TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6206

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 environmental management funds.

Section 7386j related to transfer of weapons activities

funds.

Section 7386k related to funds available for all national security programs of the Department of Energy.

CHAPTER 85—AIR POLLUTION PREVENTION

AND CONTROL

SUBCHAPTER I—PROGRAMS AND ACTIVITIES

PART A—AIR QUALITY AND EMISSION LIMITATIONS

Sec.

7401. Congressional findings and declaration of purpose.

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 primary 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.

PART B—OZONE PROTECTION

7450 to 7459. Repealed.

PART C—PREVENTION OF SIGNIFICANT DETERIORATION

OF AIR QUALITY

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.

PART D—PLAN REQUIREMENTS FOR NONATTAINMENT

AREAS

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 nonattainment areas.

7508. Guidance documents.

7509. Sanctions and consequences of failure to attain.

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. NOx 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 submissions.

7513b. Issuance of RACM and BACM guidance.

SUBPART 5—ADDITIONAL PROVISIONS FOR AREAS DESIGNATED NONATTAINMENT FOR SULFUR OXIDES, NITROGEN 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

PART A—MOTOR VEHICLE EMISSION AND FUEL

STANDARDS

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 compliance 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 requiring leaded gasoline.

7554. Urban bus standards.

PART B—AIRCRAFT EMISSION STANDARDS

7571. Establishment of standards.

7572. Enforcement of standards.

7573. State standards and controls.

7574. Definitions.

PART C—CLEAN FUEL VEHICLES

7581. Definitions.

7582. Requirements applicable to clean-fuel vehicles.

7583. Standards for light-duty clean-fuel vehicles.

7584. Administration and enforcement as per California 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 review.

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 governments.

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 requirements.

7651l. General compliance with other provisions.

7651m. Enforcement.

7651n. Clean coal technology regulatory incentives.

7651o. 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 chlorofluorocarbons.

7671j. Labeling.

7671k. Safe alternatives policy.

7671l. Federal procurement.

7671m. Relationship to other laws.

7671n. Authority of Administrator.

7671o. Transfers among Parties to Montreal Protocol.

7671p. International cooperation.

7671q. Miscellaneous provisions.

CODIFICATION

Act July 14, 1955, ch. 360, 69 Stat. 322, as amended,

known as the Clean Air Act, which was formerly classified to chapter 15B (§1857 et seq.) of this title, was completely revised by Pub. L. 95–95, Aug. 7, 1977, 91 Stat.

685, and was reclassified to this chapter.

SUBCHAPTER I—PROGRAMS AND

ACTIVITIES

PART A—AIR QUALITY AND EMISSION

LIMITATIONS

AMENDMENTS

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, which
§ 7401 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6208

generally cross the boundary lines of local jurisdictions and often extend into two or more

States;

(2) that the growth in the amount and complexity of air pollution brought about by urbanization, 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 deterioration of property, and hazards to air and ground

transportation;

(3) that air pollution prevention (that is, the

reduction or elimination, through any measures, of the amount of pollutants produced or

created at the source) and air pollution control 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 research and development program to achieve

the prevention and control of air pollution;

(3) to provide technical and financial assistance to State and local governments in connection with the development and execution of

their air pollution prevention and control programs; and

(4) to encourage and assist the development

and operation of regional air pollution prevention 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 prevention.

(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.)

CODIFICATION

Section was formerly classified to section 1857 of this

title.

PRIOR PROVISIONS

Provisions similar to those in this section were contained 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.

AMENDMENTS

1990—Subsec. (a)(3). Pub. L. 101–549, §108(k)(1), amended par. (3) generally. Prior to amendment, par. (3) read

as follows: ‘‘that the prevention and control of air pollution 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 enhance 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’’.

EFFECTIVE DATE OF 1990 AMENDMENT

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 classification] 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 provisions 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 enactment of this Act. Violations that occur prior to such

date shall be subject to the civil penalty provisions prescribed 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 assumed to be the date on which the violation is discovered.’’

