug. 21, 2002, 116 Stat. 1303, the first section of which enacted Title 40, Public Build

ings, Property, and Works.

A BOLITION OF G ENERAL S UPPLY F UND The General Supply Fund, referred to in subsec. (g), was abolished and its capital assets and balances trans

ferred to the Acquisition Services Fund by section 3(a)–(c) of Pub. L. 109–313, set out as an Acquisition Services Fund note under section 321 of Title 40, Public Buildings, Property, and Works. § 7589. California pilot test program (a) Establishment The Administrator shall establish a pilot pro

gram in the State of California to demonstrate the effectiveness of clean-fuel vehicles in con

trolling air pollution in ozone nonattainment

areas. (b) Applicability The provisions of this section shall only apply to light-duty trucks and light-duty vehicles, and such provisions shall apply only in the State of California, except as provided in subsection (f) of this section. (c) Program requirements Not later than 24 months after November 15, 1990, the Administrator shall promulgate regula

tions establishing requirements under this sec

tion applicable in the State of California. The regulations shall provide the following: (1) Clean-fuel vehicles Clean-fuel vehicles shall be produced, sold, and distributed (in accordance with normal business practices and applicable franchise agreements) to ultimate purchasers in Califor

nia (including owners of covered fleets referred to in section 7586 of this title) in numbers that meet or exceed the following schedule:

Model Years Number of Clean-Fuel Vehicles

1996, 1997, 1998

.................................... 150,000 vehicles 1999 and thereafter

............................ 300,000 vehicles

(2) Clean alternative fuels (A) Within 2 years after November 15, 1990, the State of California shall submit a revision of the applicable implementation plan under part D of subchapter I of this chapter and sec

tion 7410 of this title containing a clean fuel plan that requires that clean alternative fuels on which the clean-fuel vehicles required under this paragraph can operate shall be pro

duced and distributed by fuel suppliers and made available in California. At a minimum, sufficient clean alternative fuels shall be pro

duced, distributed and made available to as

sure that all clean-fuel vehicles required under this section can operate, to the maximum ex

tent practicable, exclusively on such fuels in California. The State shall require that clean alternative fuels be made available and offered for sale at an adequate number of locations with sufficient geographic distribution to en

sure convenient refueling with clean alter

native fuels, considering the number of, and type of, such vehicles sold and the geographic distribution of such vehicles within the State. The State shall determine the clean alter

native fuels to be produced, distributed, and made available based on motor vehicle manu

facturers’ projections of future sales of such vehicles and consultations with the affected local governments and fuel suppliers. (B) The State may by regulation grant per

sons subject to the requirements prescribed under this paragraph an appropriate amount of credits for exceeding such requirements, and any person granted credits may transfer some or all of the credits for use by one or more persons in demonstrating compliance with such requirements. The State may make the credits available for use after consider

ation of enforceability, environmental, and economic factors and upon such terms and conditions as the State finds appropriate. (C) The State may also by regulation estab

lish specifications for any clean alternative fuel produced and made available under this paragraph as the State finds necessary to re

duce or eliminate an unreasonable risk to pub

lic health, welfare, or safety associated with its use or to ensure acceptable vehicle mainte

nance and performance characteristics. (D) If a retail gasoline dispensing facility would have to remove or replace one or morePage 6418 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7589

1 So in original. Probably should be ‘‘clean-fuel’’.

2 So in original. Probably should be ‘‘section 7586(f)’’. 3 So in original. Probably should be followed by a comma.

4 So in original. Probably should be ‘‘part’’. motor vehicle fuel underground storage tanks and accompanying piping in order to comply with the provisions of this section, and it had removed and replaced such tank or tanks and accompanying piping in order to comply with subtitle I of the Solid Waste Disposal Act [42 U.S.C. 6991 et seq.] prior to November 15, 1990, it shall not be required to comply with this subsection until a period of 7 years has passed from the date of the removal and replacement of such tank or tanks. (E) Nothing in this section authorizes any State other than California to adopt provi

sions regarding clean alternative fuels. (F) If the State of California fails to adopt a clean fuel program that meets the require

ments of this paragraph, the Administrator shall, within 4 years after November 15, 1990, establish a clean fuel program for the State of California under this paragraph and section 7410(c) of this title that meets the require

ments of this paragraph.
(d) Credits for motor vehicle manufacturers (1) The Administrator may (by regulation) grant a motor vehicle manufacturer an appro

priate amount of credits toward fulfillment of such manufacturer’s share of the requirements of subsection (c)(1) of this section for any of the following (or any combination thereof): (A) The sale of more clean-fuel vehicles than required under subsection (c)(1) of this section. (B) The sale of clean fuel 1 vehicles which meet standards established by the Adminis

trator as provided in paragraph (3) which are more stringent than the clean-fuel vehiclestandards otherwise applicable to such cleanfuel vehicle. A manufacturer granted credits under this paragraph may transfer some or all of the credits for use by one or more other manufacturers in demonstrating compliance with the requirements prescribed under this paragraph. The Administrator may make the credits available for use after consideration of enforceability, environmental, and economic factors and upon such terms and conditions as he finds appropriate. The Administrator shall grant credits in accordance with this para

graph, notwithstanding any requirements of State law or any credits granted with respect to the same vehicles under any State law, rule, or regulation. (2) R EGULATIONS AND ADMINISTRATION .—The Administrator shall administer the credit pro

gram established under this subsection. Within 12 months after November 15, 1990, the Adminis

trator shall promulgate regulations for such credit program. (3) S TANDARDS FOR ISSUING CREDITS FOR CLEAN

ER VEHICLES .—The more stringent standards and other requirements (including requirements re

lating to the weighting of credits) established by the Administrator for purposes of the credit pro

gram under 7585(e) 2 of this title (relating to credits for clean fuel 1 vehicles in the fleets pro

gram) shall also apply for purposes of the credit program under this paragraph. (e) Program evaluation (1) Not later than June 30, 1994 and again in connection with the report under paragraph (2), the Administrator shall provide a report to the Congress on the status of the California Air Re

sources Board Low-Emissions Vehicles and Clean Fuels Program. Such report shall examine the capability, from a technological standpoint, of motor vehicle manufacturers and motor vehi

cle fuel suppliers to comply with the require

ments of such program and with the require

ments of the California Pilot Program under this section. (2) Not later than June 30, 1998, the Adminis

trator shall complete and submit a report to Congress on the effectiveness of the California pilot program under this section. The report shall evaluate the level of emission reductions achieved under the program, the costs of the program, the advantages and disadvantages of extending the program to other nonattainment areas, and desirability of continuing or expand

ing the program in California. (3) The program under this section cannot be extended or terminated by the Administrator except by Act of Congress enacted after Novem

ber 15, 1990. Section 7507 of this title does not apply to the program under this section. (f) Voluntary opt-in for other States (1) EPA regulations Not later than 2 years after November 15, 1990, the Administrator shall promulgate regu

lations establishing a voluntary opt-in pro

gram under this subsection pursuant to which— (A) clean-fuel vehicles which are required to be produced, sold, and distributed in the State of California under this section, and (B) clean alternative fuels required to be produced and distributed under this section by fuel suppliers and made available in Cali

fornia 3 may also be sold and used in other States which submit plan revisions under paragraph (2). (2) Plan revisions Any State in which there is located all or part of an ozone nonattainment area classified under subpart 4 D of subchapter I of this chap

ter as Serious, Severe, or Extreme may submit a revision of the applicable implementation plan under part D of subchapter I of this chap

ter and section 7410 of this title to provide in

centives for the sale or use in such an area or State of clean-fuel vehicles which are required to be produced, sold, and distributed in the State of California, and for the use in such an area or State of clean alternative fuels re

quired to be produced and distributed by fuel suppliers and made available in California. Such plan provisions shall not take effect until 1 year after the State has provided no

tice of such provisions to motor vehicle manu

facturers and to fuel suppliers. (3) Incentives The incentives referred to in paragraph (2) may include any or all of the following:Page 6419 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7601

1 So in original. Probably should be ‘‘part D of subchapter I of this chapter’’. (A) A State registration fee on new motor vehicles registered in the State which are not clean-fuel vehicles in the amount of at least 1 percent of the cost of the vehicle. The proceeds of such fee shall be used to providefinancial incentives to purchasers of cleanfuel vehicles and to vehicle dealers who sellhigh volumes or high percentages of cleanfuel vehicles and to defray the administra

tive costs of the incentive program. (B) Provisions to exempt clean-fuel vehi

cles from high occupancy vehicle or trip re

duction requirements. (C) Provisions to provide preference in the use of existing parking spaces for clean-fuel vehicles. The incentives under this paragraph shall not apply in the case of covered fleet vehicles. (4) No sales or production mandate The regulations and plan revisions under paragraphs (1) and (2) shall not include any production or sales mandate for clean-fuel ve

hicles or clean alternative fuels. Such regula

tions and plan revisions shall also provide that vehicle manufacturers and fuel suppliers may not be subject to penalties or sanctions for failing to produce or sell clean-fuel vehicles or clean alternative fuels. (July 14, 1955, ch. 360, title II, §249, as added Pub. L. 101–549, title II, §229(a), Nov. 15, 1990, 104 Stat. 2525.)

R EFERENCES IN T EXT The Solid Waste Disposal Act, referred to in subsec. (c)(2)(D), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94–580, §2, Oct. 21, 1976, 90 Stat. 2795. Subtitle I of the Act is classi

fied generally to subchapter IX (§6991 et seq.) of chap

ter 82 of this title. For complete classification of this Act to the Code, see Short Title note set out under sec

tion 6901 of this title and Tables. November 15, 1990, referred to in subsec. (e)(3), was in the original ‘‘the date of the Clean Air Act Amend

ments of 1990’’, which was translated as meaning the date of enactment of Pub. L. 101–549, which enacted this section, to reflect the probable intent of Congress. § 7590. General provisions (a) State refueling facilities If any State adopts enforceable provisions in an implementation plan applicable to a non

attainment area which provides that existing State refueling facilities will be made available to the public for the purchase of clean alter

native fuels or that State-operated refueling fa

cilities for such fuels will be constructed and op

erated by the State and made available to the public at reasonable times, taking into consider

ation safety, costs, and other relevant factors, in approving such plan under section 7410 of this title and part D, 1 the Administrator may credit a State with the emission reductions for pur

poses of part D 1 attributable to such actions. (b) No production mandate The Administrator shall have no authority under this part to mandate the production of clean-fuel vehicles except as provided in the California pilot test program or to specify as ap

plicable the models, lines, or types of, or mar

keting or price practices, policies, or strategies for, vehicles subject to this part. Nothing in this part shall be construed to give the Adminis

trator authority to mandate marketing or pric

ing practices, policies, or strategies for fuels. (c) Tank and fuel system safety The Secretary of Transportation shall, in ac

cordance with chapter 301 of title 49, promulgate applicable regulations regarding the safety and use of fuel storage cylinders and fuel systems, including appropriate testing and retesting, in conversions of motor vehicles. (d) Consultation with Department of Energy and Department of Transportation
The Administrator shall coordinate with the Secretaries of the Department of Energy and the Department of Transportation in carrying out the Administrator’s duties under this part. (July 14, 1955, ch. 360, title II, §250, as added Pub. L. 101–549, title II, §229(a), Nov. 15, 1990, 104 Stat. 2528.)

C ODIFICATION In subsec. (c), ‘‘chapter 301 of title 49’’ substituted for ‘‘the National Motor Vehicle Traffic Safety Act of 1966 [15 U.S.C. 1381 et seq.]’’, meaning ‘‘the National Traffic and Motor Vehicle Safety Act of 1966 [15 U.S.C. 1381 et seq.]’’, on authority of Pub. L. 103–272, §6(b), July 5, 1994, 108 Stat. 1378, the first section of which enacted subtitles II, III, and V to X of Title 49, Transportation.

SUBCHAPTER III—GENERAL PROVISIONS

§ 7601. Administration (a) Regulations; delegation of powers and duties; regional officers and employees (1) The Administrator is authorized to pre

scribe such regulations as are necessary to carry out his functions under this chapter. The Ad

ministrator may delegate to any officer or em

ployee of the Environmental Protection Agency such of his powers and duties under this chapter, except the making of regulations subject to sec

tion 7607(d) of this title, as he may deem nec

essary or expedient. (2) Not later than one year after August 7, 1977, the Administrator shall promulgate regula

tions establishing general applicable procedures and policies for regional officers and employees (including the Regional Administrator) to follow in carrying out a delegation under paragraph (1), if any. Such regulations shall be designed— (A) to assure fairness and uniformity in the criteria, procedures, and policies applied by the various regions in implementing and en

forcing the chapter; (B) to assure at least an adequate quality audit of each State’s performance and adher

ence to the requirements of this chapter in im

plementing and enforcing the chapter, particu

larly in the review of new sources and in en

forcement of the chapter; and (C) to provide a mechanism for identifying and standardizing inconsistent or varying cri

teria, procedures, and policies being employed by such officers and employees in implement

ing and enforcing the chapter.Page 6420 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7601

(b) Detail of Environmental Protection Agency personnel to air pollution control agencies Upon the request of an air pollution control agency, personnel of the Environmental Protec

tion Agency may be detailed to such agency for the purpose of carrying out the provisions of this chapter. (c) Payments under grants; installments; ad

vances or reimbursements Payments under grants made under this chap

ter may be made in installments, and in advance or by way of reimbursement, as may be deter

mined by the Administrator. (d) Tribal authority (1) Subject to the provisions of paragraph (2), the Administrator— (A) is authorized to treat Indian tribes as States under this chapter, except for purposes of the requirement that makes available forapplication by each State no less than onehalf of 1 percent of annual appropriations under section 7405 of this title; and (B) may provide any such Indian tribe grant and contract assistance to carry out functions provided by this chapter. (2) The Administrator shall promulgate regu

lations within 18 months after November 15, 1990, specifying those provisions of this chapter for which it is appropriate to treat Indian tribes as States. Such treatment shall be authorized only if— (A) the Indian tribe has a governing body carrying out substantial governmental duties and powers; (B) the functions to be exercised by the In

dian tribe pertain to the management and pro

tection of air resources within the exterior boundaries of the reservation or other areas within the tribe’s jurisdiction; and (C) the Indian tribe is reasonably expected to be capable, in the judgment of the Adminis

trator, of carrying out the functions to be ex

ercised in a manner consistent with the terms and purposes of this chapter and all applicable regulations. (3) The Administrator may promulgate regula

tions which establish the elements of tribal im

plementation plans and procedures for approval or disapproval of tribal implementation plans and portions thereof. (4) In any case in which the Administrator de

termines that the treatment of Indian tribes as identical to States is inappropriate or adminis

tratively infeasible, the Administrator may pro

vide, by regulation, other means by which the Administrator will directly administer such pro

visions so as to achieve the appropriate purpose. (5) Until such time as the Administrator pro

mulgates regulations pursuant to this sub

section, the Administrator may continue to pro

vide financial assistance to eligible Indian tribes under section 7405 of this title. (July 14, 1955, ch. 360, title III, §301, formerly §8, as added Pub. L. 88–206, §1, Dec. 17, 1963, 77 Stat. 400, renumbered Pub. L. 89–272, title I, §101(4), Oct. 20, 1965, 79 Stat. 992; amended Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 504; Pub. L. 91–604, §§3(b)(2), 15(c)(2), Dec. 31, 1970, 84 Stat. 1677, 1713; Pub. L. 95–95, title III, §305(e), Aug. 7, 1977, 91 Stat. 776; Pub. L. 101–549, title I, §§107(d), 108(i), Nov. 15, 1990, 104 Stat. 2464, 2467.)

C ODIFICATION Section was formerly classified to section 1857g of this title.

A MENDMENTS 1990—Subsec. (a)(1). Pub. L. 101–549, §108(i), inserted ‘‘subject to section 7607(d) of this title’’ after ‘‘regula

tions’’. Subsec. (d). Pub. L. 101–549, §107(d), added subsec. (d). 1977—Subsec. (a). Pub. L. 95–95 designated existing provisions as par. (1) and added par. (2). 1970—Subsec. (a). Pub. L. 91–604, §15(c)(2), substituted ‘‘Administrator’’ for ‘‘Secretary’’ and ‘‘Environmental Protection Agency’’ for ‘‘Department of Health, Edu

cation, and Welfare’’. Subsec. (b). Pub. L. 91–604, §3(b)(2), substituted ‘‘Envi

ronmental Protection Agency’’ for ‘‘Public Health Service’’ and struck out provisions covering the pay

ment of salaries and allowances. Subsec. (c). Pub. L. 91–604, §15(c)(2), substituted ‘‘Ad

ministrator’’ for ‘‘Secretary’’. 1967—Pub. L. 90–148 reenacted section without change.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

D ISADVANTAGED B USINESS C ONCERNS ; U SE OF Q UOTAS P ROHIBITED Title X of Pub. L. 101–549 provided that:
‘‘SEC. 1001. DISADVANTAGED BUSINESS CONCERNS. ‘‘(a) I N G ENERAL .—In providing for any research relat

ing to the requirements of the amendments made by the Clean Air Act Amendments of 1990 [Pub. L. 101–549, see Tables for classification] which uses funds of the Environmental Protection Agency, the Administrator of the Environmental Protection Agency shall, to the extent practicable, require that not less than 10 percent of total Federal funding for such research will be made available to disadvantaged business concerns. ‘‘(b) D EFINITION .— ‘‘(1)(A) For purposes of subsection (a), the term ‘dis

advantaged business concern’ means a concern— ‘‘(i) which is at least 51 percent owned by one or more socially and economically disadvantaged indi

viduals or, in the case of a publicly traded com

pany, at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals; and ‘‘(ii) the management and daily business oper

ations of which are controlled by such individuals. ‘‘(B)(i) A for-profit business concern is presumed to be a disadvantaged business concern for purposes of subsection (a) if it is at least 51 percent owned by, or in the case of a concern which is a publicly tradedPage 6421 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7602

company at least 51 percent of the stock of the com

pany is owned by, one or more individuals who are members of the following groups: ‘‘(I) Black Americans. ‘‘(II) Hispanic Americans. ‘‘(III) Native Americans. ‘‘(IV) Asian Americans. ‘‘(V) Women. ‘‘(VI) Disabled Americans. ‘‘(ii) The presumption established by clause (i) may be rebutted with respect to a particular business con

cern if it is reasonably established that the individual or individuals referred to in that clause with respect to that business concern are not experiencing impedi

ments to establishing or developing such concern as a result of the individual’s identification as a mem

ber of a group specified in that clause. ‘‘(C) The following institutions are presumed to be disadvantaged business concerns for purposes of sub

section (a): ‘‘(i) Historically black colleges and universities, and colleges and universities having a student body in which 40 percent of the students are Hispanic. ‘‘(ii) Minority institutions (as that term is de

fined by the Secretary of Education pursuant to the General Education Provision Act (20 U.S.C. 1221 et seq.)). ‘‘(iii) Private and voluntary organizations con

trolled by individuals who are socially and eco

nomically disadvantaged. ‘‘(D) A joint venture may be considered to be a dis

advantaged business concern under subsection (a), notwithstanding the size of such joint venture, if— ‘‘(i) a party to the joint venture is a disadvan

taged business concern; and ‘‘(ii) that party owns at least 51 percent of the joint venture. A person who is not an economically disadvantaged individual or a disadvantaged business concern, as a party to a joint venture, may not be a party to more than 2 awarded contracts in a fiscal year solely by reason of this subparagraph. ‘‘(E) Nothing in this paragraph shall prohibit any member of a racial or ethnic group that is not listed in subparagraph (B)(i) from establishing that they have been impeded in establishing or developing a business concern as a result of racial or ethnic dis

crimination. ‘‘S EC . 1002. U SE OF Q UOTAS P ROHIBITED .—Nothing in this title shall permit or require the use of quotas or a requirement that has the effect of a quota in determin

ing eligibility under section 1001.’’

§ 7602. Definitions
When used in this chapter— (a) The term ‘‘Administrator’’ means the Ad

ministrator of the Environmental Protection Agency. (b) The term ‘‘air pollution control agency’’ means any of the following: (1) A single State agency designated by the Governor of that State as the official State air pollution control agency for purposes of this chapter. (2) An agency established by two or more States and having substantial powers or duties pertaining to the prevention and control of air pollution. (3) A city, county, or other local government health authority, or, in the case of any city, county, or other local government in which there is an agency other than the health au

thority charged with responsibility for enforc

ing ordinances or laws relating to the preven

tion and control of air pollution, such other
agency. (4) An agency of two or more municipalities located in the same State or in different States and having substantial powers or duties pertaining to the prevention and control of air pollution. (5) An agency of an Indian tribe. (c) The term ‘‘interstate air pollution control agency’’ means— (1) an air pollution control agency estab

lished by two or more States, or (2) an air pollution control agency of two or more municipalities located in different States. (d) The term ‘‘State’’ means a State, the Dis

trict of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa and includes the Commonwealth of the Northern Mariana Islands. (e) The term ‘‘person’’ includes an individual, corporation, partnership, association, State, municipality, political subdivision of a State, and any agency, department, or instrumentality of the United States and any officer, agent, or employee thereof. (f) The term ‘‘municipality’’ means a city, town, borough, county, parish, district, or other public body created by or pursuant to State law. (g) The term ‘‘air pollutant’’ means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) sub

stance or matter which is emitted into or other

wise enters the ambient air. Such term includes any precursors to the formation of any air pol

lutant, to the extent the Administrator has identified such precursor or precursors for the particular purpose for which the term ‘‘air pol

lutant’’ is used. (h) All language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and cli

mate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being, whether caused by transformation, conversion, or combination with other air pol

lutants. (i) The term ‘‘Federal land manager’’ means, with respect to any lands in the United States, the Secretary of the department with authority over such lands. (j) Except as otherwise expressly provided, the terms ‘‘major stationary source’’ and ‘‘major emitting facility’’ mean any stationary facility or source of air pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant (including any major emitting facility or source of fugitive emissions of any such pollutant, as determined by rule by the Administrator). (k) The terms ‘‘emission limitation’’ and ‘‘emission standard’’ mean a requirement estab

lished by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design,Page 6422 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7602

1 So in original. equipment, work practice or operational stand

ard promulgated under this chapter.. 1 ( l ) The term ‘‘standard of performance’’ means a requirement of continuous emission reduction, including any requirement relating to the oper

ation or maintenance of a source to assure con

tinuous emission reduction. (m) The term ‘‘means of emission limitation’’ means a system of continuous emission reduc

tion (including the use of specific technology or fuels with specified pollution characteristics). (n) The term ‘‘primary standard attainment date’’ means the date specified in the applicable implementation plan for the attainment of a na

tional primary ambient air quality standard for any air pollutant. ( o ) The term ‘‘delayed compliance order’’ means an order issued by the State or by the Ad

ministrator to an existing stationary source, postponing the date required under an applica

ble implementation plan for compliance by such source with any requirement of such plan. (p) The term ‘‘schedule and timetable of com

pliance’’ means a schedule of required measures including an enforceable sequence of actions or operations leading to compliance with an emis

sion limitation, other limitation, prohibition, or standard. (q) For purposes of this chapter, the term ‘‘ap

plicable implementation plan’’ means the por

tion (or portions) of the implementation plan, or most recent revision thereof, which has been ap

proved under section 7410 of this title, or pro

mulgated under section 7410(c) of this title, or promulgated or approved pursuant to regula

tions promulgated under section 7601(d) of this title and which implements the relevant re

quirements of this chapter. (r) I NDIAN T RIBE .—The term ‘‘Indian tribe’’ means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village, which is Federally recog

nized as eligible for the special programs and services provided by the United States to Indi

ans because of their status as Indians. (s) VOC.—The term ‘‘VOC’’ means volatile or

ganic compound, as defined by the Adminis

trator. (t) PM–10.—The term ‘‘PM–10’’ means particu

late matter with an aerodynamic diameter less than or equal to a nominal ten micrometers, as measured by such method as the Administrator may determine. (u) NAAQS AND CTG.—The term ‘‘NAAQS’’ means national ambient air quality standard. The term ‘‘CTG’’ means a Control Technique Guideline published by the Administrator under section 7408 of this title. (v) NO x .—The term ‘‘NO x ’’ means oxides of ni

trogen. (w) CO.—The term ‘‘CO’’ means carbon mon

oxide. (x) S MALL S OURCE .—The term ‘‘small source’’ means a source that emits less than 100 tons of regulated pollutants per year, or any class of persons that the Administrator determines, through regulation, generally lack technical ability or knowledge regarding control of air pollution. (y) F EDERAL I MPLEMENTATION P LAN .—The term ‘‘Federal implementation plan’’ means a plan (or portion thereof) promulgated by the Ad

ministrator to fill all or a portion of a gap or otherwise correct all or a portion of an inad

equacy in a State implementation plan, and which includes enforceable emission limitations or other control measures, means or techniques (including economic incentives, such as market

able permits or auctions of emissions allow

ances), and provides for attainment of the rel

evant national ambient air quality standard. (z) S TATIONARY S OURCE .—The term ‘‘station

ary source’’ means generally any source of an air pollutant except those emissions resulting directly from an internal combustion engine for transportation purposes or from a nonroad en

gine or nonroad vehicle as defined in section 7550 of this title. (July 14, 1955, ch. 360, title III, §302, formerly §9, as added Pub. L. 88–206, §1, Dec. 17, 1963, 77 Stat. 400, renumbered Pub. L. 89–272, title I, §101(4), Oct. 20, 1965, 79 Stat. 992; amended Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 504; Pub. L. 91–604, §15(a)(1), (c)(1), Dec. 31, 1970, 84 Stat. 1710, 1713; Pub. L. 95–95, title II, §218(c), title III, §301, Aug. 7, 1977, 91 Stat. 761, 769; Pub. L. 95–190, §14(a)(76), Nov. 16, 1977, 91 Stat. 1404; Pub. L. 101–549, title I, §§101(d)(4), 107(a), (b), 108(j), 109(b), title III, §302(e), title VII, §709, Nov. 15, 1990, 104 Stat. 2409, 2464, 2468, 2470, 2574, 2684.)

C ODIFICATION Section was formerly classified to section 1857h of this title.

P RIOR P ROVISIONS Provisions similar to those in subsecs. (b) and (d) of this section were contained in a section 1857e of this title, act July 14, 1955, ch. 360, §6, 69 Stat. 323, prior to the general amendment of this chapter by Pub. L. 88–206.

A MENDMENTS 1990—Subsec. (b)(1) to (3). Pub. L. 101–549, §107(a)(1), (2), struck out ‘‘or’’ at end of par. (3) and substituted periods for semicolons at end of pars. (1) to (3). Subsec. (b)(5). Pub. L. 101–549, §107(a)(3), added par. (5). Subsec. (g). Pub. L. 101–549, §108(j)(2), inserted at end ‘‘Such term includes any precursors to the formation of any air pollutant, to the extent the Administrator has identified such precursor or precursors for the particu

lar purpose for which the term ‘air pollutant’ is used.’’ Subsec. (h). Pub. L. 101–549, §109(b), inserted before period at end ‘‘, whether caused by transformation, conversion, or combination with other air pollutants’’. Subsec. (k). Pub. L. 101–549, §303(e), inserted before period at end ‘‘, and any design, equipment, work prac

tice or operational standard promulgated under this chapter.’’ Subsec. (q). Pub. L. 101–549, §101(d)(4), added subsec. (q). Subsec. (r). Pub. L. 101–549, §107(b), added subsec. (r). Subsecs. (s) to (y). Pub. L. 101–549, §108(j)(1), added subsecs. (s) to (y). Subsec. (z). Pub. L. 101–549, §709, added subsec. (z). 1977—Subsec. (d). Pub. L. 95–95, §218(c), inserted ‘‘and includes the Commonwealth of the Northern Mariana Islands’’ after ‘‘American Samoa’’. Subsec. (e). Pub. L. 95–190 substituted ‘‘individual, corporation’’ for ‘‘individual corporation’’. Pub. L. 95–95, §301(b), expanded definition of ‘‘person’’ to include agencies, departments, and instrumental

ities of the United States and officers, agents, and em

ployees thereof.Page 6423 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7603

Subsec. (g). Pub. L. 95–95, §301(c), expanded definition of ‘‘air pollutant’’ so as, expressly, to include physical, chemical, biological, and radioactive substances or matter emitted into or otherwise entering the ambient air. Subsecs. (i) to (p). Pub. L. 95–95, §301(a), added sub

secs. (i) to (p). 1970—Subsec. (a). Pub. L. 91–604, §15(c)(1), substituted definition of ‘‘Administrator’’ as meaning Adminis

trator of the Environmental Protection Agency for def

inition of ‘‘Secretary’’ as meaning Secretary of Health, Education, and Welfare. Subsecs. (g), (h). Pub. L. 91–604, §15(a)(1), added sub

sec. (g) defining ‘‘air pollutant’’, redesignated former subsec. (g) as (h) and substituted references to effects on soil, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate for references to injury to agricultural crops and livestock, and inserted references to effects on economic values and on personal comfort and well being. 1967—Pub. L. 90–148 reenacted section without change.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.
§ 7603. Emergency powers
Notwithstanding any other provision of this chapter, the Administrator, upon receipt of evi

dence that a pollution source or combination of sources (including moving sources) is presenting an imminent and substantial endangerment to public health or welfare, or the environment, may bring suit on behalf of the United States in the appropriate United States district court to immediately restrain any person causing or con

tributing to the alleged pollution to stop the emission of air pollutants causing or contribut

ing to such pollution or to take such other ac

tion as may be necessary. If it is not practicable to assure prompt protection of public health or welfare or the environment by commencement of such a civil action, the Administrator may issue such orders as may be necessary to protect public health or welfare or the environment. Prior to taking any action under this section, the Administrator shall consult with appro

priate State and local authorities and attempt to confirm the accuracy of the information on which the action proposed to be taken is based. Any order issued by the Administrator under this section shall be effective upon issuance and shall remain in effect for a period of not more than 60 days, unless the Administrator brings an action pursuant to the first sentence of this sec

tion before the expiration of that period. When

ever the Administrator brings such an action within the 60-day period, such order shall re

main in effect for an additional 14 days or for such longer period as may be authorized by the court in which such action is brought. (July 14, 1955, ch. 360, title III, §303, as added Pub. L. 91–604, §12(a), Dec. 31, 1970, 84 Stat. 1705; amended Pub. L. 95–95, title III, §302(a), Aug. 7, 1977, 91 Stat. 770; Pub. L. 101–549, title VII, §704, Nov. 15, 1990, 104 Stat. 2681.)

C ODIFICATION Section was formerly classified to section 1857h–1 of this title. P RIOR P ROVISIONS A prior section 303 of act July 14, 1955, was renum

bered section 310 by Pub. L. 91–604 and is classified to section 7610 of this title.

A MENDMENTS 1990—Pub. L. 101–549, §704(2)–(5), struck out subsec. (a) designation before ‘‘Notwithstanding any other’’, struck out subsec. (b) which related to violation of or failure or refusal to comply with subsec. (a) orders, and substituted new provisions for provisions following first sentence which read as follows: ‘‘If it is not prac

ticable to assure prompt protection of the health of persons solely by commencement of such a civil action, the Administrator may issue such orders as may be necessary to protect the health of persons who are, or may be, affected by such pollution source (or sources). Prior to taking any action under this section, the Ad

ministrator shall consult with the State and local au

thorities in order to confirm the correctness of the in

formation on which the action proposed to be taken is based and to ascertain the action which such authori

ties are, or will be, taking. Such order shall be effective for a period of not more than twenty-four hours unless the Administrator brings an action under the first sen

tence of this subsection before the expiration of such period. Whenever the Administrator brings such an ac

tion within such period, such order shall be effective for a period of forty-eight hours or such longer period as may be authorized by the court pending litigation or thereafter.’’ Pub. L. 101–549, §704(1), which directed that ‘‘public health or welfare, or the environment’’ be substituted for ‘‘the health of persons and that appropriate State or local authorities have not acted to abate such sources’’, was executed by making the substitution for ‘‘the health of persons, and that appropriate State or local authorities have not acted to abate such sources’’ to reflect the probable intent of Congress. 1977—Pub. L. 95–95 designated existing provisions as subsec. (a), inserted provisions that, if it is not prac

ticable to assure prompt protection of the health of persons solely by commencement of a civil action, the Administrator may issue such orders as may be nec

essary to protect the health of persons who are, or may be, affected by such pollution source (or sources), that, prior to taking any action under this section, the Ad

ministrator consult with the State and local authori

ties in order to confirm the correctness of the informa

tion on which the action proposed to be taken is based and to ascertain the action which such authorities are, or will be, taking, that the order be effective for a pe

riod of not more than twenty-four hours unless the Ad

ministrator brings an action under the first sentence of this subsection before the expiration of such period, and that, whenever the Administrator brings such an action within such period, such order be effective for a period of forty-eight hours or such longer period as may be authorized by the court pending litigation or thereafter, and added subsec. (b).

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

P ENDING A CTIONS AND P ROCEEDINGS Suits, actions, and other proceedings lawfully com

menced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L.Page 6424 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7604

1 So in original. The period probably should be ‘‘, or’’. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.
§ 7604. Citizen suits (a) Authority to bring civil action; jurisdiction Except as provided in subsection (b) of this section, any person may commence a civil ac

tion on his own behalf— (1) against any person (including (i) the United States, and (ii) any other govern

mental instrumentality or agency to the ex

tent permitted by the Eleventh Amendment to the Constitution) who is alleged to have vio

lated (if there is evidence that the alleged vio

lation has been repeated) or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, (2) against the Administrator where there is alleged a failure of the Administrator to per

form any act or duty under this chapter which is not discretionary with the Administrator,

or (3) against any person who proposes to con

struct or constructs any new or modified major emitting facility without a permit re

quired under part C of subchapter I of this chapter (relating to significant deterioration of air quality) or part D of subchapter I of this chapter (relating to nonattainment) or who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of any condition of such permit. The district courts shall have jurisdiction, with

out regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties (except for actions under paragraph (2)). The district courts of the United States shall have jurisdiction to compel (consistent with paragraph (2) of this subsection) agency action unreasonably delayed, except that an action to compel agency action referred to in section 7607(b) of this title which is unreasonably delayed may only be filed in a United States District Court within the circuit in which such action would be reviewable under section 7607(b) of this title. In any such action for unreasonable delay, notice to the entities re

ferred to in subsection (b)(1)(A) of this section shall be provided 180 days before commencing such action. (b) Notice No action may be commenced— (1) under subsection (a)(1) of this section— (A) prior to 60 days after the plaintiff has given notice of the violation (i) to the Ad

ministrator, (ii) to the State in which the violation occurs, and (iii) to any alleged vio

lator of the standard, limitation, or order, or (B) if the Administrator or State has com

menced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the stand

ard, limitation, or order, but in any such ac

tion in a court of the United States any per

son may intervene as a matter of right. 1 (2) under subsection (a)(2) of this section prior to 60 days after the plaintiff has given notice of such action to the Administrator, except that such action may be brought imme

diately after such notification in the case of an action under this section respecting a violation of section 7412(i)(3)(A) or (f)(4) of this title or an order issued by the Administrator pursuant to section 7413(a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation. (c) Venue; intervention by Administrator; service of complaint; consent judgment (1) Any action respecting a violation by a sta

tionary source of an emission standard or limi

tation or an order respecting such standard or limitation may be brought only in the judicial district in which such source is located. (2) In any action under this section, the Ad

ministrator, if not a party, may intervene as a matter of right at any time in the proceeding. A judgment in an action under this section to which the United States is not a party shall not, however, have any binding effect upon the United States. (3) Whenever any action is brought under this section the plaintiff shall serve a copy of the complaint on the Attorney General of the United States and on the Administrator. No con

sent judgment shall be entered in an action brought under this section in which the United States is not a party prior to 45 days following the receipt of a copy of the proposed consent judgment by the Attorney General and the Ad

ministrator during which time the Government may submit its comments on the proposed con

sent judgment to the court and parties or may intervene as a matter of right. (d) Award of costs; security The court, in issuing any final order in any ac

tion brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. The court may, if a tem

porary restraining order or preliminary injunc

tion is sought, require the filing of a bond or equivalent security in accordance with the Fed

eral Rules of Civil Procedure. (e) Nonrestriction of other rights Nothing in this section shall restrict any right which any person (or class of persons) may havePage 6425 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7604

2 So in original. The word ‘‘or’’ probably should not appear.

3 So in original.

4 So in original. The semicolon probably should be a comma.

5 So in original. The period probably should be a comma. 6 So in original. Probably should be ‘‘this section’’. under any statute or common law to seek en

forcement of any emission standard or limita

tion or to seek any other relief (including relief against the Administrator or a State agency). Nothing in this section or in any other law of the United States shall be construed to prohibit, exclude, or restrict any State, local, or inter

state authority from— (1) bringing any enforcement action or ob

taining any judicial remedy or sanction in any State or local court, or (2) bringing any administrative enforcement action or obtaining any administrative rem

edy or sanction in any State or local adminis

trative agency, department or instrumental

ity, against the United States, any department, agency, or instrumentality thereof, or any offi

cer, agent, or employee thereof under State or local law respecting control and abatement of air pollution. For provisions requiring compli

ance by the United States, departments, agen

cies, instrumentalities, officers, agents, and em

ployees in the same manner as nongovernmental entities, see section 7418 of this title. (f) ‘‘Emission standard or limitation under this chapter’’ defined For purposes of this section, the term ‘‘emis

sion standard or limitation under this chapter’’

means— (1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard, (2) a control or prohibition respecting a motor vehicle fuel or fuel additive, or 2 (3) any condition or requirement of a permit under part C of subchapter I of this chapter (relating to significant deterioration of air quality) or part D of subchapter I of this chap

ter (relating to nonattainment),, 3 section 7419 of this title (relating to primary nonferrous smelter orders), any condition or requirement under an applicable implementation plan re

lating to transportation control measures, air quality maintenance plans, vehicle inspection and maintenance programs or vapor recovery requirements, section 7545(e) and (f) of this title (relating to fuels and fuel additives), sec

tion 7491 of this title (relating to visibility protection), any condition or requirement under subchapter VI of this chapter (relating to ozone protection), or any requirement under section 7411 or 7412 of this title (without regard to whether such requirement is ex

pressed as an emission standard or other

wise); 4 or (4) any other standard, limitation, or sched

ule established under any permit issued pursu

ant to subchapter V of this chapter or under any applicable State implementation plan ap

proved by the Administrator, any permit term or condition, and any requirement to obtain a permit as a condition of operations. 5 which is in effect under this chapter (including a requirement applicable by reason of section 7418 of this title) or under an applicable imple

mentation plan. (g) Penalty fund (1) Penalties received under subsection (a) of this section shall be deposited in a special fund in the United States Treasury for licensing and other services. Amounts in such fund are au

thorized to be appropriated and shall remain available until expended, for use by the Admin

istrator to finance air compliance and enforce

ment activities. The Administrator shall annu

ally report to the Congress about the sums de

posited into the fund, the sources thereof, and the actual and proposed uses thereof. (2) Notwithstanding paragraph (1) the court in any action under this subsection 6 to apply civil penalties shall have discretion to order that such civil penalties, in lieu of being deposited in the fund referred to in paragraph (1), be used in beneficial mitigation projects which are consist

ent with this chapter and enhance the public health or the environment. The court shall ob

tain the view of the Administrator in exercising such discretion and selecting any such projects. The amount of any such payment in any such action shall not exceed $100,000. (July 14, 1955, ch. 360, title III, §304, as added Pub. L. 91–604, §12(a), Dec. 31, 1970, 84 Stat. 1706; amended Pub. L. 95–95, title III, §303(a)–(c), Aug. 7, 1977, 91 Stat. 771, 772; Pub. L. 95–190, §14(a) (77), (78), Nov. 16, 1977, 91 Stat. 1404; Pub. L. 101–549, title III, §302(f), title VII, §707(a)–(g), Nov. 15, 1990, 104 Stat. 2574, 2682, 2683.)

R EFERENCES IN T EXT The Federal Rules of Civil Procedure, referred to in subsec. (d), are set out in the Appendix to Title 28, Ju

diciary and Judicial Procedure.

C ODIFICATION Section was formerly classified to section 1857h–2 of this title.

P RIOR P ROVISIONS A prior section 304 of act July 14, 1955, was renum

bered section 311 by Pub. L. 91–604 and is classified to section 7611 of this title.

A MENDMENTS 1990—Subsec. (a). Pub. L. 101–549, §707(a), (f), in clos

ing provisions, inserted before period at end ‘‘, and to apply any appropriate civil penalties (except for ac

tions under paragraph (2))’’ and inserted sentences at end giving courts jurisdiction to compel agency action unreasonably delayed and requiring 180 days notice prior to commencement of action. Subsec. (a)(1), (3). Pub. L. 101–549, §707(g), inserted ‘‘to have violated (if there is evidence that the alleged vio

lation has been repeated) or’’ before ‘‘to be in viola

tion’’. Subsec. (b). Pub. L. 101–549, §302(f), substituted ‘‘sec

tion 7412(i)(3)(A) or (f)(4)’’ for ‘‘section 7412(c)(1)(B)’’ in closing provisions. Subsec. (c)(2). Pub. L. 101–549, §707(c), amended par. (2) generally. Prior to amendment, par. (2) read as fol

lows: ‘‘In such action under this section, the Adminis

trator, if not a party, may intervene as a matter of right.’’ Subsec. (c)(3). Pub. L. 101–549, §707(d), added subsec. (c)(3). Subsec. (f)(3). Pub. L. 101–549, §707(e), struck out ‘‘any condition or requirement of section 7413(d) of this titlePage 6426 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7605

(relating to certain enforcement orders)’’ before ‘‘, section 7419 of this title’’, substituted ‘‘subchapter VI of this chapter’’ for ‘‘part B of subchapter I of this chapter’’, and substituted ‘‘; or’’ for period at end. Subsec. (f)(4). Pub. L. 101–549, §707(e), which directed that par. (4) be added at end of subsec. (f), was executed by adding par. (4) after par. (3), to reflect the probable intent of Congress. Subsec. (g). Pub. L. 101–549, §707(b), added subsec. (g). 1977—Subsec. (a)(3). Pub. L. 95–190, §14(a)(77), inserted ‘‘or modified’’ after ‘‘new’’. Pub. L. 95–95, §303(a), added subsec. (a)(3). Subsec. (e). Pub. L. 95–95, §303(c), inserted provisions which prohibited any construction of this section or any other law of the United States which would pro

hibit, exclude, or restrict any State, local, or interstate authority from bringing any enforcement action or ob

taining any judicial remedy or sanction in any State or local court against the United States or bringing any administrative enforcement action or obtaining any administrative remedy or sanction against the United States in any State or local administrative agency, de

partment, or instrumentality under State or local law. Subsec. (f)(3). Pub. L. 95–190, §14(a)(78), inserted ‘‘, or’’ after ‘‘(relating to ozone protection)’’, sub

stituted ‘‘any condition or requirement under an’’ for ‘‘requirements under an’’, and struck out ‘‘or’’ before ‘‘section 7491’’. Pub. L. 95–95, §303(b), added par. (3).

E FFECTIVE D ATE OF 1990 A MENDMENT Section 707(g) of Pub. L. 101–549 provided that: ‘‘The amendment made by this subsection [amending this section] shall take effect with respect to actions brought after the date 2 years after the enactment of the Clean Air Act Amendments of 1990 [Nov. 15, 1990].’’

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

T ERMINATION OF R EPORTING R EQUIREMENTS For termination, effective May 15, 2000, of reporting provisions in subsec. (g)(1) of this section, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and the 6th item on page 165 of House Document No. 103–7.

P ENDING A CTIONS AND P ROCEEDINGS Suits, actions, and other proceedings lawfully com

menced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7605. Representation in litigation (a) Attorney General; attorneys appointed by Ad

ministrator The Administrator shall request the Attorney General to appear and represent him in any civil action instituted under this chapter to which the Administrator is a party. Unless the Attor

ney General notifies the Administrator that he will appear in such action, within a reasonable time, attorneys appointed by the Administrator shall appear and represent him. (b) Memorandum of understanding regarding legal representation In the event the Attorney General agrees to appear and represent the Administrator in any such action, such representation shall be con

ducted in accordance with, and shall include participation by, attorneys appointed by the Ad

ministrator to the extent authorized by, the memorandum of understanding between the De

partment of Justice and the Environmental Pro

tection Agency, dated June 13, 1977, respecting representation of the agency by the department in civil litigation. (July 14, 1955, ch. 360, title III, §305, as added Pub. L. 91–604, §12(a), Dec. 31, 1970, 84 Stat. 1707; amended Pub. L. 95–95, title III, §304(a), Aug. 7, 1977, 91 Stat. 772.)

C ODIFICATION Section was formerly classified to section 1857h–3 of this title.

P RIOR P ROVISIONS A prior section 305 of act July 14, 1955, as added Nov. 21, 1967, Pub. L. 90–148, §2, 81 Stat. 505, was renumbered section 312 by Pub. L. 91–604 and is classified to section 7612 of this title. Another prior section 305 of act July 14, 1955, ch. 360, title III, formerly §12, as added Dec. 17, 1963, Pub. L. 88–206, §1, 77 Stat. 401, was renumbered section 305 by Pub. L. 89–272, renumbered section 308 by Pub. L. 90–148, and renumbered section 315 by Pub. L. 91–604, and is classified to section 7615 of this title.

A MENDMENTS 1977—Pub. L. 95–95 designated existing provisions as subsec. (a) and added subsec. (b).

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

P ENDING A CTIONS AND P ROCEEDINGS Suits, actions, and other proceedings lawfully com

menced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, orPage 6427 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7606

other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.
§ 7606. Federal procurement (a) Contracts with violators prohibited No Federal agency may enter into any con

tract with any person who is convicted of any offense under section 7413(c) of this title for the procurement of goods, materials, and services to perform such contract at any facility at which the violation which gave rise to such conviction occurred if such facility is owned, leased, or su

pervised by such person. The prohibition in the preceding sentence shall continue until the Ad

ministrator certifies that the condition giving rise to such a conviction has been corrected. For convictions arising under section 7413(c)(2) of this title, the condition giving rise to the con

viction also shall be considered to include any substantive violation of this chapter associated with the violation of 7413(c)(2) of this title. The Administrator may extend this prohibition to other facilities owned or operated by the con

victed person. (b) Notification procedures The Administrator shall establish procedures to provide all Federal agencies with the notifi

cation necessary for the purposes of subsection (a) of this section. (c) Federal agency contracts In order to implement the purposes and policy of this chapter to protect and enhance the qual

ity of the Nation’s air, the President shall, not more than 180 days after December 31, 1970, cause to be issued an order (1) requiring each Federal agency authorized to enter into con

tracts and each Federal agency which is empow

ered to extend Federal assistance by way of grant, loan, or contract to effectuate the pur

pose and policy of this chapter in such contract

ing or assistance activities, and (2) setting forth procedures, sanctions, penalties, and such other provisions, as the President determines nec

essary to carry out such requirement. (d) Exemptions; notification to Congress The President may exempt any contract, loan, or grant from all or part of the provisions of this section where he determines such exemption is necessary in the paramount interest of the United States and he shall notify the Congress of such exemption. (July 14, 1955, ch. 360, title III, §306, as added Pub. L. 91–604, §12(a), Dec. 31, 1970, 84 Stat. 1707; amended Pub. L. 101–549, title VII, §705, Nov. 15, 1990, 104 Stat. 2682.)

C ODIFICATION Subsec. (e) of this section, which required the Presi

dent to annually report to Congress on measures taken toward implementing the purpose and intent of this section, terminated, effective May 15, 2000, pursuant to section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance. See, also, the 14th item on page 20 of House Document No. 103–7. Section was formerly classified to section 1857h–4 of this title.

P RIOR P ROVISIONS A prior section 306 of act July 14, 1955, ch. 360, title III, as added Nov. 21, 1967, Pub. L. 90–148, §2, 81 Stat. 506, was renumbered section 313 by Pub. L. 91–604 and is classified to section 7613 of this title. Another prior section 306 of act July 14, 1955, ch. 360, title III, formerly §13, as added Dec. 17, 1963, Pub. L. 88–206, §1, 77 Stat. 401, renumbered §306, Oct. 20, 1965, Pub. L. 89–272, title I, §101(4), 79 Stat. 992, renumbered §309, Nov. 21, 1967, Pub. L. 90–148, §2, 81 Stat. 506, re

numbered §316, Dec. 31, 1970, Pub. L. 91–604, §12(a), 84 Stat. 1705, related to appropriations and was classified to section 1857 l of this title, prior to repeal by section 306 of Pub. L. 95–95. See section 7626 of this title.

A MENDMENTS 1990—Subsec. (a). Pub. L. 101–549 substituted ‘‘section 7413(c)’’ for ‘‘section 7413(c)(1)’’ and inserted sentences at end relating to convictions arising under section 7413(c)(2) of this title and extension of prohibition to other facilities owned by convicted persons.

F EDERAL A CQUISITION R EGULATION : C ONTRACTOR C ER

TIFICATION OR C ONTRACT C LAUSE FOR A CQUISITION OF C OMMERCIAL I TEMS Pub. L. 103–355, title VIII, §8301(g), Oct. 13, 1994, 108 Stat. 3397, provided that: ‘‘The Federal Acquisition Regulation may not contain a requirement for a cer

tification by a contractor under a contract for the ac

quisition of commercial items, or a requirement that such a contract include a contract clause, in order to implement a prohibition or requirement of section 306 of the Clean Air Act (42 U.S.C. 7606) or a prohibition or requirement issued in the implementation of that sec

tion, since there is nothing in such section 306 that re

quires such a certification or contract clause.’’

E XECUTIVE O RDER N O . 11602 Ex. Ord. No. 11602, June 29, 1971, 36 F.R. 12475, which related to the administration of the Clean Air Act with respect to Federal contracts, grants, or loans, was su

perseded by Ex. Ord. No. 11738, Sept. 10, 1973, 38 F.R. 25161, set out below.

E X . O RD . N O . 11738. A DMINISTRATION OF THE C LEAN A IR A CT AND THE F EDERAL W ATER P OLLUTION C ONTROL A CT W ITH R ESPECT TO F EDERAL C ONTRACTS , G RANTS , OR L OANS Ex. Ord. No. 11738, Sept. 10, 1973, 38 F.R. 25161, provided: By virtue of the authority vested in me by the provi

sions of the Clean Air Act, as amended (42 U.S.C. 1857 et seq.) [42 U.S.C. 7401 et seq.], particularly section 306 of that Act as added by the Clean Air Amendments of 1970 (Public Law 91–604) [this section], and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), particularly section 508 of that Act as added by the Federal Water Pollution Control Act Amendments of 1972 (Public Law 92–500) [33 U.S.C. 1368], it is hereby or

dered as follows: S ECTION 1. Policy . It is the policy of the Federal Gov

ernment to improve and enhance environmental qual

ity. In furtherance of that policy, the program pre

scribed in this Order is instituted to assure that each Federal agency empowered to enter into contracts for the procurement of goods, materials, or services and each Federal agency empowered to extend Federal as

sistance by way of grant, loan, or contract shall under

take such procurement and assistance activities in a manner that will result in effective enforcement of the Clean Air Act [this chapter] (hereinafter referred to as ‘‘the Air Act’’) and the Federal Water Pollution Con

trol Act (hereinafter referred to as ‘‘the Water Act’’) [33 U.S.C. 1251 et seq.].Page 6428 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7607

1 See References in Text note below.

2 So in original. Probably should be ‘‘this’’.

3 So in original. S EC . 2. Designation of Facilities . (a) The Administrator of the Environmental Protection Agency (hereinafter referred to as ‘‘the Administrator’’) shall be responsible for the attainment of the purposes and objectives of this Order. (b) In carrying out his responsibilities under this Order, the Administrator shall, in conformity with all applicable requirements of law, designate facilities which have given rise to a conviction for an offense under section 113(c)(1) of the Air Act [42 U.S.C. 7413(c)(1)] or section 309(c) of the Water Act [33 U.S.C. 1319(c)]. The Administrator shall, from time to time, publish and circulate to all Federal agencies lists of those facilities, together with the names and addresses of the persons who have been convicted of such of

fenses. Whenever the Administrator determines that the condition which gave rise to a conviction has been corrected, he shall promptly remove the facility and the name and address of the person concerned from the list. S EC . 3. Contracts, Grants, or Loans . (a) Except as pro

vided in section 8 of this Order, no Federal agency shall enter into any contract for the procurement of goods, materials, or services which is to be performed in whole or in part in a facility then designated by the Adminis

trator pursuant to section 2. (b) Except as provided in section 8 of this Order, no Federal agency authorized to extend Federal assistance by way of grant, loan, or contract shall extend such as

sistance in any case in which it is to be used to support any activity or program involving the use of a facility then designated by the Administrator pursuant to sec

tion 2. S EC . 4. Procurement, Grant, and Loan Regulations . The Federal Procurement Regulations, the Armed Services Procurement Regulations, and to the extent necessary, any supplemental or comparable regulations issued by any agency of the Executive Branch shall, following consultation with the Administrator, be amended to re

quire, as a condition of entering into, renewing, or ex

tending any contract for the procurement of goods, ma

terials, or services or extending any assistance by way of grant, loan, or contract, inclusion of a provision re

quiring compliance with the Air Act, the Water Act, and standards issued pursuant thereto in the facilities in which the contract is to be performed, or which are involved in the activity or program to receive assist

ance. S EC . 5. Rules and Regulations . The Administrator shall issue such rules, regulations, standards, and guidelines as he may deem necessary or appropriate to carry out the purposes of this Order. S EC . 6. Cooperation and Assistance . The head of each Federal agency shall take such steps as may be nec

essary to insure that all officers and employees of this agency whose duties entail compliance or comparable functions with respect to contracts, grants, and loans are familiar with the provisions of this Order. In addi

tion to any other appropriate action, such officers and employees shall report promptly any condition in a fa

cility which may involve noncompliance with the Air Act or the Water Act or any rules, regulations, stand

ards, or guidelines issued pursuant to this Order to the head of the agency, who shall transmit such reports to the Administrator. S EC . 7. Enforcement . The Administrator may rec

ommend to the Department of Justice or other appro

priate agency that legal proceedings be brought or other appropriate action be taken whenever he becomes aware of a breach of any provision required, under the amendments issued pursuant to section 4 of this Order, to be included in a contract or other agreement. S EC . 8. Exemptions—Reports to Congress . (a) Upon a de

termination that the paramount interest of the United States so requires— (1) The head of a Federal agency may exempt any contract, grant, or loan, and, following consultation with the Administrator, any class of contracts, grants or loans from the provisions of this Order. In any such case, the head of the Federal agency granting such ex

emption shall (A) promptly notify the Administrator of such exemption and the justification therefor; (B) re

view the necessity for each such exemption annually; and (C) report to the Administrator annually all such exemptions in effect. Exemptions granted pursuant to this section shall be for a period not to exceed one year. Additional exemptions may be granted for periods not to exceed one year upon the making of a new deter

mination by the head of the Federal agency concerned. (2) The Administrator may, by rule or regulation, ex

empt any or all Federal agencies from any or all of the provisions of this Order with respect to any class or classes of contracts, grants, or loans, which (A) involve less than specified dollar amounts, or (B) have a mini

mal potential impact upon the environment, or (C) in

volve persons who are not prime contractors or direct recipients of Federal assistance by way of contracts, grants, or loans. (b) Federal agencies shall reconsider any exemption granted under subsection (a) whenever requested to do so by the Administrator. (c) The Administrator shall annually notify the President and the Congress of all exemptions granted, or in effect, under this Order during the preceding year. S EC . 9. Related Actions . The imposition of any sanc

tion or penalty under or pursuant to this Order shall not relieve any person of any legal duty to comply with any provisions of the Air Act or the Water Act. S EC . 10. Applicability . This Order shall not apply to contracts, grants, or loans involving the use of facili

ties located outside the United States. S EC . 11. Uniformity . Rules, regulations, standards, and guidelines issued pursuant to this order and section 508 of the Water Act [33 U.S.C. 1368] shall, to the maximum extent feasible, be uniform with regulations issued pur

suant to this order, Executive Order No. 11602 of June 29, 1971 [formerly set out above], and section 306 of the Air Act [this section]. S EC . 12. Order Superseded . Executive Order No. 11602 of June 29, 1971, is hereby superseded.
R ICHARD N IXON

. § 7607. Administrative proceedings and judicial review (a) Administrative subpenas; confidentiality; wit

nesses In connection with any determination under section 7410(f) of this title, or for purposes of ob

taining information under section 7521(b)(4) 1 or 7545(c)(3) of this title, any investigation, mon

itoring, reporting requirement, entry, compli

ance inspection, or administrative enforcement proceeding under the 2 chapter (including but not limited to section 7413, section 7414, section 7420, section 7429, section 7477, section 7524, sec

tion 7525, section 7542, section 7603, or section 7606 of this title),, 3 the Administrator may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and he may administer oaths. Except for emission data, upon a showing satisfactory to the Administrator by such owner or operator that such papers, books, documents, or information or particular part thereof, if made public, would divulge trade secrets or se

cret processes of such owner or operator, the Ad

ministrator shall consider such record, report, or information or particular portion thereof confidential in accordance with the purposes of section 1905 of title 18, except that such paper, book, document, or information may be dis

-Page 6429 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7607

4 So in original. Probably should be ‘‘subsection,’’. 5 So in original. The word ‘‘to’’ probably should not appear. closed to other officers, employees, or author

ized representatives of the United States con

cerned with carrying out this chapter, to per

sons carrying out the National Academy of Sci

ences’ study and investigation provided for in section 7521(c) of this title, or when relevant in any proceeding under this chapter. Witnesses summoned shall be paid the same fees and mile

age that are paid witnesses in the courts of the United States. In case of contumacy or refusal to obey a subpena served upon any person under this subparagraph, 4 the district court of the United States for any district in which such per

son is found or resides or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the Administrator to appear and produce papers, books, and docu

ments before the Administrator, or both, and any failure to obey such order of the court may be punished by such court as a contempt there

of. (b) Judicial review (1) A petition for review of action of the Ad

ministrator in promulgating any national pri

mary or secondary ambient air quality stand

ard, any emission standard or requirement under section 7412 of this title, any standard of performance or requirement under section 7411 of this title,, 3 any standard under section 7521 of this title (other than a standard required to be prescribed under section 7521(b)(1) of this title), any determination under section 7521(b)(5) 1 of this title, any control or prohibition under sec

tion 7545 of this title, any standard under sec

tion 7571 of this title, any rule issued under sec

tion 7413, 7419, or under section 7420 of this title, or any other nationally applicable regulations promulgated, or final action taken, by the Ad

ministrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator’s action in approving or pro

mulgating any implementation plan under sec

tion 7410 of this title or section 7411(d) of this title, any order under section 7411(j) of this title, under section 7412 of this title, under section 7419 of this title, or under section 7420 of this title, or his action under section 1857c–10(c)(2)(A), (B), or (C) of this title (as in ef

fect before August 7, 1977) or under regulations thereunder, or revising regulations for enhanced monitoring and compliance certification pro

grams under section 7414(a)(3) of this title, or any other final action of the Administrator under this chapter (including any denial or dis

approval by the Administrator under subchapter I of this chapter) which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate cir

cuit. Notwithstanding the preceding sentence a petition for review of any action referred to in such sentence may be filed only in the United States Court of Appeals for the District of Co

lumbia if such action is based on a determina

tion of nationwide scope or effect and if in tak

ing such action the Administrator finds and pub

lishes that such action is based on such a deter

mination. Any petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any peti

tion for review under this subsection shall be filed within sixty days after such grounds arise. The filing of a petition for reconsideration by the Administrator of any otherwise final rule or action shall not affect the finality of such rule or action for purposes of judicial review nor ex

tend the time within which a petition for judi

cial review of such rule or action under this sec

tion may be filed, and shall not postpone the ef

fectiveness of such rule or action. (2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial re

view in civil or criminal proceedings for enforce

ment. Where a final decision by the Adminis

trator defers performance of any nondiscretion

ary statutory action to a later time, any person may challenge the deferral pursuant to para

graph (1). (c) Additional evidence In any judicial proceeding in which review is sought of a determination under this chapter re

quired to be made on the record after notice and opportunity for hearing, if any party applies to the court for leave to adduce additional evi

dence, and shows to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the fail

ure to adduce such evidence in the proceeding before the Administrator, the court may order such additional evidence (and evidence in rebut

tal thereof) to be taken before the Adminis

trator, in such manner and upon such terms and conditions as to 5 the court may deem proper. The Administrator may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken and he shall file such modified or new findings, and his rec

ommendation, if any, for the modification or setting aside of his original determination, with the return of such additional evidence. (d) Rulemaking (1) This subsection applies to— (A) the promulgation or revision of any na

tional ambient air quality standard under sec

tion 7409 of this title, (B) the promulgation or revision of an imple

mentation plan by the Administrator under section 7410(c) of this title, (C) the promulgation or revision of any standard of performance under section 7411 of this title, or emission standard or limitation under section 7412(d) of this title, any standard under section 7412(f) of this title, or any regu

lation under section 7412(g)(1)(D) and (F) of this title, or any regulation under section 7412(m) or (n) of this title, (D) the promulgation of any requirement for solid waste combustion under section 7429 of this title,Page 6430 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7607

(E) the promulgation or revision of any reg

ulation pertaining to any fuel or fuel additive under section 7545 of this title, (F) the promulgation or revision of any air

craft emission standard under section 7571 of this title, (G) the promulgation or revision of any reg

ulation under subchapter IV–A of this chapter (relating to control of acid deposition), (H) promulgation or revision of regulations pertaining to primary nonferrous smelter or

ders under section 7419 of this title (but not in

cluding the granting or denying of any such order), (I) promulgation or revision of regulations under subchapter VI of this chapter (relating to stratosphere and ozone protection), (J) promulgation or revision of regulations under part C of subchapter I of this chapter (relating to prevention of significant deterio

ration of air quality and protection of visibility), (K) promulgation or revision of regulations under section 7521 of this title and test proce

dures for new motor vehicles or engines under section 7525 of this title, and the revision of a standard under section 7521(a)(3) of this title, (L) promulgation or revision of regulations for noncompliance penalties under section 7420 of this title, (M) promulgation or revision of any regula

tions promulgated under section 7541 of this title (relating to warranties and compliance by vehicles in actual use), (N) action of the Administrator under sec

tion 7426 of this title (relating to interstate pollution abatement), (O) the promulgation or revision of any reg

ulation pertaining to consumer and commer

cial products under section 7511b(e) of this title, (P) the promulgation or revision of any reg

ulation pertaining to field citations under sec

tion 7413(d)(3) of this title, (Q) the promulgation or revision of any reg

ulation pertaining to urban buses or the cleanfuel vehicle, clean-fuel fleet, and clean fuel programs under part C of subchapter II of this chapter, (R) the promulgation or revision of any reg

ulation pertaining to nonroad engines or nonroad vehicles under section 7547 of this title, (S) the promulgation or revision of any regu

lation relating to motor vehicle compliance program fees under section 7552 of this title, (T) the promulgation or revision of any reg

ulation under subchapter IV–A of this chapter (relating to acid deposition), (U) the promulgation or revision of any reg

ulation under section 7511b(f) of this title per

taining to marine vessels, and (V) such other actions as the Administrator may determine. The provisions of section 553 through 557 and section 706 of title 5 shall not, except as ex

pressly provided in this subsection, apply to ac

tions to which this subsection applies. This sub

section shall not apply in the case of any rule or circumstance referred to in subparagraphs (A) or (B) of subsection 553(b) of title 5. (2) Not later than the date of proposal of any action to which this subsection applies, the Ad

ministrator shall establish a rulemaking docket for such action (hereinafter in this subsection referred to as a ‘‘rule’’). Whenever a rule applies only within a particular State, a second (iden

tical) docket shall be simultaneously estab

lished in the appropriate regional office of the Environmental Protection Agency. (3) In the case of any rule to which this sub

section applies, notice of proposed rulemaking shall be published in the Federal Register, as provided under section 553(b) of title 5, shall be accompanied by a statement of its basis and purpose and shall specify the period available for public comment (hereinafter referred to as the ‘‘comment period’’). The notice of proposed rulemaking shall also state the docket number, the location or locations of the docket, and the times it will be open to public inspection. The statement of basis and purpose shall include a summary of— (A) the factual data on which the proposed rule is based; (B) the methodology used in obtaining the data and in analyzing the data; and (C) the major legal interpretations and pol

icy considerations underlying the proposed rule.
The statement shall also set forth or summarize and provide a reference to any pertinent find

ings, recommendations, and comments by the Scientific Review Committee established under section 7409(d) of this title and the National Academy of Sciences, and, if the proposal differs in any important respect from any of these rec

ommendations, an explanation of the reasons for such differences. All data, information, and doc

uments referred to in this paragraph on which the proposed rule relies shall be included in the docket on the date of publication of the pro

posed rule. (4)(A) The rulemaking docket required under paragraph (2) shall be open for inspection by the public at reasonable times specified in the no

tice of proposed rulemaking. Any person may copy documents contained in the docket. The Administrator shall provide copying facilities which may be used at the expense of the person seeking copies, but the Administrator may waive or reduce such expenses in such instances as the public interest requires. Any person may request copies by mail if the person pays the ex

penses, including personnel costs to do the copy

ing. (B)(i) Promptly upon receipt by the agency, all written comments and documentary informa

tion on the proposed rule received from any per

son for inclusion in the docket during the com

ment period shall be placed in the docket. The transcript of public hearings, if any, on the pro

posed rule shall also be included in the docket promptly upon receipt from the person who transcribed such hearings. All documents which become available after the proposed rule has been published and which the Administrator de

termines are of central relevance to the rule

making shall be placed in the docket as soon as possible after their availability. (ii) The drafts of proposed rules submitted by the Administrator to the Office of ManagementPage 6431 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7607

and Budget for any interagency review process prior to proposal of any such rule, all documents accompanying such drafts, and all written com

ments thereon by other agencies and all written responses to such written comments by the Ad

ministrator shall be placed in the docket no later than the date of proposal of the rule. The drafts of the final rule submitted for such review process prior to promulgation and all such writ

ten comments thereon, all documents accom

panying such drafts, and written responses thereto shall be placed in the docket no later than the date of promulgation. (5) In promulgating a rule to which this sub

section applies (i) the Administrator shall allow any person to submit written comments, data, or documentary information; (ii) the Adminis

trator shall give interested persons an oppor

tunity for the oral presentation of data, views, or arguments, in addition to an opportunity to make written submissions; (iii) a transcript shall be kept of any oral presentation; and (iv) the Administrator shall keep the record of such proceeding open for thirty days after completion of the proceeding to provide an opportunity for submission of rebuttal and supplementary infor

mation. (6)(A) The promulgated rule shall be accom

panied by (i) a statement of basis and purpose like that referred to in paragraph (3) with re

spect to a proposed rule and (ii) an explanation of the reasons for any major changes in the pro

mulgated rule from the proposed rule. (B) The promulgated rule shall also be accom

panied by a response to each of the significant comments, criticisms, and new data submitted in written or oral presentations during the com

ment period. (C) The promulgated rule may not be based (in part or whole) on any information or data which has not been placed in the docket as of the date of such promulgation. (7)(A) The record for judicial review shall con

sist exclusively of the material referred to in paragraph (3), clause (i) of paragraph (4)(B), and subparagraphs (A) and (B) of paragraph (6). (B) Only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judi

cial review. If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within such time or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding for reconsideration of the rule and provide the same procedural rights as would have been afforded had the information been available at the time the rule was pro

posed. If the Administrator refuses to convene such a proceeding, such person may seek review of such refusal in the United States court of ap

peals for the appropriate circuit (as provided in subsection (b) of this section). Such reconsider

ation shall not postpone the effectiveness of the rule. The effectiveness of the rule may be stayed during such reconsideration, however, by the Administrator or the court for a period not to exceed three months. (8) The sole forum for challenging procedural determinations made by the Administrator under this subsection shall be in the United States court of appeals for the appropriate cir

cuit (as provided in subsection (b) of this sec

tion) at the time of the substantive review of the rule. No interlocutory appeals shall be per

mitted with respect to such procedural deter

minations. In reviewing alleged procedural er

rors, the court may invalidate the rule only if the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made. (9) In the case of review of any action of the Administrator to which this subsection applies, the court may reverse any such action found to be— (A) arbitrary, capricious, an abuse of discre

tion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, au

thority, or limitations, or short of statutory right; or (D) without observance of procedure re

quired by law, if (i) such failure to observe such procedure is arbitrary or capricious, (ii) the requirement of paragraph (7)(B) has been met, and (iii) the condition of the last sen

tence of paragraph (8) is met. (10) Each statutory deadline for promulgation of rules to which this subsection applies which requires promulgation less than six months after date of proposal may be extended to not more than six months after date of proposal by the Administrator upon a determination that such extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of this subsection. (11) The requirements of this subsection shall take effect with respect to any rule the proposal of which occurs after ninety days after August 7, 1977. (e) Other methods of judicial review not author

ized Nothing in this chapter shall be construed to authorize judicial review of regulations or or

ders of the Administrator under this chapter, ex

cept as provided in this section. (f) Costs In any judicial proceeding under this section, the court may award costs of litigation (includ

ing reasonable attorney and expert witness fees) whenever it determines that such award is ap

propriate. (g) Stay, injunction, or similar relief in proceed

ings relating to noncompliance penalties In any action respecting the promulgation of regulations under section 7420 of this title or the administration or enforcement of section 7420 of this title no court shall grant any stay, injunc

tive, or similar relief before final judgment by such court in such action. (h) Public participation It is the intent of Congress that, consistent with the policy of subchapter II of chapter 5 ofPage 6432 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7607

6 So in original. Probably should be ‘‘sections’’. title 5, the Administrator in promulgating any regulation under this chapter, including a regu

lation subject to a deadline, shall ensure a rea

sonable period for public participation of at least 30 days, except as otherwise expressly pro

vided in section 6 7407(d), 7502(a), 7511(a) and (b), and 7512(a) and (b) of this title. (July 14, 1955, ch. 360, title III, §307, as added Pub. L. 91–604, §12(a), Dec. 31, 1970, 84 Stat. 1707; amended Pub. L. 92–157, title III, §302(a), Nov. 18, 1971, 85 Stat. 464; Pub. L. 93–319, §6(c), June 22, 1974, 88 Stat. 259; Pub. L. 95–95, title III, §§303(d), 305(a), (c), (f)–(h), Aug. 7, 1977, 91 Stat. 772, 776, 777; Pub. L. 95–190, §14(a)(79), (80), Nov. 16, 1977, 91 Stat. 1404; Pub. L. 101–549, title I, §§108(p), 110(5), title III, §302(g), (h), title VII, §§702(c), 703, 706, 707(h), 710(b), Nov. 15, 1990, 104 Stat. 2469, 2470, 2574, 2681–2684.)

R EFERENCES IN T EXT Section 7521(b)(4) of this title, referred to in subsec. (a), was repealed by Pub. L. 101–549, title II, §230(2), Nov. 15, 1990, 104 Stat. 2529. Section 7521(b)(5) of this title, referred to in subsec. (b)(1), was repealed by Pub. L. 101–549, title II, §230(3), Nov. 15, 1990, 104 Stat. 2529. Section 1857c–10(c)(2)(A), (B), or (C) of this title (as in effect before August 7, 1977), referred to in subsec. (b)(1), was in the original ‘‘section 119(c)(2)(A), (B), or (C) (as in effect before the date of enactment of the Clean Air Act Amendments of 1977)’’, meaning section 119 of act July 14, 1955, ch. 360, title I, as added June 22, 1974, Pub. L. 93–319, §3, 88 Stat. 248, (which was classi

fied to section 1857c–10 of this title) as in effect prior to the enactment of Pub. L. 95–95, Aug. 7, 1977, 91 Stat. 691, effective Aug. 7, 1977. Section 112(b)(1) of Pub. L. 95–95 repealed section 119 of act July 14, 1955, ch. 360, title I, as added by Pub. L. 93–319, and provided that all ref

erences to such section 119 in any subsequent enact

ment which supersedes Pub. L. 93–319 shall be construed to refer to section 113(d) of the Clean Air Act and to paragraph (5) thereof in particular which is classified to subsec. (d)(5) of section 7413 of this title. Section 7413(d) of this title was subsequently amended gener

ally by Pub. L. 101–549, title VII, §701, Nov. 15, 1990, 104 Stat. 2672, and, as so amended, no longer relates to final compliance orders. Section 117(b) of Pub. L. 95–95 added a new section 119 of act July 14, 1955, which is classified to section 7419 of this title. Part C of subchapter I of this chapter, referred to in subsec. (d)(1)(J), was in the original ‘‘subtitle C of title I’’, and was translated as reading ‘‘part C of title I’’ to reflect the probable intent of Congress, because title I does not contain subtitles.

C ODIFICATION In subsec. (h), ‘‘subchapter II of chapter 5 of title 5’’ was substituted for ‘‘the Administrative Procedures Act’’ on authority of Pub. L. 89–554, §7(b), Sept. 6, 1966, 80 Stat. 631, the first section of which enacted Title 5, Government Organization and Employees. Section was formerly classified to section 1857h–5 of this title.

P RIOR P ROVISIONS A prior section 307 of act July 14, 1955, was renum

bered section 314 by Pub. L. 91–604 and is classified to section 7614 of this title. Another prior section 307 of act July 14, 1955, ch. 360, title III, formerly §14, as added Dec. 17, 1963, Pub. L. 88–206, §1, 77 Stat. 401, was renumbered section 307 by Pub. L. 89–272, renumbered section 310 by Pub. L. 90–148, and renumbered section 317 by Pub. L. 91–604, and is set out as a Short Title note under section 7401 of this title. A MENDMENTS 1990—Subsec. (a). Pub. L. 101–549, §703, struck out par. (1) designation at beginning, inserted provisions au

thorizing issuance of subpoenas and administration of oaths for purposes of investigations, monitoring, re

porting requirements, entries, compliance inspections, or administrative enforcement proceedings under this chapter, and struck out ‘‘or section 7521(b)(5)’’ after ‘‘section 7410(f)’’. Subsec. (b)(1). Pub. L. 101–549, §706(2), which directed amendment of second sentence by striking ‘‘under sec

tion 7413(d) of this title’’ immediately before ‘‘under section 7419 of this title’’, was executed by striking ‘‘under section 7413(d) of this title,’’ before ‘‘under sec

tion 7419 of this title’’, to reflect the probable intent of Congress. Pub. L. 101–549, §706(1), inserted at end: ‘‘The filing of a petition for reconsideration by the Administrator of any otherwise final rule or action shall not affect the finality of such rule or action for purposes of judicial review nor extend the time within which a petition for judicial review of such rule or action under this section may be filed, and shall not postpone the effectiveness of such rule or action.’’ Pub. L. 101–549, §702(c), inserted ‘‘or revising regula

tions for enhanced monitoring and compliance certifi

cation programs under section 7414(a)(3) of this title,’’ before ‘‘or any other final action of the Adminis

trator’’. Pub. L. 101–549, §302(g), substituted ‘‘section 7412’’ for ‘‘section 7412(c)’’. Subsec. (b)(2). Pub. L. 101–549, §707(h), inserted sen

tence at end authorizing challenge to deferrals of per

formance of nondiscretionary statutory actions. Subsec. (d)(1)(C). Pub. L. 101–549, §110(5)(A), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: ‘‘the promulgation or revision of any standard of performance under section 7411 of this title or emission standard under section 7412 of this title,’’. Subsec. (d)(1)(D), (E). Pub. L. 101–549, §302(h), added subpar. (D) and redesignated former subpar. (D) as (E). Former subpar. (E) redesignated (F). Subsec. (d)(1)(F). Pub. L. 101–549, §302(h), redesignated subpar. (E) as (F). Former subpar. (F) redesignated (G). Pub. L. 101–549, §110(5)(B), amended subpar. (F) gener

ally. Prior to amendment, subpar. (F) read as follows: ‘‘promulgation or revision of regulations pertaining to orders for coal conversion under section 7413(d)(5) of this title (but not including orders granting or denying any such orders),’’. Subsec. (d)(1)(G), (H). Pub. L. 101–549, §302(h), redesig

nated subpars. (F) and (G) as (G) and (H), respectively. Former subpar. (H) redesignated (I). Subsec. (d)(1)(I). Pub. L. 101–549, §710(b), which di

rected that subpar. (H) be amended by substituting ‘‘subchapter VI of this chapter’’ for ‘‘part B of sub

chapter I of this chapter’’, was executed by making the substitution in subpar. (I), to reflect the probable in

tent of Congress and the intervening redesignation of subpar. (H) as (I) by Pub. L. 101–549, §302(h), see below. Pub. L. 101–549, §302(h), redesignated subpar. (H) as (I). Former subpar. (I) redesignated (J). Subsec. (d)(1)(J) to (M). Pub. L. 101–549, §302(h), redes

ignated subpars. (I) to (L) as (J) to (M), respectively. Former subpar. (M) redesignated (N). Subsec. (d)(1)(N). Pub. L. 101–549, §302(h), redesignated subpar. (M) as (N). Former subpar. (N) redesignated (O). Pub. L. 101–549, §110(5)(C), added subpar. (N) and re

designated former subpar. (N) as (U). Subsec. (d)(1)(O) to (T). Pub. L. 101–549, §302(h), redes

ignated subpars. (N) to (S) as (O) to (T), respectively. Former subpar. (T) redesignated (U). Pub. L. 101–549, §110(5)(C), added subpars. (O) to (T). Subsec. (d)(1)(U). Pub. L. 101–549, §302(h), redesignated subpar. (T) as (U). Former subpar. (U) redesignated (V). Pub. L. 101–549, §110(5)(C), redesignated former sub

par. (N) as (U). Subsec. (d)(1)(V). Pub. L. 101–549, §302(h), redesignated subpar. (U) as (V).Page 6433 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7608

Subsec. (h). Pub. L. 101–549, §108(p), added subsec. (h). 1977—Subsec. (b)(1). Pub. L. 95–190 in text relating to filing of petitions for review in the United States Court of Appeals for the District of Columbia inserted provi

sion respecting requirements under sections 7411 and 7412 of this title, and substituted provisions authorizing review of any rule issued under section 7413, 7419, or 7420 of this title, for provisions authorizing review of any rule or order issued under section 7420 of this title, relating to noncompliance penalties, and in text relat

ing to filing of petitions for review in the United States Court of Appeals for the appropriate circuit inserted provision respecting review under section 7411(j), 7412(c), 7413(d), or 7419 of this title, provision authoriz

ing review under section 1857c–10(c)(2)(A), (B), or (C) to the period prior to Aug. 7, 1977, and provisions authoriz

ing review of denials or disapprovals by the Adminis

trator under subchapter I of this chapter. Pub. L. 95–95, §305(c), (h), inserted rules or orders is

sued under section 7420 of this title (relating to non

compliance penalties) and any other nationally appli

cable regulations promulgated, or final action taken, by the Administrator under this chapter to the enu

meration of actions of the Administrator for which a petition for review may be filed only in the United States Court of Appeals for the District of Columbia, added the approval or promulgation by the Adminis

trator of orders under section 7420 of this title, or any other final action of the Administrator under this chapter which is locally or regionally applicable to the enumeration of actions by the Administrator for which a petition for review may be filed only in the United States Court of Appeals for the appropriate circuit, in

serted provision that petitions otherwise capable of being filed in the Court of Appeals for the appropriate circuit may be filed only in the Court of Appeals for the District of Columbia if the action is based on a deter

mination of nationwide scope, and increased from 30 days to 60 days the period during which the petition must be filed. Subsec. (d). Pub. L. 95–95, §305(a), added subsec. (d). Subsec. (e). Pub. L. 95–95, §303(d), added subsec. (e). Subsec. (f). Pub. L. 95–95, §305(f), added subsec. (f). Subsec. (g). Pub. L. 95–95, §305(g), added subsec. (g). 1974—Subsec. (b)(1). Pub. L. 93–319 inserted reference to the Administrator’s action under section 1857c–10(c)(2)(A), (B), or (C) of this title or under regula

tions thereunder and substituted reference to the filing of a petition within 30 days from the date of promulga

tion, approval, or action for reference to the filing of a petition within 30 days from the date of promulgation or approval. 1971—Subsec. (a)(1). Pub. L. 92–157 substituted ref

erence to section ‘‘7545(c)(3)’’ for ‘‘7545(c)(4)’’ of this title.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

T ERMINATION OF A DVISORY C OMMITTEES Advisory committees established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided for by law. See section 14 of Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 776, set out in the Appen

dix to Title 5, Government Organization and Employ

ees.

P ENDING A CTIONS AND P ROCEEDINGS Suits, actions, and other proceedings lawfully com

menced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7608. Mandatory licensing
Whenever the Attorney General determines, upon application of the Administrator— (1) that— (A) in the implementation of the require

ments of section 7411, 7412, or 7521 of this title, a right under any United States letters patent, which is being used or intended for public or commercial use and not otherwise reasonably available, is necessary to enable any person required to comply with such limitation to so comply, and (B) there are no reasonable alternative methods to accomplish such purpose, and (2) that the unavailability of such right may result in a substantial lessening of competi

tion or tendency to create a monopoly in any line of commerce in any section of the coun

try, the Attorney General may so certify to a dis

trict court of the United States, which may issue an order requiring the person who owns such patent to license it on such reasonable terms and conditions as the court, after hearing, may determine. Such certification may be made to the district court for the district in which the person owning the patent resides, does business, or is found. (July 14, 1955, ch. 360, title III, §308, as added Pub. L. 91–604, §12(a), Dec. 31, 1970, 84 Stat. 1708.)

C ODIFICATION Section was formerly classified to section 1857h–6 of this title.

P RIOR P ROVISIONS A prior section 308 of act July 14, 1955, was renum

bered section 315 by Pub. L. 91–604 and is classified to section 7615 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effectPage 6434 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7609

immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7609. Policy review (a) Environmental impact
The Administrator shall review and comment in writing on the environmental impact of any matter relating to duties and responsibilities granted pursuant to this chapter or other provi

sions of the authority of the Administrator, con

tained in any (1) legislation proposed by any Federal department or agency, (2) newly author

ized Federal projects for construction and any major Federal agency action (other than a project for construction) to which section 4332(2)(C) of this title applies, and (3) proposed regulations published by any department or agency of the Federal Government. Such writ

ten comment shall be made public at the conclu

sion of any such review. (b) Unsatisfactory legislation, action, or regula

tion
In the event the Administrator determines that any such legislation, action, or regulation is unsatisfactory from the standpoint of public health or welfare or environmental quality, he shall publish his determination and the matter shall be referred to the Council on Environ

mental Quality. (July 14, 1955, ch. 360, title III, §309, as added Pub. L. 91–604, §12(a), Dec. 31, 1970, 84 Stat. 1709.)

C ODIFICATION Section was formerly classified to section 1857h–7 of this title.

P RIOR P ROVISIONS A prior section 309 of act July 14, 1955, ch. 360, title III, formerly §13, as added Dec. 17, 1963, Pub. L. 88–206, §1, 77 Stat. 401; renumbered §306, Oct. 20, 1965, Pub. L. 89–272, title I, §101(4), 79 Stat. 992; renumbered §309, Nov. 21, 1967, Pub. L. 90–148, §2, 81 Stat. 506; renumbered §316, Dec. 31, 1970, Pub. L. 91–604, §12(a), 84 Stat. 1705, related to appropriations and was classified to section 1857 l of this title, prior to repeal by section 306 of Pub. L. 95–95. See section 7626 of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7610. Other authority (a) Authority and responsibilities under other laws not affected Except as provided in subsection (b) of this section, this chapter shall not be construed as superseding or limiting the authorities and re

sponsibilities, under any other provision of law, of the Administrator or any other Federal offi

cer, department, or agency. (b) Nonduplication of appropriations No appropriation shall be authorized or made under section 241, 243, or 246 of this title for any fiscal year after the fiscal year ending June 30, 1964, for any purpose for which appropriations may be made under authority of this chapter. (July 14, 1955, ch. 360, title III, §310, formerly §10, as added Pub. L. 88–206, §1, Dec. 17, 1963, 77 Stat. 401; renumbered §303, Pub. L. 89–272, title I, §101(4), Oct. 20, 1965, 79 Stat. 992; amended Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 505; re

numbered §310 and amended Pub. L. 91–604, §§12(a), 15(c)(2), Dec. 31, 1970, 84 Stat. 1705, 1713.)

C ODIFICATION Section was formerly classified to section 1857i of this title.

P RIOR P ROVISIONS A prior section 310 of act July 14, 1955, was renum

bered section 317 by Pub. L. 91–604 and is set out as a Short Title note under section 7401 of this title. Provisions similar to those in subsec. (a) of this sec

tion were contained in section 1857f of this title, act July 14, 1955, ch. 360, §7, 69 Stat. 323, prior to the gen

eral amendment of this chapter by Pub. L. 88–206.

A MENDMENTS 1970—Subsec. (a). Pub. L. 91–604, §15(c)(2), substituted ‘‘Administrator’’ for ‘‘Secretary’’. 1967—Subsec. (b). Pub. L. 90–148 substituted reference to section 246 of this title for reference to section 246(c) of this title.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.
§ 7611. Records and audit (a) Recipients of assistance to keep prescribed records Each recipient of assistance under this chap

ter shall keep such records as the Administrator shall prescribe, including records which fully disclose the amount and disposition by such re

cipient of the proceeds of such assistance, the total cost of the project or undertaking in con

nection with which such assistance is given or used, and the amount of that portion of the cost of the project or undertaking supplied by other sources, and such other records as will facilitate an effective audit. (b) Audits The Administrator and the Comptroller Gen

eral of the United States, or any of their duly authorized representatives, shall have access forPage 6435 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7612

the purpose of audit and examinations to any books, documents, papers, and records of the re

cipients that are pertinent to the grants re

ceived under this chapter. (July 14, 1955, ch. 360, title III, §311, formerly §11, as added Pub. L. 88–206, §1, Dec. 17, 1963, 77 Stat. 401; renumbered §304, Pub. L. 89–272, title I, §101(4), Oct. 20, 1965, 79 Stat. 992; amended Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 505; re

numbered §311 and amended Pub. L. 91–604, §§12(a), 15(c)(2), Dec. 31, 1970, 84 Stat. 1705, 1713.)

C ODIFICATION Section was formerly classified to section 1857j of this title.

A MENDMENTS 1970—Pub. L. 91–604, §15(c)(2), substituted ‘‘Adminis

trator’’ for ‘‘Secretary’’ and ‘‘Secretary of Health, Edu

cation, and Welfare’’. 1967—Pub. L. 90–148 reenacted section without change.

M ODIFICATION OR R ESCISSION OF R ULES , R EGULATIONS , O RDERS , D ETERMINATIONS , C ONTRACTS , C ERTIFI

CATIONS , A UTHORIZATIONS , D ELEGATIONS , AND O THER A CTIONS All rules, regulations, orders, determinations, con

tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu

ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7612. Economic impact analyses (a) Cost-benefit analysis The Administrator, in consultation with the Secretary of Commerce, the Secretary of Labor, and the Council on Clean Air Compliance Analy

sis (as established under subsection (f) of this section), shall conduct a comprehensive analysis of the impact of this chapter on the public health, economy, and environment of the United States. In performing such analysis, the Admin

istrator should consider the costs, benefits and other effects associated with compliance with each standard issued for— (1) a criteria air pollutant subject to a standard issued under section 7409 of this title; (2) a hazardous air pollutant listed under section 7412 of this title, including any tech

nology-based standard and any risk-based standard for such pollutant; (3) emissions from mobile sources regulated under subchapter II of this chapter; (4) a limitation under this chapter for emis

sions of sulfur dioxide or nitrogen oxides; (5) a limitation under subchapter VI of this chapter on the production of any ozone-deplet

ing substance; and (6) any other section of this chapter. (b) Benefits In describing the benefits of a standard de

scribed in subsection (a) of this section, the Ad

ministrator shall consider all of the economic, public health, and environmental benefits of ef

forts to comply with such standard. In any case where numerical values are assigned to such benefits, a default assumption of zero value shall not be assigned to such benefits unless sup

ported by specific data. The Administrator shall assess how benefits are measured in order to as

sure that damage to human health and the envi

ronment is more accurately measured and taken into account. (c) Costs In describing the costs of a standard described in subsection (a) of this section, the Adminis

trator shall consider the effects of such standard on employment, productivity, cost of living, economic growth, and the overall economy of the United States. (d) Initial report Not later than 12 months after November 15, 1990, the Administrator, in consultation with the Secretary of Commerce, the Secretary of Labor, and the Council on Clean Air Compliance Analysis, shall submit a report to the Congress that summarizes the results of the analysis de

scribed in subsection (a) of this section, which reports— (1) all costs incurred previous to November 15, 1990, in the effort to comply with such standards; and (2) all benefits that have accrued to the United States as a result of such costs. (e) Omitted (f) Appointment of Advisory Council on Clean Air Compliance Analysis Not later than 6 months after November 15, 1990, the Administrator, in consultation with the Secretary of Commerce and the Secretary of Labor, shall appoint an Advisory Council on Clean Air Compliance Analysis of not less than nine members (hereafter in this section referred to as the ‘‘Council’’). In appointing such mem

bers, the Administrator shall appoint recognized experts in the fields of the health and environ

mental effects of air pollution, economic analy

sis, environmental sciences, and such other fields that the Administrator determines to be appropriate. (g) Duties of Advisory Council
The Council shall— (1) review the data to be used for any analy

sis required under this section and make rec

ommendations to the Administrator on the use of such data; (2) review the methodology used to analyze such data and make recommendations to the Administrator on the use of such methodol

ogy; and (3) prior to the issuance of a report required under subsection (d) or (e) of this section, re

view the findings of such report, and make recommendations to the Administrator con

cerning the validity and utility of such find

ings. (July 14, 1955, ch. 360, title III, §312, formerly §305, as added Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 505; renumbered §312 and amended Pub. L. 91–604, §§12(a), 15(c)(2), Dec. 31, 1970, 84 Stat. 1705, 1713; Pub. L. 95–95, title II, §224(c), Aug. 7, 1977, 91 Stat. 767; Pub. L. 101–549, title VIII, §812(a), Nov. 15, 1990, 104 Stat. 2691.)Page 6436 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7613

1 So in original. Probably should be ‘‘section,’’. C ODIFICATION Subsec. (e) of this section, which required the Admin

istrator, in consultation with the Secretary of Com

merce, the Secretary of Labor, and the Council on Clean Air Compliance Analysis, to submit a report to Congress that updates the report issued pursuant to subsec. (d) of this section, and which, in addition, makes projections into the future regarding expected costs, benefits, and other effects of compliance with standards pursuant to this chapter as listed in subsec. (a) of this section, terminated, effective May 15, 2000, pursuant to section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance. See, also, the 4th item on page 163 of House Document No. 103–7. Section was formerly classified to section 1857j–1 of this title.

A MENDMENTS 1990—Pub. L. 101–549 amended section generally, sub

stituting present provisions for provisions which relat

ed to: in subsec. (a), detailed cost estimate, comprehen

sive cost and economic impact studies, and annual re

evaluation; in subsec. (b), personnel study and report to President and Congress; and in subsec. (c), cost-effec

tiveness analyses. 1977—Subsec. (c). Pub. L. 95–95 added subsec. (c). 1970—Pub. L. 91–604, §15(c)(2), substituted ‘‘Adminis

trator’’ for ‘‘Secretary’’ wherever appearing.

E FFECTIVE D ATE OF 1977 A MENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex

cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title.

T ERMINATION OF A DVISORY C OUNCILS Advisory councils established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a council established by the Presi

dent or an officer of the Federal Government, such council is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a council established by Congress, its duration is other

wise provided by law. See sections 3(2) and 14 of Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, 776, set out in the Ap

pendix to Title 5, Government Organization and Em

ployees.

E QUIVALENT A IR Q UALITY C ONTROLS A MONG T RADING N ATIONS Section 811 of Pub. L. 101–549 provided that: ‘‘(a) F INDINGS .—The Congress finds that— ‘‘(1) all nations have the responsibility to adopt and enforce effective air quality standards and require

ments and the United States, in enacting this Act [see Tables for classification], is carrying out its re

sponsibility in this regard; ‘‘(2) as a result of complying with this Act, busi

nesses in the United States will make significant cap

ital investments and incur incremental costs in im

plementing control technology standards; ‘‘(3) such compliance may impair the competitive

ness of certain United States jobs, production, proc

esses, and products if foreign goods are produced under less costly environmental standards and re

quirements than are United States goods; and ‘‘(4) mechanisms should be sought through which the United States and its trading partners can agree to eliminate or reduce competitive disadvantages. ‘‘(b) A CTION BY THE P RESIDENT .— ‘‘(1) I N GENERAL .—Within 18 months after the date of the enactment of the Clean Air Act Amendments of 1990 [Nov. 15, 1990], the President shall submit to the Congress a report— ‘‘(A) identifying and evaluating the economic ef

fects of— ‘‘(i) the significant air quality standards and controls required under this Act, and ‘‘(ii) the differences between the significant standards and controls required under this Act and similar standards and controls adopted and enforced by the major trading partners of the United States, on the international competitiveness of United States manufacturers; and ‘‘(B) containing a strategy for addressing such economic effects through trade consultations and negotiations. ‘‘(2) A DDITIONAL REPORTING REQUIREMENTS .—(A) The evaluation required under paragraph (1)(A) shall ex

amine the extent to which the significant air quality standards and controls required under this Act are comparable to existing internationally-agreed norms. ‘‘(B) The strategy required to be developed under paragraph (1)(B) shall include recommended options (such as the harmonization of standards and trade ad

justment measures) for reducing or eliminating com

petitive disadvantages caused by differences in stand

ards and controls between the United States and each of its major trading partners. ‘‘(3) P UBLIC COMMENT .—Interested parties shall be given an opportunity to submit comments regarding the evaluations and strategy required in the report under paragraph (1). The President shall take any such comment into account in preparing the report. ‘‘(4) I NTERIM REPORT .—Within 9 months after the date of the enactment of the Clean Air Act Amend

ments of 1990 [Nov. 15, 1990], the President shall sub

mit to the Congress an interim report on the progress being made in complying with paragraph (1).’’

GAO R EPORTS ON C OSTS AND B ENEFITS Section 812(b) of Pub. L. 101–549, which directed Comptroller General, commencing on second year after Nov. 15, 1990, and annually thereafter, in consultation with other agencies, to report to Congress on pollution control strategies and technologies required by Clean Air Act Amendments of 1990, was repealed by Pub. L. 104–316, title I, §122(r), Oct. 19, 1996, 110 Stat. 3838. § 7613. Repealed. Pub. L. 101–549, title VIII, § 803, Nov. 15, 1990, 104 Stat. 2689

Section, act July 14, 1955, ch. 360, title III, §313, for

merly §306, as added Nov. 21, 1967, Pub. L. 90–148, §2, 81 Stat. 506; renumbered §313 and amended Dec. 31, 1970, Pub. L. 91–604, §§12(a), 15(c)(2), 84 Stat. 1705, 1713; Aug. 7, 1977, Pub. L. 95–95, title III, §302(b), 91 Stat. 771, re

quired annual report to Congress on progress of pro

grams under this chapter.
§ 7614. Labor standards

The Administrator shall take such action as may be necessary to insure that all laborers and mechanics employed by contractors or sub

contractors on projects assisted under this chap

ter shall be paid wages at rates not less than those prevailing for the same type of work on similar construction in the locality as deter

mined by the Secretary of Labor, in accordance with sections 3141–3144, 3146, and 3147 of title 40. The Secretary of Labor shall have, with respect to the labor standards specified in this sub

section, 1 the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (15 F.R. 3176; 64 Stat. 1267) and section 3145 of title 40. (July 14, 1955, ch. 360, title III, §314, formerly §307, as added Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 506; renumbered §314 and amended Pub. L.Page 6437 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7616

1 So in original. The period probably should be a comma. 91–604, §§12(a), 15(c)(2), Dec. 31, 1970, 84 Stat. 1705, 1713.)

R EFERENCES IN T EXT Reorganization Plan Numbered 14 of 1950, referred to in text, is set out in the Appendix to Title 5, Govern

ment Organization and Employees.

C ODIFICATION In text, ‘‘sections 3141–3144, 3146, and 3147 of title 40’’ substituted for ‘‘the Act of March 3, 1931, as amended, known as the Davis-Bacon Act (46 Stat. 1494; 40 U.S.C. 276a—276a–5)’’ and ‘‘section 3145 of title 40’’ substituted for ‘‘section 2 of the Act of June 13, 1934, as amended (48 Stat. 948; 40 U.S.C. 276c)’’, on authority of Pub. L. 107–217, §5(c), Aug. 21, 2002, 116 Stat. 1303, the first sec

tion of which enacted Title 40, Public Buildings, Prop

erty, and Works. Section was formerly classified to section 1857j–3 of this title.