EFFECTIVE DATE OF 1977 AMENDMENT; PENDING ACTIONS; CONTINUATION OF RULES, CONTRACTS, AUTHORIZATIONS, ETC.; IMPLEMENTATION PLANS

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 official capacity or in relation to the discharge of his official 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 taking 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 effect, 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 pursuant 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 rescinded in accordance with the Clean Air Act as amended 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 section 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 section [Aug. 7, 1977] until modified or rescinded in accordance 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 amendment made by this Act which are necessary for the

approval of such plan revision.’’

SHORT TITLE OF 1999 AMENDMENT

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 Information, Site Security and Fuels Regulatory Relief

Act’.’’

SHORT TITLE OF 1998 AMENDMENT

Pub. L. 105–286, §1, Oct. 27, 1998, 112 Stat. 2773, provided 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’.’’

SHORT TITLE OF 1990 AMENDMENT

Pub. L. 101–549, Nov. 15, 1990, 104 Stat. 2399, is popularly known as the ‘‘Clean Air Act Amendments of

1990’’. See Tables for classification.

SHORT TITLE OF 1981 AMENDMENT

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’.’’

SHORT TITLE OF 1977 AMENDMENT

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’.’’

SHORT TITLE OF 1970 AMENDMENT

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’.’’

SHORT TITLE OF 1967 AMENDMENT

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’.’’

SHORT TITLE OF 1966 AMENDMENT

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’.’’

SHORT TITLE

Section 317, formerly section 14, of act July 14, 1955,

as added by section 1 of Pub. L. 88–206, renumbered section 307 by section 101(4) of Pub. L. 89–272, renumbered

section 310 by section 2 of Pub. L. 90–148, and renumbered 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 chapter] may be cited as the ‘Noise Pollution and Abatement Act of 1970’.’’

SAVINGS PROVISION

Section 711(a) of Pub. L. 101–549 provided that: ‘‘Except as otherwise expressly provided in this Act [see

Tables for classification], no suit, action, or other proceeding 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.’’

TRANSFER OF FUNCTIONS

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 Service, including functions exercised by National Air Pollution Control Administration, and Environmental

Control Administration’s Bureau of Solid Waste Management, Bureau of Water Hygiene, and Bureau of Radiological Health, except insofar as functions carried

out by Bureau of Radiological Health pertain to regulation of radiation from consumer products, including

electronic product radiation, radiation as used in healing arts, occupational exposure to radiation, and research, technical assistance, and training related to radiation from consumer products, radiation as used in

healing arts, and occupational exposure to radiation.

IMPACT ON SMALL COMMUNITIES

Section 810 of Pub. L. 101–549 provided that: ‘‘Before

implementing a provision of this Act [see Tables for

classification], the Administrator of the Environmental Protection Agency shall consult with the Small

Communities Coordinator of the Environmental Protection Agency to determine the impact of such provision on small communities, including the estimated

cost of compliance with such provision.’’

RADON ASSESSMENT AND MITIGATION

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) NATIONAL 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 normally live or work, including educational institutions;
§ 7401 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6210

‘‘(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 subparagraph (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 materials based on the findings or research of mitigating

radon.

‘‘(2) RADON MITIGATION DEMONSTRATION PROGRAM.—

‘‘(A) DEMONSTRATION PROGRAM.—The Administrator

shall conduct a demonstration program to test methods 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) LIABILITY.—Liability, if any, for persons

undertaking activities pursuant to the radon mitigation demonstration program authorized under this

subsection shall be determined under principles of existing law.

‘‘(3) CONSTRUCTION OF SECTION.—Nothing in this subsection 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 coordination

activities specified in this subsection. Nothing in paragraph (1) or (2) shall be construed to limit the authority of the Administrator or of any other agency or instrumentality of the United States under any other authority of law.’’

SPILL CONTROL TECHNOLOGY

Pub. L. 99–499, title I, §118(n), Oct. 17, 1986, 100 Stat.