A MENDMENTS 1970—Pub. L. 91–604, §15(c)(2), substituted ‘‘Adminis

trator’’ for ‘‘Secretary’’ meaning the Secretary of Health, Education, and Welfare.
§ 7615. Separability
If any provision of this chapter, or the applica

tion of any provision of this chapter to any per

son or circumstance, is held invalid, the applica

tion of such provision to other persons or cir

cumstances, and the remainder of this chapter shall not be affected thereby. (July 14, 1955, ch. 360, title III, §315, formerly §12, as added Pub. L. 88–206, §1, Dec. 17, 1963, 77 Stat. 401; renumbered §305, Pub. L. 89–272, title I, §101(4), Oct. 20, 1965, 79 Stat. 992; renumbered §308 and amended, Pub. L. 90–148, §2, Nov. 21, 1967, 81 Stat. 506; renumbered §315, Pub. L. 91–604, §12(a), Dec. 31, 1970, 84 Stat. 1705.)

C ODIFICATION Section was formerly classified to section 1857k of this title.

A MENDMENTS
1967—Pub. L. 90–148 reenacted section without change.
§ 7616. Sewage treatment grants
(a) Construction No grant which the Administrator is author

ized to make to any applicant for construction of sewage treatment works in any area in any State may be withheld, conditioned, or re

stricted by the Administrator on the basis of any requirement of this chapter except as pro

vided in subsection (b) of this section. (b) Withholding, conditioning, or restriction of construction grants The Administrator may withhold, condition, or restrict the making of any grant for construc

tion referred to in subsection (a) of this section only if he determines that— (1) such treatment works will not comply with applicable standards under section 7411 or 7412 of this title, (2) the State does not have in effect, or is not carrying out, a State implementation plan approved by the Administrator which ex

pressly quantifies and provides for the in

crease in emissions of each air pollutant (from stationary and mobile sources in any area to which either part C or part D of subchapter I of this chapter applies for such pollutant) which increase may reasonably be anticipated to result directly or indirectly from the new sewage treatment capacity which would be created by such construction. 1 (3) the construction of such treatment works would create new sewage treatment capacity which— (A) may reasonably be anticipated to cause or contribute to, directly or indi

rectly, an increase in emissions of any air pollutant in excess of the increase provided for under the provisions referred to in para

graph (2) for any such area, or (B) would otherwise not be in conformity with the applicable implementation plan, or (4) such increase in emissions would inter

fere with, or be inconsistent with, the applica

ble implementation plan for any other State.
In the case of construction of a treatment works which would result, directly or indirectly, in an increase in emissions of any air pollutant from stationary and mobile sources in an area to which part D of subchapter I of this chapter ap

plies, the quantification of emissions referred to in paragraph (2) shall include the emissions of any such pollutant resulting directly or indi

rectly from areawide and nonmajor stationary source growth (mobile and stationary) for each such area. (c) National Environmental Policy Act Nothing in this section shall be construed to amend or alter any provision of the National Environmental Policy Act [42 U.S.C. 4321 et seq.] or to affect any determination as to whether or not the requirements of such Act have been met in the case of the construction of any sewage treatment works. (July 14, 1955, ch. 360, title III, §316, as added Pub. L. 95–95, title III, §306, Aug. 7, 1977, 91 Stat. 777.)

R EFERENCES IN T EXT The National Environmental Policy Act, referred to in subsec. (c), probably means the National Environ

mental Policy Act of 1969, Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, as amended, which is classified generally to chapter 55 (§4321 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of this title and Tables.

P RIOR P ROVISIONS A prior section 316 of act July 14, 1955, ch. 360, title III, formerly §13, as added Dec. 17, 1963, Pub. L. 88–206, §1, 77 Stat. 401; renumbered §306 and amended Oct. 20, 1965, Pub. L. 89–272, title I, §101(4), (6), (7), 79 Stat. 992; Oct. 15, 1966, Pub. L. 89–675, §2(a), 80 Stat. 954; renum

bered §309 and amended Nov. 21, 1967, Pub. L. 90–148, §2, 81 Stat. 506; renumbered §316 and amended Dec. 31, 1970, Pub. L. 91–604, §§12(a), 13(b), 84 Stat. 1705, 1709; Apr. 9, 1973, Pub. L. 93–15, §1(c), 87 Stat. 11; June 22, 1974, Pub. L. 93–319, §13(c), 88 Stat. 265, authorized appropriations for air pollution control, prior to repeal by section 306 of Pub. L. 95–95. See section 7626 of this title.

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, setPage 6438 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7617

1 See References in Text note below. out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7617. Economic impact assessment (a) Notice of proposed rulemaking; substantial revisions This section applies to action of the Adminis

trator in promulgating or revising— (1) any new source standard of performance under section 7411 of this title, (2) any regulation under section 7411(d) of this title, (3) any regulation under part B 1 of sub

chapter I of this chapter (relating to ozone and stratosphere protection), (4) any regulation under part C of subchapter I of this chapter (relating to prevention of sig

nificant deterioration of air quality), (5) any regulation establishing emission standards under section 7521 of this title and any other regulation promulgated under that section, (6) any regulation controlling or prohibiting any fuel or fuel additive under section 7545(c) of this title, and (7) any aircraft emission standard under sec

tion 7571 of this title. Nothing in this section shall apply to any stand

ard or regulation described in paragraphs (1) through (7) of this subsection unless the notice of proposed rulemaking in connection with such standard or regulation is published in the Fed

eral Register after the date ninety days after August 7, 1977. In the case of revisions of such standards or regulations, this section shall apply only to revisions which the Administrator determines to be substantial revisions. (b) Preparation of assessment by Administrator Before publication of notice of proposed rule

making with respect to any standard or regula

tion to which this section applies, the Adminis

trator shall prepare an economic impact assess

ment respecting such standard or regulation. Such assessment shall be included in the docket required under section 7607(d)(2) of this title and shall be available to the public as provided in section 7607(d)(4) of this title. Notice of proposed rulemaking shall include notice of such avail

ability together with an explanation of the ex

tent and manner in which the Administrator has considered the analysis contained in such eco

nomic impact assessment in proposing the ac

tion. The Administrator shall also provide such an explanation in his notice of promulgation of any regulation or standard referred to in sub

section (a) of this section. Each such expla

nation shall be part of the statements of basis and purpose required under sections 7607(d)(3) and 7607(d)(6) of this title. (c) Analysis Subject to subsection (d) of this section, the assessment required under this section with re

spect to any standard or regulation shall con

tain an analysis of— (1) the costs of compliance with any such standard or regulation, including extent to which the costs of compliance will vary de

pending on (A) the effective date of the stand

ard or regulation, and (B) the development of less expensive, more efficient means or meth

ods of compliance with the standard or regula

tion; (2) the potential inflationary or recessionary effects of the standard or regulation; (3) the effects on competition of the stand

ard or regulation with respect to small busi

ness; (4) the effects of the standard or regulation on consumer costs; and (5) the effects of the standard or regulation
on energy use. Nothing in this section shall be construed to provide that the analysis of the factors specified in this subsection affects or alters the factors which the Administrator is required to consider in taking any action referred to in subsection (a) of this section. (d) Extensiveness of assessment The assessment required under this section shall be as extensive as practicable, in the judg

ment of the Administrator taking into account the time and resources available to the Environ

mental Protection Agency and other duties and authorities which the Administrator is required to carry out under this chapter. (e) Limitations on construction of section Nothing in this section shall be construed— (1) to alter the basis on which a standard or regulation is promulgated under this chapter; (2) to preclude the Administrator from car

rying out his responsibility under this chapter to protect public health and welfare; or (3) to authorize or require any judicial re

view of any such standard or regulation, or any stay or injunction of the proposal, pro

mulgation, or effectiveness of such standard or regulation on the basis of failure to comply with this section. (f) Citizen suits The requirements imposed on the Adminis

trator under this section shall be treated as non

discretionary duties for purposes of section 7604(a)(2) of this title, relating to citizen suits. The sole method for enforcement of the Admin

istrator’s duty under this section shall be by bringing a citizen suit under such section 7604(a)(2) for a court order to compel the Admin

istrator to perform such duty. Violation of any such order shall subject the Administrator to penalties for contempt of court. (g) Costs In the case of any provision of this chapter in which costs are expressly required to be taken into account, the adequacy or inadequacy of any assessment required under this section may be taken into consideration, but shall not be treat

ed for purposes of judicial review of any such provision as conclusive with respect to compli

ance or noncompliance with the requirement of such provision to take cost into account. (July 14, 1955, ch. 360, title III, §317, as added Pub. L. 95–95, title III, §307, Aug. 7, 1977, 91 Stat. 778; amended Pub. L. 95–623, §13(d), Nov. 9, 1978, 92 Stat. 3458.)Page 6439 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7619

1 So in original. Probably should be ‘‘of’’.

2 So in original. Probably should be followed by ‘‘in’’. R EFERENCES IN T EXT Part B of subchapter I of this chapter, referred to in subsec. (a)(3), was repealed by Pub. L. 101–549, title VI, §601, Nov. 15, 1990, 104 Stat. 2648. See subchapter VI (§7671 et seq.) of this chapter.

C ODIFICATION Another section 317 of act July 14, 1955, is set out as a Short Title note under section 7401 of this title.

A MENDMENTS 1978—Subsec. (a)(1). Pub. L. 95–623 substituted ‘‘sec

tion 7411’’ for ‘‘section 7411(b)’’.

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7618. Repealed. Pub. L. 101–549, title I, § 108(q), Nov. 15, 1990, 104 Stat. 2469

Section, act July 14, 1955, ch. 360, title III, §318, as added Aug. 7, 1977, Pub. L. 95–95, title III, §308, 91 Stat. 780, related to financial disclosure and conflicts of in

terest. § 7619. Air quality monitoring (a) In general After notice and opportunity for public hear

ing, the Administrator shall promulgate regula

tions establishing an air quality monitoring sys

tem throughout the United States which— (1) utilizes uniform air quality monitoring criteria and methodology and measures such air quality according to a uniform air quality index, (2) provides for air quality monitoring sta

tions in major urban areas and other appro

priate areas throughout the United States to provide monitoring such as will supplement (but not duplicate) air quality monitoring car

ried out by the States required under any ap

plicable implementation plan, (3) provides for daily analysis and reporting of air quality based upon such uniform air quality index, and (4) provides for recordkeeping with respect to such monitoring data and for periodic analysis and reporting to the general public by the Administrator with respect to air quality based upon such data. The operation of such air quality monitoring system may be carried out by the Administrator or by such other departments, agencies, or enti

ties of the Federal Government (including the National Weather Service) as the President may deem appropriate. Any air quality monitoring system required under any applicable implemen

tation plan under section 7410 of this title shall, as soon as practicable following promulgation of regulations under this section, utilize the stand

ard criteria and methodology, and measure air quality according to the standard index, estab

lished under such regulations. (b) Air quality monitoring data influenced by ex

ceptional events (1) Definition of exceptional event
In this section: (A) In general The term ‘‘exceptional event’’ means an event that— (i) affects air quality; (ii) is not reasonably controllable or pre

ventable; (iii) is an event caused by human activ

ity that is unlikely to recur at a particular location or a natural event; and (iv) is determined by the Administrator through the process established in the reg

ulations promulgated under paragraph (2) to be an exceptional event. (B) Exclusions In this subsection, the term ‘‘exceptional event’’ does not include— (i) stagnation of air masses or meteoro

logical inversions; (ii) a meteorological event involving high temperatures or lack of precipitation;

or (iii) air pollution relating to source non

compliance. (2) Regulations (A) Proposed regulations Not later than March 1, 2006, after con

sultation with Federal land managers and State air pollution control agencies, the Ad

ministrator shall publish in the Federal Reg

ister proposed regulations governing the re

view and handling of air quality monitoring data influenced by exceptional events. (B) Final regulations Not later than 1 year after the date on which the Administrator publishes proposed regulations under subparagraph (A), and after providing an opportunity for interested persons to make oral presentations of views, data, and arguments regarding the proposed regulations, the Administrator shall promul

gate final regulations governing the review and handling or 1 air quality monitoring data influenced by an exceptional event that are consistent with paragraph (3). (3) Principles and requirements (A) Principles In promulgating regulations under this section, the Administrator shall follow— (i) the principle that protection of public health is the highest priority; (ii) the principle that timely information should be provided to the public in any case in which the air quality is unhealthy; (iii) the principle that all ambient air quality data should be included in a timely
manner, 2 an appropriate Federal air qual

ity database that is accessible to the pub

lic; (iv) the principle that each State must take necessary measures to safeguard pub

lic health regardless of the source of the air pollution; and (v) the principle that air quality data should be carefully screened to ensure that events not likely to recur are represented accurately in all monitoring data and analyses. (B) Requirements Regulations promulgated under this sec

tion shall, at a minimum, provide that—Page 6440 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7620

1 So in original. The semicolon probably should be a comma.

(i) the occurrence of an exceptional event must be demonstrated by reliable, accurate data that is promptly produced and provided by Federal, State, or local government agencies; (ii) a clear causal relationship must exist between the measured exceedances of a na

tional ambient air quality standard and the exceptional event to demonstrate that the exceptional event caused a specific air pollution concentration at a particular air quality monitoring location; (iii) there is a public process for deter

mining whether an event is exceptional; and (iv) there are criteria and procedures for the Governor of a State to petition the Ad

ministrator to exclude air quality mon

itoring data that is directly due to excep

tional events from use in determinations by the Administrator with respect to exceedances or violations of the national ambient air quality standards. (4) Interim provision Until the effective date of a regulation pro

mulgated under paragraph (2), the following guidance issued by the Administrator shall continue to apply: (A) Guidance on the identification and use of air quality data affected by exceptional events (July 1986). (B) Areas affected by PM–10 natural events, May 30, 1996. (C) Appendices I, K, and N to part 50 of title 40, Code of Federal Regulations. (July 14, 1955, ch. 360, title III, §319, as added Pub. L. 95–95, title III, §309, Aug. 7, 1977, 91 Stat. 781; amended Pub. L. 109–59, title VI, §6013(a), Aug. 10, 2005, 119 Stat. 1882.)

A MENDMENTS 2005—Pub. L. 109–59 designated existing provisions as subsec. (a), inserted heading, substituted ‘‘After notice and opportunity for public hearing’’ for ‘‘Not later than one year after August 7, 1977, and after notice and op

portunity for public hearing’’, and added subsec. (b).

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7620. Standardized air quality modeling (a) Conferences Not later than six months after August 7, 1977, and at least every three years thereafter, the Administrator shall conduct a conference on air quality modeling. In conducting such con

ference, special attention shall be given to ap

propriate modeling necessary for carrying out part C of subchapter I of this chapter (relating to prevention of significant deterioration of air quality). (b) Conferees
The conference conducted under this section shall provide for participation by the National Academy of Sciences, representatives of State and local air pollution control agencies, and ap

propriate Federal agencies, including the Na

tional Science Foundation; 1 the National Oce

anic and Atmospheric Administration, and the National Institute of Standards and Technology. (c) Comments; transcripts Interested persons shall be permitted to sub

mit written comments and a verbatim tran

script of the conference proceedings shall be maintained. (d) Promulgation and revision of regulations re

lating to air quality modeling The comments submitted and the transcript maintained pursuant to subsection (c) of this section shall be included in the docket required to be established for purposes of promulgating or revising any regulation relating to air qual

ity modeling under part C of subchapter I of this chapter. (July 14, 1955, ch. 360, title III, §320, as added Pub. L. 95–95, title III, §310, Aug. 7, 1977, 91 Stat. 782; amended Pub. L. 100–418, title V, §5115(c), Aug. 23, 1988, 102 Stat. 1433.)

A MENDMENTS 1988—Subsec. (b). Pub. L. 100–418 substituted ‘‘Na

tional Institute of Standards and Technology’’ for ‘‘Na

tional Bureau of Standards’’.

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7621. Employment effects (a) Continuous evaluation of potential loss or shifts of employment The Administrator shall conduct continuing evaluations of potential loss or shifts of employ

ment which may result from the administration or enforcement of the provision of this chapter and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employment al

legedly resulting from such administration or enforcement. (b) Request for investigation; hearings; record; report Any employee, or any representative of such employee, who is discharged or laid off, threat

ened with discharge or layoff, or whose employ

ment is otherwise adversely affected or threat

ened to be adversely affected because of the al

leged results of any requirement imposed or pro

posed to be imposed under this chapter, includ

ing any requirement applicable to Federal facili

ties and any requirement imposed by a State or political subdivision thereof, may request the Administrator to conduct a full investigation of the matter. Any such request shall be reduced to writing, shall set forth with reasonable particu

larity the grounds for the request, and shall be signed by the employee, or representative of such employee, making the request. The Admin

istrator shall thereupon investigate the matter and, at the request of any party, shall hold pub

lic hearings on not less than five days’ notice. At such hearings, the Administrator shall re

-Page 6441 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7622

1 So in original. Probably should be ‘‘subsection,’’ quire the parties, including the employer in

volved, to present information relating to the actual or potential effect of such requirements on employment and the detailed reasons or jus

tification therefor. If the Administrator deter

mines that there are no reasonable grounds for conducting a public hearing he shall notify (in writing) the party requesting such hearing of such a determination and the reasons therefor. If the Administrator does convene such a hear

ing, the hearing shall be on the record. Upon re

ceiving the report of such investigation, the Ad

ministrator shall make findings of fact as to the effect of such requirements on employment and on the alleged actual or potential discharge, lay

off, or other adverse effect on employment, and shall make such recommendations as he deems appropriate. Such report, findings, and recom

mendations shall be available to the public.
(c) Subpenas; confidential information; wit

nesses; penalty In connection with any investigation or public hearing conducted under subsection (b) of this section or as authorized in section 7419 of this title (relating to primary nonferrous smelter or

ders), the Administrator may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents, and he may administer oaths. Ex

cept for emission data, upon a showing satisfac

tory to the Administrator by such owner or op

erator that such papers, books, documents, or information or particular part thereof, if made public, would divulge trade secrets or secret processes of such owner, or operator, the Admin

istrator shall consider such record, report, or in

formation or particular portion thereof con

fidential in accordance with the purposes of sec

tion 1905 of title 18, except that such paper, book, document, or information may be dis

closed to other officers, employees, or author

ized representatives of the United States con

cerned with carrying out this chapter, or when relevant in any proceeding under this chapter. Witnesses summoned shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. In cases of contu

macy or refusal to obey a subpena served upon any person under this subparagraph, 1 the dis

trict court of the United States for any district in which such person is found or resides or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requir

ing such person to appear and give testimony before the Administrator, to appear and produce papers, books, and documents before the Admin

istrator, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof.

(d) Limitations on construction of section Nothing in this section shall be construed to require or authorize the Administrator, the States, or political subdivisions thereof, to mod

ify or withdraw any requirement imposed or proposed to be imposed under this chapter. (July 14, 1955, ch. 360, title III, §321, as added Pub. L. 95–95, title III, §311, Aug. 7, 1977, 91 Stat. 782.)

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

S TUDY OF P OTENTIAL D ISLOCATION OF E MPLOYEES Section 403(e) of Pub. L. 95–95 provided that the Sec

retary of Labor, in consultation with the Adminis

trator, conduct a study of potential dislocation of em

ployees due to implementation of laws administered by the Administrator and that the Secretary submit to Congress the results of the study not more than one year after Aug. 7, 1977. § 7622. Employee protection (a) Discharge or discrimination prohibited No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, condi

tions, or privileges of employment because the employee (or any person acting pursuant to a re

quest of the employee)— (1) commenced, caused to be commenced, or is about to commence or cause to be com

menced a proceeding under this chapter or a proceeding for the administration or enforce

ment of any requirement imposed under this chapter or under any applicable implementa

tion plan, (2) testified or is about to testify in any such proceeding, or (3) assisted or participated or is about to as

sist or participate in any manner in such a proceeding or in any other action to carry out the purposes of this chapter. (b) Complaint charging unlawful discharge or discrimination; investigation; order (1) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) of this section may, within thirty days after such violation occurs, file (or have any person file on his behalf) a complaint with the Sec

retary of Labor (hereinafter in this subsection referred to as the ‘‘Secretary’’) alleging such discharge or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complaint. (2)(A) Upon receipt of a complaint filed under paragraph (1), the Secretary shall conduct an in

vestigation of the violation alleged in the com

plaint. Within thirty days of the receipt of such complaint, the Secretary shall complete such in

vestigation and shall notify in writing the com

plainant (and any person acting in his behalf) and the person alleged to have committed such violation of the results of the investigation con

ducted pursuant to this subparagraph. Within ninety days of the receipt of such complaint the Secretary shall, unless the proceeding on the complaint is terminated by the Secretary on the basis of a settlement entered into by the Sec

retary and the person alleged to have committed such violation, issue an order either providing the relief prescribed by subparagraph (B) or de

-Page 6442 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7623

1 So in original. nying the complaint. An order of the Secretary shall be made on the record after notice and op

portunity for public hearing. The Secretary may not enter into a settlement terminating a pro

ceeding on a complaint without the participa

tion and consent of the complainant. (B) If, in response to a complaint filed under paragraph (1), the Secretary determines that a violation of subsection (a) of this section has oc

curred, the Secretary shall order the person who committed such violation to (i) take affirmative action to abate the violation, and (ii) reinstate the complainant to his former position together with the compensation (including back pay), terms, conditions, and privileges of his employ

ment, and the Secretary may order such person to provide compensatory damages to the com

plainant. If an order is issued under this para

graph, the Secretary, at the request of the com

plainant, shall assess against the person against whom the order is issued a sum equal to the ag

gregate amount of all costs and expenses (in

cluding attorneys’ and expert witness fees) rea

sonably incurred, as determined by the Sec

retary, by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued. (c) Review (1) Any person adversely affected or aggrieved by an order issued under subsection (b) of this section may obtain review of the order in the United States court of appeals for the circuit in which the violation, with respect to which the order was issued, allegedly occurred. The peti

tion for review must be filed within sixty days from the issuance of the Secretary’s order. Re

view shall conform to chapter 7 of title 5. The commencement of proceedings under this sub

paragraph 1 shall not, unless ordered by the court, operate as a stay of the Secretary’s order. (2) An order of the Secretary with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial re

view in any criminal or other civil proceeding. (d) Enforcement of order by Secretary Whenever a person has failed to comply with an order issued under subsection (b)(2) of this section, the Secretary may file a civil action in the United States district court for the district in which the violation was found to occur to en

force such order. In actions brought under this subsection, the district courts shall have juris

diction to grant all appropriate relief including, but not limited to, injunctive relief, compen

satory, and exemplary damages. (e) Enforcement of order by person on whose be

half order was issued (1) Any person on whose behalf an order was issued under paragraph (2) of subsection (b) of this section may commence a civil action against the person to whom such order was is

sued to require compliance with such order. The appropriate United States district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such order. (2) The court, in issuing any final order under this subsection, may award costs of litigation (including reasonable attorney and expert wit

ness fees) to any party whenever the court de

termines such award is appropriate. (f) Mandamus Any nondiscretionary duty imposed by this section shall be enforceable in a mandamus pro

ceeding brought under section 1361 of title 28. (g) Deliberate violation by employee Subsection (a) of this section shall not apply with respect to any employee who, acting with

out direction from his employer (or the employ

er’s agent), deliberately causes a violation of any requirement of this chapter. (July 14, 1955, ch. 360, title III, §322, as added Pub. L. 95–95, title III, §312, Aug. 7, 1977, 91 Stat. 783.)

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.
§ 7623. Repealed. Pub. L. 96–300, § 1(c), July 2, 1980, 94 Stat. 831

Section, act July 14, 1955, ch. 360, title III, §323, as added Aug. 7, 1977, Pub. L. 95–95, title III, §313, 91 Stat. 785; amended Nov. 16, 1977, Pub. L. 95–190, §14(a)(81), 91 Stat. 1404; S. Res. 4, Feb. 4, 1977; H. Res. 549, Mar. 25, 1980; July 2, 1980, Pub. L. 96–300, §1(a), 94 Stat. 831, es

tablished a National Commission on Air Quality, pre

scribed numerous subjects for study and report to Con

gress, enumerated specific questions for study and in

vestigation, required specific identification of loss or irretrievable commitment of resources, and provided for appointment and confirmation of its membership, cooperation of Federal executive agencies, submission of a National Academy of Sciences study to Congress, compensation and travel expenses, termination of Com

mission, appointment and compensation of staff, and public participation.

E FFECTIVE D ATE OF R EPEAL Section 1(c) of Pub. L. 96–300 provided that this sec

tion is repealed on date on which National Commission on Air Quality ceases to exist pursuant to provisions of former subsec. (g) of this section, which provided that not later than Mar. 1, 1981, a report be submitted con

taining results of all Commission studies and investiga

tions and that Commission cease to exist on Mar. 1, 1981, if report is not submitted on Mar. 1, 1981, or Com

mission would cease to exist on such date, but not later than May 1, 1981, as determined and ordered by Com

mission if report is submitted on Mar. 1, 1981.

N ATIONAL C OMMISSION ON A IR Q UALITY ; E XTENSION P ROHIBITION Section 1(d) of Pub. L. 96–300 provided that nothing in any other authority of law shall be construed to au

thorize or permit the extension of the National Com

mission on Air Quality pursuant to any Executive order or other Executive or agency action.
§ 7624. Cost of vapor recovery equipment (a) Costs to be borne by owner of retail outlet The regulations under this chapter applicable to vapor recovery with respect to mobile source fuels at retail outlets of such fuels shall provide that the cost of procurement and installation of such vapor recovery shall be borne by the owner of such outlet (as determined under such regula

tions). Except as provided in subsection (b) ofPage 6443 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7625

1 See References in Text note below.

2 So in original. The word ‘‘or’’ probably should appear at the end of subpar. (B). this section, such regulations shall provide that no lease of a retail outlet by the owner thereof which is entered into or renewed after August 7, 1977, may provide for a payment by the lessee of the cost of procurement and installation of vapor recovery equipment. Such regulations shall also provide that the cost of procurement and installation of vapor recovery equipment may be recovered by the owner of such outlet by means of price increases in the cost of any prod

uct sold by such owner, notwithstanding any provision of law. (b) Payment by lessee The regulations of the Administrator referred to in subsection (a) of this section shall permit a lease of a retail outlet to provide for payment by the lessee of the cost of procurement and in

stallation of vapor recovery equipment over a reasonable period (as determined in accordance with such regulations), if the owner of such out

let does not sell, trade in, or otherwise dispense any product at wholesale or retail at such out

let. (July 14, 1955, ch. 360, title III, §323, formerly §324, as added Pub. L. 95–95, title III, §314(a), Aug. 7, 1977, 91 Stat. 788; amended Pub. L. 95–190, §14(a)(82), Nov. 16, 1977, 91 Stat. 1404; renumbered §323 and amended Pub. L. 96–300, §1(b), (c), July 2, 1980, 94 Stat. 831.)

P RIOR P ROVISIONS A prior section 323 of act July 14, 1955, was classified to section 7623 of this title prior to repeal by Pub. L. 96–300, §1(c), July 2, 1980, 94 Stat. 831.

A MENDMENTS 1980—Pub. L. 96–300, §1(b), which directed that last sentence of this section be struck out was probably in

tended to strike sentence purportedly added by Pub. L. 95–190. See 1977 Amendment note below and section 7623(i) of this title. 1977—Pub. L. 95–190 which purported to amend subsec. (j) of this section by inserting ‘‘The Commission may appoint and fix the pay of such staff as it deems nec

essary.’’ after ‘‘(j)’’ was not executed to this section be

cause it did not contain a subsec. (j). See 1980 Amend

ment note above.

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7625. Vapor recovery for small business market

ers of petroleum products (a) Marketers of gasoline The regulations under this chapter applicable to vapor recovery from fueling of motor vehicles at retail outlets of gasoline shall not apply to any outlet owned by an independent small busi

ness marketer of gasoline having monthly sales of less than 50,000 gallons. In the case of any other outlet owned by an independent small business marketer, such regulations shall pro

vide, with respect to independent small business marketers of gasoline, for a three-year phase-in period for the installation of such vapor recov

ery equipment at such outlets under which such marketers shall have— (1) 33 percent of such outlets in compliance at the end of the first year during which such regulations apply to such marketers, (2) 66 percent at the end of such second year, and (3) 100 percent at the end of the third year. (b) State requirements Nothing in subsection (a) of this section shall be construed to prohibit any State from adopt

ing or enforcing, with respect to independent small business marketers of gasoline having monthly sales of less than 50,000 gallons, any vapor recovery requirements for mobile source fuels at retail outlets. Any vapor recovery re

quirement which is adopted by a State and sub

mitted to the Administrator as part of its imple

mentation plan may be approved and enforced by the Administrator as part of the applicable implementation plan for that State. (c) Refiners For purposes of this section, an independent small business marketer of gasoline is a person engaged in the marketing of gasoline who would be required to pay for procurement and installa

tion of vapor recovery equipment under section 7624 1 of this title or under regulations of the Ad

ministrator, unless such person— (1)(A) is a refiner, or 2 (B) controls, is controlled by, or is under common control with, a refiner, (C) is otherwise directly or indirectly affili

ated (as determined under the regulations of the Administrator) with a refiner or with a person who controls, is controlled by, or is under a common control with a refiner (unless the sole affiliation referred to herein is by means of a supply contract or an agreement or contract to use a trademark, trade name, serv

ice mark, or other identifying symbol or name owned by such refiner or any such person), or (2) receives less than 50 percent of his annual income from refining or marketing of gaso

line. For the purpose of this section, the term ‘‘re

finer’’ shall not include any refiner whose total refinery capacity (including the refinery capac

ity of any person who controls, is controlled by, or is under common control with, such refiner) does not exceed 65,000 barrels per day. For pur

poses of this section, ‘‘control’’ of a corporation means ownership of more than 50 percent of its stock. (July 14, 1955, ch. 360, title III, §324, formerly §325, as added Pub. L. 95–95, title III, §314(b), Aug. 7, 1977, 91 Stat. 789; renumbered §324, Pub. L. 96–300, §1(c), July 2, 1980, 94 Stat. 831.)

R EFERENCES IN T EXT Section 7624 of this title, referred to in subsec. (c), was in the original ‘‘section 324 of this Act’’, meaning section 324 of the Act July 14, 1955. Sections 324 and 325 of that Act, were renumbered sections 323 and 324, re

spectively, by Pub. L. 96–300, §1(b), July 2, 1980, 94 Stat. 831, and are classified to sections 7624 and 7625, respec

tively, of this title.

P RIOR P ROVISIONS A prior section 324 of act July 14, 1955, was renum

bered section 323 by Pub. L. 96–300 and is classified to section 7624 of this title.Page 6444 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7625–1

1 So in original. Probably should be capitalized.

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7625–1. Exemptions for certain territories
(a)(1) Upon petition by the governor 1 of Guam, American Samoa, the Virgin Islands, or the Commonwealth of the Northern Mariana Is

lands, the Administrator is authorized to ex

empt any person or source or class of persons or sources in such territory from any requirement under this chapter other than section 7412 of this title or any requirement under section 7410 of this title or part D of subchapter I of this chapter necessary to attain or maintain a na

tional primary ambient air quality standard. Such exemption may be granted if the Adminis

trator finds that compliance with such require

ment is not feasible or is unreasonable due to unique geographical, meteorological, or eco

nomic factors of such territory, or such other local factors as the Administrator deems signifi

cant. Any such petition shall be considered in accordance with section 7607(d) of this title and any exemption under this subsection shall be considered final action by the Administrator for the purposes of section 7607(b) of this title. (2) The Administrator shall promptly notify the Committees on Energy and Commerce and on Natural Resources of the House of Represent

atives and the Committees on Environment and Public Works and on Energy and Natural Re

sources of the Senate upon receipt of any peti

tion under this subsection and of the approval or rejection of such petition and the basis for such action. (b) Notwithstanding any other provision of this chapter, any fossil fuel fired steam electric power plant operating within Guam as of De

cember 8, 1983, is hereby exempted from: (1) any requirement of the new source per

formance standards relating to sulfur dioxide promulgated under section 7411 of this title as of December 8, 1983; and (2) any regulation relating to sulfur dioxide standards or limitations contained in a State implementation plan approved under section 7410 of this title as of December 8, 1983: Pro

vided , That such exemption shall expire eight

een months after December 8, 1983, unless the Administrator determines that such plant is making all emissions reductions practicable to prevent exceedances of the national ambient air quality standards for sulfur dioxide. (July 14, 1955, ch. 360, title III, §325, as added Pub. L. 98–213, §11, Dec. 8, 1983, 97 Stat. 1461; amended Pub. L. 101–549, title VIII, §806, Nov. 15, 1990, 104 Stat. 2689; Pub. L. 103–437, §15(s), Nov. 2, 1994, 108 Stat. 4594.)

P RIOR P ROVISIONS A prior section 325 of act July 14, 1955, was renum

bered section 326 by Pub. L. 98–213 and is classified to section 7625a of this title. Another prior section 325 of act July 14, 1955, was re

numbered section 324 by Pub. L. 96–300 and is classified to section 7625 of this title. A MENDMENTS 1994—Subsec. (a)(2). Pub. L. 103–437 substituted ‘‘Nat

ural Resources’’ for ‘‘Interior and Insular Affairs’’ be

fore ‘‘of the House’’. 1990—Subsec. (a)(1). Pub. L. 101–549, which directed the insertion of ‘‘the Virgin Islands,’’ after ‘‘American Samoa,’’ in ‘‘[s]ection 324(a)(1) of the Clean Air Act (42 U.S.C. 7625–1(a)(1))’’, was executed by making the inser

tion in subsec. (a)(1) of this section to reflect the prob

able intent of Congress.

C HANGE OF N AME Committee on Energy and Commerce of House of Representatives treated as referring to Committee on Commerce of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Commerce of House of Representatives changed to Committee on En

ergy and Commerce of House of Representatives, and jurisdiction over matters relating to securities and ex

changes and insurance generally transferred to Com

mittee on Financial Services of House of Representa

tives by House Resolution No. 5, One Hundred Seventh Congress, Jan. 3, 2001.
§ 7625a. Statutory construction
The parenthetical cross references in any pro

vision of this chapter to other provisions of the chapter, or other provisions of law, where the words ‘‘relating to’’ or ‘‘pertaining to’’ are used, are made only for convenience, and shall be given no legal effect. (July 14, 1955, ch. 360, title III, §326, as added Pub. L. 95–190, §14(a)(84), Nov. 16, 1977, 91 Stat. 1404; renumbered §325, Pub. L. 96–300, §1(c), July 2, 1980, 94 Stat. 831; renumbered §326, Pub. L. 98–213, §11, Dec. 8, 1983, 97 Stat. 1461.)

P RIOR P ROVISIONS A prior section 326 of act July 14, 1955, was renum

bered section 327 by Pub. L. 98–213 and is classified to section 7626 of this title.
§ 7626. Authorization of appropriations
(a) In general There are authorized to be appropriated to carry out this chapter such sums as may be nec

essary for the 7 fiscal years commencing after November 15, 1990. (b) Grants for planning There are authorized to be appropriated (1) not more than $50,000,000 to carry out section 7505 of this title beginning in fiscal year 1991, to be available until expended, to develop plan revi

sions required by subpart 2, 3, or 4 of part D of subchapter I of this chapter, and (2) not more than $15,000,000 for each of the 7 fiscal years commencing after November 15, 1990, to make grants to the States to prepare implementation plans as required by subpart 2, 3, or 4 of part D of subchapter I of this chapter. (July 14, 1955, ch. 360, title III, §327, formerly §325, as added Pub. L. 95–95, title III, §315, Aug. 7, 1977, 91 Stat. 790; renumbered §327 and amend

ed Pub. L. 95–190, §14(a)(83), Nov. 16, 1977, 91 Stat. 1404; renumbered §326, Pub. L. 96–300, §1(c), July 2, 1980, 94 Stat. 831; renumbered §327, Pub. L. 98–213, §11, Dec. 8, 1983, 97 Stat. 1461; Pub. L. 101–549, title VIII, §822, Nov. 15, 1990, 104 Stat. 2699.)Page 6445 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7627

P RIOR P ROVISIONS
Provisions similar to those in this section were con

tained in section 1857 l of this title, act July 14, 1955, ch. 360, title III, §316, formerly §13, as added Dec. 17, 1963, Pub. L. 88–206, §1, 77 Stat. 401; renumbered §306 and amended Oct. 20, 1965, Pub. L. 89–272, title I, §101(4), (6), (7), 79 Stat. 992; Oct. 15, 1966, Pub. L. 89–675, §2(a), 80 Stat. 954; renumbered §309 and amended Nov. 21, 1967, Pub. L. 90–148, §2, 81 Stat. 506; renumbered §316 and amended Dec. 31, 1970, Pub. L. 91–604, §§12(a), 13(b), 84 Stat. 1705, 1709; Apr. 9, 1973, Pub. L. 93–15, §1(c), 87 Stat. 11; June 22, 1974, Pub. L. 93–319, §13(c), 88 Stat. 265, prior to repeal by section 306 of Pub. L. 95–95.

A MENDMENTS 1990—Pub. L. 101–549 amended section generally, sub

stituting present provisions for provisions authorizing specific appropriations for certain programs and peri

ods and appropriations of $200,000,000 for fiscal years 1978 through 1981 to carry out the other programs under this chapter. 1977—Subsec. (b)(4). Pub. L. 95–190 substituted ‘‘sec

tion 7403(a)(5)’’ for ‘‘section 7403(b)(5)’’.

E FFECTIVE D ATE Section effective Aug. 7, 1977, except as otherwise ex

pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.
§ 7627. Air pollution from Outer Continental Shelf activities (a) Applicable requirements for certain areas (1) In general Not later than 12 months after November 15, 1990, following consultation with the Sec

retary of the Interior and the Commandant of the United States Coast Guard, the Adminis

trator, by rule, shall establish requirements to control air pollution from Outer Continental Shelf sources located offshore of the States along the Pacific, Arctic and Atlantic Coasts (other than Outer Continental Shelf sources located offshore of the North Slope Borough of the State of Alaska), and along the United States Gulf Coast off the State of Florida east

ward of longitude 87 degrees and 30 minutes (‘‘OCS sources’’) to attain and maintain Fed

eral and State ambient air quality standards and to comply with the provisions of part C of subchapter I of this chapter. For such sources located within 25 miles of the seaward bound

ary of such States, such requirements shall be the same as would be applicable if the source were located in the corresponding onshore area, and shall include, but not be limited to, State and local requirements for emission con

trols, emission limitations, offsets, permit

ting, monitoring, testing, and reporting. New OCS sources shall comply with such require

ments on the date of promulgation and exist

ing OCS sources shall comply on the date 24 months thereafter. The Administrator shall update such requirements as necessary to maintain consistency with onshore regula

tions and this chapter. The authority of this subsection shall supersede section 5(a)(8) of the Outer Continental Shelf Lands Act [43 U.S.C. 1334(a)(8)] but shall not repeal or mod

ify any other Federal, State, or local authori

ties with respect to air quality. Each require

ment established under this section shall be treated, for purposes of sections 7413, 7414, 7416, 7420, and 7604 of this title, as a standard under section 7411 of this title and a violation of any such requirement shall be considered a violation of section 7411(e) of this title. (2) Exemptions The Administrator may exempt an OCS source from a specific requirement in effect under regulations under this subsection if the Administrator finds that compliance with a pollution control technology requirement is technically infeasible or will cause an unrea

sonable threat to health and safety. The Ad

ministrator shall make written findings ex

plaining the basis of any exemption issued pursuant to this subsection and shall impose another requirement equal to or as close in stringency to the original requirement as pos

sible. The Administrator shall ensure that any increase in emissions due to the granting of an exemption is offset by reductions in actual emissions, not otherwise required by this chapter, from the same source or other sources in the area or in the corresponding on

shore area. The Administrator shall establish procedures to provide for public notice and comment on exemptions proposed pursuant to this subsection. (3) State procedures Each State adjacent to an OCS source in

cluded under this subsection may promulgate and submit to the Administrator regulations for implementing and enforcing the require

ments of this subsection. If the Administrator finds that the State regulations are adequate, the Administrator shall delegate to that State any authority the Administrator has under this chapter to implement and enforce such re

quirements. Nothing in this subsection shall prohibit the Administrator from enforcing any requirement of this section. (4) Definitions For purposes of subsections (a) and (b) of this section— (A) Outer Continental Shelf
The term ‘‘Outer Continental Shelf’’ has the meaning provided by section 2 of the Outer Continental Shelf Lands Act (43 U.S.C. 1331). (B) Corresponding onshore area The term ‘‘corresponding onshore area’’ means, with respect to any OCS source, the onshore attainment or nonattainment area that is closest to the source, unless the Ad

ministrator determines that another area with more stringent requirements with re

spect to the control and abatement of air pollution may reasonably be expected to be affected by such emissions. Such determina

tion shall be based on the potential for air pollutants from the OCS source to reach the other onshore area and the potential of such air pollutants to affect the efforts of the other onshore area to attain or maintain any Federal or State ambient air quality standard or to comply with the provisions of part C of subchapter I of this chapter.Page 6446 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7628

1 So in original. Probably should be section ‘‘7412(m)’’. (C) Outer Continental Shelf source
The terms ‘‘Outer Continental Shelf source’’ and ‘‘OCS source’’ include any equipment, activity, or facility which— (i) emits or has the potential to emit any air pollutant, (ii) is regulated or authorized under the Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq.], and (iii) is located on the Outer Continental Shelf or in or on waters above the Outer Continental Shelf. Such activities include, but are not limited to, platform and drill ship exploration, con

struction, development, production, process

ing, and transportation. For purposes of this subsection, emissions from any vessel servic

ing or associated with an OCS source, in

cluding emissions while at the OCS source or en route to or from the OCS source within 25 miles of the OCS source, shall be considered direct emissions from the OCS source. (D) New and existing OCS sources
The term ‘‘new OCS source’’ means an OCS source which is a new source within the meaning of section 7411(a) of this title. The term ‘‘existing OCS source’’ means any OCS source other than a new OCS source. (b) Requirements for other offshore areas For portions of the United States Outer Con

tinental Shelf that are adjacent to the States not covered by subsection (a) of this section which are Texas, Louisiana, Mississippi, and Alabama or are adjacent to the North Slope Bor

ough of the State of Alaska, the Secretary shall consult with the Administrator to assure coordi

nation of air pollution control regulation for Outer Continental Shelf emissions and emis

sions in adjacent onshore areas. Concurrently with this obligation, the Secretary shall com

plete within 3 years of November 15, 1990, a re

search study examining the impacts of emis

sions from Outer Continental Shelf activities in such areas that fail to meet the national ambi

ent air quality standards for either ozone or ni

trogen dioxide. Based on the results of this study, the Secretary shall consult with the Ad

ministrator and determine if any additional ac

tions are necessary. There are authorized to be appropriated such sums as may be necessary to provide funding for the study required under this section. (c) Coastal waters (1) The study report of section 7412(n) 1 of this title shall apply to the coastal waters of the United States to the same extent and in the same manner as such requirements apply to the Great Lakes, the Chesapeake Bay, and their tributary waters. (2) The regulatory requirements of section 7412(n) 1 of this title shall apply to the coastal waters of the States which are subject to sub

section (a) of this section, to the same extent and in the same manner as such requirements apply to the Great Lakes, the Chesapeake Bay, and their tributary waters. (July 14, 1955, ch. 360, title III, §328, as added Pub. L. 101–549, title VIII, §801, Nov. 15, 1990, 104 Stat. 2685; amended Pub. L. 112–74, div. E, title IV, §432(b), (c), Dec. 23, 2011, 125 Stat. 1048, 1049.)

R EFERENCES IN T EXT The Outer Continental Shelf Lands Act, referred to in subsec. (a)(4)(C)(ii), is act Aug. 7, 1953, ch. 345, 67 Stat. 462, as amended, which is classified generally to sub

chapter III (§1331 et seq.) of chapter 29 of Title 43, Pub

lic Lands. For complete classification of this Act to the Code, see Short Title note set out under section 1331 of Title 43 and Tables.

A MENDMENTS 2011—Subsec. (a)(1). Pub. L. 112–74, §432(b), inserted ‘‘(other than Outer Continental Shelf sources located offshore of the North Slope Borough of the State of Alaska)’’ after ‘‘Outer Continental Shelf sources lo

cated offshore of the States along the Pacific, Arctic and Atlantic Coasts’’ and ‘‘and this chapter’’ after ‘‘regulations’’. Subsec. (b). Pub. L. 112–74, §432(c), struck out ‘‘Gulf Coast’’ after ‘‘United States’’ and inserted ‘‘or are adja

cent to the North Slope Borough of the State of Alas

ka’’ after ‘‘Alabama’’.

T RANSFER OF F UNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat

ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu

rity, and the Department of Homeland Security Reor

ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

C ONGRESSIONAL S TATEMENT OF P URPOSE Pub. L. 112–74, div. E, title IV, §432(a), Dec. 23, 2011, 125 Stat. 1048, provided that: ‘‘It is the purpose of this section [amending this section and enacting provisions set out as a note under this section] to ensure that the energy policy of the United States focuses on the expe

ditious and orderly development of domestic energy re

sources in a manner that protects human health and the environment.’’

E FFECT OF T RANSFER OF A IR Q UALITY P ERMITTING A UTHORITY Pub. L. 112–74, div. E, title IV, §432(d), Dec. 23, 2011, 125 Stat. 1049, provided that: ‘‘The transfer of air qual

ity permitting authority pursuant to this section [amending this section and enacting provisions set out as a note under this section] shall not invalidate or stay— ‘‘(1) any air quality permit pending or existing as of the date of the enactment of this Act [Dec. 23, 2011];

or ‘‘(2) any proceeding related thereto.’’
§ 7628. Demonstration grant program for local governments (a) Grant program (1) In general
The Administrator shall establish a dem

onstration program under which the Adminis

trator shall provide competitive grants to as

sist local governments (such as municipalities and counties), with respect to local govern

ment buildings— (A) to deploy cost-effective technologies and practices; and (B) to achieve operational cost savings, through the application of cost-effectivePage 6447 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7641

1 So in original. Probably should be ‘‘operational’’. technologies and practices, as verified by the Administrator. (2) Cost sharing (A) In general
The Federal share of the cost of an activ

ity carried out using a grant provided under this section shall be 40 percent. (B) Waiver of non-Federal share The Administrator may waive up to 100 percent of the local share of the cost of any grant under this section should the Adminis

trator determine that the community is eco

nomically distressed, pursuant to objective economic criteria established by the Admin

istrator in published guidelines. (3) Maximum amount The amount of a grant provided under this subsection shall not exceed $1,000,000. (b) Guidelines (1) In general Not later than 1 year after December 19, 2007, the Administrator shall issue guidelines to implement the grant program established under subsection (a). (2) Requirements The guidelines under paragraph (1) shall es

tablish— (A) standards for monitoring and verifica

tion of operational cost savings through the application of cost-effective technologies and practices reported by grantees under this section; (B) standards for grantees to implement training programs, and to provide technical assistance and education, relating to the retrofit of buildings using cost-effective technologies and practices; and (C) a requirement that each local govern

ment that receives a grant under this sec

tion shall achieve facility-wide cost savings, through renovation of existing local govern

ment buildings using cost-effective tech

nologies and practices, of at least 40 percent as compared to the baseline operational costs of the buildings before the renovation(as calculated assuming a 3-year, weathernormalized average). (c) Compliance with State and local law Nothing in this section or any program carried out using a grant provided under this section su

persedes or otherwise affects any State or local law, to the extent that the State or local law contains a requirement that is more stringent than the relevant requirement of this section. (d) Authorization of appropriations There is authorized to be appropriated to carry out this section $20,000,000 for each of fis

cal years 2007 through 2012. (e) Reports (1) In general The Administrator shall provide annual re

ports to Congress on cost savings achieved and actions taken and recommendations made under this section, and any recommendations for further action. (2) Final report The Administrator shall issue a final report at the conclusion of the program, including findings, a summary of total cost savings achieved, and recommendations for further ac

tion. (f) Termination The program under this section shall termi

nate on September 30, 2012. (g) Definitions In this section, the terms ‘‘cost-effective tech

nologies and practices’’ and ‘‘operating 1 cost savings’’ shall have the meanings defined in sec

tion 17061 of this title. (July 14, 1955, ch. 360, title III, §329, as added Pub. L. 110–140, title IV, §493, Dec. 19, 2007, 121 Stat. 1652.)

E FFECTIVE D ATE Section effective on the date that is 1 day after Dec. 19, 2007, see section 1601 of Pub. L. 110–140, set out as a note under section 1824 of Title 2, The Congress.

SUBCHAPTER IV—NOISE POLLUTION

C ODIFICATION Another title IV of act July 14, 1955, as added by Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2584, is classified to subchapter IV–A (§7651 et seq.) of this chapter.
§ 7641. Noise abatement (a) Office of Noise Abatement and Control
The Administrator shall establish within the Environmental Protection Agency an Office of Noise Abatement and Control, and shall carry out through such Office a full and complete in

vestigation and study of noise and its effect on the public health and welfare in order to (1) identify and classify causes and sources of noise, and (2) determine— (A) effects at various levels; (B) projected growth of noise levels in urban areas through the year 2000; (C) the psychological and physiological ef

fect on humans; (D) effects of sporadic extreme noise (such as jet noise near airports) as compared with con

stant noise; (E) effect on wildlife and property (including values); (F) effect of sonic booms on property (in

cluding values); and (G) such other matters as may be of interest in the public welfare. (b) Investigation techniques; report and recom

mendations In conducting such investigation, the Admin

istrator shall hold public hearings, conduct re

search, experiments, demonstrations, and stud

ies. The Administrator shall report the results of such investigation and study, together with his recommendations for legislation or other ac

tion, to the President and the Congress not later than one year after December 31, 1970. (c) Abatement of noise from Federal activities In any case where any Federal department or agency is carrying out or sponsoring any activ

-Page 6448 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7642

ity resulting in noise which the Administrator determines amounts to a public nuisance or is otherwise objectionable, such department or agency shall consult with the Administrator to determine possible means of abating such noise. (July 14, 1955, ch. 360, title IV, §402, as added Pub. L. 91–604, §14, Dec. 31, 1970, 84 Stat. 1709.)

C ODIFICATION Another section 402 of act July 14, 1955, as added by Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2585, is classified to section 7651a of this title. Section was formerly classified to section 1858 of this title.
§ 7642. Authorization of appropriations
There is authorized to be appropriated such amount, not to exceed $30,000,000, as may be nec

essary for the purposes of this subchapter. (July 14, 1955, ch. 360, title IV, §403, as added Pub. L. 91–604, §14, Dec. 31, 1970, 84 Stat. 1710.)

C ODIFICATION Another section 403 of act July 14, 1955, as added by Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2589, is classified to section 7651b of this title. Section was formerly classified to section 1858a of this title.

SUBCHAPTER IV–A—ACID DEPOSITION

CONTROL

C ODIFICATION Another title IV of act July 14, 1955, as added by Pub. L. 91–604, §14, Dec. 31, 1970, 84 Stat. 1709, is classified principally to subchapter IV (§7641 et seq.) of this chap

ter.
§ 7651. Findings and purposes (a) Findings The Congress finds that— (1) the presence of acidic compounds and their precursors in the atmosphere and in dep

osition from the atmosphere represents a threat to natural resources, ecosystems, mate

rials, visibility, and public health; (2) the principal sources of the acidic com

pounds and their precursors in the atmosphere are emissions of sulfur and nitrogen oxides from the combustion of fossil fuels; (3) the problem of acid deposition is of na

tional and international significance; (4) strategies and technologies for the con

trol of precursors to acid deposition exist now that are economically feasible, and improved methods are expected to become increasingly available over the next decade; (5) current and future generations of Ameri

cans will be adversely affected by delaying measures to remedy the problem; (6) reduction of total atmospheric loading of sulfur dioxide and nitrogen oxides will en

hance protection of the public health and wel

fare and the environment; and (7) control measures to reduce precursor emissions from steam-electric generating units should be initiated without delay. (b) Purposes The purpose of this subchapter is to reduce the adverse effects of acid deposition through reduc

tions in annual emissions of sulfur dioxide of ten million tons from 1980 emission levels, and, in combination with other provisions of this chap

ter, of nitrogen oxides emissions of approxi

mately two million tons from 1980 emission lev

els, in the forty-eight contiguous States and the District of Columbia. It is the intent of this sub

chapter to effectuate such reductions by requir

ing compliance by affected sources with pre

scribed emission limitations by specified dead

lines, which limitations may be met through al

ternative methods of compliance provided by an emission allocation and transfer system. It is also the purpose of this subchapter to encourage energy conservation, use of renewable and clean alternative technologies, and pollution preven

tion as a long-range strategy, consistent with the provisions of this subchapter, for reducing air pollution and other adverse impacts of en

ergy production and use. (July 14, 1955, ch. 360, title IV, §401, as added Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2584.)

C ODIFICATION Another section 401 of act July 14, 1955, as added by Pub. L. 91–604, §14, Dec. 31, 1970, 84 Stat. 1709, is set out as a Short Title note under section 7401 of this title.

A CID D EPOSITION S TANDARDS
Section 404 of Pub. L. 101–549 directed Administrator of Environmental Protection Agency, not later than 36 months after Nov. 15, 1990, to transmit to Congress a re

port on the feasibility and effectiveness of an acid dep

osition standard or standards to protect sensitive and critically sensitive aquatic and terrestrial resources.

I NDUSTRIAL SO 2 E MISSIONS Section 406 of Pub. L. 101–549 provided that: ‘‘(a) R EPORT .—Not later than January 1, 1995 and every 5 years thereafter, the Administrator of the Envi

ronmental Protection Agency shall transmit to the Congress a report containing an inventory of national annual sulfur dioxide emissions from industrial sources (as defined in title IV of the Act [42 U.S.C. 7651 et seq.]), including units subject to section 405(g)(6) of the Clean Air Act [42 U.S.C. 7651d(g)(6)], for all years for which data are available, as well as the likely trend in such emissions over the following twenty-year period. The reports shall also contain estimates of the actual emis

sion reduction in each year resulting from promulga

tion of the diesel fuel desulfurization regulations under section 214 [42 U.S.C. 7548]. ‘‘(b) 5.60 M ILLION T ON C AP .—Whenever the inventory required by this section indicates that sulfur dioxide emissions from industrial sources, including units sub

ject to section 405(g)(5) of the Clean Air Act [42 U.S.C. 7651d(g)(5)], may reasonably be expected to reach levels greater than 5.60 million tons per year, the Adminis

trator of the Environmental Protection Agency shall take such actions under the Clean Air Act [42 U.S.C. 7401 et seq.] as may be appropriate to ensure that such emissions do not exceed 5.60 million tons per year. Such actions may include the promulgation of new and re

vised standards of performance for new sources, includ

ing units subject to section 405(g)(5) of the Clean Air Act, under section 111(b) of the Clean Air Act [42 U.S.C. 7411(b)], as well as promulgation of standards of per

formance for existing sources, including units subject to section 405(g)(5) of the Clean Air Act, under author

ity of this section. For an existing source regulated under this section, ‘standard of performance’ means a standard which the Administrator determines is appli

cable to that source and which reflects the degree of emission reduction achievable through the application of the best system of continuous emission reductionPage 6449 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651a

1 So in original. The reference to ‘‘paragraph (3)’’ probably should be to ‘‘subparagraph (C)’’.

2 So in original. Probably should be ‘‘this’’. which (taking into consideration the cost of achieving such emission reduction, and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated for that category of sources. ‘‘(c) E LECTION .—Regulations promulgated under sec

tion 405(b) of the Clean Air Act [42 U.S.C. 7651d(b)] shall not prohibit a source from electing to become an af

fected unit under section 410 of the Clean Air Act [42 U.S.C. 7651i].’’ [For termination, effective May 15, 2000, of reporting provisions in section 406(a) of Pub. L. 101–549, set out above, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and the 10th item on page 162 of House Docu

ment No. 103–7.]

S ENSE OF C ONGRESS ON E MISSION R EDUCTIONS C OSTS Section 407 of Pub. L. 101–549 provided that: ‘‘It is the sense of the Congress that the Clean Air Act Amend

ments of 1990 [Pub. L. 101–549, see Tables for classifica

tion], through the allowance program, allocates the costs of achieving the required reductions in emissions of sulfur dioxide and oxides of nitrogen among sources in the United States. Broad based taxes and emissions fees that would provide for payment of the costs of achieving required emissions reductions by any party or parties other than the sources required to achieve the reductions are undesirable.’’

M ONITORING OF A CID R AIN P ROGRAM IN C ANADA Section 408 of Pub. L. 101–549 provided that: ‘‘(a) R EPORTS TO C ONGRESS .—The Administrator of the Environmental Protection Agency, in consultation with the Secretary of State, the Secretary of Energy, and other persons the Administrator deems appro

priate, shall prepare and submit a report to Congress on January 1, 1994, January 1, 1999, and January 1, 2005. ‘‘(b) C ONTENTS .—The report to Congress shall analyze the current emission levels of sulfur dioxide and nitro

gen oxides in each of the provinces participating in Canada’s acid rain control program, the amount of emission reductions of sulfur dioxide and oxides of ni

trogen achieved by each province, the methods utilized by each province in making those reductions, the costs to each province and the employment impacts in each province of making and maintaining those reductions. ‘‘(c) C OMPLIANCE .—Beginning on January 1, 1999, the reports shall also assess the degree to which each prov

ince is complying with its stated emissions cap.’’
§ 7651a. Definitions
As used in this subchapter: (1) The term ‘‘affected source’’ means a source that includes one or more affected units. (2) The term ‘‘affected unit’’ means a unit that is subject to emission reduction require

ments or limitations under this subchapter. (3) The term ‘‘allowance’’ means an author

ization, allocated to an affected unit by the Administrator under this subchapter, to emit, during or after a specified calendar year, one ton of sulfur dioxide. (4) The term ‘‘baseline’’ means the annual quantity of fossil fuel consumed by an affected unit, measured in millions of British Thermal Units (‘‘mmBtu’s’’), calculated as follows: (A) For each utility unit that was in com

mercial operation prior to January 1, 1985, the baseline shall be the annual average quantity of mmBtu’s consumed in fuel dur

ing calendar years 1985, 1986, and 1987, as re

corded by the Department of Energy pursu

ant to Form 767. For any utility unit for which such form was not filed, the baseline shall be the level specified for such unit in the 1985 National Acid Precipitation Assess

ment Program (NAPAP) Emissions Inven

tory, Version 2, National Utility Reference File (NURF) or in a corrected data base as established by the Administrator pursuant to paragraph (3). 1 For nonutility units, the baseline is the NAPAP Emissions Inventory, Version 2. The Administrator, in the Admin

istrator’s sole discretion, may exclude peri

ods during which a unit is shutdown for a continuous period of four calendar months or longer, and make appropriate adjust

ments under this paragraph. Upon petition of the owner or operator of any unit, the Ad

ministrator may make appropriate baseline adjustments for accidents that caused pro

longed outages. (B) For any other nonutility unit that is not included in the NAPAP Emissions Inven

tory, Version 2, or a corrected data base as established by the Administrator pursuant to paragraph (3), 1 the baseline shall be the annual average quantity, in mmBtu con

sumed in fuel by that unit, as calculated pursuant to a method which the adminis

trator shall prescribe by regulation to be promulgated not later than eighteen months after November 15, 1990. (C) The Administrator shall, upon applica

tion or on his own motion, by December 31, 1991, supplement data needed in support of this subchapter and correct any factual er

rors in data from which affected Phase II units’ baselines or actual 1985 emission rates have been calculated. Corrected data shall be used for purposes of issuing allowances under the 2 subchapter. Such corrections shall not be subject to judicial review, nor shall the failure of the Administrator to cor

rect an alleged factual error in such reports be subject to judicial review. (5) The term ‘‘capacity factor’’ means the ratio between the actual electric output from a unit and the potential electric output from that unit. (6) The term ‘‘compliance plan’’ means, for purposes of the requirements of this sub

chapter, either— (A) a statement that the source will com

ply with all applicable requirements under this subchapter, or (B) where applicable, a schedule and de

scription of the method or methods for com

pliance and certification by the owner or op

erator that the source is in compliance with the requirements of this subchapter. (7) The term ‘‘continuous emission monitor

ing system’’ (CEMS) means the equipment as required by section 7651k of this title, used to sample, analyze, measure, and provide on a continuous basis a permanent record of emis

sions and flow (expressed in pounds per million British thermal units (lbs/mmBtu), pounds per hour (lbs/hr) or such other form as the Admin

istrator may prescribe by regulations under section 7651k of this title).Page 6450 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651a

3 See References in Text note below. 4 So in original. Probably should be ‘‘section’’. (8) The term ‘‘existing unit’’ means a unit (including units subject to section 7411 of this title) that commenced commercial operation before November 15, 1990. Any unit that com

menced commercial operation before Novem

ber 15, 1990, which is modified, reconstructed, or repowered after November 15, 1990, shall continue to be an existing unit for the pur

poses of this subchapter. For the purposes of this subchapter, existing units shall not in

clude simple combustion turbines, or units which serve a generator with a nameplate ca

pacity of 25MWe or less. (9) The term ‘‘generator’’ means a device that produces electricity and which is re

ported as a generating unit pursuant to De

partment of Energy Form 860. (10) The term ‘‘new unit’’ means a unit that commences commercial operation on or after November 15, 1990. (11) The term ‘‘permitting authority’’ means the Administrator, or the State or local air pollution control agency, with an approved permitting program under part B 3 of title III of the Act. (12) The term ‘‘repowering’’ means replace

ment of an existing coal-fired boiler with one of the following clean coal technologies: at

mospheric or pressurized fluidized bed combus

tion, integrated gasification combined cycle, magnetohydrodynamics, direct and indirect coal-fired turbines, integrated gasification fuel cells, or as determined by the Adminis

trator, in consultation with the Secretary of Energy, a derivative of one or more of these technologies, and any other technology capa

ble of controlling multiple combustion emis

sions simultaneously with improved boiler or generation efficiency and with significantly greater waste reduction relative to the per

formance of technology in widespread com

mercial use as of November 15, 1990. Notwith

standing the provisions of section 7651h(a) of this title, for the purpose of this subchapter, the term ‘‘repowering’’ shall also include any oil and/or gas-fired unit which has been award

ed clean coal technology demonstration fund

ing as of January 1, 1991, by the Department of Energy. (13) The term ‘‘reserve’’ means any bank of allowances established by the Administrator under this subchapter. (14) The term ‘‘State’’ means one of the 48 contiguous States and the District of Colum

bia.(15) The term ‘‘unit’’ means a fossil fuelfired combustion device. (16) The term ‘‘actual 1985 emission rate’’, for electric utility units means the annual sul

fur dioxide or nitrogen oxides emission rate in pounds per million Btu as reported in the NAPAP Emissions Inventory, Version 2, Na

tional Utility Reference File. For nonutility units, the term ‘‘actual 1985 emission rate’’ means the annual sulfur dioxide or nitrogen oxides emission rate in pounds per million Btu as reported in the NAPAP Emission Inventory, Version 2. (17)(A) The term ‘‘utility unit’’ means— (i) a unit that serves a generator in any State that produces electricity for sale, or (ii) a unit that, during 1985, served a gener

ator in any State that produced electricity for sale. (B) Notwithstanding subparagraph (A), a unit described in subparagraph (A) that— (i) was in commercial operation during 1985, but (ii) did not, during 1985, serve a generator in any State that produced electricity for sale shall not be a utility unit for purposes of this subchapter. (C) A unit that cogenerates steam and elec

tricity is not a ‘‘utility unit’’ for purposes of this subchapter unless the unit is constructed for the purpose of supplying, or commences construction after November 15, 1990, and sup

plies, more than one-third of its potential electric output capacity and more than 25 megawatts electrical output to any utility power distribution system for sale. (18) The term ‘‘allowable 1985 emissions rate’’ means a federally enforceable emissions limitation for sulfur dioxide or oxides of nitro

gen, applicable to the unit in 1985 or the limi

tation applicable in such other subsequent year as determined by the Administrator if such a limitation for 1985 does not exist. Where the emissions limitation for a unit is not expressed in pounds of emissions per mil

lion Btu, or the averaging period of that emis

sions limitation is not expressed on an annual basis, the Administrator shall calculate the annual equivalent of that emissions limitation in pounds per million Btu to establish the al

lowable 1985 emissions rate. (19) The term ‘‘qualifying phase I tech

nology’’ means a technological system of con

tinuous emission reduction which achieves a 90 percent reduction in emissions of sulfur di

oxide from the emissions that would have re

sulted from the use of fuels which were not subject to treatment prior to combustion. (20) The term ‘‘alternative method of com

pliance’’ means a method of compliance in ac

cordance with one or more of the following au

thorities: (A) a substitution plan submitted and ap

proved in accordance with subsections 4 7651c(b) and (c) of this title; (B) a Phase I extension plan approved by the Administrator under section 7651c(d) of this title, using qualifying phase I tech

nology as determined by the Administrator in accordance with that section; or (C) repowering with a qualifying clean coal technology under section 7651h of this title. (21) The term ‘‘commenced’’ as applied to construction of any new electric utility unit means that an owner or operator has under

taken a continuous program of construction or that an owner or operator has entered into a contractual obligation to undertake and com

plete, within a reasonable time, a continuous program of construction. (22) The term ‘‘commenced commercial oper

ation’’ means to have begun to generate elec

tricity for sale.Page 6451 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651b

5 So in original. Probably should be section ‘‘7651i(d)’’. 1 So in original. No pars. (2) and (3) have been enacted. (23) The term ‘‘construction’’ means fabrica

tion, erection, or installation of an affected unit. (24) The term ‘‘industrial source’’ means a unit that does not serve a generator that pro

duces electricity, a ‘‘nonutility unit’’ as de

fined in this section, or a process source as de

fined in section 7651i(e) 5 of this title. (25) The term ‘‘nonutility unit’’ means a unit other than a utility unit. (26) The term ‘‘designated representative’’ means a responsible person or official author

ized by the owner or operator of a unit to rep

resent the owner or operator in matters per

taining to the holding, transfer, or disposition of allowances allocated to a unit, and the sub

mission of and compliance with permits, per

mit applications, and compliance plans for the unit. (27) The term ‘‘life-of-the-unit, firm power contractual arrangement’’ means a unit par

ticipation power sales agreement under which a utility or industrial customer reserves, or is entitled to receive, a specified amount or per

centage of capacity and associated energy gen

erated by a specified generating unit (or units) and pays its proportional amount of such unit’s total costs, pursuant to a contract ei

ther— (A) for the life of the unit; (B) for a cumulative term of no less than 30 years, including contracts that permit an election for early termination; or (C) for a period equal to or greater than 25 years or 70 percent of the economic useful life of the unit determined as of the time the unit was built, with option rights to pur

chase or re-lease some portion of the capac

ity and associated energy generated by the unit (or units) at the end of the period. (28) The term ‘‘basic Phase II allowance allo

cations’’ means: (A) For calendar years 2000 through 2009 inclusive, allocations of allowances made by the Administrator pursuant to section 7651b of this title and subsections (b)(1), (3), and (4); (c)(1), (2), (3), and (5); (d)(1), (2), (4), and (5); (e); (f); (g)(1), (2), (3), (4), and (5); (h)(1); (i) and (j) of section 7651d of this title. (B) For each calendar year beginning in 2010, allocations of allowances made by the Administrator pursuant to section 7651b of this title and subsections (b)(1), (3), and (4); (c)(1), (2), (3), and (5); (d)(1), (2), (4) and (5); (e); (f); (g)(1), (2), (3), (4), and (5); (h)(1) and (3); (i) and (j) of section 7651d of this title. (29) The term ‘‘Phase II bonus allowance al

locations’’ means, for calendar year 2000 through 2009, inclusive, and only for such years, allocations made by the Administrator pursuant to section 7651b of this title, sub

sections (a)(2), (b)(2), (c)(4), (d)(3) (except as otherwise provided therein), and (h)(2) of sec

tion 7651d of this title, and section 7651e of this title. (July 14, 1955, ch. 360, title IV, §402, as added Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2585.) R EFERENCES IN T EXT Part B of title III of the Act, referred to in par. (11), means title III of the Clean Air Act, act July 14, 1955, ch. 360, as added, which is classified to subchapter III of this chapter, but title III does not contain parts. For provisions of the Clean Air Act relating to permits, see subchapter V (§7661 et seq.) of this chapter.

C ODIFICATION Another section 402 of act July 14, 1955, as added by Pub. L. 91–604, §14, Dec. 31, 1970, 84 Stat. 1709, is classi

fied to section 7641 of this title. § 7651b. Sulfur dioxide allowance program for ex

isting and new units (a) Allocations of annual allowances for existing and new units (1) 1 For the emission limitation programs under this subchapter, the Administrator shall allocate annual allowances for the unit, to be held or distributed by the designated representa

tive of the owner or operator of each affected unit at an affected source in accordance with this subchapter, in an amount equal to the an

nual tonnage emission limitation calculated under section 7651c, 7651d, 7651e, 7651h, or 7651i of this title except as otherwise specifically pro

vided elsewhere in this subchapter. Except as provided in sections 7651d(a)(2), 7651d(a)(3), 7651h and 7651i of this title, beginning January 1, 2000, the Administrator shall not allocate annual al

lowances to emit sulfur dioxide pursuant to sec

tion 7651d of this title in such an amount as would result in total annual emissions of sulfur dioxide from utility units in excess of 8.90 mil

lion tons except that the Administrator shall not take into account unused allowances carried forward by owners and operators of affected units or by other persons holding such allow

ances, following the year for which they were al

located. If necessary to meeting the restrictions imposed in the preceding sentence, the Adminis

trator shall reduce, pro rata, the basic Phase II allowance allocations for each unit subject to the requirements of section 7651d of this title. Subject to the provisions of section 7651 o of this title, the Administrator shall allocate allow

ances for each affected unit at an affected source annually, as provided in paragraphs (2) and (3) 1 and section 7651g of this title. Except as provided in sections 7651h and 7651i of this title, the removal of an existing affected unit or source from commercial operation at any time after November 15, 1990 (whether before or after January 1, 1995, or January 1, 2000) shall not ter

minate or otherwise affect the allocation of al

lowances pursuant to section 7651c or 7651d of this title to which the unit is entitled. Allow

ances shall be allocated by the Administrator without cost to the recipient, except for allow

ances sold by the Administrator pursuant to sec

tion 7651 o of this title. Not later than December 31, 1991, the Administrator shall publish a pro

posed list of the basic Phase II allowance alloca

tions, the Phase II bonus allowance allocations and, if applicable, allocations pursuant to sec

tion 7651d(a)(3) of this title for each unit subject to the emissions limitation requirements of sec

tion 7651d of this title for the year 2000 and thePage 6452 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651b

year 2010. After notice and opportunity for pub

lic comment, but not later than December 31, 1992, the Administrator shall publish a final list of such allocations, subject to the provisions of section 7651d(a)(2) of this title. Any owner or op

erator of an existing unit subject to the require

ments of section 7651d(b) or (c) of this title who is considering applying for an extension of the emission limitation requirement compliance deadline for that unit from January 1, 2000, until not later than December 31, 2000, pursuant to section 7651h of this title, shall notify the Ad

ministrator no later than March 31, 1991. Such notification shall be used as the basis for esti

mating the basic Phase II allowances under this subsection. Prior to June 1, 1998, the Adminis

trator shall publish a revised final statement of allowance allocations, subject to the provisions of section 7651d(a)(2) of this title and taking into account the effect of any compliance date exten

sions granted pursuant to section 7651h of this title on such allocations. Any person who may make an election concerning the amount of al

lowances to be allocated to a unit or units shall make such election and so inform the Adminis

trator not later than March 31, 1991, in the case of an election under section 7651d of this title (or June 30, 1991, in the case of an election under section 7651e of this title). If such person fails to make such election, the Administrator shall set forth for each unit owned or operated by such person, the amount of allowances reflecting the election that would, in the judgment of the Ad

ministrator, provide the greatest benefit for the owner or operator of the unit. If such person is a Governor who may make an election under section 7651e of this title and the Governor fails to make an election, the Administrator shall set forth for each unit in the State the amount of allowances reflecting the election that would, in the judgment of the Administrator, provide the greatest benefit for units in the State. (b) Allowance transfer system Allowances allocated under this subchapter may be transferred among designated represent

atives of the owners or operators of affected sources under this subchapter and any other per

son who holds such allowances, as provided by the allowance system regulations to be promul

gated by the Administrator not later than eight

een months after November 15, 1990. Such regu

lations shall establish the allowance system pre

scribed under this section, including, but not limited to, requirements for the allocation, transfer, and use of allowances under this sub

chapter. Such regulations shall prohibit the use of any allowance prior to the calendar year for which the allowance was allocated, and shall provide, consistent with the purposes of this subchapter, for the identification of unused al

lowances, and for such unused allowances to be carried forward and added to allowances allo

cated in subsequent years, including allowances allocated to units subject to Phase I require

ments (as described in section 7651c of this title) which are applied to emissions limitations re

quirements in Phase II (as described in section 7651d of this title). Transfers of allowances shall not be effective until written certification of the transfer, signed by a responsible official of each party to the transfer, is received and recorded by the Administrator. Such regulations shall permit the transfer of allowances prior to the is

suance of such allowances. Recorded pre-alloca

tion transfers shall be deducted by the Adminis

trator from the number of allowances which would otherwise be allocated to the transferor, and added to those allowances allocated to the transferee. Pre-allocation transfers shall not af

fect the prohibition contained in this subsection against the use of allowances prior to the year for which they are allocated. (c) Interpollutant trading Not later than January 1, 1994, the Adminis

trator shall furnish to the Congress a study evaluating the environmental and economic consequences of amending this subchapter to permit trading sulfur dioxide allowances for ni

trogen oxides allowances. (d) Allowance tracking system (1) The Administrator shall promulgate, not later than 18 months after November 15, 1990, a system for issuing, recording, and tracking al

lowances, which shall specify all necessary pro

cedures and requirements for an orderly and competitive functioning of the allowance sys

tem. All allowance allocations and transfers shall, upon recordation by the Administrator, be deemed a part of each unit’s permit require

ments pursuant to section 7651g of this title, without any further permit review and revision. (2) In order to insure electric reliability, such regulations shall not prohibit or affect tem

porary increases and decreases in emissions within utility systems, power pools, or utilities entering into allowance pool agreements, that result from their operations, including emer

gencies and central dispatch, and such tem

porary emissions increases and decreases shall not require transfer of allowances among units nor shall it require recordation. The owners or operators of such units shall act through a des

ignated representative. Notwithstanding the preceding sentence, the total tonnage of emis

sions in any calendar year (calculated at the end thereof) from all units in such a utility system, power pool, or allowance pool agreements shall not exceed the total allowances for such units for the calendar year concerned. (e) New utility units After January 1, 2000, it shall be unlawful for a new utility unit to emit an annual tonnage of sulfur dioxide in excess of the number of allow

ances to emit held for the unit by the unit’s owner or operator. Such new utility units shall not be eligible for an allocation of sulfur dioxide allowances under subsection (a)(1) of this sec

tion, unless the unit is subject to the provisions of subsection (g)(2) or (3) of section 7651d of this title. New utility units may obtain allowances from any person, in accordance with this sub

chapter. The owner or operator of any new util

ity unit in violation of this subsection shall be liable for fulfilling the obligations specified in section 7651j of this title. (f) Nature of allowances An allowance allocated under this subchapter is a limited authorization to emit sulfur dioxidePage 6453 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651c

2 See References in Text note below. in accordance with the provisions of this sub

chapter. Such allowance does not constitute a property right. Nothing in this subchapter or in any other provision of law shall be construed to limit the authority of the United States to ter

minate or limit such authorization. Nothing in this section relating to allowances shall be con

strued as affecting the application of, or compli

ance with, any other provision of this chapter to an affected unit or source, including the provi

sions related to applicable National Ambient Air Quality Standards and State implementation plans. Nothing in this section shall be construed as requiring a change of any kind in any State law regulating electric utility rates and charges or affecting any State law regarding such State regulation or as limiting State regulation (in

cluding any prudency review) under such a State law. Nothing in this section shall be construed as modifying the Federal Power Act [16 U.S.C. 791a et seq.] or as affecting the authority of the Federal Energy Regulatory Commission under that Act. Nothing in this subchapter shall be construed to interfere with or impair any pro

gram for competitive bidding for power supply in a State in which such program is established. Allowances, once allocated to a person by the Administrator, may be received, held, and tem

porarily or permanently transferred in accord

ance with this subchapter and the regulations of the Administrator without regard to whether or not a permit is in effect under subchapter V of this chapter or section 7651g of this title with re

spect to the unit for which such allowance was originally allocated and recorded. Each permit under this subchapter and each permit issued under subchapter V of this chapter for any af

fected unit shall provide that the affected unit may not emit an annual tonnage of sulfur diox

ide in excess of the allowances held for that unit. (g) Prohibition It shall be unlawful for any person to hold, use, or transfer any allowance allocated under this subchapter, except in accordance with regu

lations promulgated by the Administrator. It shall be unlawful for any affected unit to emit sulfur dioxide in excess of the number of allow

ances held for that unit for that year by the owner or operator of the unit. Upon the alloca

tion of allowances under this subchapter, the prohibition contained in the preceding sentence shall supersede any other emission limitation applicable under this subchapter to the units for which such allowances are allocated. Allowances may not be used prior to the calendar year for which they are allocated. Nothing in this sec

tion or in the allowance system regulations shall relieve the Administrator of the Adminis

trator’s permitting, monitoring and enforce

ment obligations under this chapter, nor relieve affected sources of their requirements and li

abilities under this chapter. (h) Competitive bidding for power supply Nothing in this subchapter shall be construed to interfere with or impair any program for competitive bidding for power supply in a State in which such program is established. (i) Applicability of antitrust laws (1) Nothing in this section affects— (A) the applicability of the antitrust laws to the transfer, use, or sale of allowances, or (B) the authority of the Federal Energy Reg

ulatory Commission under any provision of law respecting unfair methods of competition or anticompetitive acts or practices. (2) As used in this section, ‘‘antitrust laws’’ means those Acts set forth in section 12 of title 15. (j) Public Utility Holding Company Act The acquisition or disposition of allowances pursuant to this subchapter including the issu

ance of securities or the undertaking of any other financing transaction in connection with such allowances shall not be subject to the pro

visions of the Public Utility Holding Company Act of 1935. 2 (July 14, 1955, ch. 360, title IV, §403, as added Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2589.)

R EFERENCES IN T EXT The Federal Power Act, referred to in subsec. (f), is act June 10, 1920, ch. 285, 41 Stat. 1063, as amended, which is classified generally to chapter 12 (§791a et seq.) of Title 16, Conservation. For complete classifica

tion of this Act to the Code, see section 791a of Title 16 and Tables. The Public Utility Holding Company Act of 1935, re

ferred to in subsec. (j), is title I of act Aug. 26, 1935, ch. 687, 49 Stat. 803, as amended, which was classified gen

erally to chapter 2C (§79 et seq.) of Title 15, Commerce and Trade, prior to repeal by Pub. L. 109–58, title XII, §1263, Aug. 8, 2005, 119 Stat. 974. For complete classifica

tion of this Act to the Code, see Tables.

C ODIFICATION Another section 403 of act July 14, 1955, as added by Pub. L. 91–604, §14, Dec. 31, 1970, 84 Stat. 1710, is classi

fied to section 7642 of this title.

F OSSIL F UEL U SE Section 402 of title IV of Pub. L. 101–549 provided that: ‘‘(a) C ONTRACTS FOR H YDROELECTRIC E NERGY .—Any person who, after the date of the enactment of the Clean Air Act Amendments of 1990 [Nov. 15, 1990], en

ters into a contract under which such person receives hydroelectric energy in return for the provision of elec

tric energy by such person shall use allowances held by such person as necessary to satisfy such person’s obli

gations under such contract. ‘‘(b) F EDERAL P OWER M ARKETING A DMINISTRATION .—A Federal Power Marketing Administration shall not be subject to the provisions and requirements of this title [enacting this subchapter, amending sections 7410, 7411, and 7479 of this title, and enacting provisions set out as notes under sections 7403, 7411, and 7651 of this title] with respect to electric energy generated by hydro

electric facilities and marketed by such Power Market

ing Administration. Any person who sells or provides electric energy to a Federal Power Marketing Adminis

tration shall comply with the provisions and require

ments of this title.’’ § 7651c. Phase I sulfur dioxide requirements (a) Emission limitations (1) After January 1, 1995, each source that in

cludes one or more affected units listed in table A is an affected source under this section. After January 1, 1995, it shall be unlawful for any af

-Page 6454 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651c

1 So in original. Probably should be section ‘‘7651a(4)’’. fected unit (other than an eligible phase I unit under subsection (d)(2) of this section) to emit sulfur dioxide in excess of the tonnage limita

tion stated as a total number of allowances in table A for phase I, unless (A) the emissions re

duction requirements applicable to such unit have been achieved pursuant to subsection (b) or (d) of this section, or (B) the owner or operator of such unit holds allowances to emit not less than the unit’s total annual emissions, except that, after January 1, 2000, the emissions limita

tions established in this section shall be super

seded by those established in section 7651d of this title. The owner or operator of any unit in violation of this section shall be fully liable for such violation including, but not limited to, li

ability for fulfilling the obligations specified in section 7651j of this title. (2) Not later than December 31, 1991, the Ad

ministrator shall determine the total tonnage of reductions in the emissions of sulfur dioxide from all utility units in calendar year 1995 that will occur as a result of compliance with the emissions limitation requirements of this sec

tion, and shall establish a reserve of allowances equal in amount to the number of tons deter

mined thereby not to exceed a total of 3.50 mil

lion tons. In making such a determination, the Administrator shall compute for each unit sub

ject to the emissions limitation requirements of this section the difference between: (A) the product of its baseline multiplied by the lesser of each unit’s allowable 1985 emis

sions rate and its actual 1985 emissions rate, divided by 2,000, and (B) the product of each unit’s baseline multi

plied by 2.50 lbs/mmBtu divided by 2,000, and sum the computations. The Administrator shall adjust the foregoing calculation to reflect projected calendar year 1995 utilization of the units subject to the emissions limitations of this subchapter that the Administrator finds would have occurred in the absence of the impo

sition of such requirements. Pursuant to sub

section (d) of this section, the Administrator shall allocate allowances from the reserve estab

lished hereinunder until the earlier of such time as all such allowances in the reserve are allo

cated or December 31, 1999. (3) In addition to allowances allocated pursu

ant to paragraph (1), in each calendar year be

ginning in 1995 and ending in 1999, inclusive, the Administrator shall allocate for each unit on Table A that is located in the States of Illinois, Indiana, or Ohio (other than units at Kyger Creek, Clifty Creek and Joppa Steam), allow

ances in an amount equal to 200,000 multiplied by the unit’s pro rata share of the total number of allowances allocated for all units on Table A in the 3 States (other than units at Kyger Creek, Clifty Creek, and Joppa Steam) pursuant to paragraph (1). Such allowances shall be excluded from the calculation of the reserve under para

graph (2). (b) Substitutions The owner or operator of an affected unit under subsection (a) of this section may include in its section 7651g of this title permit applica

tion and proposed compliance plan a proposal to reassign, in whole or in part, the affected unit’s sulfur dioxide reduction requirements to any other unit(s) under the control of such owner or operator. Such proposal shall specify— (1) the designation of the substitute unit or units to which any part of the reduction obli

gations of subsection (a) of this section shall be required, in addition to, or in lieu of, any original affected units designated under such subsection; (2) the original affected unit’s baseline, the actual and allowable 1985 emissions rate for sulfur dioxide, and the authorized annual al

lowance allocation stated in table A; (3) calculation of the annual average ton

nage for calendar years 1985, 1986, and 1987, emitted by the substitute unit or units, based on the baseline for each unit, as defined in sec

tion 7651a(d) 1 of this title, multiplied by the lesser of the unit’s actual or allowable 1985 emissions rate; (4) the emissions rates and tonnage limita

tions that would be applicable to the original and substitute affected units under the substi

tution proposal; (5) documentation, to the satisfaction of the Administrator, that the reassigned tonnage limits will, in total, achieve the same or greater emissions reduction than would have been achieved by the original affected unit and the substitute unit or units without such sub

stitution; and (6) such other information as the Adminis

trator may require. (c) Administrator’s action on substitution pro

posals (1) The Administrator shall take final action on such substitution proposal in accordance with section 7651g(c) of this title if the substi

tution proposal fulfills the requirements of this subsection. The Administrator may approve a substitution proposal in whole or in part and with such modifications or conditions as may be consistent with the orderly functioning of the allowance system and which will ensure the emissions reductions contemplated by this sub

chapter. If a proposal does not meet the require

ments of subsection (b) of this section, the Ad

ministrator shall disapprove it. The owner or operator of a unit listed in table A shall not sub

stitute another unit or units without the prior approval of the Administrator. (2) Upon approval of a substitution proposal, each substitute unit, and each source with such unit, shall be deemed affected under this sub

chapter, and the Administrator shall issue a per

mit to the original and substitute affected source and unit in accordance with the approved substitution plan and section 7651g of this title. The Administrator shall allocate allowances for the original and substitute affected units in ac

cordance with the approved substitution pro

posal pursuant to section 7651b of this title. It shall be unlawful for any source or unit that is allocated allowances pursuant to this section to emit sulfur dioxide in excess of the emissions limitation provided for in the approved substi

tution permit and plan unless the owner or oper

ator of each unit governed by the permit and ap

-Page 6455 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651c

2 So in original. Probably should be ‘‘unit’s’’. 3 So in original. Probably should be ‘‘this’’. proved substitution plan holds allowances to emit not less than the units 2 total annual emis

sions. The owner or operator of any original or substitute affected unit operated in violation of this subsection shall be fully liable for such vio

lation, including liability for fulfilling the obli

gations specified in section 7651j of this title. If a substitution proposal is disapproved, the Ad

ministrator shall allocate allowances to the original affected unit or units in accordance with subsection (a) of this section. (d) Eligible phase I extension units (1) The owner or operator of any affected unit subject to an emissions limitation requirement under this section may petition the Adminis

trator in its permit application under section 7651g of this title for an extension of 2 years of the deadline for meeting such requirement, pro

vided that the owner or operator of any such unit holds allowances to emit not less than the unit’s total annual emissions for each of the 2 years of the period of extension. To qualify for such an extension, the affected unit must either employ a qualifying phase I technology, or transfer its phase I emissions reduction obliga

tion to a unit employing a qualifying phase I technology. Such transfer shall be accomplished in accordance with a compliance plan, submit

ted and approved under section 7651g of this title, that shall govern operations at all units included in the transfer, and that specifies the emissions reduction requirements imposed pur

suant to this subchapter. (2) Such extension proposal shall— (A) specify the unit or units proposed for designation as an eligible phase I extension unit; (B) provide a copy of an executed contract, which may be contingent upon the Adminis

trator approving the proposal, for the design engineering, and construction of the qualify

ing phase I technology for the extension unit, or for the unit or units to which the extension unit’s emission reduction obligation is to be transferred; (C) specify the unit’s or units’ baseline, ac

tual 1985 emissions rate, allowable 1985 emis

sions rate, and projected utilization for cal

endar years 1995 through 1999; (D) require CEMS on both the eligible phase I extension unit or units and the transfer unit or units beginning no later than January 1, 1995; and (E) specify the emission limitation and num

ber of allowances expected to be necessary for annual operation after the qualifying phase I technology has been installed. (3) The Administrator shall review and take final action on each extension proposal in order of receipt, consistent with section 7651g of this title, and for an approved proposal shall des

ignate the unit or units as an eligible phase I ex

tension unit. The Administrator may approve an extension proposal in whole or in part, and with such modifications or conditions as may be nec

essary, consistent with the orderly functioning of the allowance system, and to ensure the emis

sions reductions contemplated by the 3 sub

chapter. (4) In order to determine the number of pro

posals eligible for allocations from the reserve under subsection (a)(2) of this section and the number of allowances remaining available after each proposal is acted upon, the Administrator shall reduce the total number of allowances re

maining available in the reserve by the number of allowances calculated according to subpara

graphs (A), (B) and (C) until either no allow

ances remain available in the reserve for further allocation or all approved proposals have been acted upon. If no allowances remain available in the reserve for further allocation before all pro

posals have been acted upon by the Adminis

trator, any pending proposals shall be dis

approved. The Administrator shall calculate al

lowances equal to— (A) the difference between the lesser of the average annual emissions in calendar years 1988 and 1989 or the projected emissions ton

nage for calendar year 1995 of each eligible phase I extension unit, as designated under paragraph (3), and the product of the unit’s baseline multiplied by an emission rate of 2.50 lbs/mmBtu, divided by 2,000; (B) the difference between the lesser of the average annual emissions in calendar years 1988 and 1989 or the projected emissions ton

nage for calendar year 1996 of each eligible phase I extension unit, as designated under paragraph (3), and the product of the unit’s baseline multiplied by an emission rate of 2.50 lbs/mmBtu, divided by 2,000; and (C) the amount by which (i) the product of each unit’s baseline multiplied by an emission rate of 1.20 lbs/mmBtu, divided by 2,000, ex

ceeds (ii) the tonnage level specified under subparagraph (E) of paragraph (2) of this sub

section multiplied by a factor of 3. (5) Each eligible Phase I extension unit shall receive allowances determined under subsection (a)(1) or (c) of this section. In addition, for cal

endar year 1995, the Administrator shall allocate to each eligible Phase I extension unit, from the allowance reserve created pursuant to sub

section (a)(2) of this section, allowances equal to the difference between the lesser of the average annual emissions in calendar years 1988 and 1989 or its projected emissions tonnage for calendar year 1995 and the product of the unit’s baseline multiplied by an emission rate of 2.50 lbs/ mmBtu, divided by 2,000. In calendar year 1996, the Administrator shall allocate for each eligi

ble unit, from the allowance reserve created pur

suant to subsection (a)(2) of this section, allow

ances equal to the difference between the lesser of the average annual emissions in calendar years 1988 and 1989 or its projected emissions tonnage for calendar year 1996 and the product of the unit’s baseline multiplied by an emission rate of 2.50 lbs/mmBtu, divided by 2,000. It shall be unlawful for any source or unit subject to an approved extension plan under this subsection to emit sulfur dioxide in excess of the emissions limitations provided for in the permit and ap

proved extension plan, unless the owner or oper

-Page 6456 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651c

4 So in original. Probably should be ‘‘paragraph (1)’’. 5 So in original. Probably should be ‘‘subsection’’.

6 So in original. Probably should be ‘‘majeure’’.

7 So in original. Probably should be ‘‘impracticability’’. ator of each unit governed by the permit and ap

proved plan holds allowances to emit not less than the unit’s total annual emissions. (6) In addition to allowances specified in para

graph (5), the Administrator shall allocate for each eligible Phase I extension unit employing qualifying Phase I technology, for calendar years 1997, 1998, and 1999, additional allowances, from any remaining allowances in the reserve created pursuant to subsection (a)(2) of this sec

tion, following the reduction in the reserve pro

vided for in paragraph (4), not to exceed the amount by which (A) the product of each eligi

ble unit’s baseline times an emission rate of 1.20 lbs/mmBtu, divided by 2,000, exceeds (B) the ton

nage level specified under subparagraph (E) of paragraph (2) of this subsection. (7) After January 1, 1997, in addition to any li

ability under this chapter, including under sec

tion 7651j of this title, if any eligible phase I ex

tension unit employing qualifying phase I tech

nology or any transfer unit under this sub

section emits sulfur dioxide in excess of the an

nual tonnage limitation specified in the exten

sion plan, as approved in paragraph (3) of this subsection, the Administrator shall, in the cal

endar year following such excess, deduct allow

ances equal to the amount of such excess from such unit’s annual allowance allocation. (e) Allocation of allowances (1) In the case of a unit that receives author

ization from the Governor of the State in which such unit is located to make reductions in the emissions of sulfur dioxide prior to calendar year 1995 and that is part of a utility system that meets the following requirements: (A) the total coal-fired generation within the utility system as a percentage of total system genera

tion decreased by more than 20 percent between January 1, 1980, and December 31, 1985; and (B) the weighted capacity factor of all coal-fired units within the utility system averaged over the period from January 1, 1985, through Decem

ber 31, 1987, was below 50 percent, the Adminis

trator shall allocate allowances under this para

graph for the unit pursuant to this subsection. The Administrator shall allocate allowances for a unit that is an affected unit pursuant to sec

tion 7651d of this title (but is not also an af

fected unit under this section) and part of a util

ity system that includes 1 or more affected units under section 7651d of this title for reductions in the emissions of sulfur dioxide made during the period 1995–1999 if the unit meets the require

ments of this subsection and the requirements of the preceding sentence, except that for the purposes of applying this subsection to any such unit, the prior year concerned as specified below, shall be any year after January 1, 1995 but prior to January 1, 2000. (2) In the case of an affected unit under this section described in subparagraph (A), 4 the al

lowances allocated under this subsection for early reductions in any prior year may not ex

ceed the amount which (A) the product of the unit’s baseline multiplied by the unit’s 1985 ac

tual sulfur dioxide emission rate (in lbs. per mmBtu), divided by 2,000, exceeds (B) the allow

ances specified for such unit in Table A. In the case of an affected unit under section 7651d of this title described in subparagraph (A), 4 the al

lowances awarded under this subsection for early reductions in any prior year may not ex

ceed the amount by which (i) the product of the quantity of fossil fuel consumed by the unit (in mmBtu) in the prior year multiplied by the less

er of 2.50 or the most stringent emission rate (in lbs. per mmBtu) applicable to the unit under the applicable implementation plan, divided by 2,000, exceeds (ii) the unit’s actual tonnage of sulfur dioxide emission for the prior year con

cerned. Allowances allocated under this sub

section for units referred to in subparagraph (A) 4 may be allocated only for emission reduc

tions achieved as a result of physical changes or changes in the method of operation made after November 15, 1990, including changes in the type or quality of fossil fuel consumed. (3) In no event shall the provisions of this paragraph 5 be interpreted as an event of force majeur 6 or a commercial impractibility 7 or in any other way as a basis for excused non

performance by a utility system under a coal sales contract in effect before November 15, 1990.