1660, provided that:

‘‘(1) ESTABLISHMENT OF PROGRAM.—Within 180 days of

enactment of this subsection [Oct. 17, 1986], the Secretary of the United States Department of Energy is directed 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) TECHNOLOGY TRANSFER.—In carrying out the program established under this subsection, the Secretary

shall conduct a technology transfer program that, at a

minimum—

‘‘(A) documents and archives spill control technology;

‘‘(B) investigates and analyzes significant hazardous spill incidents;

‘‘(C) develops and provides generic emergency action 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 engaged in spill response activities.

‘‘(3) CONTRACTS AND GRANTS.—The Secretary is directed to enter into contracts and grants with a nonprofit organization in Albany County, Wyoming, that is

capable of providing the necessary technical support

and which is involved in environmental activities related to such hazardous substance related emergencies.

‘‘(4) USE 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.’’

RADON GAS AND INDOOR AIR QUALITY RESEARCH

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 exposure to radon and indoor air pollutants should be developed by the appropriate Federal agencies.

‘‘SEC. 403. RADON GAS AND INDOOR AIR QUALITY

RESEARCH PROGRAM.

‘‘(a) DESIGN OF PROGRAM.—The Administrator of the

Environmental Protection Agency shall establish a research 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 understanding of health problems associated with the existence of air pollutants in the indoor environment;

‘‘(2) coordinate Federal, State, local, and private

research and development efforts relating to the improvement of indoor air quality; and

‘‘(3) assess appropriate Federal Government actions

to mitigate the environmental and health risks associated with indoor air quality problems.

‘‘(b) PROGRAM REQUIREMENTS.—The research program

required under this section shall include—

‘‘(1) research and development concerning the identification, characterization, and monitoring of the

sources and levels of indoor air pollution, including

radon, which includes research and development relating to—

‘‘(A) the measurement of various pollutant concentrations and their strengths and sources,

‘‘(B) high-risk building types, and

‘‘(C) instruments for indoor air quality data collection;

‘‘(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 development, evaluation, and testing of individual and generic 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 Administrator 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 content of soil, porosity of soil, and radon content of

soil; and

‘‘(B) design measures to avoid indoor air pollution; and

‘‘(6) the dissemination of information to assure the

public availability of the findings of the activities

under this section.

‘‘(c) ADVISORY COMMITTEES.—The Administrator shall

establish a committee comprised of individuals representing Federal agencies concerned with various aspects of indoor air quality and an advisory group comprised of individuals representing the States, the scientific community, industry, and public interest organizations to assist him in carrying out the research

program for radon gas and indoor air quality.

‘‘(d) IMPLEMENTATION PLAN.—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 implementation of the research program under this section. Such plan shall also be submitted to the EPA

Science Advisory Board, which shall, within a reasonable period of time, submit its comments on such plan

to Congress.

‘‘(e) REPORT.—Not later than 2 years after the enactment 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 coordination 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 instrumentality of the United States under any other authority 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 demonstration 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 appropriated in fiscal years 1987 and 1988, two-fifths shall

be reserved for the implementation of section

118(k)(2).’’

STUDY OF ODORS AND ODOROUS EMISSIONS

Pub. L. 95–95, title IV, §403(b), Aug. 7, 1977, 91 Stat.

792, directed Administrator of Environmental Protection 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 technology or measures, and costs and benefits of alternative measures or strategies to abate such emissions.

LIST OF CHEMICAL CONTAMINANTS FROM

ENVIRONMENTAL POLLUTION FOUND IN HUMAN TISSUE

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 contaminants 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 approximate 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 Administrator, 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 epidemiological study to demonstrate the relationship between levels of chemicals in the environment and in human tissue, 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 results of such study to be reported, as soon as practicable, to appropriate committee of Congress.

STUDY ON REGIONAL AIR QUALITY

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 particulate matter and contribution of such substances to

visibility and public health problems in such areas,

with Administrator to use environmental health experts from the National Institutes of Health and other

outside agencies and organizations.