T ABLE A.—A FFECTED S OURCES AND U NITS IN P HASE I
AND T HEIR S ULFUR D IOXIDE A LLOWANCES ( TONS )

State Plant Name Gener

ator Phase I

Allow

ances

Alabama

.......... Colbert

................ 1 2 3 4 5 13,570 15,310 15,400 15,410 37,180 E.C. Gaston

......... 1 2 3 4 5 18,100 18,540 18,310 19,280 59,840 Florida

............ Big Bend

............. 1 2 3 28,410 27,100 26,740 Crist

.................... 6 7 19,200 31,680 Georgia

............ Bowen

................. 1 2 3 4 56,320 54,770 71,750 71,740 Hammond

............ 1 2 3 4 8,780 9,220 8,910 37,640 J. McDonough

..... 1 2 19,910 20,600 Wansley

.............. 1 2 70,770 65,430 Yates

................... 1 2 3 4 5 6 7 7,210 7,040 6,950 8,910 9,410 24,760 21,480 Illinois

............. Baldwin

............... 1 2 3 42,010 44,420 42,550 Coffeen

................ 1 2 11,790 35,670Page 6457 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651c

T ABLE A.—A FFECTED S OURCES AND U NITS IN P HASE I
AND T HEIR S ULFUR D IOXIDE A LLOWANCES ( TONS )—C ON

TINUED

State Plant Name Gener

ator Phase I

Allow

ances

Grand Tower

....... 4 5,910 Hennepin

............. 2 18,410 Joppa Steam

....... 1 2 3 4 5 6 12,590 10,770 12,270 11,360 11,420 10,620 Kincaid

............... 1 2 31,530 33,810 Meredosia

........... 3 13,890 Vermilion

........... 2 8,880 Indiana

............ Bailly

.................. 7 8 11,180 15,630 Breed

................... 1 18,500 Cayuga

................ 1 2 33,370 34,130 Clifty Creek

........ 1 2 3 4 5 6 20,150 19,810 20,410 20,080 19,360 20,380 E. W. Stout

......... 5 6 7 3,880 4,770 23,610 F. B. Culley

......... 2 3 4,290 16,970 F. E. Ratts

.......... 1 2 8,330 8,480 Gibson

................. 1 2 3 4 40,400 41,010 41,080 40,320 H. T. Pritchard

... 6 5,770 Michigan City

..... 12 23,310 Petersburg

.......... 1 2 16,430 32,380 R. Gallagher

........ 1 2 3 4 6,490 7,280 6,530 7,650 Tanners Creek

.... 4 24,820 Wabash River

...... 1 2 3 5 6 4,000 2,860 3,750 3,670 12,280 Warrick

............... 4 26,980 Iowa

................. Burlington

.......... 1 10,710

Des Moines

.......... 7 2,320 George Neal

........ 1 1,290 M.L. Kapp

........... 2 13,800 Prairie Creek

...... 4 8,180 Riverside

............. 5 3,990 Kansas

............. Quindaro

............. 2 4,220 Kentucky

......... Coleman

.............. 1 2 3 11,250 12,840 12,340 Cooper

................. 1 2 7,450 15,320 E.W. Brown

......... 1 2 3 7,110 10,910 26,100 Elmer Smith

....... 1 2 6,520 14,410 Ghent

.................. 1 28,410 Green River

......... 4 7,820 H.L. Spurlock

..... 1 22,780 Henderson II

....... 1 2 13,340 12,310 Paradise

.............. 3 59,170 T ABLE A.—A FFECTED S OURCES AND U NITS IN P HASE I
AND T HEIR S ULFUR D IOXIDE A LLOWANCES ( TONS )—C ON

TINUED

State Plant Name Gener

ator Phase I

Allow

ances

Shawnee

.............. 10 10,170 Maryland

......... Chalk Point

........ 1 2 21,910 24,330 C. P. Crane

.......... 1 2 10,330 9,230 Morgantown

........ 1 2 35,260 38,480 Michigan

......... J. H. Campbell

.... 1 2 19,280 23,060 Minnesota

........ High Bridge

......... 6 4,270 Mississippi

....... Jack Watson

....... 4 5 17,910 36,700 Missouri

.......... Asbury

................ 1 16,190

James River

........ 5 4,850 Labadie

............... 1 2 3 4 40,110 37,710 40,310 35,940 Montrose

............. 1 2 3 7,390 8,200 10,090 New Madrid

......... 1 2 28,240 32,480 Sibley

.................. 3 15,580 Sioux

................... 1 2 22,570 23,690 Thomas Hill

........ 1 2 10,250 19,390 NewHampshire Merrimack

.......... 1 2 10,190 22,000 New Jersey

...... B.L. England

....... 1 2 9,060 11,720 New York

......... Dunkirk

.............. 3 4 12,600 14,060 Greenidge

............ 4 7,540 Milliken

.............. 1 2 11,170 12,410 Northport

............ 1 2 3 19,810 24,110 26,480 Port Jefferson

..... 3 4 10,470 12,330 Ohio

................. Ashtabula

........... 5 16,740

Avon Lake

.......... 8 9 11,650 30,480 Cardinal

.............. 1 2 34,270 38,320 Conesville

........... 1 2 3 4 4,210 4,890 5,500 48,770 Eastlake

.............. 1 2 3 4 5 7,800 8,640 10,020 14,510 34,070 Edgewater

........... 4 5,050 Gen. J.M. Gavin

.. 1 2 79,080 80,560 Kyger Creek

........ 1 2 3 4 5 19,280 18,560 17,910 18,710 18,740 Miami Fort

......... 5 6 7 760 11,380 38,510 Muskingum River 1 2 3 4 5 14,880 14,170 13,950 11,780 40,470Page 6458 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651c

T ABLE A.—A FFECTED S OURCES AND U NITS IN P HASE I
AND T HEIR S ULFUR D IOXIDE A LLOWANCES ( TONS )—C ON

TINUED

State Plant Name Gener

ator Phase I

Allow

ances

Niles

.................... 1 2 6,940 9,100 Picway

................ 5 4,930 R.E. Burger

......... 3 4 5 6,150 10,780 12,430 W.H. Sammis

...... 5 6 7 24,170 39,930 43,220 W.C. Beckjord

..... 5 6 8,950 23,020 Pennsylvania

... Armstrong

.......... 1 2 14,410 15,430 Brunner Island

.... 1 2 3 27,760 31,100 53,820 Cheswick

............. 1 39,170 Conemaugh

......... 1 2 59,790 66,450 Hatfield’s Ferry

.. 1 2 3 37,830 37,320 40,270 Martins Creek

..... 1 2 12,660 12,820 Portland

.............. 1 2 5,940 10,230 Shawville

............ 1 2 3 4 10,320 10,320 14,220 14,070 Sunbury

.............. 3 4 8,760 11,450 Tennessee

........ Allen

................... 1 2 3 15,320 16,770 15,670 Cumberland

........ 1 2 86,700 94,840 Gallatin

.............. 1 2 3 4 17,870 17,310 20,020 21,260 Johnsonville

....... 1 2 3 4 5 6 7 8 9 10 7,790

8,040 8,410 7,990 8,240 7,890 8,980 8,700 7,080 7,550 West Virginia

.. Albright

.............. 3 12,000

Fort Martin

........ 1 2 41,590 41,200 Harrison

.............. 1 2 3 48,620 46,150 41,500 Kammer

.............. 1 2 3 18,740 19,460 17,390 Mitchell

.............. 1 2 43,980 45,510 Mount Storm

...... 1 2 3 43,720 35,580 42,430 Wisconsin

........ Edgewater

........... 4 24,750

La Crosse/Genoa

.. 3 22,700 Nelson Dewey

...... 1 2 6,010 6,680 T ABLE A.—A FFECTED S OURCES AND U NITS IN P HASE I

AND T HEIR S ULFUR D IOXIDE A LLOWANCES ( TONS )—C ON

TINUED

State Plant Name Gener

ator Phase I

Allow

ances

N. Oak Creek

...... 1 2 3 4 5,220 5,140 5,370 6,320 Pulliam

............... 8 7,510 S. Oak Creek

....... 5 6 7 8 9,670 12,040 16,180 15,790
(f) Energy conservation and renewable energy (1) Definitions
As used in this subsection: (A) Qualified energy conservation measure The term ‘‘qualified energy conservation measure’’ means a cost effective measure, as identified by the Administrator in consulta

tion with the Secretary of Energy, that in

creases the efficiency of the use of elec

tricity provided by an electric utility to its customers. (B) Qualified renewable energy The term ‘‘qualified renewable energy’’ means energy derived from biomass, solar, geothermal, or wind as identified by the Ad

ministrator in consultation with the Sec

retary of Energy. (C) Electric utility The term ‘‘electric utility’’ means any per

son, State agency, or Federal agency, which sells electric energy. (2) Allowances for emissions avoided through energy conservation and renewable energy (A) In general The regulations under paragraph (4) of this subsection shall provide that for each ton of sulfur dioxide emissions avoided by an elec

tric utility, during the applicable period, through the use of qualified energy con

servation measures or qualified renewable energy, the Administrator shall allocate a single allowance to such electric utility, on a first-come-first-served basis from the Con

servation and Renewable Energy Reserve es

tablished under subsection (g) of this sec

tion, up to a total of 300,000 allowances for allocation from such Reserve. (B) Requirements for issuance
The Administrator shall allocate allow

ances to an electric utility under this sub

section only if all of the following require

ments are met: (i) Such electric utility is paying for the qualified energy conservation measures or qualified renewable energy directly or through purchase from another person. (ii) The emissions of sulfur dioxide avoided through the use of qualified en

ergy conservation measures or qualified renewable energy are quantified in accord

ance with regulations promulgated by the Administrator under this subsection.Page 6459 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651c

8 So in original. The comma probably should be a semicolon. (iii)(I) Such electric utility has adopted and is implementing a least cost energy conservation and electric power plan which evaluates a range of resources, in

cluding new power supplies, energy con

servation, and renewable energy resources, in order to meet expected future demand at the lowest system cost. (II) The qualified energy conservation measures or qualified renewable energy, or both, are consistent with that plan. (III) Electric utilities subject to the ju

risdiction of a State regulatory authority must have such plan approved by such au

thority. For electric utilities not subject to the jurisdiction of a State regulatory authority such plan shall be approved by the entity with rate-making authority for such utility. (iv) In the case of qualified energy con

servation measures undertaken by a State regulated electric utility, the Secretary of Energy certifies that the State regulatory authority with jurisdiction over the elec

tric rates of such electric utility has es

tablished rates and charges which ensure that the net income of such electric utility after implementation of specific cost effec

tive energy conservation measures is at least as high as such net income would have been if the energy conservation meas

ures had not been implemented. Upon the date of any such certification by the Sec

retary of Energy, all allowances which, but for this paragraph, would have been allo

cated under subparagraph (A) before such date, shall be allocated to the electric util

ity. This clause is not a requirement for qualified renewable energy. (v) Such utility or any subsidiary of the utility’s holding company owns or oper

ates at least one affected unit. (C) Period of applicability
Allowances under this subsection shall be allocated only with respect to kilowatt hours of electric energy saved by qualified energy conservation measures or generated by qualified renewable energy after January 1, 1992 and before the earlier of (i) December 31, 2000, or (ii) the date on which any electric utility steam generating unit owned or oper

ated by the electric utility to which the al

lowances are allocated becomes subject to this subchapter (including those sources that elect to become affected by this sub

chapter, pursuant to section 7651i of this title). (D) Determination of avoided emissions (i) Application
In order to receive allowances under this subsection, an electric utility shall make an application which— (I) designates the qualified energy con

servation measures implemented and the qualified renewable energy sources used for purposes of avoiding emissions, 8 (II) calculates, in accordance with sub

paragraphs (F) and (G), the number of tons of emissions avoided by reason of the implementation of such measures or the use of such renewable energy sources; and (III) demonstrates that the require

ments of subparagraph (B) have been met. Such application for allowances by a State-regulated electric utility shall re

quire approval by the State regulatory au

thority with jurisdiction over such electric utility. The authority shall review the ap

plication for accuracy and compliance with this subsection and the rules under this subsection. Electric utilities whose re

tail rates are not subject to the jurisdic

tion of a State regulatory authority shall apply directly to the Administrator for such approval. (E) Avoided emissions from qualified energy conservation measures For the purposes of this subsection, the emission tonnage deemed avoided by reason of the implementation of qualified energy conservation measures for any calendar year shall be a tonnage equal to the product of multiplying— (i) the kilowatt hours that would other

wise have been supplied by the utility dur

ing such year in the absence of such quali

fied energy conservation measures, by (ii) 0.004, and dividing by 2,000. (F) Avoided emissions from the use of quali

fied renewable energy The emissions tonnage deemed avoided by reason of the use of qualified renewable en

ergy by an electric utility for any calendar year shall be a tonnage equal to the product of multiplying— (i) the actual kilowatt hours generated by, or purchased from, qualified renewable energy, by (ii) 0.004, and dividing by 2,000. (G) Prohibitions (i) No allowances shall be allocated under this subsection for the implementation of programs that are exclusively informational or educational in nature. (ii) No allowances shall be allocated for en

ergy conservation measures or renewable en

ergy that were operational before January 1, 1992. (3) Savings provision Nothing in this subsection precludes a State or State regulatory authority from providing additional incentives to utilities to encourage investment in demand-side resources. (4) Regulations Not later than 18 months after November 15, 1990, and in conjunction with the regulations required to be promulgated under subsections (b) and (c) of this section, the Administrator shall, in consultation with the Secretary of Energy, promulgate regulations under thisPage 6460 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651d

9 So in original. Probably should be section ‘‘7651a(4)’’. subsection. Such regulations shall list energy conservation measures and renewable energy sources which may be treated as qualified en

ergy conservation measures and qualified re

newable energy for purposes of this sub

section. Allowances shall only be allocated if all requirements of this subsection and the rules promulgated to implement this sub

section are complied with. The Administrator shall review the determinations of each State regulatory authority under this subsection to encourage consistency from electric utility to electric utility and from State to State in ac

cordance with the Administrator’s rules. The Administrator shall publish the findings of this review no less than annually. (g) Conservation and Renewable Energy Reserve
The Administrator shall establish a Conserva

tion and Renewable Energy Reserve under this subsection. Beginning on January 1, 1995, the Administrator may allocate from the Conserva

tion and Renewable Energy Reserve an amount equal to a total of 300,000 allowances for emis

sions of sulfur dioxide pursuant to section 7651b of this title. In order to provide 300,000 allow

ances for such reserve, in each year beginning in calendar year 2000 and until calendar year 2009, inclusive, the Administrator shall reduce each unit’s basic Phase II allowance allocation on the basis of its pro rata share of 30,000 allowances. If allowances remain in the reserve after January 2, 2010, the Administrator shall allocate such al

lowances for affected units under section 7651d of this title on a pro rata basis. For purposes of this subsection, for any unit subject to the emis

sions limitation requirements of section 7651d of this title, the term ‘‘pro rata basis’’ refers to the ratio which the reductions made in such unit’s allowances in order to establish the reserve under this subsection bears to the total of such reductions for all such units. (h) Alternative allowance allocation for units in certain utility systems with optional baseline (1) Optional baseline for units in certain sys

tems In the case of a unit subject to the emissions limitation requirements of this section which (as of November 15, 1990)— (A) has an emission rate below 1.0 lbs/ mmBtu, (B) has decreased its sulfur dioxide emis

sions rate by 60 percent or greater since 1980, and (C) is part of a utility system which has a weighted average sulfur dioxide emissions rate for all fossil fueled-fired units below 1.0 lbs/mmBtu, at the election of the owner or operator of such unit, the unit’s baseline may be cal

culated (i) as provided under section 7651a(d) 9 of this title, or (ii) by utilizing the unit’s aver

age annual fuel consumption at a 60 percent capacity factor. Such election shall be made no later than March 1, 1991. (2) Allowance allocation Whenever a unit referred to in paragraph (1) elects to calculate its baseline as provided in clause (ii) of paragraph (1), the Administrator shall allocate allowances for the unit pursuant to section 7651b(a)(1) of this title, this section, and section 7651d of this title (as basic Phase II allowance allocations) in an amount equal to the baseline selected multiplied by the lower of the average annual emission rate for such unit in 1989, or 1.0 lbs./mmBtu. Such al

lowance allocation shall be in lieu of any allo

cation of allowances under this section and section 7651d of this title. (July 14, 1955, ch. 360, title IV, §404, as added Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2592.) § 7651d. Phase II sulfur dioxide requirements (a) Applicability (1) After January 1, 2000, each existing utility unit as provided below is subject to the limita

tions or requirements of this section. Each util

ity unit subject to an annual sulfur dioxide ton

nage emission limitation under this section is an affected unit under this subchapter. Each source that includes one or more affected units is an affected source. In the case of an existing unit that was not in operation during calendar year 1985, the emission rate for a calendar year after 1985, as determined by the Administrator, shall be used in lieu of the 1985 rate. The owner or operator of any unit operated in violation of this section shall be fully liable under this chap

ter for fulfilling the obligations specified in sec

tion 7651j of this title. (2) In addition to basic Phase II allowance al

locations, in each year beginning in calendar year 2000 and ending in calendar year 2009, inclu

sive, the Administrator shall allocate up to 530,000 Phase II bonus allowances pursuant to subsections (b)(2), (c)(4), (d)(3)(A) and (B), and (h)(2) of this section and section 7651e of this title. Not later than June 1, 1998, the Adminis

trator shall calculate, for each unit granted an extension pursuant to section 7651h of this title the difference between (A) the number of allow

ances allocated for the unit in calendar year 2000, and (B) the product of the unit’s baseline multiplied by 1.20 lbs/mmBtu, divided by 2000, and sum the computations. In each year, begin

ning in calendar year 2000 and ending in cal

endar year 2009, inclusive, the Administrator shall deduct from each unit’s basic Phase II al

lowance allocation its pro rata share of 10 per

cent of the sum calculated pursuant to the pre

ceding sentence. (3) In addition to basic Phase II allowance al

locations and Phase II bonus allowance alloca

tions, beginning January 1, 2000, the Adminis

trator shall allocate for each unit listed on Table A in section 7651c of this title (other than units at Kyger Creek, Clifty Creek, and Joppa Steam) and located in the States of Illinois, In

diana, Ohio, Georgia, Alabama, Missouri, Penn

sylvania, West Virginia, Kentucky, or Tennessee allowances in an amount equal to 50,000 multi

plied by the unit’s pro rata share of the total number of basic allowances allocated for all units listed on Table A (other than units at Kyger Creek, Clifty Creek, and Joppa Steam). Allowances allocated pursuant to this paragraph shall not be subject to the 8,900,000 ton limita

tion in section 7651b(a) of this title.Page 6461 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651d

1 So in original. Probably should be ‘‘unit’s’’. (b) Units equal to, or above, 75 MWe and 1.20 lbs/ mmBtu (1) Except as otherwise provided in paragraph (3), after January 1, 2000, it shall be unlawful for any existing utility unit that serves a generator with nameplate capacity equal to, or greater, than 75 MWe and an actual 1985 emission rate equal to or greater than 1.20 lbs/mmBtu to ex

ceed an annual sulfur dioxide tonnage emission limitation equal to the product of the unit’s baseline multiplied by an emission rate equal to 1.20 lbs/mmBtu, divided by 2,000, unless the owner or operator of such unit holds allowances to emit not less than the unit’s total annual emissions. (2) In addition to allowances allocated pursu

ant to paragraph (1) and section 7651b(a)(1) of this title as basic Phase II allowance alloca

tions, beginning January 1, 2000, and for each calendar year thereafter until and including 2009, the Administrator shall allocate annually for each unit subject to the emissions limitation requirements of paragraph (1) with an actual 1985 emissions rate greater than 1.20 lbs/mmBtu and less than 2.50 lbs/mmBtu and a baseline ca

pacity factor of less than 60 percent, allowances from the reserve created pursuant to subsection (a)(2) of this section in an amount equal to 1.20 lbs/mmBtu multiplied by 50 percent of the dif

ference, on a Btu basis, between the unit’s base

line and the unit’s fuel consumption at a 60 per

cent capacity factor. (3) After January 1, 2000, it shall be unlawful for any existing utility unit with an actual 1985 emissions rate equal to or greater than 1.20 lbs/ mmBtu whose annual average fuel consumption during 1985, 1986, and 1987 on a Btu basis exceed

ed 90 percent in the form of lignite coal which is located in a State in which, as of July 1, 1989, no county or portion of a county was designated nonattainment under section 7407 of this title for any pollutant subject to the requirements of section 7409 of this title to exceed an annual sul

fur dioxide tonnage limitation equal to the prod

uct of the unit’s baseline multiplied by the less

er of the unit’s actual 1985 emissions rate or its allowable 1985 emissions rate, divided by 2,000, unless the owner or operator of such unit holds allowances to emit not less than the unit’s total annual emissions. (4) After January 1, 2000, the Administrator shall allocate annually for each unit, subject to the emissions limitation requirements of para

graph (1), which is located in a State with an in

stalled electrical generating capacity of more than 30,000,000 kw in 1988 and for which was is

sued a prohibition order or a proposed prohibi

tion order (from burning oil), which unit subse

quently converted to coal between January 1, 1980 and December 31, 1985, allowances equal to the difference between (A) the product of the unit’s annual fuel consumption, on a Btu basis, at a 65 percent capacity factor multiplied by the lesser of its actual or allowable emissions rate during the first full calendar year after conver

sion, divided by 2,000, and (B) the number of al

lowances allocated for the unit pursuant to paragraph (1): Provided , That the number of al

lowances allocated pursuant to this paragraph shall not exceed an annual total of five thou

sand. If necessary to meeting the restriction im

posed in the preceding sentence the Adminis

trator shall reduce, pro rata, the annual allow

ances allocated for each unit under this para

graph. (c) Coal or oil-fired units below 75 MWe and above 1.20 lbs/mmBtu (1) Except as otherwise provided in paragraph (3), after January 1, 2000, it shall be unlawful for a coal or oil-fired existing utility unit that serves a generator with nameplate capacity of less than 75 MWe and an actual 1985 emission rate equal to, or greater than, 1.20 lbs/mmBtu and which is a unit owned by a utility operating company whose aggregate nameplate fossil fuel steam-electric capacity is, as of December 31, 1989, equal to, or greater than, 250 MWe to ex

ceed an annual sulfur dioxide emissions limita

tion equal to the product of the unit’s baseline multiplied by an emission rate equal to 1.20 lbs/ mmBtu, divided by 2,000, unless the owner or op

erator of such unit holds allowances to emit not less than the unit’s total annual emissions. (2) After January 1, 2000, it shall be unlawful for a coal or oil-fired existing utility unit that serves a generator with nameplate capacity of less than 75 MWe and an actual 1985 emission rate equal to, or greater than, 1.20 lbs/mmBtu (excluding units subject to section 7411 of this title or to a federally enforceable emissions lim

itation for sulfur dioxide equivalent to an an

nual rate of less than 1.20 lbs/mmBtu) and which is a unit owned by a utility operating companywhose aggregate nameplate fossil fuel steamelectric capacity is, as of December 31, 1989, less than 250 MWe, to exceed an annual sulfur diox

ide tonnage emissions limitation equal to the product of the unit’s baseline multiplied by the lesser of its actual 1985 emissions rate or its al

lowable 1985 emissions rate, divided by 2,000, un

less the owner or operator of such unit holds al

lowances to emit not less than the unit’s total annual emissions. (3) After January 1, 2000, it shall be unlawful for any existing utility unit with a nameplate capacity below 75 MWe and an actual 1985 emis

sions rate equal to, or greater than, 1.20 lbs/ mmBtu which became operational on or before December 31, 1965, which is owned by a utility operating company with, as of December 31, 1989, a total fossil fuel steam-electric generating ca

pacity greater than 250 MWe, and less than 450 MWe which serves fewer than 78,000 electrical customers as of November 15, 1990, to exceed an annual sulfur dioxide emissions tonnage limita

tion equal to the product of its baseline multi

plied by the lesser of its actual or allowable 1985 emission rate, divided by 2,000, unless the owner or operator holds allowances to emit not less than the units 1 total annual emissions. After January 1, 2010, it shall be unlawful for each unit subject to the emissions limitation require

ments of this paragraph to exceed an annual emissions tonnage limitation equal to the prod

uct of its baseline multiplied by an emissions rate of 1.20 lbs/mmBtu, divided by 2,000, unless the owner or operator holds allowances to emit not less than the unit’s total annual emissions. (4) In addition to allowances allocated pursu

ant to paragraph (1) and section 7651b(a)(1) ofPage 6462 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651d

2 So in original. This subsection does not contain a paragraph (6). this title as basic Phase II allowance alloca

tions, beginning January 1, 2000, and for each calendar year thereafter until and including 2009, inclusive, the Administrator shall allocate annually for each unit subject to the emissions limitation requirements of paragraph (1) with an actual 1985 emissions rate equal to, or greater than, 1.20 lbs/mmBtu and less than 2.50 lbs/ mmBtu and a baseline capacity factor of less than 60 percent, allowances from the reserve created pursuant to subsection (a)(2) of this sec

tion in an amount equal to 1.20 lbs/mmBtu mul

tiplied by 50 percent of the difference, on a Btu basis, between the unit’s baseline and the unit’s fuel consumption at a 60 percent capacity fac

tor. (5) After January 1, 2000, it shall be unlawful for any existing utility unit with a nameplate capacity below 75 MWe and an actual 1985 emis

sions rate equal to, or greater than, 1.20 lbs/ mmBtu which is part of an electric utility sys

tem which, as of November 15, 1990, (A) has at least 20 percent of its fossil-fuel capacity con

trolled by flue gas desulfurization devices, (B) has more than 10 percent of its fossil-fuel capac

ity consisting of coal-fired units of less than 75 MWe, and (C) has large units (greater than 400 MWe) all of which have difficult or very difficult FGD Retrofit Cost Factors (according to the Emissions and the FGD Retrofit Feasibility at the 200 Top Emitting Generating Stations, pre

pared for the United States Environmental Pro

tection Agency on January 10, 1986) to exceed an annual sulfur dioxide emissions tonnage limita

tion equal to the product of its baseline multi

plied by an emissions rate of 2.5 lbs/mmBtu, di

vided by 2,000, unless the owner or operator holds allowances to emit not less than the unit’s total annual emissions. After January 1, 2010, it shall be unlawful for each unit subject to the emissions limitation requirements of this para

graph to exceed an annual emissions tonnage limitation equal to the product of its baseline multiplied by an emissions rate of 1.20 lbs/ mmBtu, divided by 2,000, unless the owner or op

erator holds for use allowances to emit not less than the unit’s total annual emissions. (d) Coal-fired units below 1.20 lbs/mmBtu (1) After January 1, 2000, it shall be unlawful for any existing coal-fired utility unit the lesser of whose actual or allowable 1985 sulfur dioxide emissions rate is less than 0.60 lbs/mmBtu to ex

ceed an annual sulfur dioxide tonnage emission limitation equal to the product of the unit’s baseline multiplied by (A) the lesser of 0.60 lbs/ mmBtu or the unit’s allowable 1985 emissions rate, and (B) a numerical factor of 120 percent, divided by 2,000, unless the owner or operator of such unit holds allowances to emit not less than the unit’s total annual emissions. (2) After January 1, 2000, it shall be unlawful for any existing coal-fired utility unit the lesser of whose actual or allowable 1985 sulfur dioxide emissions rate is equal to, or greater than, 0.60 lbs/mmBtu and less than 1.20 lbs/mmBtu to ex

ceed an annual sulfur dioxide tonnage emissions limitation equal to the product of the unit’s baseline multiplied by (A) the lesser of its ac

tual 1985 emissions rate or its allowable 1985 emissions rate, and (B) a numerical factor of 120 percent, divided by 2,000, unless the owner or op

erator of such unit holds allowances to emit not less than the unit’s total annual emissions. (3)(A) In addition to allowances allocated pur

suant to paragraph (1) and section 7651b(a)(1) of this title as basic Phase II allowance alloca

tions, at the election of the designated rep

resentative of the operating company, beginning January 1, 2000, and for each calendar year thereafter until and including 2009, the Adminis

trator shall allocate annually for each unit sub

ject to the emissions limitation requirements of paragraph (1) allowances from the reserve cre

ated pursuant to subsection (a)(2) of this section in an amount equal to the amount by which (i) the product of the lesser of 0.60 lbs/mmBtu or the unit’s allowable 1985 emissions rate multi

plied by the unit’s baseline adjusted to reflect operation at a 60 percent capacity factor, di

vided by 2,000, exceeds (ii) the number of allow

ances allocated for the unit pursuant to para

graph (1) and section 7651b(a)(1) of this title as basic Phase II allowance allocations. (B) In addition to allowances allocated pursu

ant to paragraph (2) and section 7651b(a)(1) of this title as basic Phase II allowance alloca

tions, at the election of the designated rep

resentative of the operating company, beginning January 1, 2000, and for each calendar year thereafter until and including 2009, the Adminis

trator shall allocate annually for each unit sub

ject to the emissions limitation requirements of paragraph (2) allowances from the reserve cre

ated pursuant to subsection (a)(2) of this section in an amount equal to the amount by which (i) the product of the lesser of the unit’s actual 1985 emissions rate or its allowable 1985 emissions rate multiplied by the unit’s baseline adjusted to reflect operation at a 60 percent capacity fac

tor, divided by 2,000, exceeds (ii) the number of allowances allocated for the unit pursuant to paragraph (2) and section 7651b(a)(1) of this title as basic Phase II allowance allocations. (C) An operating company with units subject to the emissions limitation requirements of this subsection may elect the allocation of allow

ances as provided under subparagraphs (A) and (B). Such election shall apply to the annual al

lowance allocation for each and every unit in the operating company subject to the emissions limitation requirements of this subsection. The Administrator shall allocate allowances pursu

ant to subparagraphs (A) and (B) only in accord

ance with this subparagraph. (4) Notwithstanding any other provision of this section, at the election of the owner or op

erator, after January 1, 2000, the Administrator shall allocate in lieu of allocation, pursuant to paragraph (1), (2), (3), (5), or (6), 2 allowances for a unit subject to the emissions limitation re

quirements of this subsection which commenced commercial operation on or after January 1, 1981 and before December 31, 1985, which was subject to, and in compliance with, section 7411 of this title in an amount equal to the unit’s annual fuel consumption, on a Btu basis, at a 65 percentPage 6463 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651d

3 So in original. The words ‘‘the Administrator shall,’’ probably should not appear. 4 So in original. Probably should not be capitalized.

5 See References in Text note below. capacity factor multiplied by the unit’s allow

able 1985 emissions rate, divided by 2,000. (5) For the purposes of this section, in the case of an oil- and gas-fired unit which has been awarded a clean coal technology demonstration grant as of January 1, 1991, by the United States Department of Energy, beginning January 1, 2000, the Administrator shall allocate for the unit allowances in an amount equal to the unit’s baseline multiplied by 1.20 lbs/mmBtu, divided by 2,000. (e) Oil and gas-fired units equal to or greater than 0.60 lbs/mmBtu and less than 1.20 lbs/ mmBtu After January 1, 2000, it shall be unlawful for any existing oil and gas-fired utility unit the lesser of whose actual or allowable 1985 sulfur dioxide emission rate is equal to, or greater than, 0.60 lbs/mmBtu, but less than 1.20 lbs/ mmBtu to exceed an annual sulfur dioxide ton

nage limitation equal to the product of the unit’s baseline multiplied by (A) the lesser of the unit’s allowable 1985 emissions rate or its actual 1985 emissions rate and (B) a numerical factor of 120 percent divided by 2,000, unless the owner or operator of such unit holds allowances to emit not less than the unit’s total annual emissions. (f) Oil and gas-fired units less than 0.60 lbs/ mmBtu (1) After January 1, 2000, it shall be unlawful for any oil and gas-fired existing utility unit the lesser of whose actual or allowable 1985 emission rate is less than 0.60 lbs/mmBtu and whose aver

age annual fuel consumption during the period 1980 through 1989 on a Btu basis was 90 percent or less in the form of natural gas to exceed an annual sulfur dioxide tonnage emissions limita

tion equal to the product of the unit’s baseline multiplied by (A) the lesser of 0.60 lbs/mmBtu or the unit’s allowable 1985 emissions, and (B) a nu

merical factor of 120 percent, divided by 2,000, unless the owner or operator of such unit holds allowances to emit not less than the unit’s total annual emissions. (2) In addition to allowances allocated pursu

ant to paragraph (1) as basic Phase II allowance allocations and section 7651b(a)(1) of this title, beginning January 1, 2000, the Administrator shall, 3 in the case of any unit operated by a util

ity that furnishes electricity, electric energy, steam, and natural gas within an area consisting of a city and 1 contiguous county, and in the case of any unit owned by a State authority, the output of which unit is furnished within that same area consisting of a city and 1 contiguous county, the Administrator shall allocate for each unit in the utility its pro rata share of 7,000 allowances and for each unit in the State au

thority its pro rata share of 2,000 allowances. (g) Units that commence operation between 1986 and December 31, 1995 (1) After January 1, 2000, it shall be unlawful for any utility unit that has commenced com

mercial operation on or after January 1, 1986, but not later than September 30, 1990 to exceed an annual tonnage emission limitation equal to the product of the unit’s annual fuel consump

tion, on a Btu basis, at a 65 percent capacity fac

tor multiplied by the unit’s allowable 1985 sulfur dioxide emission rate (converted, if necessary, to pounds per mmBtu), divided by 2,000 unless the owner or operator of such unit holds allow

ances to emit not less than the unit’s total an

nual emissions. (2) After January 1, 2000, the Administrator shall allocate allowances pursuant to section 7651b of this title to each unit which is listed in table B of this paragraph in an annual amount equal to the amount specified in table B.

TABLE B Unit Allowances Brandon Shores

................................... 8,907 Miller 4

................................................ 9,197 TNP One 2

........................................... 4,000 Zimmer 1

............................................. 18,458 Spruce 1

.............................................. 7,647 Clover 1

............................................... 2,796 Clover 2

............................................... 2,796 Twin Oak 2

.......................................... 1,760 Twin Oak 1

.......................................... 9,158 Cross 1

................................................. 6,401 Malakoff 1

........................................... 1,759 Notwithstanding any other paragraph of this subsection, for units subject to this paragraph, the Administrator shall not allocate allowances pursuant to any other paragraph of this sub

section, Provided 4 that the owner or operator of a unit listed on Table B may elect an allocation of allowances under another paragraph of this subsection in lieu of an allocation under this paragraph. (3) Beginning January 1, 2000, the Adminis

trator shall allocate to the owner or operator of any utility unit that commences commercial op

eration, or has commenced commercial oper

ation, on or after October 1, 1990, but not later than December 31, 1992 allowances in an amount equal to the product of the unit’s annual fuel consumption, on a Btu basis, at a 65 percent ca

pacity factor multiplied by the lesser of 0.30 lbs/ mmBtu or the unit’s allowable sulfur dioxide emission rate (converted, if necessary, to pounds per mmBtu), divided by 2,000. (4) Beginning January 1, 2000, the Adminis

trator shall allocate to the owner or operator of any utility unit that has commenced construc

tion before December 31, 1990 and that com

mences commercial operation between January 1, 1993 and December 31, 1995, allowances in an amount equal to the product of the unit’s an

nual fuel consumption, on a Btu basis, at a 65 percent capacity factor multiplied by the lesser of 0.30 lbs/mmBtu or the unit’s allowable sulfur dioxide emission rate (converted, if necessary, to pounds per mmBtu), divided by 2,000. (5) After January 1, 2000, it shall be unlawful for any existing utility unit that has completed conversion from predominantly gas fired exist

ing operation to coal fired operation between January 1, 1985 and December 31, 1987, for which there has been allocated a proposed or final pro

hibition order pursuant to section 301(b) 5 of the Powerplant and Industrial Fuel Use Act of 1978Page 6464 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651d

6 So in original. Probably should be ‘‘seq.,’’.

7 So in original. No subpar. (B) has been enacted.

8 So in original. Probably should be preceded by a comma.

9 So in original. Probably means clause ‘‘(C)’’. (42 U.S.C. 8301 et seq, 6 repealed 1987) to exceed an annual sulfur dioxide tonnage emissions limita

tion equal to the product of the unit’s annual fuel consumption, on a Btu basis, at a 65 percent capacity factor multiplied by the lesser of 1.20 lbs/mmBtu or the unit’s allowable 1987 sulfur di

oxide emissions rate, divided by 2,000, unless the owner or operator of such unit has obtained al

lowances equal to its actual emissions. (6)(A) 7 Unless the Administrator has approved a designation of such facility under section 7651i of this title, the provisions of this subchapter shall not apply to a ‘‘qualifying small power production facility’’ or ‘‘qualifying cogeneration facility’’ (within the meaning of section 796(17)(C) or 796(18)(B) of title 16) or to a ‘‘new independent power production facility’’ as de

fined in section 7651 o of this title except 8 that clause (iii) 9 of such definition in section 7651 o of this title shall not apply for purposes of this paragraph if, as of November 15, 1990, (i) an applicable power sales agreement has been executed; (ii) the facility is the subject of a State reg

ulatory authority order requiring an electric utility to enter into a power sales agreement with, purchase capacity from, or (for purposes of establishing terms and conditions of the electric utility’s purchase of power) enter into arbitration concerning, the facility; (iii) an electric utility has issued a letter of intent or similar instrument committing to purchase power from the facility at a pre

viously offered or lower price and a power sales agreement is executed within a reason

able period of time; or (iv) the facility has been selected as a win

ning bidder in a utility competitive bid solici

tation. (h) Oil and gas-fired units less than 10 percent oil consumed (1) After January 1, 2000, it shall be unlawful for any oil- and gas-fired utility unit whose av

erage annual fuel consumption during the period 1980 through 1989 on a Btu basis exceeded 90 per

cent in the form of natural gas to exceed an an

nual sulfur dioxide tonnage limitation equal to the product of the unit’s baseline multiplied by the unit’s actual 1985 emissions rate divided by 2,000 unless the owner or operator of such unit holds allowances to emit not less than the unit’s total annual emissions. (2) In addition to allowances allocated pursu

ant to paragraph (1) and section 7651b(a)(1) of this title as basic Phase II allowance alloca

tions, beginning January 1, 2000, and for each calendar year thereafter until and including 2009, the Administrator shall allocate annually for each unit subject to the emissions limitation requirements of paragraph (1) allowances from the reserve created pursuant to subsection (a)(2) of this section in an amount equal to the unit’s baseline multiplied by 0.050 lbs/mmBtu, divided by 2,000. (3) In addition to allowances allocated pursu

ant to paragraph (1) and section 7651b(a)(1) of this title, beginning January 1, 2010, the Admin

istrator shall allocate annually for each unit subject to the emissions limitation require

ments of paragraph (1) allowances in an amount equal to the unit’s baseline multiplied by 0.050 lbs/mmBtu, divided by 2,000. (i) Units in high growth States (1) In addition to allowances allocated pursu

ant to this section and section 7651b(a)(1) of this title as basic Phase II allowance allocations, be

ginning January 1, 2000, the Administrator shall allocate annually allowances for each unit, sub

ject to an emissions limitation requirement under this section, and located in a State that— (A) has experienced a growth in population in excess of 25 percent between 1980 and 1988 according to State Population and Household Estimates, With Age, Sex, and Components of Change: 1981–1988 allocated by the United States Department of Commerce, and (B) had an installed electrical generating ca

pacity of more than 30,000,000 kw in 1988, in an amount equal to the difference between (A) the number of allowances that would be allo

cated for the unit pursuant to the emissions limitation requirements of this section applica

ble to the unit adjusted to reflect the unit’s an

nual average fuel consumption on a Btu basis of any three consecutive calendar years between 1980 and 1989 (inclusive) as elected by the owner or operator and (B) the number of allowances al

located for the unit pursuant to the emissions limitation requirements of this section: Pro

vided , That the number of allowances allocated pursuant to this subsection shall not exceed an annual total of 40,000. If necessary to meeting the 40,000 allowance restriction imposed under this subsection the Administrator shall reduce, pro rata, the additional annual allowances allo

cated to each unit under this subsection. (2) Beginning January 1, 2000, in addition to al

lowances allocated pursuant to this section and section 7651b(a)(1) of this title as basic Phase II allowance allocations, the Administrator shall allocate annually for each unit subject to the emissions limitation requirements of subsection (b)(1) of this section, (A) the lesser of whose ac

tual or allowable 1980 emissions rate has de

clined by 50 percent or more as of November 15, 1990, (B) whose actual emissions rate is less than 1.2 lbs/mmBtu as of January 1, 2000, (C) which commenced operation after January 1, 1970, (D) which is owned by a utility company whosecombined commercial and industrial kilowatthour sales have increased by more than 20 per

cent between calendar year 1980 and November 15, 1990, and (E) whose company-wide fossil-fuel sulfur dioxide emissions rate has declined 40 per centum or more from 1980 to 1988, allowances in an amount equal to the difference between (i) the number of allowances that would be allo

cated for the unit pursuant to the emissions limitation requirements of subsection (b)(1) of this section adjusted to reflect the unit’s annual average fuel consumption on a Btu basis for any three consecutive years between 1980 and 1989 (inclusive) as elected by the owner or operator and (ii) the number of allowances allocated for the unit pursuant to the emissions limitation requirements of subsection (b)(1) of this section:Page 6465 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651f

1 So in original. Probably should be ‘‘subsection’’. 1 So in original. Probably should be followed by ‘‘or’’. Provided , That the number of allowances allo

cated pursuant to this paragraph shall not ex

ceed an annual total of 5,000. If necessary to meeting the 5,000-allowance restriction imposed in the last clause of the preceding sentence the Administrator shall reduce, pro rata, the addi

tional allowances allocated to each unit pursu

ant to this paragraph. (j) Certain municipally owned power plants Beginning January 1, 2000, in addition to al

lowances allocated pursuant to this section and section 7651b(a)(1) of this title as basic Phase II allowance allocations, the Administrator shall allocate annually for each existing municipally owned oil and gas-fired utility unit with name

plate capacity equal to, or less than, 40 MWe, the lesser of whose actual or allowable 1985 sul

fur dioxide emission rate is less than 1.20 lbs/ mmBtu, allowances in an amount equal to the product of the unit’s annual fuel consumption on a Btu basis at a 60 percent capacity factor multiplied by the lesser of its allowable 1985 emission rate or its actual 1985 emission rate, divided by 2,000. (July 14, 1955, ch. 360, title IV, §405, as added Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2605.)

R EFERENCES IN T EXT Section 301(b) of the Powerplant and Industrial Fuel Use Act of 1978, referred to in subsec. (g)(5), is section 301(b) of Pub. L. 95–620, which is classified to section 8341(b) of this title. A prior section 301(b) of Pub. L. 95–620, title III, Nov. 9, 1978, 92 Stat. 3305, which was for

merly classified to section 8341(b) of this title, was re

pealed by Pub. L. 97–35, title X, §1021(a), Aug. 13, 1981, 95 Stat. 614.
§ 7651e. Allowances for States with emissions rates at or below 0.80 lbs/mmBtu (a) Election of Governor
In addition to basic Phase II allowance alloca

tions, upon the election of the Governor of any State, with a 1985 state-wide annual sulfur diox

ide emissions rate equal to or less than, 0.80 lbs/ mmBtu, averaged over all fossil fuel-fired util

ity steam generating units, beginning January 1, 2000, and for each calendar year thereafter until and including 2009, the Administrator shall allocate, in lieu of other Phase II bonus allow

ance allocations, allowances from the reserve created pursuant to section 7651d(a)(2) of this title to all such units in the State in an amount equal to 125,000 multiplied by the unit’s pro rata share of electricity generated in calendar year 1985 at fossil fuel-fired utility steam units in all States eligible for the election. (b) Notification of Administrator Pursuant to section 7651b(a)(1) of this title, each Governor of a State eligible to make an election under paragraph 1 (a) shall notify the Administrator of such election. In the event that the Governor of any such State fails to no

tify the Administrator of the Governor’s elec

tions, the Administrator shall allocate allow

ances pursuant to section 7651d of this title. (c) Allowances after January 1, 2010 After January 1, 2010, the Administrator shall allocate allowances to units subject to the pro

visions of this section pursuant to section 7651d of this title. (July 14, 1955, ch. 360, title IV, §406, as added Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2613.)
§ 7651f. Nitrogen oxides emission reduction pro

gram (a) Applicability On the date that a coal-fired utility unit be

comes an affected unit pursuant to sections 7651c, 7651d, 1 7651h of this title, or on the date a unit subject to the provisions of section 7651c(d) or 7651h(b) of this title, must meet the SO 2 re

duction requirements, each such unit shall be

come an affected unit for purposes of this sec

tion and shall be subject to the emission limita

tions for nitrogen oxides set forth herein. (b) Emission limitations (1) Not later than eighteen months after No

vember 15, 1990, the Administrator shall by regu

lation establish annual allowable emission limi

tations for nitrogen oxides for the types of util

ity boilers listed below, which limitations shall not exceed the rates listed below: Provided , That the Administrator may set a rate higher than that listed for any type of utility boiler if the Administrator finds that the maximum listed rate for that boiler type cannot be achieved using low NO x burner technology. The maximum allowable emission rates are as follows: (A) for tangentially fired boilers, 0.45 lb/ mmBtu; (B) for dry bottom wall-fired boilers (other than units applying cell burner technology), 0.50 lb/mmBtu. After January 1, 1995, it shall be unlawful for any unit that is an affected unit on that date and is of the type listed in this paragraph to emit nitrogen oxides in excess of the emission rates set by the Administrator pursuant to this paragraph. (2) Not later than January 1, 1997, the Admin

istrator shall, by regulation, establish allowable emission limitations on a lb/mmBtu, annual av

erage basis, for nitrogen oxides for the following types of utility boilers: (A) wet bottom wall-fired boilers; (B) cyclones; (C) units applying cell burner technology; (D) all other types of utility boilers.

The Administrator shall base such rates on the degree of reduction achievable through the ret

rofit application of the best system of continu

ous emission reduction, taking into account available technology, costs and energy and envi

ronmental impacts; and which is comparable to the costs of nitrogen oxides controls set pursu

ant to subsection (b)(1) of this section. Not later than January 1, 1997, the Administrator may re

vise the applicable emission limitations for tan

gentially fired and dry bottom, wall-fired boilers (other than cell burners) to be more stringent if the Administrator determines that more effec

tive low NO x burner technology is available: Pro

vided , That, no unit that is an affected unit pur

-Page 6466 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651g

2 So in original. No par. (2) has been enacted.

3 See References in Text note below. 4 So in original. Probably should be ‘‘subsections,’’.

5 So in original. The semicolon probably should be a comma. suant to section 7651c of this title and that is subject to the requirements of subsection (b)(1) of this section, shall be subject to the revised emission limitations, if any. (c) Revised performance standards (1) 2 Not later than January 1, 1993, the Admin

istrator shall propose revised standards of per

formance to section 7411 of this title for nitro

gen oxides emissions from fossil-fuel fired steam generating units, including both electric utility and nonutility units. Not later than January 1, 1994, the Administrator shall promulgate such revised standards of performance. Such revised standards of performance shall reflect improve

ments in methods for the reduction of emissions of oxides of nitrogen. (d) Alternative emission limitations The permitting authority shall, upon request of an owner or operator of a unit subject to this section, authorize an emission limitation less stringent than the applicable limitation estab

lished under subsection (b)(1) or (b)(2) of this section upon a determination that— (1) a unit subject to subsection (b)(1) of this section cannot meet the applicable limitation using low NO x burner technology; or (2) a unit subject to subsection (b)(2) of this section cannot meet the applicable rate using the technology on which the Administrator based the applicable emission limitation. The permitting authority shall base such deter

mination upon a showing satisfactory to the permitting authority, in accordance with regu

lations established by the Administrator not later than eighteen months after November 15, 1990, that the owner or operator— (1) has properly installed appropriate control equipment designed to meet the applicable emission rate; (2) has properly operated such equipment for a period of fifteen months (or such other pe

riod of time as the Administrator determines through the regulations), and provides operat

ing and monitoring data for such period dem

onstrating that the unit cannot meet the ap

plicable emission rate; and (3) has specified an emission rate that such unit can meet on an annual average basis. The permitting authority shall issue an operat

ing permit for the unit in question, in accord

ance with section 7651g of this title and part B 3 of title III— (i) that permits the unit during the dem

onstration period referred to in subparagraph (2) above, to emit at a rate in excess of the ap

plicable emission rate; (ii) at the conclusion of the demonstration period to revise the operating permit to reflect the alternative emission rate demonstrated in paragraphs (2) and (3) above. Units subject to subsection (b)(1) of this section for which an alternative emission limitation is established shall not be required to install any additional control technology beyond low NO x burners. Nothing in this section shall preclude an owner or operator from installing and operat

ing an alternative NO x control technology capa

ble of achieving the applicable emission limita

tion. If the owner or operator of a unit subject to the emissions limitation requirements of sub

section (b)(1) of this section demonstrates to the satisfaction of the Administrator that the tech

nology necessary to meet such requirements is not in adequate supply to enable its installation and operation at the unit, consistent with sys

tem reliability, by January 1, 1995, then the Ad

ministrator shall extend the deadline for com

pliance for the unit by a period of 15 months. Any owner or operator may petition the Admin

istrator to make a determination under the pre

vious sentence. The Administrator shall grant or deny such petition within 3 months of sub

mittal. (e) Emissions averaging In lieu of complying with the applicable emis

sion limitations under subsection (b)(1), (2), or (d) of this section, the owner or operator of two or more units subject to one or more of the ap

plicable emission limitations set pursuant to these sections, 4 may petition the permitting au

thority for alternative contemporaneous annual emission limitations for such units that ensure that (1) the actual annual emission rate in pounds of nitrogen oxides per million Btu aver

aged over the units in question is a rate that is less than or equal to (2) the Btu-weighted aver

age annual emission rate for the same units if they had been operated, during the same period of time, in compliance with limitations set in accordance with the applicable emission rates set pursuant to subsections (b)(1) and (2) of this section. If the permitting authority determines, in ac

cordance with regulations issued by the Admin

istrator not later than eighteen months after November 15, 1990; 5 that the conditions in the paragraph above can be met, the permitting au

thority shall issue operating permits for such units, in accordance with section 7651g of this title and part B 3 of title III, that allow alter

native contemporaneous annual emission limi

tations. Such emission limitations shall only re

main in effect while both units continue oper

ation under the conditions specified in their re

spective operating permits. (July 14, 1955, ch. 360, title IV, §407, as added Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2613.)

R EFERENCES IN T EXT Part B of title III, referred to in subsecs. (d) and (e), means title III of the Clean Air Act, act July 14, 1955, ch. 360, as added, which is classified to subchapter III of this chapter, but title III does not contain parts. For provisions of the Clean Air Act relating to permits, see subchapter V (§7661 et seq.) of this chapter. § 7651g. Permits and compliance plans (a) Permit program The provisions of this subchapter shall be im

plemented, subject to section 7651b of this title, by permits issued to units subject to this sub

-Page 6467 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651g

1 So in original. Probably should be followed by a comma. 2 So in original. Section 7651a of this title does not contain sub

sections. chapter (and enforced) in accordance with the provisions of subchapter V of this chapter, as modified by this subchapter. Any such permit is

sued by the Administrator, or by a State with an approved permit program, shall prohibit— (1) annual emissions of sulfur dioxide in ex

cess of the number of allowances to emit sul

fur dioxide the owner or operator, or the des

ignated representative of the owners or opera

tors, of the unit hold for the unit, (2) exceedances of applicable emissions rates, (3) the use of any allowance prior to the year for which it was allocated, and (4) contravention of any other provision of the permit.
Permits issued to implement this subchapter shall be issued for a period of 5 years, notwith

standing subchapter V of this chapter. No per

mit shall be issued that is inconsistent with the requirements of this subchapter, and subchapter V of this chapter as applicable.

(b) Compliance plan Each initial permit application shall be ac

companied by a compliance plan for the source to comply with its requirements under this sub

chapter. Where an affected source consists of more than one affected unit, such plan shall cover all such units, and for purposes of section 7661a(c) of this title, such source shall be consid

ered a ‘‘facility’’. Nothing in this section regard

ing compliance plans or in subchapter V of this chapter shall be construed as affecting allow

ances. Except as provided under subsection (c)(1)(B) of this section, submission of a state

ment by the owner or operator, or the des

ignated representative of the owners and opera

tors, of a unit subject to the emissions limita

tion requirements of sections 7651c, 7651d, and 7651f of this title, that the unit will meet the ap

plicable emissions limitation requirements of such sections in a timely manner or that, in the case of the emissions limitation requirements of sections 7651c and 7651d of this title, the owners and operators will hold allowances to emit not less than the total annual emissions of the unit, shall be deemed to meet the proposed and ap

proved compliance planning requirements of this section and subchapter V of this chapter, except that, for any unit that will meet the re

quirements of this subchapter by means of an al

ternative method of compliance authorized under section 7651c(b), (c), (d), or (f) of this title 1 section 7651f(d) or (e) of this title, section 7651h of this title and section 7651i of this title, the proposed and approved compliance plan, permit application and permit shall include, pursuant to regulations promulgated by the Adminis

trator, for each alternative method of compli

ance a comprehensive description of the sched

ule and means by which the unit will rely on one or more alternative methods of compliance in the manner and time authorized under this sub

chapter. Recordation by the Administrator of transfers of allowances shall amend automati

cally all applicable proposed or approved permit applications, compliance plans and permits. The Administrator may also require— (1) for a source, a demonstration of attain

ment of national ambient air quality stand

ards, and (2) from the owner or operator of two or more affected sources, an integrated compli

ance plan providing an overall plan for achiev

ing compliance at the affected sources. (c) First phase permits The Administrator shall issue permits to af

fected sources under sections 7651c and 7651f of this title. (1) Permit application and compliance plan (A) Not later than 27 months after November 15, 1990, the designated representative of the owners or operators, or the owner and opera

tor, of each affected source under sections 7651c and 7651f of this title shall submit a per

mit application and compliance plan for that source in accordance with regulations issued by the Administrator under paragraph (3). The permit application and the compliance plan shall be binding on the owner or operator or the designated representative of owners and operators for purposes of this subchapter and section 7651a(a) 2 of this title, and shall be en

forceable in lieu of a permit until a permit is issued by the Administrator for the source. (B) In the case of a compliance plan for an affected source under sections 7651c and 7651f of this title for which the owner or operator proposes to meet the requirements of that sec

tion by reducing utilization of the unit as compared with its baseline or by shutting down the unit, the owner or operator shall in

clude in the proposed compliance plan a speci

fication of the unit or units that will provide electrical generation to compensate for the re

duced output at the affected source, or a dem

onstration that such reduced utilization will be accomplished through energy conservation or improved unit efficiency. The unit to be used for such compensating generation, which is not otherwise an affected unit under sec

tions 7651c and 7651f of this title, shall be deemed an affected unit under section 7651c of this title, subject to all of the requirements for such units under this subchapter, except that allowances shall be allocated to such compensating unit in the amount of an annual limitation equal to the product of the unit’s baseline multiplied by the lesser of the unit’s actual 1985 emissions rate or its allowable 1985 emissions rate, divided by 2,000. (2) EPA action on compliance plans The Administrator shall review each pro

posed compliance plan to determine whether it satisfies the requirements of this subchapter, and shall approve or disapprove such plan within 6 months after receipt of a complete submission. If a plan is disapproved, it may be resubmitted for approval with such changes as the Administrator shall require consistent with the requirements of this subchapter and within such period as the Administrator pre

scribes as part of such disapproval.Page 6468 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651g

(3) Regulations; issuance of permits Not later than 18 months after November 15, 1990, the Administrator shall promulgate regu

lations, in accordance with subchapter V of this chapter, to implement a Federal permit program to issue permits for affected sources under this subchapter. Following promulga

tion, the Administrator shall issue a permit to implement the requirements of section 7651c of this title and the allowances provided under section 7651b of this title to the owner or oper

ator of each affected source under section 7651c of this title. Such a permit shall super

sede any permit application and compliance plan submitted under paragraph (1). (4) Fees During the years 1995 through 1999 inclusive, no fee shall be required to be paid under sec

tion 7661a(b)(3) of this title or under section 7410(a)(2)(L) of this title with respect to emis

sions from any unit which is an affected unit under section 7651c of this title. (d) Second phase permits (1) To provide for permits for (A) new electric utility steam generating units required under section 7651b(e) of this title to have allowances, (B) affected units or sources under section 7651d of this title, and (C) existing units subject to ni

trogen oxide emission reductions under section 7651f of this title, each State in which one or more such units or sources are located shall sub

mit in accordance with subchapter V of this chapter, a permit program for approval as pro

vided by that subchapter. Upon approval of such program, for the units or sources subject to such approved program the Administrator shall sus

pend the issuance of permits as provided in sub

chapter V of this chapter. (2) The owner or operator or the designated representative of each affected source under sec

tion 7651d of this title shall submit a permit ap

plication and compliance plan for that source to the permitting authority, not later than Janu

ary 1, 1996. (3) Not later than December 31, 1997, each State with an approved permit program shall issue permits to the owner or operator, or the designated representative of the owners and op

erators, of affected sources under section 7651d of this title that satisfy the requirements of subchapter V of this chapter and this subchapter and that submitted to such State a permit appli

cation and compliance plan pursuant to para

graph (2). In the case of a State without an ap

proved permit program by July 1, 1996, the Ad

ministrator shall, not later than January 1, 1998, issue a permit to the owner or operator or the designated representative of each such affected source. In the case of affected sources for which applications and plans are timely received under paragraph (2), the permit application and the compliance plan, including amendments there

to, shall be binding on the owner or operator or the designated representative of the owners or operators and shall be enforceable as a permit for purposes of this subchapter and subchapter V of this chapter until a permit is issued by the permitting authority for the affected source. The provisions of section 558(c) of title 5 (relat

ing to renewals) shall apply to permits issued by a permitting authority under this subchapter and subchapter V of this chapter. (4) The permit issued in accordance with this subsection for an affected source shall provide that the affected units at the affected source may not emit an annual tonnage of sulfur diox

ide in excess of the number of allowances to emit sulfur dioxide the owner or operator or des

ignated representative hold for the unit. (e) New units The owner or operator of each source that in

cludes a new electric utility steam generating unit shall submit a permit application and com

pliance plan to the permitting authority not later than 24 months before the later of (1) Janu

ary 1, 2000, or (2) the date on which the unit commences operation. The permitting authority shall issue a permit to the owner or operator, or the designated representative thereof, of the unit that satisfies the requirements of sub

chapter V of this chapter and this subchapter. (f) Units subject to certain other limits The owner or operator, or designated rep

resentative thereof, of any unit subject to an emission rate requirement under section 7651f of this title shall submit a permit application and compliance plan for such unit to the permitting authority, not later than January 1, 1998. The permitting authority shall issue a permit to the owner or operator that satisfies the require

ments of subchapter V of this chapter and this subchapter, including any appropriate monitor

ing and reporting requirements. (g) Amendment of application and compliance plan At any time after the submission of an appli

cation and compliance plan under this section, the applicant may submit a revised application and compliance plan, in accordance with the re

quirements of this section. In considering any permit application and compliance plan under this subchapter, the permitting authority shall ensure coordination with the applicable electric ratemaking authority, in the case of regulated utilities, and with unregulated public utilities. (h) Prohibition (1) It shall be unlawful for an owner or opera

tor, or designated representative, required to submit a permit application or compliance plan under this subchapter to fail to submit such ap

plication or plan in accordance with the dead

lines specified in this section or to otherwise fail to comply with regulations implementing this section. (2) It shall be unlawful for any person to oper

ate any source subject to this subchapter except in compliance with the terms and requirements of a permit application and compliance plan (in

cluding amendments thereto) or permit issued by the Administrator or a State with an ap

proved permit program. For purposes of this subsection, compliance, as provided in section 7661c(f) of this title, with a permit issued under subchapter V of this chapter which complies with this subchapter for sources subject to this subchapter shall be deemed compliance with this subsection as well as section 7661a(a) of this title.Page 6469 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651h

1 So in original. Probably should be section ‘‘7651a(12)’’. (3) In order to ensure reliability of electric power, nothing in this subchapter or subchapter V of this chapter shall be construed as requiring termination of operations of an electric utility steam generating unit for failure to have an ap

proved permit or compliance plan, except that any such unit may be subject to the applicable enforcement provisions of section 7413 of this title. (i) Multiple owners No permit shall be issued under this section to an affected unit until the designated representa

tive of the owners or operators has filed a cer

tificate of representation with regard to matters under this subchapter, including the holding and distribution of allowances and the proceeds of transactions involving allowances. Where there are multiple holders of a legal or equitable title to, or a leasehold interest in, such a unit, or where a utility or industrial customer purchasespower from an affected unit (or units) under lifeof-the-unit, firm power contractual arrange

ments, the certificate shall state (1) that allow

ances and the proceeds of transactions involving allowances will be deemed to be held or distrib

uted in proportion to each holder’s legal, equi

table, leasehold, or contractual reservation or entitlement, or (2) if such multiple holders have expressly provided for a different distribution of allowances by contract, that allowances and the proceeds of transactions involving allowances will be deemed to be held or distributed in ac

cordance with the contract. A passive lessor, or a person who has an equitable interest through such lessor, whose rental payments are not based, either directly or indirectly, upon the revenues or income from the affected unit shall not be deemed to be a holder of a legal, equi

table, leasehold, or contractual interest for the purpose of holding or distributing allowances as provided in this subsection, during either the term of such leasehold or thereafter, unless ex

pressly provided for in the leasehold agreement. Except as otherwise provided in this subsection, where all legal or equitable title to or interest in an affected unit is held by a single person, the certification shall state that all allowances re

ceived by the unit are deemed to be held for that
person. (July 14, 1955, ch. 360, title IV, §408, as added Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2616.)
§ 7651h. Repowered sources (a) Availability Not later than December 31, 1997, the owner or operator of an existing unit subject to the emis

sions limitation requirements of section 7651d(b) and (c) of this title may demonstrate to the per

mitting authority that one or more units will be repowered with a qualifying clean coal tech

nology to comply with the requirements under section 7651d of this title. The owner or operator shall, as part of any such demonstration, pro

vide, not later than January 1, 2000, satisfactory documentation of a preliminary design and engi

neering effort for such repowering and an exe

cuted and binding contract for the majority of the equipment to repower such unit and such other information as the Administrator may re

quire by regulation. The replacement of an ex

isting utility unit with a new utility unit using a repowering technology referred to in section 7651a(2) 1 of this title which is located at a dif

ferent site, shall be treated as repowering of the existing unit for purposes of this subchapter, if— (1) the replacement unit is designated by the owner or operator to replace such existing unit, and (2) the existing unit is retired from service on or before the date on which the designated replacement unit enters commercial oper

ation. (b) Extension (1) An owner or operator satisfying the re

quirements of subsection (a) of this section shall be granted an extension of the emission limita

tion requirement compliance date for that unit from January 1, 2000, to December 31, 2003. The extension shall be specified in the permit issued to the source under section 7651g of this title, together with any compliance schedule and other requirements necessary to meet second phase requirements by the extended date. Any unit that is granted an extension under this sec

tion shall not be eligible for a waiver under sec

tion 7411(j) of this title, and shall continue to be subject to requirements under this subchapter as if it were a unit subject to section 7651d of this title. (2) If (A) the owner or operator of an existing unit has been granted an extension under para

graph (1) in order to repower such unit with a clean coal unit, and (B) such owner or operator demonstrates to the satisfaction of the Adminis

trator that the repowering technology to be uti

lized by such unit has been properly constructed and tested on such unit, but nevertheless has been unable to achieve the emission reduction limitations and is economically or techno

logically infeasible, such existing unit may be retrofitted or repowered with equipment or fa

cilities utilizing another clean coal technology or other available control technology. (c) Allowances (1) For the period of the extension under this section, the Administrator shall allocate to the owner or operator of the affected unit, annual allowances for sulfur dioxide equal to the af

fected unit’s baseline multiplied by the lesser of the unit’s federally approved State Implementa

tion Plan emissions limitation or its actual emission rate for 1995 in lieu of any other alloca

tion. Such allowances may not be transferred or used by any other source to meet emission re

quirements under this subchapter. The source owner or operator shall notify the Adminis

trator sixty days in advance of the date on which the affected unit for which the extension has been granted is to be removed from oper

ation to install the repowering technology. (2) Effective on that date, the unit shall be subject to the requirements of section 7651d of this title. Allowances for the year in which the unit is removed from operation to install the repowering technology shall be calculated as the product of the unit’s baseline multiplied by 1.20Page 6470 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651i

2 So in original. Probably should be ‘‘this’’. lbs/mmBtu, divided by 2,000, and prorated ac

cordingly, and are transferable. (3) Allowances for such existing utility units for calendar years after the year the repowering is complete shall be calculated as the product of the existing unit’s baseline multiplied by 1.20 lbs/mmBtu, divided by 2,000. (4) Notwithstanding the provisions of section 7651b(a) and (e) of this title, allowances shall be allocated under this section for a designated re

placement unit which replaces an existing unit (as provided in the last sentence of subsection (a) of this section) in lieu of any further alloca

tions of allowances for the existing unit. (5) For the purpose of meeting the aggregate emissions limitation requirement set forth in section 7651b(a)(1) of this title, the units with an extension under this subsection shall be treated in each calendar year during the extension pe

riod as holding allowances allocated under para

graph (3). (d) Control requirements Any unit qualifying for an extension under this section that does not increase actual hourly emissions for any pollutant regulated under the 2 chapter shall not be subject to any stand

ard of performance under section 7411 of this title. Notwithstanding the provisions of this subsection, no new unit (1) designated as a re

placement for an existing unit, (2) qualifying for the extension under subsection (b) of this sec

tion, and (3) located at a different site than the existing unit shall receive an exemption from the requirements imposed under section 7411 of this title. (e) Expedited permitting State permitting authorities and, where appli

cable, the Administrator, are encouraged to give expedited consideration to permit applications under parts C and D of subchapter I of this chap

ter for any source qualifying for an extension under this section. (f) Prohibition It shall be unlawful for the owner or operator of a repowered source to fail to comply with the requirement of this section, or any regulations of permit requirements to implement this sec

tion, including the prohibition against emitting sulfur dioxide in excess of allowances held. (July 14, 1955, ch. 360, title IV, §409, as added Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2619.)
§ 7651i. Election for additional sources (a) Applicability The owner or operator of any unit that is not, nor will become, an affected unit under section 7651b(e), 7651c, or 7651d of this title, or that is a process source under subsection (d) of this sec

tion, that emits sulfur dioxide, may elect to des

ignate that unit or source to become an affected unit and to receive allowances under this sub

chapter. An election shall be submitted to the Administrator for approval, along with a permit application and proposed compliance plan in ac

cordance with section 7651g of this title. The Ad

ministrator shall approve a designation that meets the requirements of this section, and such designated unit, or source, shall be allocated al

lowances, and be an affected unit for purposes of this subchapter. (b) Establishment of baseline The baseline for a unit designated under this section shall be established by the Adminis

trator by regulation, based on fuel consumption and operating data for the unit for calendar years 1985, 1986, and 1987, or if such data is not available, the Administrator may prescribe a baseline based on alternative representative data. (c) Emission limitations
Annual emissions limitations for sulfur diox

ide shall be equal to the product of the baseline multiplied by the lesser of the unit’s 1985 actual or allowable emission rate in lbs/mmBtu, or, if the unit did not operate in 1985, by the lesser of the unit’s actual or allowable emission rate for a calendar year after 1985 (as determined by the Administrator), divided by 2,000. (d) Process sources Not later than 18 months after November 15, 1990, the Administrator shall establish a pro

gram under which the owner or operator of a process source that emits sulfur dioxide may elect to designate that source as an affected unit for the purpose of receiving allowances under this subchapter. The Administrator shall, by regulation, define the sources that may be designated; specify the emissions limitation; specify the operating, emission baseline, and other data requirements; prescribe CEMS or other monitoring requirements; and promulgate permit, reporting, and any other requirements necessary to implement such a program. (e) Allowances and permits
The Administrator shall issue allowances to an affected unit under this section in an amount equal to the emissions limitation calculated under subsection (c) or (d) of this section, in ac

cordance with section 7651b of this title. Such allowance may be used in accordance with, and shall be subject to, the provisions of section 7651b of this title. Affected sources under this section shall be subject to the requirements of sections 7651b, 7651g, 7651j, 7651k, 7651 l , and 7651m of this title. (f) Limitation Any unit designated under this section shall not transfer or bank allowances produced as a result of reduced utilization or shutdown, except that, such allowances may be transferred or car

ried forward for use in subsequent years to the extent that the reduced utilization or shutdown results from the replacement of thermal energy from the unit designated under this section, with thermal energy generated by any other unit or units subject to the requirements of this subchapter, and the designated unit’s allow

ances are transferred or carried forward for use at such other replacement unit or units. In no case may the Administrator allocate to a source designated under this section allowances in an amount greater than the emissions resulting from operation of the source in full compliancePage 6471 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651j

1 So in original. Probably should be ‘‘section’’. 1 So in original. Probably should be ‘‘section’’.

2 See References in Text note below.

3 So in original. Probably should be ‘‘occurred,’’.

4 So in original. with the requirements of this chapter. No such allowances shall authorize operation of a unit in violation of any other requirements of this chapter. (g) Implementation The Administrator shall issue regulations to implement this section not later than eighteen months after November 15, 1990. (h) Small diesel refineries
The Administrator shall issue allowances to owners or operators of small diesel refineries who produce diesel fuel after October 1, 1993, meeting the requirements of subsection 1 7545(i) of this title. (1) Allowance period Allowances may be allocated under this sub

section only for the period from October 1, 1993, through December 31, 1999. (2) Allowance determination The number of allowances allocated pursu

ant to this paragraph shall equal the annual number of pounds of sulfur dioxide reduction attributable to desulfurization by a small re

finery divided by 2,000. For the purposes of this calculation, the concentration of sulfur re

moved from diesel fuel shall be the difference between 0.274 percent (by weight) and 0.050 per

cent (by weight). (3) Refinery eligibility As used in this subsection, the term ‘‘small refinery’’ shall mean a refinery or portion of a refinery— (A) which, as of November 15, 1990, has bona fide crude oil throughput of less than 18,250,000 barrels per year, as reported to the Department of Energy, and (B) which, as of November 15, 1990, is owned or controlled by a refiner with a total combined bona fide crude oil throughput of less than 50,187,500 barrels per year, as re

ported to the Department of Energy. (4) Limitation per refinery
The maximum number of allowances that can be annually allocated to a small refinery pursuant to this subsection is one thousand and five hundred. (5) Limitation on total In any given year, the total number of allow

ances allocated pursuant to this subsection shall not exceed thirty-five thousand. (6) Required certification The Administrator shall not allocate any al

lowances pursuant to this subsection unless the owner or operator of a small diesel refin

ery shall have certified, at a time and in a manner prescribed by the Administrator, that all motor diesel fuel produced by the refinery for which allowances are claimed, including motor diesel fuel for off-highway use, shall have met the requirements of subsection 1 7545(i) of this title. (July 14, 1955, ch. 360, title IV, §410, as added Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2621.) § 7651j. Excess emissions penalty
(a) Excess emissions penalty The owner or operator of any unit or process source subject to the requirements of sections 1 7651b, 7651c, 7651d, 7651e, 7651f or 7651h of this title, or designated under section 7651i of this title, that emits sulfur dioxide or nitrogen ox

ides for any calendar year in excess of the unit’s emissions limitation requirement or, in the case of sulfur dioxide, of the allowances the owner or operator holds for use for the unit for that cal

endar year shall be liable for the payment of an excess emissions penalty, except where such emissions were authorized pursuant to section 7410(f) of this title. That penalty shall be cal

culated on the basis of the number of tons emit

ted in excess of the unit’s emissions limitation requirement or, in the case of sulfur dioxide, of the allowances the operator holds for use for the unit for that year, multiplied by $2,000. Any such penalty shall be due and payable without demand to the Administrator as provided in reg

ulations to be issued by the Administrator by no later than eighteen months after November 15, 1990. Any such payment shall be deposited in the United States Treasury pursuant to the Mis

cellaneous Receipts Act. 2 Any penalty due and payable under this section shall not diminish the liability of the unit’s owner or operator for any fine, penalty or assessment against the unit for the same violation under any other section of this chapter. (b) Excess emissions offset The owner or operator of any affected source that emits sulfur dioxide during any calendar year in excess of the unit’s emissions limitation requirement or of the allowances held for the unit for the calendar year, shall be liable to off

set the excess emissions by an equal tonnage amount in the following calendar year, or such longer period as the Administrator may pre

scribe. The owner or operator of the source shall, within sixty days after the end of the year in which the excess emissions occured, 3 submit to the Administrator, and to the State in which the source is located, a proposed plan to achieve the required offsets. Upon approval of the pro

posed plan by the Administrator, as submitted, modified or conditioned, the plan shall be deemed at 4 a condition of the operating permit for the unit without further review or revision of the permit. The Administrator shall also de

duct allowances equal to the excess tonnage from those allocated for the source for the cal

endar year, or succeeding years during which offsets are required, following the year in which the excess emissions occurred. (c) Penalty adjustment The Administrator shall, by regulation, adjust the penalty specified in subsection (a) of this section for inflation, based on the Consumer Price Index, on November 15, 1990, and annually thereafter.Page 6472 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651k

(d) Prohibition It shall be unlawful for the owner or operator of any source liable for a penalty and offset under this section to fail (1) to pay the penalty under subsection (a) of this section, (2) to pro

vide, and thereafter comply with, a compliance plan as required by subsection (b) of this sec

tion, or (3) to offset excess emissions as required by subsection (b) of this section. (e) Savings provision Nothing in this subchapter shall limit or otherwise affect the application of section 7413, 7414, 7420, or 7604 of this title except as otherwise explicitly provided in this subchapter. (July 14, 1955, ch. 360, title IV, §411, as added Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2623.)

R EFERENCES IN T EXT The Miscellaneous Receipts Act, referred to in sub

sec. (a), is not a recognized popular name for an act. For provisions relating to deposit of monies, see sec

tion 3302 of Title 31, Money and Finance. § 7651k. Monitoring, reporting, and record

keeping requirements (a) Applicability The owner and operator of any source subject to this subchapter shall be required to install and operate CEMS on each affected unit at the source, and to quality assure the data for sulfur dioxide, nitrogen oxides, opacity and volumetric flow at each such unit. The Administrator shall, by regulations issued not later than eighteen months after November 15, 1990, specify the re

quirements for CEMS, for any alternative mon

itoring system that is demonstrated as provid

ing information with the same precision, reli

ability, accessibility, and timeliness as that pro

vided by CEMS, and for recordkeeping and re

porting of information from such systems. Such regulations may include limitations or the use of alternative compliance methods by units equipped with an alternative monitoring system as may be necessary to preserve the orderly functioning of the allowance system, and which will ensure the emissions reductions con

templated by this subchapter. Where 2 or more units utilize a single stack, a separate CEMS shall not be required for each unit, and for such units the regulations shall require that the owner or operator collect sufficient information to permit reliable compliance determinations for each such unit. (b) First phase requirements Not later than thirty-six months after Novem

ber 15, 1990, the owner or operator of each af

fected unit under section 7651c of this title, in

cluding, but not limited to, units that become affected units pursuant to subsections (b) and (c) and eligible units under subsection (d), shall in

stall and operate CEMS, quality assure the data, and keep records and reports in accordance with the regulations issued under subsection (a). (c) Second phase requirements Not later than January 1, 1995, the owner or operator of each affected unit that has not pre

viously met the requirements of subsections (a) and (b) shall install and operate CEMS, quality assure the data, and keep records and reports in accordance with the regulations issued under subsection (a). Upon commencement of commer

cial operation of each new utility unit, the unit shall comply with the requirements of sub

section (a). (d) Unavailability of emissions data
If CEMS data or data from an alternative monitoring system approved by the Adminis

trator under subsection (a) is not available for any affected unit during any period of a cal

endar year in which such data is required under this subchapter, and the owner or operator can

not provide information, satisfactory to the Ad

ministrator, on emissions during that period, the Administrator shall deem the unit to be op

erating in an uncontrolled manner during the entire period for which the data was not avail

able and shall, by regulation which shall be is

sued not later than eighteen months after No

vember 15, 1990, prescribe means to calculate emissions for that period. The owner or operator shall be liable for excess emissions fees and off

sets under section 7651j of this title in accord

ance with such regulations. Any fee due and payable under this subsection shall not diminish the liability of the unit’s owner or operator for any fine, penalty, fee or assessment against the unit for the same violation under any other sec

tion of this chapter. (e) Prohibition It shall be unlawful for the owner or operator of any source subject to this subchapter to oper

ate a source without complying with the re

quirements of this section, and any regulations implementing this section. (July 14, 1955, ch. 360, title IV, §412, as added Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2624.)

I NFORMATION G ATHERING ON G REENHOUSE G ASES C ONTRIBUTING TO G LOBAL C LIMATE C HANGE Section 821 of Pub. L. 101–549 provided that: ‘‘(a) M ONITORING .—The Administrator of the Environ

mental Protection Agency shall promulgate regula

tions within 18 months after the enactment of the Clean Air Act Amendments of 1990 [Nov. 15, 1990] to re

quire that all affected sources subject to title V of the Clean Air Act [probably means title IV of the Clean Air Act as added by Pub. L. 101–549, which is classified to section 7651 et seq. of this title] shall also monitor car

bon dioxide emissions according to the same timetable as in section 511(b) and (c) [probably means section 412(b) and (c) of the Clean Air Act, which is classified to section 7651k(b) and (c) of this title]. The regulations shall require that such data be reported to the Admin

istrator. The provisions of section 511(e) of title V of the Clean Air Act [probably means section 412(e) of title IV of the Clean Air Act, which is classified to sec

tion 7651k(e) of this title] shall apply for purposes of this section in the same manner and to the same extent as such provision applies to the monitoring and data referred to in section 511 [probably means section 412 of the Clean Air Act, which is classified to section 7651k of this title]. ‘‘(b) P UBLIC A VAILABILITY OF C ARBON D IOXIDE I NFOR

MATION .—For each unit required to monitor and provide carbon dioxide data under subsection (a), the Adminis

trator shall compute the unit’s aggregate annual total carbon dioxide emissions, incorporate such data into a computer data base, and make such aggregate annual data available to the public.’’Page 6473 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651n

1 So in original. 1 So in original. Probably should be section ‘‘7651a(12)’’.

2 See References in Text note below.

3 So in original. Probably should be ‘‘with’’. § 7651 l . General compliance with other provi

sions
Except as expressly provided, compliance with the requirements of this subchapter shall not exempt or exclude the owner or operator of any source subject to this subchapter from compli

ance with any other applicable requirements of this chapter. (July 14, 1955, ch. 360, title IV, §413, as added Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2625.)
§ 7651m. Enforcement
It shall be unlawful for any person subject to this subchapter to violate any prohibition of, re

quirement of, or regulation promulgated pursu

ant to this subchapter shall be a violation of this chapter. 1 In addition to the other require

ments and prohibitions provided for in this sub

chapter, the operation of any affected unit to emit sulfur dioxide in excess of allowances held for such unit shall be deemed a violation, with each ton emitted in excess of allowances held constituting a separate violation. (July 14, 1955, ch. 360, title IV, §414, as added Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2625.)
§ 7651n. Clean coal technology regulatory incen

tives (a) ‘‘Clean coal technology’’ defined For purposes of this section, ‘‘clean coal tech

nology’’ means any technology, including tech

nologies applied at the precombustion, combus

tion, or post combustion stage, at a new or ex

isting facility which will achieve significant re

ductions in air emissions of sulfur dioxide or ox

ides of nitrogen associated with the utilization of coal in the generation of electricity, process steam, or industrial products, which is not in widespread use as of November 15, 1990. (b) Revised regulations for clean coal technology demonstrations (1) Applicability This subsection applies to physical or oper

ational changes to existing facilities for the sole purpose of installation, operation, ces

sation, or removal of a temporary or perma

nent clean coal technology demonstration project. For the purposes of this section, a clean coal technology demonstration project shall mean a project using funds appropriated under the heading ‘‘Department of Energy— Clean Coal Technology’’, up to a total amount of $2,500,000,000 for commercial demonstration of clean coal technology, or similar projects funded through appropriations for the Envi

ronmental Protection Agency. The Federal contribution for a qualifying project shall be at least 20 percent of the total cost of the dem

onstration project. (2) Temporary projects Installation, operation, cessation, or re

moval of a temporary clean coal technology demonstration project that is operated for a period of five years or less, and which complies with the State implementation plans for the State in which the project is located and other requirements necessary to attain and main

tain the national ambient air quality stand

ards during and after the project is termi

nated, shall not subject such facility to the re

quirements of section 7411 of this title or part C or D of subchapter I of this chapter. (3) Permanent projects For permanent clean coal technology dem

onstration projects that constitute repowering as defined in section 7651a( l ) 1 of this title, any qualifying project shall not be subject to standards of performance under section 7411 of this title or to the review and permitting re

quirements of part C 2 for any pollutant the potential emissions of which will not increase as a result of the demonstration project. (4) EPA regulations Not later than 12 months after November 15, 1990, the Administrator shall promulgate regu

lations or interpretive rulings to revise re

quirements under section 7411 of this title and parts C and D, 2 as appropriate, to facilitate projects consistent in 3 this subsection. With respect to parts C and D, 2 such regulations or rulings shall apply to all areas in which EPA is the permitting authority. In those instances in which the State is the permitting authority under part C or D, 2 any State may adopt and submit to the Administrator for approval revi

sions to its implementation plan to apply the regulations or rulings promulgated under this subsection. (c) Exemption for reactivation of very clean units Physical changes or changes in the method of operation associated with the commencement of commercial operations by a coal-fired utility unit after a period of discontinued operation shall not subject the unit to the requirements of section 7411 of this title or part C of the Act 2 where the unit (1) has not been in operation for the two-year period prior to the enactment of the Clean Air Act Amendments of 1990 [Novem

ber 15, 1990], and the emissions from such unit continue to be carried in the permitting authority’s emissions inventory at the time of enactment, (2) was equipped prior to shut-down with a continuous system of emissions control that achieves a removal efficiency for sulfur di

oxide of no less than 85 percent and a removal efficiency for particulates of no less than 98 per

cent, (3) is equipped with low-NO x burners prior to the time of commencement, and (4) is other

wise in compliance with the requirements of this chapter. (July 14, 1955, ch. 360, title IV, §415, as added Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2625.)

R EFERENCES IN T EXT Parts C and D and part C of the Act, referred to in subsecs. (b)(3), (4) and (c), probably mean parts C and D of subchapter I of this chapter.Page 6474 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651 o

1 See References in Text note below. § 7651 o . Contingency guarantee, auctions, re

serve (a) Definitions For purposes of this section— (1) The term ‘‘independent power producer’’ means any person who owns or operates, in whole or in part, one or more new independent power production facilities. (2) The term ‘‘new independent power pro

duction facility’’ means a facility that— (A) is used for the generation of electric energy, 80 percent or more of which is sold at wholesale; (B) is nonrecourse project-financed (as such term is defined by the Secretary of En

ergy within 3 months of November 15, 1990); (C) does not generate electric energy sold to any affiliate (as defined in section 79b(a)(11) 1 of title 15) of the facility’s owner or operator unless the owner or operator of the facility demonstrates that it cannot ob

tain allowances from the affiliate; and (D) is a new unit required to hold allow

ances under this subchapter. (3) The term ‘‘required allowances’’ means the allowances required to operate such unit for so much of the unit’s useful life as occurs after January 1, 2000. (b) Special reserve of allowances Within 36 months after November 15, 1990, the Administrator shall promulgate regulations es

tablishing a Special Allowance Reserve contain

ing allowances to be sold under this section. For purposes of establishing the Special Allowance Reserve, the Administrator shall withhold— (1) 2.8 percent of the allocation of allowances for each year from 1995 through 1999 inclusive; and (2) 2.8 percent of the basic Phase II allow

ance allocation of allowances for each year be

ginning in the year 2000 which would (but for this subsection) be issued for each affected unit at an affected source. The Administrator shall record such withholding for purposes of transferring the proceeds of the al

lowance sales under this subsection. The allow

ances so withheld shall be deposited in the Re

serve under this section. (c) Direct sale at $1,500 per ton (1) Subaccount for direct sales In accordance with regulations under this section, the Administrator shall establish a Direct Sale Subaccount in the Special Allow

ance Reserve established under this section. The Direct Sale Subaccount shall contain al

lowances in the amount of 50,000 tons per year for each year beginning in the year 2000. (2) Sales
Allowances in the subaccount shall be of

fered for direct sale to any person at the times and in the amounts specified in table 1 at a price of $1,500 per allowance, adjusted by the Consumer Price Index in the same manner as provided in paragraph (3). Requests to pur

chase allowances from the Direct Sale Sub

account established under paragraph (1) shall be approved in the order of receipt until no al

lowances remain in such subaccount, except that an opportunity to purchase such allow

ances shall be provided to the independent power producers referred to in this subsection before such allowances are offered to any other person. Each applicant shall be required to pay 50 percent of the total purchase price of the allowances within 6 months after the ap

proval of the request to purchase. The remain

der shall be paid on or before the transfer of the allowances.

T ABLE 1—N UMBER OF A LLOWANCES A VAILABLE FOR S ALE
AT $1,500 P ER T ON

Year of Sale Spot Sale (same year) Advance

Sale

1993–1999

............................. .................. 25,000 2000 and after

..................... 25,000 25,000
Allowances sold in the spot sale in any year are al

lowances which may only be used in that year (unless banked for use in a later year). Allowances sold in the advance sale in any year are allowances which may only be used in the 7th year after the year in which they are first offered for sale (unless banked for use in a later year). (3) Entitlement to written guarantee Any independent power producer that sub

mits an application to the Administrator es

tablishing that such independent power pro

ducer— (A) proposes to construct a new independ

ent power production facility for which al

lowances are required under this subchapter; (B) will apply for financing to construct such facility after January 1, 1990, and be

fore the date of the first auction under this section; (C) has submitted to each owner or opera

tor of an affected unit listed in table A (in section 7651c of this title) a written offer to purchase the required allowances for $750 per ton; and (D) has not received (within 180 days after submitting offers to purchase under subpara

graph (C)) an acceptance of the offer to pur

chase the required allowances, shall, within 30 days after submission of such application, be entitled to receive the Admin

istrator’s written guarantee (subject to the eligibility requirements set forth in paragraph (4)) that such required allowances will be made available for purchase from the Direct Sale Subaccount established under this subsection and at a guaranteed price. The guaranteed price at which such allowances shall be made available for purchase shall be $1,500 per ton, adjusted by the percentage, if any, by which the Consumer Price Index (as determined under section 7661a(b)(3)(B)(v) of this title) for the year in which the allowance is purchased exceeds the Consumer Price Index for the cal

endar year 1990. (4) Eligibility requirements The guarantee issued by the Administrator under paragraph (3) shall be subject to a dem

onstration by the independent power producer, satisfactory to the Administrator, that—Page 6475 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651 o

(A) the independent power producer has— (i) made good faith efforts to purchase the required allowances from the owners or operators of affected units to which al

lowances will be allocated, including ef

forts to purchase at annual auctions under this section, and from industrial sources that have elected to become affected units pursuant to section 7651i of this title; and (ii) such bids and efforts were unsuccess

ful in obtaining the required allowances; and (B) the independent power producer will continue to make good faith efforts to pur

chase the required allowances from the own

ers or operators of affected units and from industrial sources. (5) Issuance of guaranteed allowances from Di

rect Sale Subaccount under this section
From the allowances available in the Direct Sale Subaccount established under this sub

section, upon payment of the guaranteed price, the Administrator shall issue to any person exercising the right to purchase allow

ances pursuant to a guarantee under this sub

section the allowances covered by such guar

antee. Persons to which guarantees under this subsection have been issued shall have the op

portunity to purchase allowances pursuant to such guarantee from such subaccount before the allowances in such reserve are offered for sale to any other person. (6) Proceeds Notwithstanding section 3302 of title 31 or any other provision of law, the Administrator shall require that the proceeds of any sale under this subsection be transferred, within 90 days after the sale, without charge, on a pro rata basis to the owners or operators of the af

fected units from whom the allowances were withheld under subsection (b) of this section and that any unsold allowances be transferred to the Subaccount for Auction Sales estab

lished under subsection (d) of this section. No proceeds of any sale under this subsection shall be held by any officer or employee of the United States or treated for any purpose as revenue to the United States or to the Admin

istrator. (7) Termination of subaccount If the Administrator determines that, during any period of 2 consecutive calendar years, less than 20 percent of the allowances avail

able in the subaccount for direct sales estab

lished under this subsection have been pur

chased under this paragraph, the Adminis

trator shall terminate the subaccount and transfer such allowances to the Auction Sub

account under subsection (d) of this section. (d) Auction sales (1) Subaccount for auctions
The Administrator shall establish an Auc

tion Subaccount in the Special Reserve estab

lished under this section. The Auction Sub

account shall contain allowances to be sold at auction under this section in the amount of 150,000 tons per year for each year from 1995 through 1999, inclusive and 250,000 tons per year for each year beginning in the calendar year 2000. (2) Annual auctions Commencing in 1993 and in each year there

after, the Administrator shall conduct auc

tions at which the allowances referred to in paragraph (1) shall be offered for sale in ac

cordance with regulations promulgated by the Administrator, in consultation with the Sec

retary of the Treasury, within 12 months of November 15, 1990. The allowances referred to in paragraph (1) shall be offered for sale at auction in the amounts specified in table 2. The auction shall be open to any person. A person wishing to bid for such allowances shall submit (by a date set by the Administrator) to the Administrator (on a sealed bid schedule provided by the Administrator) offers to pur

chase specified numbers of allowances at spec

ified prices. Such regulations shall specify that the auctioned allowances shall be allo

cated and sold on the basis of bid price, start

ing with the highest-priced bid and continuing until all allowances for sale at such auction have been allocated. The regulations shall not permit that a minimum price be set for the purchase of withheld allowances. Allowances purchased at the auction may be used for any purpose and at any time after the auction, subject to the provisions of this subchapter.

T ABLE 2—N UMBER OF A LLOWANCES A VAILABLE FOR A UCTION

Year of Sale Spot Auction (same year) Advance

Auction

1993

.................................... 50,000* 100,000 1994

.................................... 50,000* 100,000 1995

.................................... 50,000* 100,000 1996

.................................... 150,000 100,000 1997

.................................... 150,000 100,000 1998

.................................... 150,000 100,000 1999

.................................... 150,000 100,000 2000 and after

..................... 100,000 100,000
Allowances sold in the spot sale in any year are al

lowances which may only be used in that year (unless banked for use in a later year), except as otherwise noted. Allowances sold in the advance auction in any year are allowances which may only be used in the 7th year after the year in which they are first offered for sale (unless banked for use in a later year). *Available for use only in 1995 (unless banked for use in a later year). (3) Proceeds (A) Notwithstanding section 3302 of title 31 or any other provision of law, within 90 days of receipt, the Administrator shall transfer the proceeds from the auction under this section, on a pro rata basis, to the owners or operators of the affected units at an affected source from whom allowances were withheld under sub

section (b) of this section. No funds trans

ferred from a purchaser to a seller of allow

ances under this paragraph shall be held by any officer or employee of the United States or treated for any purpose as revenue to the United States or the Administrator. (B) At the end of each year, any allowances offered for sale but not sold at the auction shall be returned without charge, on a pro rataPage 6476 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7661

1 So in original. Probably should be ‘‘part’’. basis, to the owner or operator of the affected units from whose allocation the allowances were withheld.
(4) Additional auction participants Any person holding allowances or to whom allowances are allocated by the Administrator may submit those allowances to the Adminis

trator to be offered for sale at auction under this subsection. The proceeds of any such sale shall be transferred at the time of sale by the purchaser to the person submitting such al

lowances for sale. The holder of allowances of

fered for sale under this paragraph may speci

fy a minimum sale price. Any person may pur

chase allowances offered for auction under this paragraph. Such allowances shall be allo

cated and sold to purchasers on the basis of bid price after the auction under paragraph (2) is complete. No funds transferred from a pur

chaser to a seller of allowances under this paragraph shall be held by any officer or em

ployee of the United States or treated for any purpose as revenue to the United States or the Administrator.
(5) Recording by EPA The Administrator shall record and publicly report the nature, prices and results of each auction under this subsection, including the prices of successful bids, and shall record the transfers of allowances as a result of each auc

tion in accordance with the requirements of this section. The transfer of allowances at such auction shall be recorded in accordance with the regulations promulgated by the Ad

ministrator under this subchapter.
(e) Changes in sales, auctions, and withholding Pursuant to rulemaking after public notice and comment the Administrator may at any time after the year 1998 (in the case of advance sales or advance auctions) and 2005 (in the case of spot sales or spot auctions) decrease the num

ber of allowances withheld and sold under this section.
(f) Termination of auctions The Administrator may terminate the with

holding of allowances and the auction sales under this section if the Administrator deter

mines that, during any period of 3 consecutive calendar years after 2002, less than 20 percent of the allowances available in the auction sub

account have been purchased. Pursuant to regu

lations under this section, the Administrator may by delegation or contract provide for the conduct of sales or auctions under the Adminis

trator’s supervision by other departments or agencies of the United States Government or by nongovernmental agencies, groups, or organiza

tions. (July 14, 1955, ch. 360, title IV, §416, as added Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104 Stat. 2626.)