RAILROAD EMISSION STUDY

Pub. L. 95–95, title IV, §404, Aug. 7, 1977, 91 Stat. 793,

as amended by H. Res. 549, Mar. 25, 1980, directed Administrator of EPA to conduct a study and investigation of emissions of air pollutants from railroad locomotives, 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 technology for controlling such emissions, and status and

effect of current and proposed State and local regulations affecting such emissions, and within one hundred

and eighty days after commencing such study and investigation, Administrator to submit a report of such

study and investigation, together with recommendations for appropriate legislation, to Senate Committee

on Environment and Public Works and House Committee on Energy and Commerce.

STUDY AND REPORT CONCERNING ECONOMIC

APPROACHES TO CONTROLLING AIR POLLUTION

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 assessment of economic measures for control of air pollution

which could strengthen effectiveness of existing methods 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.

NATIONAL INDUSTRIAL POLLUTION CONTROL COUNCIL

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.

FEDERAL COMPLIANCE WITH POLLUTION CONTROL

STANDARDS

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.

EXECUTIVE ORDER NO. 10779

Ex. Ord. No. 10779, Aug. 21, 1958, 23 F.R. 6487, which related 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 section 7418 of this title.

EXECUTIVE ORDER NO. 11507

Ex. Ord. No. 11507, Feb. 4, 1970, 35 F.R. 2573, which provided for 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.

§ 7402. Cooperative activities

(a) Interstate cooperation; uniform State laws;

State compacts

The Administrator shall encourage cooperative activities by the States and local governments for the prevention and control of air pollution; encourage the enactment of improved

and, so far as practicable in the light of varying
§ 7403 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6212

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 relating to the prevention and control of air pollution, so as to assure the utilization in the Federal air pollution control program of all appropriate 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 agencies, joint or otherwise, as they may deem desirable 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 participation by a State which is not included (in

whole or in part) in such air quality control region.

(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.)

CODIFICATION

Section was formerly classified to section 1857a of

this title.

PRIOR PROVISIONS

Provisions similar to those in the first clause of subsec. (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.

AMENDMENTS

1970—Subsecs. (a), (b). Pub. L. 91–604 substituted ‘‘Administrator’’ 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 purposes 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 prevention and control of air pollution

The Administrator shall establish a national

research and development program for the prevention 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 (including health and welfare effects), extent, prevention, and control of air pollution;

(2) encourage, cooperate with, and render

technical services and provide financial assistance to air pollution control agencies and

other appropriate public or private agencies,

institutions, and organizations, and individuals 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 recommending 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 community 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 aspects of air pollution to assist in the examination 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 relating to the causes, effects, extent, prevention,

and control of air pollution.

(b) Authorized activities of Administrator in establishing research and development program

In carrying out the provisions of the preceding

subsection the Administrator is authorized to—

(1) collect and make available, through publications and other appropriate means, the results of and other information, including appropriate recommendations by him in connection therewith, pertaining to such research

and other activities;

(2) cooperate with other Federal departments and agencies, with air pollution control

agencies, with other public and private agencies, institutions, and organizations, and with

any industries involved, in the preparation

and conduct of such research and other activities;

(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 subsection (a)(1) of this section;

(4) contract with public or private agencies,

institutions, and organizations, and with individuals, without regard to section 3324(a) and

(b) of title 31 and section 6101 of title 41;

(5) establish and maintain research fellowships, in the Environmental Protection Agen-
Page 6213 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7403

1So in original. Probably should be ‘‘precursors,’’.

cy and at public or nonprofit private educational institutions or research organizations;

(6) collect and disseminate, in cooperation

with other Federal departments and agencies,

and with other public or private agencies, institutions, and organizations having related

responsibilities, basic data on chemical, physical, and biological effects of varying air quality 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 prevention 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, personnel 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 organizations 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, analysis, and modeling of air pollutants. Such program 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 quantification of certainty in the status and trends

of air emissions, deposition, air quality, surface water quality, forest condition, and visibility impairment, and to ensure the comparability of air quality data collected in different States and obtained from different nations.