R EFERENCES IN T EXT Section 79b of title 15, referred to in subsec. (a)(2)(C), was repealed by Pub. L. 109–58, title XII, §1263, Aug. 8, 2005, 119 Stat. 974. See section 16451(1) of this title. SUBCHAPTER V—PERMITS

§ 7661. Definitions
As used in this subchapter— (1) Affected source
The term ‘‘affected source’’ shall have the meaning given such term in subchapter IV–A of this chapter. (2) Major source The term ‘‘major source’’ means any sta

tionary source (or any group of stationary sources located within a contiguous area and under common control) that is either of the following: (A) A major source as defined in section 7412 of this title. (B) A major stationary source as defined in section 7602 of this title or part D of sub

chapter I of this chapter. (3) Schedule of compliance The term ‘‘schedule of compliance’’ means a schedule of remedial measures, including an enforceable sequence of actions or operations, leading to compliance with an applicable im

plementation plan, emission standard, emis

sion limitation, or emission prohibition. (4) Permitting authority The term ‘‘permitting authority’’ means the Administrator or the air pollution control agency authorized by the Administrator to carry out a permit program under this sub

chapter. (July 14, 1955, ch. 360, title V, §501, as added Pub. L. 101–549, title V, §501, Nov. 15, 1990, 104 Stat. 2635.)
§ 7661a. Permit programs (a) Violations After the effective date of any permit program approved or promulgated under this subchapter, it shall be unlawful for any person to violate any requirement of a permit issued under this subchapter, or to operate an affected source (as provided in subchapter IV–A of this chapter), a major source, any other source (including an area source) subject to standards or regulations under section 7411 or 7412 of this title, any other source required to have a permit under parts 1 C or D of subchapter I of this chapter, or any other stationary source in a category designated (in whole or in part) by regulations promulgated by the Administrator (after notice and public com

ment) which shall include a finding setting forth the basis for such designation, except in compli

ance with a permit issued by a permitting au

thority under this subchapter. (Nothing in this subsection shall be construed to alter the appli

cable requirements of this chapter that a permit be obtained before construction or modifica

tion.) The Administrator may, in the Adminis

trator’s discretion and consistent with the ap

plicable provisions of this chapter, promulgate regulations to exempt one or more source cat

egories (in whole or in part) from the require

ments of this subsection if the AdministratorPage 6477 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7661a

2 So in original. Probably should be ‘‘clauses’’. finds that compliance with such requirements is impracticable, infeasible, or unnecessarily bur

densome on such categories, except that the Ad

ministrator may not exempt any major source from such requirements. (b) Regulations The Administrator shall promulgate within 12 months after November 15, 1990, regulations es

tablishing the minimum elements of a permit program to be administered by any air pollution control agency. These elements shall include each of the following: (1) Requirements for permit applications, in

cluding a standard application form and cri

teria for determining in a timely fashion the completeness of applications. (2) Monitoring and reporting requirements. (3)(A) A requirement under State or local law or interstate compact that the owner or operator of all sources subject to the require

ment to obtain a permit under this subchapter pay an annual fee, or the equivalent over some other period, sufficient to cover all reasonable (direct and indirect) costs required to develop and administer the permit program require

ments of this subchapter, including section 7661f of this title, including the reasonable costs of— (i) reviewing and acting upon any applica

tion for such a permit, (ii) if the owner or operator receives a per

mit for such source, whether before or after November 15, 1990, implementing and enforc

ing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), (iii) emissions and ambient monitoring, (iv) preparing generally applicable regula

tions, or guidance, (v) modeling, analyses, and demonstra

tions, and (vi) preparing inventories and tracking emissions. (B) The total amount of fees collected by the permitting authority shall conform to the fol

lowing requirements: (i) The Administrator shall not approve a program as meeting the requirements of this paragraph unless the State demonstrates that, except as otherwise provided in sub

paragraphs 2 (ii) through (v) of this subpara

graph, the program will result in the collec

tion, in the aggregate, from all sources sub

ject to subparagraph (A), of an amount not less than $25 per ton of each regulated pol

lutant, or such other amount as the Admin

istrator may determine adequately reflects the reasonable costs of the permit program. (ii) As used in this subparagraph, the term ‘‘regulated pollutant’’ shall mean (I) a vola

tile organic compound; (II) each pollutant regulated under section 7411 or 7412 of this title; and (III) each pollutant for which a na

tional primary ambient air quality standard has been promulgated (except that carbon monoxide shall be excluded from this ref

erence). (iii) In determining the amount under clause (i), the permitting authority is not required to include any amount of regulated pollutant emitted by any source in excess of 4,000 tons per year of that regulated pollut

ant. (iv) The requirements of clause (i) shall not apply if the permitting authority dem

onstrates that collecting an amount less than the amount specified under clause (i) will meet the requirements of subparagraph (A). (v) The fee calculated under clause (i) shall be increased (consistent with the need to cover the reasonable costs authorized by subparagraph (A)) in each year beginning after 1990, by the percentage, if any, by which the Consumer Price Index for the most recent calendar year ending before the beginning of such year exceeds the Con

sumer Price Index for the calendar year 1989. For purposes of this clause— (I) the Consumer Price Index for any cal

endar year is the average of the Consumer Price Index for all-urban consumers pub

lished by the Department of Labor, as of the close of the 12-month period ending on August 31 of each calendar year, and (II) the revision of the Consumer Price Index which is most consistent with the Consumer Price Index for calendar year 1989 shall be used. (C)(i) If the Administrator determines, under subsection (d) of this section, that the fee pro

visions of the operating permit program do not meet the requirements of this paragraph, or if the Administrator makes a determina

tion, under subsection (i) of this section, that the permitting authority is not adequately ad

ministering or enforcing an approved fee pro

gram, the Administrator may, in addition to taking any other action authorized under this subchapter, collect reasonable fees from the sources identified under subparagraph (A). Such fees shall be designed solely to cover the Administrator’s costs of administering the provisions of the permit program promulgated by the Administrator. (ii) Any source that fails to pay fees lawfully imposed by the Administrator under this sub

paragraph shall pay a penalty of 50 percent of the fee amount, plus interest on the fee amount computed in accordance with section 6621(a)(2) of title 26 (relating to computation of interest on underpayment of Federal taxes). (iii) Any fees, penalties, and interest col

lected under this subparagraph shall be depos

ited in a special fund in the United States Treasury for licensing and other services, which thereafter shall be available for appro

priation, to remain available until expended, subject to appropriation, to carry out the Agency’s activities for which the fees were collected. Any fee required to be collected by a State, local, or interstate agency under this subsection shall be utilized solely to cover all reasonable (direct and indirect) costs required to support the permit program as set forth in subparagraph (A). (4) Requirements for adequate personnel and funding to administer the program.Page 6478 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7661a

3 So in original. A closing parenthesis probably should precede the colon. (5) A requirement that the permitting au

thority have adequate authority to: (A) issue permits and assure compliance by all sources required to have a permit under this subchapter with each applicable stand

ard, regulation or requirement under this chapter; (B) issue permits for a fixed term, not to exceed 5 years; (C) assure that upon issuance or renewal permits incorporate emission limitations and other requirements in an applicable im

plementation plan; (D) terminate, modify, or revoke and re

issue permits for cause; (E) enforce permits, permit fee require

ments, and the requirement to obtain a per

mit, including authority to recover civil penalties in a maximum amount of not less than $10,000 per day for each violation, and provide appropriate criminal penalties; and (F) assure that no permit will be issued if the Administrator objects to its issuance in a timely manner under this subchapter. (6) Adequate, streamlined, and reasonable procedures for expeditiously determining when applications are complete, for processing such applications, for public notice, including offer

ing an opportunity for public comment and a hearing, and for expeditious review of permit actions, including applications, renewals, or revisions, and including an opportunity for ju

dicial review in State court of the final permit action by the applicant, any person who par

ticipated in the public comment process, and any other person who could obtain judicial re

view of that action under applicable law. (7) To ensure against unreasonable delay by the permitting authority, adequate authority and procedures to provide that a failure of such permitting authority to act on a permit application or permit renewal application (in accordance with the time periods specified in section 7661b of this title or, as appropriate, subchapter IV–A of this chapter) shall be treated as a final permit action solely for pur

poses of obtaining judicial review in State court of an action brought by any person re

ferred to in paragraph (6) to require that ac

tion be taken by the permitting authority on such application without additional delay. (8) Authority, and reasonable procedures consistent with the need for expeditious ac

tion by the permitting authority on permit ap

plications and related matters, to make avail

able to the public any permit application, compliance plan, permit, and monitoring or compliance report under section 7661b(e) of this title, subject to the provisions of section 7414(c) of this title. (9) A requirement that the permitting au

thority, in the case of permits with a term of 3 or more years for major sources, shall re

quire revisions to the permit to incorporate applicable standards and regulations promul

gated under this chapter after the issuance of such permit. Such revisions shall occur as ex

peditiously as practicable and consistent with the procedures established under paragraph (6) but not later than 18 months after the promul

gation of such standards and regulations. No such revision shall be required if the effective date of the standards or regulations is a date after the expiration of the permit term. Such permit revision shall be treated as a permit re

newal if it complies with the requirements of this subchapter regarding renewals. (10) Provisions to allow changes within a permitted facility (or one operating pursuant to section 7661b(d) of this title) without re

quiring a permit revision, if the changes are not modifications under any provision of sub

chapter I of this chapter and the changes do not exceed the emissions allowable under the permit (whether expressed therein as a rate of emissions or in terms of total emissions: 3 Pro

vided , That the facility provides the Adminis

trator and the permitting authority with writ

ten notification in advance of the proposed changes which shall be a minimum of 7 days, unless the permitting authority provides in its regulations a different timeframe for emer

gencies. (c) Single permit A single permit may be issued for a facility with multiple sources. (d) Submission and approval (1) Not later than 3 years after November 15, 1990, the Governor of each State shall develop and submit to the Administrator a permit pro

gram under State or local law or under an inter

state compact meeting the requirements of this subchapter. In addition, the Governor shall sub

mit a legal opinion from the attorney general (or the attorney for those State air pollution control agencies that have independent legal counsel), or from the chief legal officer of an interstate agency, that the laws of the State, lo

cality, or the interstate compact provide ade

quate authority to carry out the program. Not later than 1 year after receiving a program, and after notice and opportunity for public com

ment, the Administrator shall approve or dis

approve such program, in whole or in part. The Administrator may approve a program to the extent that the program meets the requirements of this chapter, including the regulations issued under subsection (b) of this section. If the pro

gram is disapproved, in whole or in part, the Ad

ministrator shall notify the Governor of any re

visions or modifications necessary to obtain ap

proval. The Governor shall revise and resubmit the program for review under this section within 180 days after receiving notification. (2)(A) If the Governor does not submit a pro

gram as required under paragraph (1) or if the Administrator disapproves a program submitted by the Governor under paragraph (1), in whole or in part, the Administrator may, prior to the ex

piration of the 18-month period referred to in subparagraph (B), in the Administrator’s discre

tion, apply any of the sanctions specified in sec

tion 7509(b) of this title. (B) If the Governor does not submit a program as required under paragraph (1), or if the Admin

istrator disapproves any such program submit

ted by the Governor under paragraph (1), in whole or in part, 18 months after the date re

-Page 6479 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7661b

quired for such submittal or the date of such disapproval, as the case may be, the Adminis

trator shall apply sanctions under section 7509(b) of this title in the same manner and sub

ject to the same deadlines and other conditions as are applicable in the case of a determination, disapproval, or finding under section 7509(a) of this title. (C) The sanctions under section 7509(b)(2) of this title shall not apply pursuant to this para

graph in any area unless the failure to submit or the disapproval referred to in subparagraph (A) or (B) relates to an air pollutant for which such area has been designated a nonattainment area (as defined in part D of subchapter I of this chapter). (3) If a program meeting the requirements of this subchapter has not been approved in whole for any State, the Administrator shall, 2 years after the date required for submission of such a program under paragraph (1), promulgate, ad

minister, and enforce a program under this sub

chapter for that State. (e) Suspension The Administrator shall suspend the issuance of permits promptly upon publication of notice of approval of a permit program under this sec

tion, but may, in such notice, retain jurisdiction over permits that have been federally issued, but for which the administrative or judicial re

view process is not complete. The Administrator shall continue to administer and enforce feder

ally issued permits under this subchapter until they are replaced by a permit issued by a per

mitting program. Nothing in this subsection should be construed to limit the Administrator’s ability to enforce permits issued by a State. (f) Prohibition No partial permit program shall be approved unless, at a minimum, it applies, and ensures compliance with, this subchapter and each of the following: (1) All requirements established under sub

chapter IV–A of this chapter applicable to ‘‘af

fected sources’’. (2) All requirements established under sec

tion 7412 of this title applicable to ‘‘major sources’’, ‘‘area sources,’’ and ‘‘new sources’’. (3) All requirements of subchapter I of this chapter (other than section 7412 of this title) applicable to sources required to have a per

mit under this subchapter. Approval of a partial program shall not relieve the State of its obligation to submit a complete program, nor from the application of any sanc

tions under this chapter for failure to submit an approvable permit program. (g) Interim approval If a program (including a partial permit pro

gram) submitted under this subchapter substan

tially meets the requirements of this sub

chapter, but is not fully approvable, the Admin

istrator may by rule grant the program interim approval. In the notice of final rulemaking, the Administrator shall specify the changes that must be made before the program can receive full approval. An interim approval under this subsection shall expire on a date set by the Ad

ministrator not later than 2 years after such ap

proval, and may not be renewed. For the period of any such interim approval, the provisions of subsection (d)(2) of this section, and the obliga

tion of the Administrator to promulgate a pro

gram under this subchapter for the State pursu

ant to subsection (d)(3) of this section, shall be suspended. Such provisions and such obligation of the Administrator shall apply after the expi

ration of such interim approval. (h) Effective date The effective date of a permit program, or par

tial or interim program, approved under this subchapter, shall be the effective date of ap

proval by the Administrator. The effective date of a permit program, or partial permit program, promulgated by the Administrator shall be the date of promulgation. (i) Administration and enforcement (1) Whenever the Administrator makes a de

termination that a permitting authority is not adequately administering and enforcing a pro

gram, or portion thereof, in accordance with the requirements of this subchapter, the Adminis

trator shall provide notice to the State and may, prior to the expiration of the 18-month pe

riod referred to in paragraph (2), in the Adminis

trator’s discretion, apply any of the sanctions specified in section 7509(b) of this title. (2) Whenever the Administrator makes a de

termination that a permitting authority is not adequately administering and enforcing a pro

gram, or portion thereof, in accordance with the requirements of this subchapter, 18 months after the date of the notice under paragraph (1), the Administrator shall apply the sanctions under section 7509(b) of this title in the same manner and subject to the same deadlines and other con

ditions as are applicable in the case of a deter

mination, disapproval, or finding under section 7509(a) of this title. (3) The sanctions under section 7509(b)(2) of this title shall not apply pursuant to this sub

section in any area unless the failure to ade

quately enforce and administer the program re

lates to an air pollutant for which such area has been designated a nonattainment area. (4) Whenever the Administrator has made a finding under paragraph (1) with respect to any State, unless the State has corrected such defi

ciency within 18 months after the date of such finding, the Administrator shall, 2 years after the date of such finding, promulgate, admin

ister, and enforce a program under this sub

chapter for that State. Nothing in this para

graph shall be construed to affect the validity of a program which has been approved under this subchapter or the authority of any permitting authority acting under such program until such time as such program is promulgated by the Ad

ministrator under this paragraph. (July 14, 1955, ch. 360, title V, §502, as added Pub. L. 101–549, title V, §501, Nov. 15, 1990, 104 Stat. 2635.) § 7661b. Permit applications (a) Applicable date Any source specified in section 7661a(a) of this title shall become subject to a permit program, and required to have a permit, on the later of the following dates—Page 6480 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7661c

(1) the effective date of a permit program or partial or interim permit program applicable to the source; or (2) the date such source becomes subject to section 7661a(a) of this title. (b) Compliance plan (1) The regulations required by section 7661a(b) of this title shall include a requirement that the applicant submit with the permit application a compliance plan describing how the source will comply with all applicable requirements under this chapter. The compliance plan shall include a schedule of compliance, and a schedule under which the permittee will submit progress re

ports to the permitting authority no less fre

quently than every 6 months. (2) The regulations shall further require the permittee to periodically (but no less frequently than annually) certify that the facility is in compliance with any applicable requirements of the permit, and to promptly report any devi

ations from permit requirements to the permit

ting authority. (c) Deadline Any person required to have a permit shall, not later than 12 months after the date on which the source becomes subject to a permit program approved or promulgated under this subchapter, or such earlier date as the permitting authority may establish, submit to the permitting author

ity a compliance plan and an application for a permit signed by a responsible official, who shall certify the accuracy of the information submit

ted. The permitting authority shall approve or disapprove a completed application (consistent with the procedures established under this sub

chapter for consideration of such applications), and shall issue or deny the permit, within 18 months after the date of receipt thereof, except that the permitting authority shall establish a phased schedule for acting on permit applica

tions submitted within the first full year after the effective date of a permit program (or a par

tial or interim program). Any such schedule shall assure that at least one-third of such per

mits will be acted on by such authority annually over a period of not to exceed 3 years after such effective date. Such authority shall establish reasonable procedures to prioritize such ap

proval or disapproval actions in the case of ap

plications for construction or modification under the applicable requirements of this chap

ter. (d) Timely and complete applications Except for sources required to have a permit before construction or modification under the applicable requirements of this chapter, if an ap

plicant has submitted a timely and complete ap

plication for a permit required by this sub

chapter (including renewals), but final action has not been taken on such application, the source’s failure to have a permit shall not be a violation of this chapter, unless the delay in final action was due to the failure of the appli

cant timely to submit information required or requested to process the application. No source required to have a permit under this subchapter shall be in violation of section 7661a(a) of this title before the date on which the source is re

quired to submit an application under sub

section (c) of this section. (e) Copies; availability A copy of each permit application, compliance plan (including the schedule of compliance), emissions or compliance monitoring report, cer

tification, and each permit issued under this subchapter, shall be available to the public. If an applicant or permittee is required to submit information entitled to protection from disclo

sure under section 7414(c) of this title, the appli

cant or permittee may submit such information separately. The requirements of section 7414(c) of this title shall apply to such information. The contents of a permit shall not be entitled to pro

tection under section 7414(c) of this title. (July 14, 1955, ch. 360, title V, §503, as added Pub. L. 101–549, title V, §501, Nov. 15, 1990, 104 Stat. 2641.) § 7661c. Permit requirements and conditions (a) Conditions Each permit issued under this subchapter shall include enforceable emission limitations and standards, a schedule of compliance, a re

quirement that the permittee submit to the per

mitting authority, no less often than every 6 months, the results of any required monitoring, and such other conditions as are necessary to as

sure compliance with applicable requirements of this chapter, including the requirements of the applicable implementation plan. (b) Monitoring and analysis The Administrator may by rule prescribe pro

cedures and methods for determining compli

ance and for monitoring and analysis of pollut

ants regulated under this chapter, but continu

ous emissions monitoring need not be required if alternative methods are available that provide sufficiently reliable and timely information for determining compliance. Nothing in this sub

section shall be construed to affect any continu

ous emissions monitoring requirement of sub

chapter IV–A of this chapter, or where required elsewhere in this chapter. (c) Inspection, entry, monitoring, certification, and reporting Each permit issued under this subchapter shall set forth inspection, entry, monitoring, compliance certification, and reporting require

ments to assure compliance with the permit terms and conditions. Such monitoring and re

porting requirements shall conform to any ap

plicable regulation under subsection (b) of this section. Any report required to be submitted by a permit issued to a corporation under this sub

chapter shall be signed by a responsible cor

porate official, who shall certify its accuracy. (d) General permits The permitting authority may, after notice and opportunity for public hearing, issue a gen

eral permit covering numerous similar sources. Any general permit shall comply with all re

quirements applicable to permits under this sub

chapter. No source covered by a general permit shall thereby be relieved from the obligation to file an application under section 7661b of this title.Page 6481 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7661d

(e) Temporary sources The permitting authority may issue a single permit authorizing emissions from similar oper

ations at multiple temporary locations. No such permit shall be issued unless it includes condi

tions that will assure compliance with all the requirements of this chapter at all authorized locations, including, but not limited to, ambient standards and compliance with any applicable increment or visibility requirements under part C of subchapter I of this chapter. Any such per

mit shall in addition require the owner or opera

tor to notify the permitting authority in ad

vance of each change in location. The permit

ting authority may require a separate permit fee for operations at each location. (f) Permit shield Compliance with a permit issued in accord

ance with this subchapter shall be deemed com

pliance with section 7661a of this title. Except as otherwise provided by the Administrator by rule, the permit may also provide that compli

ance with the permit shall be deemed compli

ance with other applicable provisions of this chapter that relate to the permittee if— (1) the permit includes the applicable re

quirements of such provisions, or (2) the permitting authority in acting on the permit application makes a determination re

lating to the permittee that such other provi

sions (which shall be referred to in such deter

mination) are not applicable and the permit includes the determination or a concise sum

mary thereof. Nothing in the preceding sentence shall alter or affect the provisions of section 7603 of this title, including the authority of the Administrator under that section. (July 14, 1955, ch. 360, title V, §504, as added Pub. L. 101–549, title V, §501, Nov. 15, 1990, 104 Stat. 2642.) § 7661d. Notification to Administrator and contig

uous States (a) Transmission and notice (1) Each permitting authority— (A) shall transmit to the Administrator a copy of each permit application (and any ap

plication for a permit modification or re

newal) or such portion thereof, including any compliance plan, as the Administrator may re

quire to effectively review the application and otherwise to carry out the Administrator’s re

sponsibilities under this chapter, and (B) shall provide to the Administrator a copy of each permit proposed to be issued and issued as a final permit. (2) The permitting authority shall notify all States— (A) whose air quality may be affected and that are contiguous to the State in which the emission originates, or (B) that are within 50 miles of the source, of each permit application or proposed permit forwarded to the Administrator under this sec

tion, and shall provide an opportunity for such States to submit written recommendations re

specting the issuance of the permit and its terms and conditions. If any part of those rec

ommendations are not accepted by the permit

ting authority, such authority shall notify the State submitting the recommendations and the Administrator in writing of its failure to accept those recommendations and the reasons there

for. (b) Objection by EPA (1) If any permit contains provisions that are determined by the Administrator as not in com

pliance with the applicable requirements of this chapter, including the requirements of an appli

cable implementation plan, the Administrator shall, in accordance with this subsection, object to its issuance. The permitting authority shall respond in writing if the Administrator (A) within 45 days after receiving a copy of the pro

posed permit under subsection (a)(1) of this sec

tion, or (B) within 45 days after receiving notifi

cation under subsection (a)(2) of this section, ob

jects in writing to its issuance as not in compli

ance with such requirements. With the objec

tion, the Administrator shall provide a state

ment of the reasons for the objection. A copy of the objection and statement shall be provided to the applicant. (2) If the Administrator does not object in writing to the issuance of a permit pursuant to paragraph (1), any person may petition the Ad

ministrator within 60 days after the expiration of the 45-day review period specified in para

graph (1) to take such action. A copy of such pe

tition shall be provided to the permitting au

thority and the applicant by the petitioner. The petition shall be based only on objections to the permit that were raised with reasonable speci

ficity during the public comment period pro

vided by the permitting agency (unless the peti

tioner demonstrates in the petition to the Ad

ministrator that it was impracticable to raise such objections within such period or unless the grounds for such objection arose after such pe

riod). The petition shall identify all such objec

tions. If the permit has been issued by the per

mitting agency, such petition shall not postpone the effectiveness of the permit. The Adminis

trator shall grant or deny such petition within 60 days after the petition is filed. The Adminis

trator shall issue an objection within such pe

riod if the petitioner demonstrates to the Ad

ministrator that the permit is not in compliance with the requirements of this chapter, including the requirements of the applicable implementa

tion plan. Any denial of such petition shall be subject to judicial review under section 7607 of this title. The Administrator shall include in regulations under this subchapter provisions to implement this paragraph. The Administrator may not delegate the requirements of this para

graph. (3) Upon receipt of an objection by the Admin

istrator under this subsection, the permitting authority may not issue the permit unless it is revised and issued in accordance with subsection (c) of this section. If the permitting authority has issued a permit prior to receipt of an objec

tion by the Administrator under paragraph (2) of this subsection, the Administrator shall modify, terminate, or revoke such permit and the per

mitting authority may thereafter only issue aPage 6482 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7661e

revised permit in accordance with subsection (c) of this section. (c) Issuance or denial If the permitting authority fails, within 90 days after the date of an objection under sub

section (b) of this section, to submit a permit re

vised to meet the objection, the Administrator shall issue or deny the permit in accordance with the requirements of this subchapter. No ob

jection shall be subject to judicial review until the Administrator takes final action to issue or deny a permit under this subsection. (d) Waiver of notification requirements (1) The Administrator may waive the require

ments of subsections (a) and (b) of this section at the time of approval of a permit program under this subchapter for any category (includ

ing any class, type, or size within such category) of sources covered by the program other than major sources. (2) The Administrator may, by regulation, es

tablish categories of sources (including any class, type, or size within such category) to which the requirements of subsections (a) and (b) of this section shall not apply. The preceding sentence shall not apply to major sources. (3) The Administrator may exclude from any waiver under this subsection notification under subsection (a)(2) of this section. Any waiver granted under this subsection may be revoked or modified by the Administrator by rule. (e) Refusal of permitting authority to terminate, modify, or revoke and reissue
If the Administrator finds that cause exists to terminate, modify, or revoke and reissue a per

mit under this subchapter, the Administrator shall notify the permitting authority and the source of the Administrator’s finding. The per

mitting authority shall, within 90 days after re

ceipt of such notification, forward to the Admin

istrator under this section a proposed deter

mination of termination, modification, or rev

ocation and reissuance, as appropriate. The Ad

ministrator may extend such 90 day period for an additional 90 days if the Administrator finds that a new or revised permit application is nec

essary, or that the permitting authority must require the permittee to submit additional in

formation. The Administrator may review such proposed determination under the provisions of subsections (a) and (b) of this section. If the per

mitting authority fails to submit the required proposed determination, or if the Administrator objects and the permitting authority fails to re

solve the objection within 90 days, the Adminis

trator may, after notice and in accordance with fair and reasonable procedures, terminate, mod

ify, or revoke and reissue the permit. (July 14, 1955, ch. 360, title V, §505, as added Pub. L. 101–549, title V, §501, Nov. 15, 1990, 104 Stat. 2643.)

§ 7661e. Other authorities (a) In general Nothing in this subchapter shall prevent a State, or interstate permitting authority, from establishing additional permitting requirements not inconsistent with this chapter. (b) Permits implementing acid rain provisions The provisions of this subchapter, including provisions regarding schedules for submission and approval or disapproval of permit applica

tions, shall apply to permits implementing the requirements of subchapter IV–A of this chapter except as modified by that subchapter. (July 14, 1955, ch. 360, title V, §506, as added Pub. L. 101–549, title V, §501, Nov. 15, 1990, 104 Stat. 2645.) § 7661f. Small business stationary source tech

nical and environmental compliance assist

ance program (a) Plan revisions
Consistent with sections 7410 and 7412 of this title, each State shall, after reasonable notice and public hearings, adopt and submit to the Ad

ministrator as part of the State implementation plan for such State or as a revision to such State implementation plan under section 7410 of this title, plans for establishing a small business stationary source technical and environmental compliance assistance program. Such submis

sion shall be made within 24 months after No

vember 15, 1990. The Administrator shall approve such program if it includes each of the follow

ing: (1) Adequate mechanisms for developing, col

lecting, and coordinating information con

cerning compliance methods and technologies for small business stationary sources, and pro

grams to encourage lawful cooperation among such sources and other persons to further com

pliance with this chapter. (2) Adequate mechanisms for assisting small business stationary sources with pollution pre

vention and accidental release detection and prevention, including providing information concerning alternative technologies, process changes, products, and methods of operation that help reduce air pollution. (3) A designated State office within the rel

evant State agency to serve as ombudsman for small business stationary sources in connec

tion with the implementation of this chapter. (4) A compliance assistance program for small business stationary sources which as

sists small business stationary sources in de

termining applicable requirements and in re

ceiving permits under this chapter in a timely and efficient manner. (5) Adequate mechanisms to assure that small business stationary sources receive no

tice of their rights under this chapter in such manner and form as to assure reasonably ade

quate time for such sources to evaluate com

pliance methods and any relevant or applica

ble proposed or final regulation or standard is

sued under this chapter. (6) Adequate mechanisms for informing small business stationary sources of their obli

gations under this chapter, including mecha

nisms for referring such sources to qualified auditors or, at the option of the State, for pro

viding audits of the operations of such sources to determine compliance with this chapter. (7) Procedures for consideration of requests from a small business stationary source for modification of—Page 6483 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7661f

1 So in original. Probably should be ‘‘subparagraph’’. 2 See References in Text note below. (A) any work practice or technological method of compliance, or (B) the schedule of milestones for imple

menting such work practice or method of compliance preceding any applicable compli

ance date, based on the technological and financial capa

bility of any such small business stationary source. No such modification may be granted unless it is in compliance with the applicable requirements of this chapter, including the re

quirements of the applicable implementation plan. Where such applicable requirements are set forth in Federal regulations, only modi

fications authorized in such regulations may be allowed. (b) Program
The Administrator shall establish within 9 months after November 15, 1990, a small business stationary source technical and environmental compliance assistance program. Such program shall— (1) assist the States in the development of the program required under subsection (a) of this section (relating to assistance for small business stationary sources); (2) issue guidance for the use of the States in the implementation of these programs that in

cludes alternative control technologies and pollution prevention methods applicable to small business stationary sources; and (3) provide for implementation of the pro

gram provisions required under subsection (a)(4) of this section in any State that fails to submit such a program under that subsection. (c) Eligibility (1) Except as provided in paragraphs (2) and (3), for purposes of this section, the term ‘‘small business stationary source’’ means a stationary source that— (A) is owned or operated by a person that employs 100 or fewer individuals, (B) is a small business concern as defined in the Small Business Act [15 U.S.C. 631 et seq.]; (C) is not a major stationary source; (D) does not emit 50 tons or more per year of any regulated pollutant; and (E) emits less than 75 tons per year of all regulated pollutants. (2) Upon petition by a source, the State may, after notice and opportunity for public com

ment, include as a small business stationary source for purposes of this section any station

ary source which does not meet the criteria of subparagraphs 1 (C), (D), or (E) of paragraph (1) but which does not emit more than 100 tons per year of all regulated pollutants. (3)(A) The Administrator, in consultation with the Administrator of the Small Business Admin

istration and after providing notice and oppor

tunity for public comment, may exclude from the small business stationary source definition under this section any category or subcategory of sources that the Administrator determines to have sufficient technical and financial capabili

ties to meet the requirements of this chapter without the application of this subsection. (B) The State, in consultation with the Ad

ministrator and the Administrator of the Small Business Administration and after providing no

tice and opportunity for public hearing, may ex

clude from the small business stationary source definition under this section any category or subcategory of sources that the State deter

mines to have sufficient technical and financial capabilities to meet the requirements of this chapter without the application of this sub

section. (d) Monitoring The Administrator shall direct the Agency’s Office of Small and Disadvantaged Business Uti

lization through the Small Business Ombuds

man (hereinafter in this section referred to as the ‘‘Ombudsman’’) to monitor the small busi

ness stationary source technical and environ

mental compliance assistance program under this section. In carrying out such monitoring ac

tivities, the Ombudsman shall— (1) render advisory opinions on the overall effectiveness of the Small Business Stationary Source Technical and Environmental Compli

ance Assistance Program, difficulties encoun

tered, and degree and severity of enforcement; (2) make periodic reports to the Congress on the compliance of the Small Business Station

ary Source Technical and Environmental Compliance Assistance Program with the re

quirements of the Paperwork Reduction Act, 2 the Regulatory Flexibility Act [5 U.S.C. 601 et seq.], and the Equal Access to Justice Act; (3) review information to be issued by the Small Business Stationary Source Technical and Environmental Compliance Assistance Program for small business stationary sources to ensure that the information is understand

able by the layperson; and (4) have the Small Business Stationary Source Technical and Environmental Compli

ance Assistance Program serve as the sec

retariat for the development and dissemina

tion of such reports and advisory opinions. (e) Compliance Advisory Panel (1) There shall be created a Compliance Advi

sory Panel (hereinafter referred to as the ‘‘Panel’’) on the State level of not less than 7 in

dividuals. This Panel shall— (A) render advisory opinions concerning the effectiveness of the small business stationary source technical and environmental compli

ance assistance program, difficulties encoun

tered, and degree and severity of enforcement; (B) make periodic reports to the Adminis

trator concerning the compliance of the State Small Business Stationary Source Technical and Environmental Compliance Assistance Program with the requirements of the Paper

work Reduction Act, 2 the Regulatory Flexibil

ity Act [5 U.S.C. 601 et seq.], and the Equal Ac

cess to Justice Act; (C) review information for small business stationary sources to assure such information is understandable by the layperson; and (D) have the Small Business Stationary Source Technical and Environmental Compli

ance Assistance Program serve as the sec

-Page 6484 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671

retariat for the development and dissemina

tion of such reports and advisory opinions. (2) The Panel shall consist of— (A) 2 members, who are not owners, or rep

resentatives of owners, of small business sta

tionary sources, selected by the Governor to represent the general public; (B) 2 members selected by the State legisla

ture who are owners, or who represent owners, of small business stationary sources (1 mem

ber each by the majority and minority leader

ship of the lower house, or in the case of a uni

cameral State legislature, 2 members each shall be selected by the majority leadership and the minority leadership, respectively, of such legislature, and subparagraph (C) shall not apply); (C) 2 members selected by the State legisla

ture who are owners, or who represent owners, of small business stationary sources (1 mem

ber each by the majority and minority leader

ship of the upper house, or the equivalent State entity); and (D) 1 member selected by the head of the de

partment or agency of the State responsible for air pollution permit programs to represent that agency. (f) Fees The State (or the Administrator) may reduce any fee required under this chapter to take into account the financial resources of small busi

ness stationary sources. (g) Continuous emission monitors In developing regulations and CTGs under this chapter that contain continuous emission mon

itoring requirements, the Administrator, con

sistent with the requirements of this chapter, before applying such requirements to small busi

ness stationary sources, shall consider the ne

cessity and appropriateness of such require

ments for such sources. Nothing in this sub

section shall affect the applicability of sub

chapter IV–A of this chapter provisions relating to continuous emissions monitoring. (h) Control technique guidelines The Administrator shall consider, consistent with the requirements of this chapter, the size, type, and technical capabilities of small busi

ness stationary sources (and sources which are eligible under subsection (c)(2) of this section to be treated as small business stationary sources) in developing CTGs applicable to such sources under this chapter. (July 14, 1955, ch. 360, title V, §507, as added Pub. L. 101–549, title V, §501, Nov. 15, 1990, 104 Stat. 2645.)

R EFERENCES IN T EXT The Small Business Act, referred to in subsec. (c)(1)(B), is Pub. L. 85–536, §2(1 et seq.), July 18, 1958, 72 Stat. 384, which is classified generally to chapter 14A (§631 et seq.) of Title 15, Commerce and Trade. For com

plete classification of this Act to the Code, see Short Title note set out under section 631 of Title 15 and Tables. The Paperwork Reduction Act, referred to in subsecs. (d)(2) and (e)(1)(B), probably means the Paperwork Re

duction Act of 1980, Pub. L. 96–511, Dec. 11, 1980, 94 Stat. 2812, as amended, which was classified principally to chapter 35 (§3501 et seq.) of Title 44, Public Printing and Documents, prior to the general amendment of that chapter by Pub. L. 104–13, §2, May 22, 1995, 109 Stat. 163. For complete classification of this Act to the Code, see Short Title of 1980 Amendment note set out under section 101 of Title 44 and Tables. The Regulatory Flexibility Act, referred to in sub

secs. (d)(2) and (e)(1)(B), is Pub. L. 96–354, Sept. 19, 1980, 94 Stat. 1164, which is classified generally to chapter 6 (§601 et seq.) of Title 5, Government Organization and Employees. For complete classification of this Act to the Code, see Short Title note set out under section 601 of Title 5 and Tables. The Equal Access to Justice Act, referred to in sub

secs. (d)(2) and (e)(1)(B), is title II of Pub. L. 96–481, Oct. 21, 1980, 94 Stat. 2325. For complete classification of this Act to the Code, see Short Title note set out under sec

tion 504 of Title 5.

SUBCHAPTER VI—STRATOSPHERIC OZONE

PROTECTION
§ 7671. Definitions
As used in this subchapter— (1) Appliance The term ‘‘appliance’’ means any device which contains and uses a class I or class II substance as a refrigerant and which is used for household or commercial purposes, includ

ing any air conditioner, refrigerator, chiller, or freezer. (2) Baseline year The term ‘‘baseline year’’ means— (A) the calendar year 1986, in the case of any class I substance listed in Group I or II under section 7671a(a) of this title, (B) the calendar year 1989, in the case of any class I substance listed in Group III, IV, or V under section 7671a(a) of this title, and (C) a representative calendar year selected by the Administrator, in the case of— (i) any substance added to the list of class I substances after the publication of the initial list under section 7671a(a) of this title, and (ii) any class II substance. (3) Class I substance
The term ‘‘class I substance’’ means each of the substances listed as provided in section 7671a(a) of this title. (4) Class II substance
The term ‘‘class II substance’’ means each of the substances listed as provided in section 7671a(b) of this title. (5) Commissioner
The term ‘‘Commissioner’’ means the Com

missioner of the Food and Drug Administra

tion. (6) Consumption The term ‘‘consumption’’ means, with re

spect to any substance, the amount of that substance produced in the United States, plus the amount imported, minus the amount ex

ported to Parties to the Montreal Protocol. Such term shall be construed in a manner con

sistent with the Montreal Protocol. (7) Import The term ‘‘import’’ means to land on, bring into, or introduce into, or attempt to land on,Page 6485 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671a

bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or in

troduction constitutes an importation within the meaning of the customs laws of the United States. (8) Medical device The term ‘‘medical device’’ means any de

vice (as defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321)), diagnostic prod

uct, drug (as defined in the Federal Food, Drug, and Cosmetic Act), and drug delivery system— (A) if such device, product, drug, or drug delivery system utilizes a class I or class II substance for which no safe and effective al

ternative has been developed, and where nec

essary, approved by the Commissioner; and (B) if such device, product, drug, or drug delivery system, has, after notice and oppor

tunity for public comment, been approved and determined to be essential by the Com

missioner in consultation with the Adminis

trator. (9) Montreal Protocol
The terms ‘‘Montreal Protocol’’ and ‘‘the Protocol’’ mean the Montreal Protocol on Substances that Deplete the Ozone Layer, a protocol to the Vienna Convention for the Protection of the Ozone Layer, including ad

justments adopted by Parties thereto and amendments that have entered into force. (10) Ozone-depletion potential The term ‘‘ozone-depletion potential’’ means a factor established by the Administrator to reflect the ozone-depletion potential of a sub

stance, on a mass per kilogram basis, as com

pared to chlorofluorocarbon-11 (CFC–11). Such factor shall be based upon the substance’s at

mospheric lifetime, the molecular weight of bromine and chlorine, and the substance’s ability to be photolytically disassociated, and upon other factors determined to be an accu

rate measure of relative ozone-depletion po

tential. (11) Produce, produced, and production The terms ‘‘produce’’, ‘‘produced’’, and ‘‘pro

duction’’, refer to the manufacture of a sub

stance from any raw material or feedstock chemical, but such terms do not include— (A) the manufacture of a substance that is used and entirely consumed (except for trace quantities) in the manufacture of other chemicals, or (B) the reuse or recycling of a substance. (July 14, 1955, ch. 360, title VI, §601, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2649.)

R EFERENCES IN T EXT The customs laws of the United States, referred to in par. (7), are classified generally to Title 19, Customs Duties. The Federal Food, Drug, and Cosmetic Act, referred to in par. (8), is act June 25, 1938, ch. 675, 52 Stat. 1040, as amended, which is classified generally to chapter 9 (§301 et seq.) of Title 21, Food and Drugs. For complete classification of this Act to the Code, see section 301 of Title 21 and Tables. § 7671a. Listing of class I and class II substances
(a) List of class I substances Within 60 days after November 15, 1990, the Ad

ministrator shall publish an initial list of class I substances, which list shall contain the follow

ing substances:
Group I chlorofluorocarbon-11 (CFC–11) chlorofluorocarbon-12 (CFC–12) chlorofluorocarbon-113 (CFC–113) chlorofluorocarbon-114 (CFC–114) chlorofluorocarbon-115 (CFC–115)
Group II halon-1211 halon-1301 halon-2402
Group III chlorofluorocarbon-13 (CFC–13) chlorofluorocarbon-111 (CFC–111) chlorofluorocarbon-112 (CFC–112) chlorofluorocarbon-211 (CFC–211) chlorofluorocarbon-212 (CFC–212) chlorofluorocarbon-213 (CFC–213) chlorofluorocarbon-214 (CFC–214) chlorofluorocarbon-215 (CFC–215) chlorofluorocarbon-216 (CFC–216) chlorofluorocarbon-217 (CFC–217)
Group IV carbon tetrachloride
Group V methyl chloroform
The initial list under this subsection shall also include the isomers of the substances listed above, other than 1,1,2-trichloroethane (an iso

mer of methyl chloroform). Pursuant to sub

section (c) of this section, the Administrator shall add to the list of class I substances any other substance that the Administrator finds causes or contributes significantly to harmful effects on the stratospheric ozone layer. The Ad

ministrator shall, pursuant to subsection (c) of this section, add to such list all substances that the Administrator determines have an ozone de

pletion potential of 0.2 or greater. (b) List of class II substances Simultaneously with publication of the initial list of class I substances, the Administrator shall publish an initial list of class II sub

stances, which shall contain the following sub

stances:
hydrochlorofluorocarbon-21 (HCFC–21) hydrochlorofluorocarbon-22 (HCFC–22) hydrochlorofluorocarbon-31 (HCFC–31) hydrochlorofluorocarbon-121 (HCFC–121) hydrochlorofluorocarbon-122 (HCFC–122) hydrochlorofluorocarbon-123 (HCFC–123) hydrochlorofluorocarbon-124 (HCFC–124) hydrochlorofluorocarbon-131 (HCFC–131) hydrochlorofluorocarbon-132 (HCFC–132) hydrochlorofluorocarbon-133 (HCFC–133) hydrochlorofluorocarbon-141 (HCFC–141) hydrochlorofluorocarbon-142 (HCFC–142) hydrochlorofluorocarbon-221 (HCFC–221) hydrochlorofluorocarbon-222 (HCFC–222) hydrochlorofluorocarbon-223 (HCFC–223) hydrochlorofluorocarbon-224 (HCFC–224) hydrochlorofluorocarbon-225 (HCFC–225) hydrochlorofluorocarbon-226 (HCFC–226) hydrochlorofluorocarbon-231 (HCFC–231) hydrochlorofluorocarbon-232 (HCFC–232) hydrochlorofluorocarbon-233 (HCFC–233)Page 6486 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671a

1 So in original. Probably should be section ‘‘7671f’’. hydrochlorofluorocarbon-234 (HCFC–234) hydrochlorofluorocarbon-235 (HCFC–235) hydrochlorofluorocarbon-241 (HCFC–241) hydrochlorofluorocarbon-242 (HCFC–242) hydrochlorofluorocarbon-243 (HCFC–243) hydrochlorofluorocarbon-244 (HCFC–244) hydrochlorofluorocarbon-251 (HCFC–251) hydrochlorofluorocarbon-252 (HCFC–252) hydrochlorofluorocarbon-253 (HCFC–253) hydrochlorofluorocarbon-261 (HCFC–261) hydrochlorofluorocarbon-262 (HCFC–262) hydrochlorofluorocarbon-271 (HCFC–271)
The initial list under this subsection shall also include the isomers of the substances listed above. Pursuant to subsection (c) of this section, the Administrator shall add to the list of class II substances any other substance that the Ad

ministrator finds is known or may reasonably be anticipated to cause or contribute to harmful ef

fects on the stratospheric ozone layer. (c) Additions to the lists (1) The Administrator may add, by rule, in ac

cordance with the criteria set forth in sub

section (a) or (b) of this section, as the case may be, any substance to the list of class I or class II substances under subsection (a) or (b) of this section. For purposes of exchanges under section 7661f 1 of this title, whenever a substance is added to the list of class I substances the Ad

ministrator shall, to the extent consistent with the Montreal Protocol, assign such substance to existing Group I, II, III, IV, or V or place such substance in a new Group. (2) Periodically, but not less frequently than every 3 years after November 15, 1990, the Ad

ministrator shall list, by rule, as additional class I or class II substances those substances which the Administrator finds meet the criteria of subsection (a) or (b) of this section, as the case may be. (3) At any time, any person may petition the Administrator to add a substance to the list of class I or class II substances. Pursuant to the criteria set forth in subsection (a) or (b) of this section as the case may be, within 180 days after receiving such a petition, the Administrator shall either propose to add the substance to such list or publish an explanation of the petition de

nial. In any case where the Administrator pro

poses to add a substance to such list, the Admin

istrator shall add, by rule, (or make a final de

termination not to add) such substance to such list within 1 year after receiving such petition. Any petition under this paragraph shall include a showing by the petitioner that there are data on the substance adequate to support the peti

tion. If the Administrator determines that infor

mation on the substance is not sufficient to make a determination under this paragraph, the Administrator shall use any authority available to the Administrator, under any law adminis

tered by the Administrator, to acquire such in

formation. (4) Only a class II substance which is added to the list of class I substances may be removed from the list of class II substances. No substance referred to in subsection (a) of this section, in

cluding methyl chloroform, may be removed from the list of class I substances. (d) New listed substances In the case of any substance added to the list of class I or class II substances after publication of the initial list of such substances under this section, the Administrator may extend any schedule or compliance deadline contained in section 7671c or 7671d of this title to a later date than specified in such sections if such schedule or deadline is unattainable, considering when such substance is added to the list. No extension under this subsection may extend the date for termination of production of any class I sub

stance to a date more than 7 years after January 1 of the year after the year in which the sub

stance is added to the list of class I substances. No extension under this subsection may extend the date for termination of production of any class II substance to a date more than 10 years after January 1 of the year after the year in which the substance is added to the list of class II substances. (e) Ozone-depletion and global warming poten

tial Simultaneously with publication of the lists under this section and simultaneously with any addition to either of such lists, the Adminis

trator shall assign to each listed substance a nu

merical value representing the substance’s ozone-depletion potential. In addition, the Ad

ministrator shall publish the chlorine and bro

mine loading potential and the atmospheric life

time of each listed substance. One year after No

vember 15, 1990 (one year after the addition of a substance to either of such lists in the case of a substance added after the publication of the ini

tial lists of such substances), and after notice and opportunity for public comment, the Ad

ministrator shall publish the global warming po

tential of each listed substance. The preceding sentence shall not be construed to be the basis of any additional regulation under this chapter. In the case of the substances referred to in table 1, the ozone-depletion potential shall be as spec

ified in table 1, unless the Administrator adjusts the substance’s ozone-depletion potential based on criteria referred to in section 7671(10) of this title:

T ABLE 1

Substance Ozonedepletion potential

chlorofluorocarbon-11 (CFC–11)

.................... 1.0 chlorofluorocarbon-12 (CFC–12)

.................... 1.0 chlorofluorocarbon-13 (CFC–13)

.................... 1.0 chlorofluorocarbon-111 (CFC–111)

................. 1.0 chlorofluorocarbon-112 (CFC–112)

................. 1.0 chlorofluorocarbon-113 (CFC–113)

................. 0.8 chlorofluorocarbon-114 (CFC–114)

................. 1.0 chlorofluorocarbon-115 (CFC–115)

................. 0.6 chlorofluorocarbon-211 (CFC–211)

................. 1.0 chlorofluorocarbon-212 (CFC–212)

................. 1.0 chlorofluorocarbon-213 (CFC–213)

................. 1.0 chlorofluorocarbon-214 (CFC–214)

................. 1.0 chlorofluorocarbon-215 (CFC–215)

................. 1.0 chlorofluorocarbon-216 (CFC–216)

................. 1.0 chlorofluorocarbon-217 (CFC–217)

................. 1.0 halon-1211

..................................................... 3.0 halon-1301

..................................................... 10.0 halon-2402

..................................................... 6.0 carbon tetrachloride

.................................... 1.1Page 6487 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671b

T ABLE 1—Continued

Substance Ozonedepletion potential

methyl chloroform

....................................... 0.1 hydrochlorofluorocarbon-22 (HCFC–22)

........ 0.05 hydrochlorofluorocarbon-123 (HCFC–123)

..... 0.02 hydrochlorofluorocarbon-124 (HCFC–124)

..... 0.02 hydrochlorofluorocarbon-141(b) (HCFC–141(b))

............................................ 0.1 hydrochlorofluorocarbon-142(b) (HCFC–142(b))

............................................ 0.06

Where the ozone-depletion potential of a sub

stance is specified in the Montreal Protocol, the ozone-depletion potential specified for that sub

stance under this section shall be consistent with the Montreal Protocol. (July 14, 1955, ch. 360, title VI, §602, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2650.)
§ 7671b. Monitoring and reporting requirements (a) Regulations Within 270 days after November 15, 1990, the Administrator shall amend the regulations of the Administrator in effect on such date regard

ing monitoring and reporting of class I and class II substances. Such amendments shall conform to the requirements of this section. The amend

ed regulations shall include requirements with respect to the time and manner of monitoring and reporting as required under this section. (b) Production, import, and export level reports On a quarterly basis, or such other basis (not less than annually) as determined by the Admin

istrator, each person who produced, imported, or exported a class I or class II substance shall file a report with the Administrator setting forth the amount of the substance that such person produced, imported, and exported during the preceding reporting period. Each such report shall be signed and attested by a responsible of

ficer. No such report shall be required from a person after April 1 of the calendar year after such person permanently ceases production, im

portation, and exportation of the substance and so notifies the Administrator in writing. (c) Baseline reports for class I substances Unless such information has previously been reported to the Administrator, on the date on which the first report under subsection (b) of this section is required to be filed, each person who produced, imported, or exported a class I substance (other than a substance added to the list of class I substances after the publication of the initial list of such substances under this sec

tion) shall file a report with the Administrator setting forth the amount of such substance that such person produced, imported, and exported during the baseline year. In the case of a sub

stance added to the list of class I substances after publication of the initial list of such sub

stances under this section, the regulations shall require that each person who produced, im

ported, or exported such substance shall file a report with the Administrator within 180 days after the date on which such substance is added to the list, setting forth the amount of the sub

stance that such person produced, imported, and exported in the baseline year. (d) Monitoring and reports to Congress (1) The Administrator shall monitor and, not less often than every 3 years following Novem

ber 15, 1990, submit a report to Congress on the production, use and consumption of class I and class II substances. Such report shall include data on domestic production, use and consump

tion, and an estimate of worldwide production, use and consumption of such substances. Not less frequently than every 6 years the Adminis

trator shall report to Congress on the environ

mental and economic effects of any strato

spheric ozone depletion. (2) The Administrators of the National Aero

nautics and Space Administration and the Na

tional Oceanic and Atmospheric Administration shall monitor, and not less often than every 3 years following November 15, 1990, submit a re

port to Congress on the current average tropo

spheric concentration of chlorine and bromine and on the level of stratospheric ozone deple

tion. Such reports shall include updated projec

tions of— (A) peak chlorine loading; (B) the rate at which the atmospheric abun

dance of chlorine is projected to decrease after the year 2000; and (C) the date by which the atmospheric abun

dance of chlorine is projected to return to a level of two parts per billion. Such updated projections shall be made on the basis of current international and domestic con

trols on substances covered by this subchapter as well as on the basis of such controls supple

mented by a year 2000 global phase out of all halocarbon emissions (the base case). It is the purpose of the Congress through the provisions of this section to monitor closely the production and consumption of class II substances to assure that the production and consumption of such substances will not: (i) increase significantly the peak chlorine loading that is projected to occur under the base case established for purposes of this sec

tion; (ii) reduce significantly the rate at which the atmospheric abundance of chlorine is pro

jected to decrease under the base case; or (iii) delay the date by which the average at

mospheric concentration of chlorine is pro

jected under the base case to return to a level of two parts per billion. (e) Technology status report in 2015 The Administrator shall review, on a periodic basis, the progress being made in the develop

ment of alternative systems or products nec

essary to manufacture and operate appliances without class II substances. If the Administrator finds, after notice and opportunity for public comment, that as a result of technological de

velopment problems, the development of such alternative systems or products will not occur within the time necessary to provide for the manufacture of such equipment without such substances prior to the applicable deadlines under section 7671d of this title, the Adminis

-Page 6488 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671b

trator shall, not later than January 1, 2015, so inform the Congress. (f) Emergency report If, in consultation with the Administrators of the National Aeronautics and Space Administra

tion and the National Oceanic and Atmospheric Administration, and after notice and oppor

tunity for public comment, the Administrator determines that the global production, con

sumption, and use of class II substances are pro

jected to contribute to an atmospheric chlorine loading in excess of the base case projections by more than 5

⁄ 10 ths parts per billion, the Adminis

trator shall so inform the Congress imme

diately. The determination referred to in the preceding sentence shall be based on the mon

itoring under subsection (d) of this section and updated not less often than every 3 years. (July 14, 1955, ch. 360, title VI, §603, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2653.)

T ERMINATION OF R EPORTING R EQUIREMENTS For termination, effective May 15, 2000, of provisions in subsec. (d)(1) of this section relating to submittal of triennial report to Congress, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and the 12th item on page 162 of House Document No. 103–7.