(3) Development of improved methods and

technologies for sampling, measurement, monitoring, 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 emissions of volatile organic compounds and nitrogen oxides that contribute to urban air

pollution, including anthropogenic and natural 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 control 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, including wood smoke, on human health. In conducting such research program the Administrator—

(A) shall conduct studies, including epidemiological, 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 laboratories and research centers; and

(C) shall consult with other Federal agencies

to ensure that similar research being conducted 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 National Institute for Environmental Health Sciences, the Environmental Protection Agency,

the Agency for Toxic Substances and Disease

Registry, the National Toxicology Program,

the National Institute of Standards and Technology, the National Science Foundation, the

Surgeon General, and the Department of Energy. This Interagency Task Force shall be

chaired by a representative of the Environmental Protection Agency and shall convene

its first meeting within 60 days after November 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 information, 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 frequency of occurrence as an air pollutant and

volume of emissions in populated areas. Such

evaluation shall be reviewed by the Interagency Task Force established pursuant to

subparagraph (A).

(C) Preparation of environmental health assessments for each of the hazardous air pollut-
§ 7403 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6214

ants referred to in subparagraph (B), beginning 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 Interagency Task Force and the Science Advisory

Board of the Environmental Protection Agency. Each such assessment shall include—

(i) an examination, summary, and evaluation of available toxicological and epidemiological information for the pollutant to ascertain 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 information 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 effects in humans.

(e) Ecosystem research

In carrying out subsection (a) of this section,

the Administrator, in cooperation, where appropriate, 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 ecosystems damage from air pollutants on ecosystems. Such program shall include the following elements:

(1) Identification of regionally representative and critical ecosystems for research.

(2) Evaluation of risks to ecosystems exposed to air pollutants, including characterization of the causes and effects of chronic and

episodic exposures to air pollutants and determination of the reversibility of those effects.

(3) Development of improved atmospheric

dispersion models and monitoring systems and

networks for evaluating and quantifying exposure 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 derived pollutants on surface water (including

wetlands and estuaries) and groundwater.

(5) Evaluation of the effects of air pollution

on forests, materials, crops, biological diversity, soils, and other terrestrial and aquatic

systems exposed to air pollutants.

(6) Estimation of the associated economic

costs of ecological damage which have occurred as a result of exposure to air pollutants.

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 Coordinating Council for Science, Engineering, and

Technology, shall oversee an experimental and

analytical research effort, with the experimental research to be carried out at the Liquefied Gaseous Fuels Spill Test Facility. In consultation with the Secretary of Energy, the Administrator 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 minimum of 2 chemicals for field testing each year.

Highest priority shall be given to those chemicals that would present the greatest potential

risk to human health as a result of an accidental release—

(A) from a fixed site; or

(B) related to the transport of such chemicals.

(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, standardized 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 mitigation and emergency response technology for

fixed site and transportation related accidental releases of toxic chemicals.

Models pertaining to accidental release shall be

evaluated and improved periodically for their

utility in planning and implementing evacuation procedures and other mitigative strategies

designed to minimize human exposure to hazardous air pollutants released accidentally.

(3) The Secretary of Energy shall make available to interested persons (including other Federal agencies and businesses) the use of the Liquefied Gaseous Fuels Spill Test Facility to conduct 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 engineering research and technology program to develop, evaluate, and demonstrate nonregulatory

strategies and technologies for air pollution prevention. 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 interest
Page 6215 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7403

groups, scientists, and other interested persons

in the development of such strategies and technologies. Such program shall include the following elements:

(1) Improvements in nonregulatory strategies and technologies for preventing or reducing multiple air pollutants, including sulfur

oxides, nitrogen oxides, heavy metals, PM–10

(particulate matter), carbon monoxide, and

carbon dioxide, from stationary sources, including fossil fuel power plants. Such strategies and technologies shall include improvements in the relative cost effectiveness and

long-range implications of various air pollutant reduction and nonregulatory control strategies 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 facilities.