M ETHANE S TUDIES Section 603 of Pub. L. 101–549 provided that: ‘‘(a) E CONOMICALLY J USTIFIED A CTIONS .—Not later than 2 years after enactment of this Act [Nov. 15, 1990], the Administrator shall prepare and submit a report to the Congress that identifies activities, substances, processes, or combinations thereof that could reduce methane emissions and that are economically and tech

nologically justified with and without consideration of environmental benefit. ‘‘(b) D OMESTIC M ETHANE S OURCE I NVENTORY AND C ON

TROL .—Not later than 2 years after the enactment of this Act [Nov. 15, 1990], the Administrator, in consulta

tion and coordination with the Secretary of Energy and the Secretary of Agriculture, shall prepare and submit to the Congress reports on each of the following: ‘‘(1) Methane emissions associated with natural gas extraction, transportation, distribution, storage, and use. Such report shall include an inventory of meth

ane emissions associated with such activities within the United States. Such emissions include, but are not limited to, accidental and intentional releases from natural gas and oil wells, pipelines, processing facilities, and gas burners. The report shall also in

clude an inventory of methane generation with such activities. ‘‘(2) Methane emissions associated with coal extrac

tion, transportation, distribution, storage, and use. Such report shall include an inventory of methane emissions associated with such activities within the United States. Such emissions include, but are not limited to, accidental and intentional releases from mining shafts, degasification wells, gas recovery wells and equipment, and from the processing and use of coal. The report shall also include an inventory of methane generation with such activities. ‘‘(3) Methane emissions associated with manage

ment of solid waste. Such report shall include an in

ventory of methane emissions associated with all forms of waste management in the United States, in

cluding storage, treatment, and disposal. ‘‘(4) Methane emissions associated with agriculture. Such report shall include an inventory of methane emissions associated with rice and livestock produc

tion in the United States. ‘‘(5) Methane emissions associated with biomass burning. Such report shall include an inventory of methane emissions associated with the intentional burning of agricultural wastes, wood, grasslands, and forests. ‘‘(6) Other methane emissions associated with human activities. Such report shall identify and in

ventory other domestic sources of methane emissions that are deemed by the Administrator and other such agencies to be significant. ‘‘(c) I NTERNATIONAL S TUDIES .— ‘‘(1) M ETHANE EMISSIONS .—Not later than 2 years after the enactment of this Act [Nov. 15, 1990], the Administrator shall prepare and submit to the Con

gress a report on methane emissions from countries other than the United States. Such report shall in

clude inventories of methane emissions associated with the activities listed in subsection (b). ‘‘(2) P REVENTING INCREASES IN METHANE CONCENTRA

TIONS .—Not later than 2 years after the enactment of this Act [Nov. 15, 1990], the Administrator shall pre

pare and submit to the Congress a report that ana

lyzes the potential for preventing an increase in at

mospheric concentrations of methane from activities and sources in other countries. Such report shall identify and evaluate the technical options for reduc

ing methane emission from each of the activities list

ed in subsection (b), as well as other activities or sources that are deemed by the Administrator in con

sultation with other relevant Federal agencies and departments to be significant and shall include an evaluation of costs. The report shall identify the emissions reductions that would need to be achieved to prevent increasing atmospheric concentrations of methane. The report shall also identify technology transfer programs that could promote methane emis

sions reductions in lesser developed countries. ‘‘(d) N ATURAL S OURCES .—Not later than 2 years after the enactment of this Act [Nov. 15, 1990], the Adminis

trator shall prepare and submit to the Congress a re

port on— ‘‘(1) methane emissions from biogenic sources such as (A) tropical, temperate, and subarctic forests, (B) tundra, and (C) freshwater and saltwater wetlands; and ‘‘(2) the changes in methane emissions from bio

genic sources that may occur as a result of potential increases in temperatures and atmospheric con

centrations of carbon dioxide. ‘‘(e) S TUDY OF M EASURES T O L IMIT G ROWTH IN M ETH

ANE C ONCENTRATIONS .—Not later than 2 years after the completion of the studies in subsections (b), (c), and (d), the Administrator shall prepare and submit to the Congress a report that presents options outlining meas

ures that could be implemented to stop or reduce the growth in atmospheric concentrations of methane from sources within the United States referred to in para

graphs (1) through (6) of subsection (b). This study shall identify and evaluate the technical options for reduc

ing methane emissions from each of the activities list

ed in subsection (b), as well as other activities or sources deemed by such agencies to be significant, and shall include an evaluation of costs, technology, safety, energy, and other factors. The study shall be based on the other studies under this section. The study shall also identify programs of the United States and inter

national lending agencies that could be used to induce lesser developed countries to undertake measures that will reduce methane emissions and the resource needs of such programs. ‘‘(f) I NFORMATION G ATHERING .—In carrying out the studies under this section, the provisions and require

ments of section 114 of the Clean Air Act [42 U.S.C. 7414] shall be available for purposes of obtaining information to carry out such studies. ‘‘(g) C ONSULTATION AND C OORDINATION .—In preparing the studies under this section the Administrator shall consult and coordinate with the Secretary of Energy, the Administrators of the National Aeronautics and Space Administration and the National Oceanic andPage 6489 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671c

Atmospheric Administration, and the heads of other relevant Federal agencies and departments. In the case of the studies under subsections (a), (b), and (e), such consultation and coordination shall include the Sec

retary of Agriculture.’’
§ 7671c. Phase-out of production and consump

tion of class I substances (a) Production phase-out Effective on January 1 of each year specified in Table 2, it shall be unlawful for any person to produce any class I substance in an annual quan

tity greater than the relevant percentage speci

fied in Table 2. The percentages in Table 2 refer to a maximum allowable production as a per

centage of the quantity of the substance pro

duced by the person concerned in the baseline
year.

T ABLE 2

Date Carbon

tetrachloride Methyl

chloroform OtherclassI

substances

1991

... 100%

............... 100%

............ 85% 1992

... 90%

............... 100%

............ 80% 1993

... 80%

............... 90%

............ 75% 1994

... 70%

............... 85%

............ 65% 1995

... 15%

............... 70%

............ 50% 1996

... 15%

............... 50%

............ 40% 1997

... 15%

............... 50%

............ 15% 1998

... 15%

............... 50%

............ 15% 1999

... 15%

............... 50%

............ 15% 2000

... ........................ 20%

............ 2001

... ........................ 20%

............ (b) Termination of production of class I sub

stances Effective January 1, 2000 (January 1, 2002 in the case of methyl chloroform), it shall be un

lawful for any person to produce any amount of a class I substance. (c) Regulations regarding production and con

sumption of class I substances The Administrator shall promulgate regula

tions within 10 months after November 15, 1990, phasing out the production of class I substances in accordance with this section and other appli

cable provisions of this subchapter. The Admin

istrator shall also promulgate regulations to in

sure that the consumption of class I substances in the United States is phased out and termi

nated in accordance with the same schedule (subject to the same exceptions and other provi

sions) as is applicable to the phase-out and ter

mination of production of class I substances under this subchapter. (d) Exceptions for essential uses of methyl chloroform, medical devices, and aviation safety (1) Essential uses of methyl chloroform Notwithstanding the termination of produc

tion required by subsection (b) of this section, during the period beginning on January 1, 2002, and ending on January 1, 2005, the Adminis

trator, after notice and opportunity for public comment, may, to the extent such action is consistent with the Montreal Protocol, au

thorize the production of limited quantities of methyl chloroform solely for use in essential applications (such as nondestructive testing for metal fatigue and corrosion of existing air

plane engines and airplane parts susceptible to metal fatigue) for which no safe and effective substitute is available. Notwithstanding this paragraph, the authority to produce methyl chloroform for use in medical devices shall be provided in accordance with paragraph (2). (2) Medical devices Notwithstanding the termination of produc

tion required by subsection (b) of this section, the Administrator, after notice and oppor

tunity for public comment, shall, to the ex

tent such action is consistent with the Mon

treal Protocol, authorize the production of limited quantities of class I substances solely for use in medical devices if such authoriza

tion is determined by the Commissioner, in consultation with the Administrator, to be necessary for use in medical devices. (3) Aviation safety (A) Notwithstanding the termination of pro

duction required by subsection (b) of this sec

tion, the Administrator, after notice and op

portunity for public comment, may, to the ex

tent such action is consistent with the Mon

treal Protocol, authorize the production of limited quantities of halon-1211 (bromo

chlorodifluoromethane), halon-1301 (bromo

trifluoromethane), and halon-2402 (dibromo

tetrafluoroethane) solely for purposes of avia

tion safety if the Administrator of the Federal Aviation Administration, in consultation with the Administrator, determines that no safe and effective substitute has been developed and that such authorization is necessary for aviation safety purposes. (B) The Administrator of the Federal Avia

tion Administration shall, in consultation with the Administrator, examine whether safe and effective substitutes for methyl chloro

form or alternative techniques will be avail

able for nondestructive testing for metal fa

tigue and corrosion of existing airplane en

gines and airplane parts susceptible to metal fatigue and whether an exception for such uses of methyl chloroform under this paragraph will be necessary for purposes of airline safety after January 1, 2005 and provide a report to Congress in 1998. (4) Cap on certain exceptions Under no circumstances may the authority set forth in paragraphs (1), (2), and (3) of sub

section (d) of this section be applied to author

ize any person to produce a class I substance in annual quantities greater than 10 percent of that produced by such person during the base

line year. (5) Sanitation and food protection
To the extent consistent with the Montreal Protocol’s quarantine and preshipment provi

sions, the Administrator shall exempt the pro

duction, importation, and consumption of methyl bromide to fumigate commodities en

tering or leaving the United States or any State (or political subdivision thereof) for pur

poses of compliance with Animal and Plant Health Inspection Service requirements or with any international, Federal, State, or local sanitation or food protection standard.Page 6490 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671c

(6) Critical uses
To the extent consistent with the Montreal Protocol, the Administrator, after notice and the opportunity for public comment, and after consultation with other departments or in

strumentalities of the Federal Government having regulatory authority related to methyl bromide, including the Secretary of Agri

culture, may exempt the production, importa

tion, and consumption of methyl bromide for critical uses. (e) Developing countries (1) Exception Notwithstanding the phase-out and termi

nation of production required under sub

sections (a) and (b) of this section, the Admin

istrator, after notice and opportunity for pub

lic comment, may, consistent with the Mon

treal Protocol, authorize the production of limited quantities of a class I substance in ex

cess of the amounts otherwise allowable under subsection (a) or (b) of this section, or both, solely for export to, and use in, developing countries that are Parties to the Montreal Protocol and are operating under article 5 of such Protocol. Any production authorized under this paragraph shall be solely for pur

poses of satisfying the basic domestic needs of such countries. (2) Cap on exception (A) Under no circumstances may the author

ity set forth in paragraph (1) be applied to au

thorize any person to produce a class I sub

stance in any year for which a production per

centage is specified in Table 2 of subsection (a) of this section in an annual quantity greater than the specified percentage, plus an amount equal to 10 percent of the amount produced by such person in the baseline year. (B) Under no circumstances may the author

ity set forth in paragraph (1) be applied to au

thorize any person to produce a class I sub

stance in the applicable termination year re

ferred to in subsection (b) of this section, or in any year thereafter, in an annual quantity greater than 15 percent of the baseline quan

tity of such substance produced by such per

son. (C) An exception authorized under this sub

section shall terminate no later than January 1, 2010 (2012 in the case of methyl chloroform). (3) Methyl bromide Notwithstanding the phaseout and termi

nation of production of methyl bromide pursu

ant to subsection (h) of this section, the Ad

ministrator may, consistent with the Mon

treal Protocol, authorize the production of limited quantities of methyl bromide, solely for use in developing countries that are Par

ties to the Copenhagen Amendments to the Montreal Protocol. (f) National security The President may, to the extent such action is consistent with the Montreal Protocol, issue such orders regarding production and use of CFC–114 (chlorofluorocarbon-114), halon-1211, halon-1301, and halon-2402, at any specified site or facility or on any vessel as may be necessary to protect the national security interests of the United States if the President finds that ade

quate substitutes are not available and that the production and use of such substance are nec

essary to protect such national security inter

est. Such orders may include, where necessary to protect such interests, an exemption from any prohibition or requirement contained in this subchapter. The President shall notify the Congress within 30 days of the issuance of an order under this paragraph providing for any such exemption. Such notification shall include a statement of the reasons for the granting of the exemption. An exemption under this para

graph shall be for a specified period which may not exceed one year. Additional exemptions may be granted, each upon the President’s issuance of a new order under this paragraph. Each such additional exemption shall be for a specified pe

riod which may not exceed one year. No exemp

tion shall be granted under this paragraph due to lack of appropriation unless the President shall have specifically requested such appropria

tion as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. (g) Fire suppression and explosion prevention (1) Notwithstanding the production phase-out set forth in subsection (a) of this section, the Administrator, after notice and opportunity for public comment, may, to the extent such action is consistent with the Montreal Protocol, au

thorize the production of limited quantities of halon-1211, halon-1301, and halon-2402 in excess of the amount otherwise permitted pursuant to the schedule under subsection (a) of this section solely for purposes of fire suppression or explo

sion prevention if the Administrator, in con

sultation with the Administrator of the United States Fire Administration, determines that no safe and effective substitute has been developed and that such authorization is necessary for fire suppression or explosion prevention purposes. The Administrator shall not authorize produc

tion under this paragraph for purposes of fire safety or explosion prevention training or test

ing of fire suppression or explosion prevention equipment. In no event shall the Administrator grant an exception under this paragraph that permits production after December 31, 1999. (2) The Administrator shall periodically mon

itor and assess the status of efforts to obtain substitutes for the substances referred to in paragraph (1) for purposes of fire suppression or explosion prevention and the probability of such substitutes being available by December 31, 1999. The Administrator, as part of such assessment, shall consider any relevant assessments under the Montreal Protocol and the actions of the Parties pursuant to Article 2B of the Montreal Protocol in identifying essential uses and in per

mitting a level of production or consumption that is necessary to satisfy such uses for which no adequate alternatives are available after De

cember 31, 1999. The Administrator shall report to Congress the results of such assessment in 1994 and again in 1998. (3) Notwithstanding the termination of pro

duction set forth in subsection (b) of this sec

tion, the Administrator, after notice and oppor

-Page 6491 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671d

tunity for public comment, may, to the extent consistent with the Montreal Protocol, author

ize the production of limited quantities of halon-1211, halon-1301, and halon-2402 in the pe

riod after December 31, 1999, and before Decem

ber 31, 2004, solely for purposes of fire suppres

sion or explosion prevention in association with domestic production of crude oil and natural gas energy supplies on the North Slope of Alaska, if the Administrator, in consultation with the Ad

ministrator of the United States Fire Adminis

tration, determines that no safe and effective substitute has been developed and that such au

thorization is necessary for fire suppression and explosion prevention purposes. The Adminis

trator shall not authorize production under the paragraph for purposes of fire safety or explo

sion prevention training or testing of fire sup

pression or explosion prevention equipment. In no event shall the Administrator authorize under this paragraph any person to produce any such halon in an amount greater than 3 percent of that produced by such person during the base

line year. (h) Methyl bromide Notwithstanding subsections (b) and (d) of this section, the Administrator shall not terminate production of methyl bromide prior to January 1, 2005. The Administrator shall promulgate rules for reductions in, and terminate the pro

duction, importation, and consumption of, methyl bromide under a schedule that is in ac

cordance with, but not more stringent than, the phaseout schedule of the Montreal Protocol Treaty as in effect on October 21, 1998. (July 14, 1955, ch. 360, title VI, §604, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2655; amended Pub. L. 105–277, div. A, §101(a) [title VII, §764], Oct. 21, 1998, 112 Stat. 2681, 2681–36.)

A MENDMENTS 1998—Subsec. (d)(5), (6). Pub. L. 105–277, §101(a) [title VII, §764(b)], added pars. (5) and (6). Subsec. (e)(3). Pub. L. 105–277, §101(a) [title VII, §764(c)], added par. (3). Subsec. (h). Pub. L. 105–277, §101(a) [title VII, §764(a)], added subsec. (h).
§ 7671d. Phase-out of production and consump

tion of class II substances
(a) Restriction of use of class II substances Effective January 1, 2015, it shall be unlawful for any person to introduce into interstate com

merce or use any class II substance unless such substance— (1) has been used, recovered, and recycled; (2) is used and entirely consumed (except for trace quantities) in the production of other chemicals; (3) is used as a refrigerant in appliances manufactured prior to January 1, 2020; or (4) is listed as acceptable for use as a fire suppression agent for nonresidential applica

tions in accordance with section 7671k(c) of this title. As used in this subsection, the term ‘‘refrig

erant’’ means any class II substance used for heat transfer in a refrigerating system. (b) Production phase-out (1) Effective January 1, 2015, it shall be unlaw

ful for any person to produce any class II sub

stance in an annual quantity greater than the quantity of such substance produced by such person during the baseline year. (2) Effective January 1, 2030, it shall be unlaw

ful for any person to produce any class II sub

stance. (c) Regulations regarding production and con

sumption of class II substances By December 31, 1999, the Administrator shall promulgate regulations phasing out the produc

tion, and restricting the use, of class II sub

stances in accordance with this section, subject to any acceleration of the phase-out of produc

tion under section 7671e of this title. The Admin

istrator shall also promulgate regulations to in

sure that the consumption of class II substances in the United States is phased out and termi

nated in accordance with the same schedule (subject to the same exceptions and other provi

sions) as is applicable to the phase-out and ter

mination of production of class II substances under this subchapter. (d) Exceptions (1) Medical devices (A) In general Notwithstanding the termination of pro

duction required under subsection (b)(2) of this section and the restriction on use re

ferred to in subsection (a) of this section, the Administrator, after notice and oppor

tunity for public comment, shall, to the ex

tent such action is consistent with the Mon

treal Protocol, authorize the production and use of limited quantities of class II sub

stances solely for purposes of use in medical devices if such authorization is determined by the Commissioner, in consultation with the Administrator, to be necessary for use in medical devices. (B) Cap on exception Under no circumstances may the authority set forth in subparagraph (A) be applied to authorize any person to produce a class II substance in annual quantities greater than 10 percent of that produced by such person during the baseline year. (2) Developing countries (A) In general Notwithstanding the provisions of sub

section (a) or (b) of this section, the Admin

istrator, after notice and opportunity for public comment, may authorize the produc

tion of limited quantities of a class II sub

stance in excess of the quantities otherwise permitted under such provisions solely for export to and use in developing countries that are Parties to the Montreal Protocol, as determined by the Administrator. Any pro

duction authorized under this subsection shall be solely for purposes of satisfying the basic domestic needs of such countries. (B) Cap on exception (i) Under no circumstances may the au

thority set forth in subparagraph (A) be ap

-Page 6492 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671e

plied to authorize any person to produce a class II substance in any year following the effective date of subsection (b)(1) of this sec

tion and before the year 2030 in annual quan

tities greater than 110 percent of the quan

tity of such substance produced by such per

son during the baseline year. (ii) Under no circumstances may the au

thority set forth in subparagraph (A) be ap

plied to authorize any person to produce a class II substance in the year 2030, or any year thereafter, in an annual quantity great

er than 15 percent of the quantity of such substance produced by such person during the baseline year. (iii) Each exception authorized under this paragraph shall terminate no later than Jan

uary 1, 2040. (July 14, 1955, ch. 360, title VI, §605, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2658; amended Pub. L. 112–81, div. A, title III, §320, Dec. 31, 2011, 125 Stat. 1361.)

A MENDMENTS 2011—Subsec. (a)(4). Pub. L. 112–81 added par. (4).
§ 7671e. Accelerated schedule (a) In general The Administrator shall promulgate regula

tions, after notice and opportunity for public comment, which establish a schedule for phasing out the production and consumption of class I and class II substances (or use of class II sub

stances) that is more stringent than set forth in section 7671c or 7671d of this title, or both, if— (1) based on an assessment of credible cur

rent scientific information (including any as

sessment under the Montreal Protocol) regard

ing harmful effects on the stratospheric ozone layer associated with a class I or class II sub

stance, the Administrator determines that such more stringent schedule may be nec

essary to protect human health and the envi

ronment against such effects, (2) based on the availability of substitutes for listed substances, the Administrator deter

mines that such more stringent schedule is practicable, taking into account technological achievability, safety, and other relevant fac

tors, or (3) the Montreal Protocol is modified to in

clude a schedule to control or reduce produc

tion, consumption, or use of any substance more rapidly than the applicable schedule under this subchapter. In making any determination under paragraphs (1) and (2), the Administrator shall consider the status of the period remaining under the appli

cable schedule under this subchapter. (b) Petition Any person may petition the Administrator to promulgate regulations under this section. The Administrator shall grant or deny the petition within 180 days after receipt of any such peti

tion. If the Administrator denies the petition, the Administrator shall publish an explanation of why the petition was denied. If the Adminis

trator grants such petition, such final regula

tions shall be promulgated within 1 year. Any petition under this subsection shall include a showing by the petitioner that there are data adequate to support the petition. If the Admin

istrator determines that information is not suf

ficient to make a determination under this sub

section, the Administrator shall use any author

ity available to the Administrator, under any law administered by the Administrator, to ac

quire such information. (July 14, 1955, ch. 360, title VI, §606, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2660.)
§ 7671f. Exchange authority (a) Transfers The Administrator shall, within 10 months after November 15, 1990, promulgate rules under this subchapter providing for the issuance of al

lowances for the production of class I and II sub

stances in accordance with the requirements of this subchapter and governing the transfer of such allowances. Such rules shall insure that the transactions under the authority of this sec

tion will result in greater total reductions in the production in each year of class I and class II substances than would occur in that year in the absence of such transactions. (b) Interpollutant transfers (1) The rules under this section shall permit a production allowance for a substance for any year to be transferred for a production allow

ance for another substance for the same year on an ozone depletion weighted basis. (2) Allowances for substances in each group of class I substances (as listed pursuant to section 7671a of this title) may only be transferred for allowances for other substances in the same Group. (3) The Administrator shall, as appropriate, establish groups of class II substances for trad

ing purposes and assign class II substances to such groups. In the case of class II substances, allowances may only be transferred for allow

ances for other class II substances that are in the same Group. (c) Trades with other persons The rules under this section shall permit 2 or more persons to transfer production allowances (including interpollutant transfers which meet the requirements of subsections (a) and (b) of this section) if the transferor of such allowances will be subject, under such rules, to an enforce

able and quantifiable reduction in annual pro

duction which— (1) exceeds the reduction otherwise applica

ble to the transferor under this subchapter, (2) exceeds the production allowances trans

ferred to the transferee, and (3) would not have occurred in the absence of such transaction. (d) Consumption The rules under this section shall also provide for the issuance of consumption allowances in accordance with the requirements of this sub

chapter and for the trading of such allowances in the same manner as is applicable under this section to the trading of production allowances under this section.Page 6493 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671h

(July 14, 1955, ch. 360, title VI, §607, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2660.)
§ 7671g. National recycling and emission reduc

tion program (a) In general (1) The Administrator shall, by not later than January 1, 1992, promulgate regulations estab

lishing standards and requirements regarding the use and disposal of class I substances during the service, repair, or disposal of appliances and industrial process refrigeration. Such standards and requirements shall become effective not later than July 1, 1992. (2) The Administrator shall, within 4 years after November 15, 1990, promulgate regulations establishing standards and requirements regard

ing use and disposal of class I and II substances not covered by paragraph (1), including the use and disposal of class II substances during serv

ice, repair, or disposal of appliances and indus

trial process refrigeration. Such standards and requirements shall become effective not later than 12 months after promulgation of the regu

lations. (3) The regulations under this subsection shall include requirements that— (A) reduce the use and emission of such sub

stances to the lowest achievable level, and (B) maximize the recapture and recycling of such substances. Such regulations may include requirements to use alternative substances (including substances which are not class I or class II substances) or to minimize use of class I or class II substances, or to promote the use of safe alternatives pursuant to section 7671k of this title or any combination of the foregoing. (b) Safe disposal The regulations under subsection (a) of this section shall establish standards and require

ments for the safe disposal of class I and II sub

stances. Such regulations shall include each of the following— (1) Requirements that class I or class II sub

stances contained in bulk in appliances, ma

chines or other goods shall be removed from each such appliance, machine or other good prior to the disposal of such items or their de

livery for recycling. (2) Requirements that any appliance, ma

chine or other good containing a class I or class II substance in bulk shall not be manu

factured, sold, or distributed in interstate commerce or offered for sale or distribution in interstate commerce unless it is equipped with a servicing aperture or an equally effective de

sign feature which will facilitate the recapture of such substance during service and repair or disposal of such item. (3) Requirements that any product in which a class I or class II substance is incorporated so as to constitute an inherent element of such product shall be disposed of in a manner that reduces, to the maximum extent prac

ticable, the release of such substance into the environment. If the Administrator determines that the application of this paragraph to any product would result in producing only insig

nificant environmental benefits, the Adminis

trator shall include in such regulations an ex

ception for such product. (c) Prohibitions (1) Effective July 1, 1992, it shall be unlawful for any person, in the course of maintaining, servicing, repairing, or disposing of an appliance or industrial process refrigeration, to knowingly vent or otherwise knowingly release or dispose of any class I or class II substance used as a re

frigerant in such appliance (or industrial process refrigeration) in a manner which permits such substance to enter the environment. De minimis releases associated with good faith attempts to recapture and recycle or safely dispose of any such substance shall not be subject to the prohi

bition set forth in the preceding sentence. (2) Effective 5 years after November 15, 1990, paragraph (1) shall also apply to the venting, re

lease, or disposal of any substitute substance for a class I or class II substance by any person maintaining, servicing, repairing, or disposing of an appliance or industrial process refrigera

tion which contains and uses as a refrigerant any such substance, unless the Administrator determines that venting, releasing, or disposing of such substance does not pose a threat to the environment. For purposes of this paragraph, the term ‘‘appliance’’ includes any device which contains and uses as a refrigerant a substitute substance and which is used for household or commercial purposes, including any air condi

tioner, refrigerator, chiller, or freezer. (July 14, 1955, ch. 360, title VI, §608, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2661.) § 7671h. Servicing of motor vehicle air condi

tioners (a) Regulations Within 1 year after November 15, 1990, the Ad

ministrator shall promulgate regulations in ac

cordance with this section establishing stand

ards and requirements regarding the servicing of motor vehicle air conditioners. (b) Definitions
As used in this section— (1) The term ‘‘refrigerant’’ means any class I or class II substance used in a motor vehicle air conditioner. Effective 5 years after Novem

ber 15, 1990, the term ‘‘refrigerant’’ shall also include any substitute substance. (2)(A) The term ‘‘approved refrigerant recy

cling equipment’’ means equipment certified by the Administrator (or an independent standards testing organization approved by the Administrator) to meet the standards es

tablished by the Administrator and applicable to equipment for the extraction and reclama

tion of refrigerant from motor vehicle air con

ditioners. Such standards shall, at a mini

mum, be at least as stringent as the standards of the Society of Automotive Engineers in ef

fect as of November 15, 1990, and applicable to such equipment (SAE standard J–1990). (B) Equipment purchased before the proposal of regulations under this section shall be con

sidered certified if it is substantially identicalPage 6494 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671i

to equipment certified as provided in subpara

graph (A). (3) The term ‘‘properly using’’ means, with respect to approved refrigerant recycling equipment, using such equipment in conform

ity with standards established by the Adminis

trator and applicable to the use of such equip

ment. Such standards shall, at a minimum, be at least as stringent as the standards of the Society of Automotive Engineers in effect as of November 15, 1990, and applicable to the use of such equipment (SAE standard J–1989). (4) The term ‘‘properly trained and cer

tified’’ means training and certification in the proper use of approved refrigerant recycling equipment for motor vehicle air conditioners in conformity with standards established by the Administrator and applicable to the per

formance of service on motor vehicle air con

ditioners. Such standards shall, at a mini

mum, be at least as stringent as specified, as of November 15, 1990, in SAE standard J–1989 under the certification program of the Na

tional Institute for Automotive Service Excel

lence (ASE) or under a similar program such as the training and certification program of the Mobile Air Conditioning Society (MACS). (c) Servicing motor vehicle air conditioners Effective January 1, 1992, no person repairing or servicing motor vehicles for consideration may perform any service on a motor vehicle air conditioner involving the refrigerant for such air conditioner without properly using approved refrigerant recycling equipment and no such person may perform such service unless such person has been properly trained and certified. The requirements of the previous sentence shall not apply until January 1, 1993 in the case of a person repairing or servicing motor vehicles for consideration at an entity which performed service on fewer than 100 motor vehicle air con

ditioners during calendar year 1990 and if such person so certifies, pursuant to subsection (d)(2)of this section, to the Administrator by January 1, 1992. (d) Certification (1) Effective 2 years after November 15, 1990, each person performing service on motor vehicle air conditioners for consideration shall certify to the Administrator either— (A) that such person has acquired, and is properly using, approved refrigerant recycling equipment in service on motor vehicle air con

ditioners involving refrigerant and that each individual authorized by such person to per

form such service is properly trained and cer

tified; or (B) that such person is performing such serv

ice at an entity which serviced fewer than 100 motor vehicle air conditioners in 1991. (2) Effective January 1, 1993, each person who certified under paragraph (1)(B) shall submit a certification under paragraph (1)(A). (3) Each certification under this subsection shall contain the name and address of the person certifying under this subsection and the serial number of each unit of approved recycling equipment acquired by such person and shall be signed and attested by the owner or another re

sponsible officer. Certifications under paragraph (1)(A) may be made by submitting the required information to the Administrator on a standard form provided by the manufacturer of certified refrigerant recycling equipment. (e) Small containers of class I or class II sub

stances Effective 2 years after November 15, 1990, it shall be unlawful for any person to sell or dis

tribute, or offer for sale or distribution, in inter

state commerce to any person (other than a per

son performing service for consideration on motor vehicle air-conditioning systems in com

pliance with this section) any class I or class II substance that is suitable for use as a refrig

erant in a motor vehicle air-conditioning system and that is in a container which contains less than 20 pounds of such refrigerant. (July 14, 1955, ch. 360, title VI, §609, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2662.)
§ 7671i. Nonessential products containing chloro

fluorocarbons (a) Regulations The Administrator shall promulgate regula

tions to carry out the requirements of this sec

tion within 1 year after November 15, 1990. (b) Nonessential products The regulations under this section shall iden

tify nonessential products that release class I substances into the environment (including any release occurring during manufacture, use, stor

age, or disposal) and prohibit any person from selling or distributing any such product, or of

fering any such product for sale or distribution, in interstate commerce. At a minimum, such prohibition shall apply to— (1) chlorofluorocarbon-propelled plastic party streamers and noise horns, (2) chlorofluorocarbon-containing cleaning fluids for noncommercial electronic and pho

tographic equipment, and (3) other consumer products that are deter

mined by the Administrator— (A) to release class I substances into the environment (including any release occur

ring during manufacture, use, storage, or disposal), and (B) to be nonessential. In determining whether a product is non

essential, the Administrator shall consider the purpose or intended use of the product, the tech

nological availability of substitutes for such product and for such class I substance, safety, health, and other relevant factors. (c) Effective date Effective 24 months after November 15, 1990, it shall be unlawful for any person to sell or dis

tribute, or offer for sale or distribution, in inter

state commerce any nonessential product to which regulations under subsection (a) of this section implementing subsection (b) of this sec

tion are applicable. (d) Other products (1) Effective January 1, 1994, it shall be unlaw

ful for any person to sell or distribute, or offerPage 6495 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671j

1 So in original. Probably should be followed by a period.

2 So in original. Probably should be ‘‘paragraph’’. for sale or distribution, in interstate com

merce— (A) any aerosol product or other pressurized dispenser which contains a class II substance;

or (B) any plastic foam product which contains, or is manufactured with, a class II substance. (2) The Administrator is authorized to grant exceptions from the prohibition under subpara

graph (A) of paragraph (1) where— (A) the use of the aerosol product or pressur

ized dispenser is determined by the Adminis

trator to be essential as a result of flammabil

ity or worker safety concerns, and (B) the only available alternative to use of a class II substance is use of a class I substance which legally could be substituted for such class II substance. (3) Subparagraph (B) of paragraph (1) shall not apply to— (A) a foam insulation product, or (B) an integral skin, rigid, or semi-rigid foam utilized to provide for motor vehicle safety in accordance with Federal Motor Vehi

cle Safety Standards where no adequate sub

stitute substance (other than a class I or class II substance) is practicable for effectively meeting such Standards. (e) Medical devices Nothing in this section shall apply to any medical device as defined in section 7671(8) of this title. (July 14, 1955, ch. 360, title VI, §610, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2664.)
§ 7671j. Labeling (a) Regulations The Administrator shall promulgate regula

tions to implement the labeling requirements of this section within 18 months after November 15, 1990, after notice and opportunity for public comment. (b) Containers containing class I or class II sub

stances and products containing class I sub

stances Effective 30 months after November 15, 1990, no container in which a class I or class II substance is stored or transported, and no product contain

ing a class I substance, shall be introduced into interstate commerce unless it bears a clearly legible and conspicuous label stating: ‘‘Warning: Contains [insert name of sub

stance], a substance which harms public health and environment by destroying ozone in the upper atmosphere’’. (c) Products containing class II substances (1) After 30 months after November 15, 1990, and before January 1, 2015, no product contain

ing a class II substance shall be introduced into interstate commerce unless it bears the label re

ferred to in subsection (b) of this section if the Administrator determines, after notice and op

portunity for public comment, that there are substitute products or manufacturing processes (A) that do not rely on the use of such class II substance, (B) that reduce the overall risk to human health and the environment, and (C) that are currently or potentially available. (2) Effective January 1, 2015, the requirements of subsection (b) of this section shall apply to all products containing a class II substance. (d) Products manufactured with class I and class II substances (1) In the case of a class II substance, after 30 months after November 15, 1990, and before Jan

uary 1, 2015, if the Administrator, after notice and opportunity for public comment, makes the determination referred to in subsection (c) of this section with respect to a product manufac

tured with a process that uses such class II sub

stance, no such product shall be introduced into interstate commerce unless it bears a clearly legible and conspicuous label stating: ‘‘Warning: Manufactured with [insert name of substance], a substance which harms public health and environment by destroying ozone in the upper atmosphere’’ 1 (2) In the case of a class I substance, effective 30 months after November 15, 1990, and before January 1, 2015, the labeling requirements of this subsection shall apply to all products man

ufactured with a process that uses such class I substance unless the Administrator determines that there are no substitute products or manu

facturing processes that (A) do not rely on the use of such class I substance, (B) reduce the overall risk to human health and the environ

ment, and (C) are currently or potentially avail

able. (e) Petitions (1) Any person may, at any time after 18 months after November 15, 1990, petition the Ad

ministrator to apply the requirements of this section to a product containing a class II sub

stance or a product manufactured with a class I or II substance which is not otherwise subject to such requirements. Within 180 days after receiv

ing such petition, the Administrator shall, pur

suant to the criteria set forth in subsection (c) of this section, either propose to apply the re

quirements of this section to such product or publish an explanation of the petition denial. If the Administrator proposes to apply such re

quirements to such product, the Administrator shall, by rule, render a final determination pur

suant to such criteria within 1 year after receiv

ing such petition. (2) Any petition under this paragaph 2 shall in

clude a showing by the petitioner that there are data on the product adequate to support the pe

tition. (3) If the Administrator determines that infor

mation on the product is not sufficient to make the required determination the Administrator shall use any authority available to the Admin

istrator under any law administered by the Ad

ministrator to acquire such information. (4) In the case of a product determined by the Administrator, upon petition or on the Adminis

trator’s own motion, to be subject to the re

quirements of this section, the Administrator shall establish an effective date for such require

-Page 6496 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671k

3 So in original. Probably should be ‘‘section’’. ments. The effective date shall be 1 year after such determination or 30 months after Novem

ber 15, 1990, whichever is later. (5) Effective January 1, 2015, the labeling re

quirements of this subsection 3 shall apply to all products manufactured with a process that uses a class I or class II substance. (f) Relationship to other law (1) The labeling requirements of this section shall not constitute, in whole or part, a defense to liability or a cause for reduction in damages in any suit, whether civil or criminal, brought under any law, whether Federal or State, other than a suit for failure to comply with the label

ing requirements of this section. (2) No other approval of such label by the Ad

ministrator under any other law administered by the Administrator shall be required with re

spect to the labeling requirements of this sec

tion. (July 14, 1955, ch. 360, title VI, §611, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2665.)
§ 7671k. Safe alternatives policy (a) Policy To the maximum extent practicable, class I and class II substances shall be replaced by chemicals, product substitutes, or alternative manufacturing processes that reduce overall risks to human health and the environment. (b) Reviews and reports
The Administrator shall— (1) in consultation and coordination with in

terested members of the public and the heads of relevant Federal agencies and departments, recommend Federal research programs and other activities to assist in identifying alter

natives to the use of class I and class II sub

stances as refrigerants, solvents, fire retardants, foam blowing agents, and other commercial applications and in achieving a transition to such alternatives, and, where ap

propriate, seek to maximize the use of Federal research facilities and resources to assist users of class I and class II substances in iden

tifying and developing alternatives to the use of such substances as refrigerants, solvents, fire retardants, foam blowing agents, and other commercial applications; (2) examine in consultation and coordination with the Secretary of Defense and the heads of other relevant Federal agencies and depart

ments, including the General Services Admin

istration, Federal procurement practices with respect to class I and class II substances and recommend measures to promote the transi

tion by the Federal Government, as expedi

tiously as possible, to the use of safe sub

stitutes; (3) specify initiatives, including appropriate intergovernmental, international, and com

mercial information and technology transfers, to promote the development and use of safe substitutes for class I and class II substances, including alternative chemicals, product sub

stitutes, and alternative manufacturing proc

esses; and (4) maintain a public clearinghouse of alter

native chemicals, product substitutes, and al

ternative manufacturing processes that are available for products and manufacturing processes which use class I and class II sub

stances. (c) Alternatives for class I or II substances Within 2 years after November 15, 1990, the Ad

ministrator shall promulgate rules under this section providing that it shall be unlawful to re

place any class I or class II substance with any substitute substance which the Administrator determines may present adverse effects to human health or the environment, where the Administrator has identified an alternative to such replacement that— (1) reduces the overall risk to human health and the environment; and (2) is currently or potentially available. The Administrator shall publish a list of (A) the substitutes prohibited under this subsection for specific uses and (B) the safe alternatives identi

fied under this subsection for specific uses. (d) Right to petition Any person may petition the Administrator to add a substance to the lists under subsection (c) of this section or to remove a substance from ei

ther of such lists. The Administrator shall grant or deny the petition within 90 days after receipt of any such petition. If the Administrator denies the petition, the Administrator shall publish an explanation of why the petition was denied. If the Administrator grants such petition the Ad

ministrator shall publish such revised list with

in 6 months thereafter. Any petition under this subsection shall include a showing by the peti

tioner that there are data on the substance ade

quate to support the petition. If the Adminis

trator determines that information on the sub

stance is not sufficient to make a determination under this subsection, the Administrator shall use any authority available to the Adminis

trator, under any law administered by the Ad

ministrator, to acquire such information. (e) Studies and notification The Administrator shall require any person who produces a chemical substitute for a class I substance to provide the Administrator with such person’s unpublished health and safety studies on such substitute and require producers to notify the Administrator not less than 90 days before new or existing chemicals are intro

duced into interstate commerce for significant new uses as substitutes for a class I substance. This subsection shall be subject to section 7414(c) of this title. (July 14, 1955, ch. 360, title VI, §612, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2667.)
§ 7671 l . Federal procurement
Not later than 18 months after November 15, 1990, the Administrator, in consultation with the Administrator of the General Services Ad

ministration and the Secretary of Defense, shall promulgate regulations requiring each depart

-Page 6497 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671 o

ment, agency, and instrumentality of the United States to conform its procurement regulations to the policies and requirements of this sub

chapter and to maximize the substitution of safe alternatives identified under section 7671k of this title for class I and class II substances. Not later than 30 months after November 15, 1990, each department, agency, and instrumentality of the United States shall so conform its pro

curement regulations and certify to the Presi

dent that its regulations have been modified in accordance with this section. (July 14, 1955, ch. 360, title VI, §613, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2668.)

E XECUTIVE O RDER N O . 12843 Ex. Ord. No. 12843, Apr. 21, 1993, 58 F.R. 21881, which provided for Federal agencies to implement policies and programs to minimize procurement of ozone-de

pleting substances, was revoked by Ex. Ord. No. 13148, §901, Apr. 21, 2000, 65 F.R. 24604, formerly set out as a note under section 4321 of this title. § 7671m. Relationship to other laws (a) State laws Notwithstanding section 7416 of this title, dur

ing the 2-year period beginning on November 15, 1990, no State or local government may enforce any requirement concerning the design of any new or recalled appliance for the purpose of pro

tecting the stratospheric ozone layer. (b) Montreal Protocol This subchapter as added by the Clean Air Act Amendments of 1990 shall be construed, inter

preted, and applied as a supplement to the terms and conditions of the Montreal Protocol, as pro

vided in Article 2, paragraph 11 thereof, and shall not be construed, interpreted, or applied to abrogate the responsibilities or obligations of the United States to implement fully the provi

sions of the Montreal Protocol. In the case of conflict between any provision of this sub

chapter and any provision of the Montreal Pro

tocol, the more stringent provision shall govern. Nothing in this subchapter shall be construed, interpreted, or applied to affect the authority or responsibility of the Administrator to imple

ment Article 4 of the Montreal Protocol with other appropriate agencies. (c) Technology export and overseas investment Upon November 15, 1990, the President shall— (1) prohibit the export of technologies used to produce a class I substance; (2) prohibit direct or indirect investments by any person in facilities designed to produce a class I or class II substance in nations that are not parties to the Montreal Protocol; and (3) direct that no agency of the government provide bilateral or multilateral subsidies, aids, credits, guarantees, or insurance pro

grams, for the purpose of producing any class I substance. (July 14, 1955, ch. 360, title VI, §614, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2668.)

R EFERENCES IN T EXT The Clean Air Act Amendments of 1990, referred to in subsec. (b), probably means Pub. L. 101–549, Nov. 15, 1990, 104 Stat. 2399. For complete classification of this Act to the Code, see Short Title of 1990 Amendment note set out under section 7401 of this title and Tables. § 7671n. Authority of Administrator
If, in the Administrator’s judgment, any sub

stance, practice, process, or activity may rea

sonably be anticipated to affect the strato

sphere, especially ozone in the stratosphere, and such effect may reasonably be anticipated to en

danger public health or welfare, the Adminis

trator shall promptly promulgate regulations respecting the control of such substance, prac

tice, process, or activity, and shall submit no

tice of the proposal and promulgation of such regulation to the Congress. (July 14, 1955, ch. 360, title VI, §615, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2669.)
§ 7671 o . Transfers among Parties to Montreal Protocol (a) In general Consistent with the Montreal Protocol, the United States may engage in transfers with other Parties to the Protocol under the follow

ing conditions: (1) The United States may transfer produc

tion allowances to another Party if, at the time of such transfer, the Administrator es

tablishes revised production limits for the United States such that the aggregate na

tional United States production permitted under the revised production limits equals the lesser of (A) the maximum production level permitted for the substance or substances con

cerned in the transfer year under the Protocol minus the production allowances transferred, (B) the maximum production level permitted for the substance or substances concerned in the transfer year under applicable domestic law minus the production allowances trans

ferred, or (C) the average of the actual na

tional production level of the substance or substances concerned for the 3 years prior to the transfer minus the production allowances transferred. (2) The United States may acquire produc

tion allowances from another Party if, at the time of such transfer, the Administrator finds that the other Party has revised its domestic production limits in the same manner as pro

vided with respect to transfers by the United States in this subsection. (b) Effect of transfers on production limits
The Administrator is authorized to reduce the production limits established under this chapter as required as a prerequisite to transfers under paragraph (1) of subsection (a) of this section or to increase production limits established under this chapter to reflect production allowances ac

quired under a transfer under paragraph (2) of subsection (a) of this section. (c) Regulations The Administrator shall promulgate, within 2 years after November 15, 1990, regulations to im

plement this section. (d) ‘‘Applicable domestic law’’ defined In the case of the United States, the term ‘‘ap

plicable domestic law’’ means this chapter.Page 6498 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671p

(July 14, 1955, ch. 360, title VI, §616, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2669.) § 7671p. International cooperation (a) In general
The President shall undertake to enter into international agreements to foster cooperative research which complements studies and re

search authorized by this subchapter, and to de

velop standards and regulations which protect the stratosphere consistent with regulations ap

plicable within the United States. For these pur

poses the President through the Secretary of State and the Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs, shall negotiate multilateral treaties, conventions, resolutions, or other agreements, and formulate, present, or support proposals at the United Nations and other ap

propriate international forums and shall report to the Congress periodically on efforts to arrive at such agreements. (b) Assistance to developing countries The Administrator, in consultation with the Secretary of State, shall support global partici

pation in the Montreal Protocol by providing technical and financial assistance to developing countries that are Parties to the Montreal Pro

tocol and operating under article 5 of the Proto

col. There are authorized to be appropriated not more than $30,000,000 to carry out this section in fiscal years 1991, 1992 and 1993 and such sums as may be necessary in fiscal years 1994 and 1995. If China and India become Parties to the Montreal Protocol, there are authorized to be appro

priated not more than an additional $30,000,000 to carry out this section in fiscal years 1991, 1992, and 1993. (July 14, 1955, ch. 360, title VI, §617, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2669.)

A UTHORITY OF S ECRETARY OF S TATE Except as otherwise provided, Secretary of State to have and exercise any authority vested by law in any official or office of Department of State and references to such officials or offices deemed to refer to Secretary of State or Department of State, as appropriate, see section 2651a of Title 22, Foreign Relations and Inter

course, and section 161(d) of Pub. L. 103–236, set out as a note under section 2651a of Title 22. § 7671q. Miscellaneous provisions
For purposes of section 7416 of this title, re

quirements concerning the areas addressed by this subchapter for the protection of the strato

sphere against ozone layer depletion shall be treated as requirements for the control and abatement of air pollution. For purposes of sec

tion 7418 of this title, the requirements of this subchapter and corresponding State, interstate, and local requirements, administrative author

ity, and process, and sanctions respecting the protection of the stratospheric ozone layer shall be treated as requirements for the control and abatement of air pollution within the meaning of section 7418 of this title. (July 14, 1955, ch. 360, title VI, §618, as added Pub. L. 101–549, title VI, §602(a), Nov. 15, 1990, 104 Stat. 2670.) CHAPTER 86—EARTHQUAKE HAZARDS REDUCTION

Sec. 7701. Congressional findings. 7702. Congressional statement of purpose. 7703. Definitions. 7704. National Earthquake Hazards Reduction Pro

gram. 7704a. Report on seismic safety property standards. 7705, 7705a. Repealed. 7705b. Seismic standards. 7705c. Acceptance of gifts. 7705d. Repealed. 7705e. Post-earthquake investigations program. 7706. Authorization of appropriations. 7707. Advanced National Seismic Research and

Monitoring System. 7708. Network for Earthquake Engineering Simula

tion. 7709. Scientific Earthquake Studies Advisory Com

mittee. § 7701. Congressional findings
The Congress finds and declares the following: (1) All 50 States are vulnerable to the haz

ards of earthquakes, and at least 39 of them are subject to major or moderate seismic risk, including Alaska, California, Hawaii, Illinois, Massachusetts, Missouri, Montana, Nevada, New Jersey, New York, South Carolina, Utah, and Washington. A large portion of the popu

lation of the United States lives in areas vul

nerable to earthquake hazards. (2) Earthquakes have caused, and can cause in the future, enormous loss of life, injury, de

struction of property, and economic and social disruption. With respect to future earth

quakes, such loss, destruction, and disruption can be substantially reduced through the de

velopment and implementation of earthquake hazards reduction measures, including (A) im

proved design and construction methods and practices, (B) land-use controls and redevelop

ment, (C) prediction techniques and earlywarning systems, (D) coordinated emergency preparedness plans, and (E) public education and involvement programs. (3) An expertly staffed and adequately fi

nanced earthquake hazards reduction pro

gram, based on Federal, State, local, and pri

vate research, planning, decisionmaking, and contributions would reduce the risk of such loss, destruction, and disruption in seismic areas by an amount far greater than the cost of such program. (4) A well-funded seismological research pro

gram in earthquake prediction could provide data adequate for the design, of an operational system that could predict accurately the time, place, magnitude, and physical effects of earthquakes in selected areas of the United States. (5) The geological study of active faults and features can reveal how recently and how fre

quently major earthquakes have occurred on those faults and how much risk they pose. Such long-term seismic risk assessments are needed in virtually every aspect of earthquake hazards management, whether emergency planning, public regulation, detailed building design, insurance rating, or investment deci

sion.