(2) Improvements in nonregulatory strategies and technologies for reducing air emissions from area sources.

(3) Improvements in nonregulatory strategies and technologies for preventing, detecting, and correcting accidental releases of hazardous air pollutants.

(4) Improvements in nonregulatory strategies 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 Administrator shall consult with other appropriate Federal 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, characterize, 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 physicians in environmental health.

(3) The Director shall assure that such programs shall not conflict with research undertaken 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 implement a plan for identifying areas in which activities authorized under this section can be carried out in conjunction with other Federal ecological and air pollution research efforts. The

plan, which shall be submitted to Congress within 6 months after November 15, 1990, shall include—

(1) an assessment of ambient monitoring stations 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 feasibility 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 effects; and

(3) a methodology for evaluating and ranking 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 subsection, and shall include in such report any revisions 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 modifications pursuant to this subsection.

(2) The Acid Precipitation Task Force shall

consist of the Administrator of the Environmental Protection Agency, the Secretary of Energy, the Secretary of the Interior, the Secretary of Agriculture, the Administrator of the

National Oceanic and Atmospheric Administration, the Administrator of the National Aeronautics and Space Administration, and such additional 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 activities conducted to date under the comprehensive 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 establishes a coordinated program to address current 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 additional research in the scientific community as

necessary to ensure the availability and quality of data and methodologies needed to evaluate 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 application of models, such as the Regional Acid

Deposition Model, that describe the interactions of emissions with the atmosphere,
§ 7403 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6216

2So 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 effectiveness of the acid deposition control

program.

(C) Publication and maintenance of a National Acid Lakes Registry that tracks the

condition and change over time of a statistically representative sample of lakes in regions 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 connection with the research program described

in this subsection.

(E) Beginning in 1992 and biennially thereafter, submission of a report to Congress describing the results of its investigations and

analyses. The reporting of technical information 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 transformation 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 deposition, 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 deposition control program created by subchapter 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 conference 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 representative in accordance with procedures prescribed by the Administrator. If the Administrator finds, on the basis of the evidence presented at such conference, that the discharge or

discharges if permitted to take place or continue are likely to cause or contribute to air

pollution subject to abatement under this part,

the Administrator shall send such findings, together with recommendations concerning the

measures which the Administrator finds reasonable 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 recommendations shall be advisory only, but shall

be admitted together with the record of the conference, as part of the proceedings under subsections (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.)

REFERENCES IN TEXT

The Acid Precipitation Act of 1980, referred to in subsec. (j)(1), (3)(A), is title VII of Pub. L. 96–294, June 30,

1980, 94 Stat. 770, which is classified generally to chapter 97 (§8901 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note

set out under section 8901 of this title and Tables.

CODIFICATION

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 Contracts.

Section was formerly classified to section 1857b of

this title.

PRIOR PROVISIONS

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 contained 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 chapter by Pub. L. 88–206.

AMENDMENTS

1990—Subsec. (a)(1). Pub. L. 101–549, §901(a)(1), inserted ‘‘(including health and welfare effects)’’ after

‘‘effects’’.

Subsec. (b)(8). Pub. L. 101–549, §901(a)(2), which directed amendment of subsec. (b) by adding par. (8) at

end, was executed by adding par. (8) after par. (7) to reflect 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), results of other scientific studies; in subsec. (d), construction of facilities; in subsec. (e), potential air pollution

problems, conferences, and findings and recommendations of the Administrator; and, in subsec. (f), accelerated research programs.

Subsecs. (g) to (k). Pub. L. 101–549, §901(c), added subsecs. (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 personnel of air pollution control agencies and other persons with suitable qualifications, redesignated pars. (6),

(7), and (8) as (5), (6), and (7), respectively, and, following par. (7) as so redesignated, inserted provisions directing 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 purposes 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 ‘‘Administrator’’ for ‘‘Secretary’’ and ‘‘Environmental Protection 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 ‘‘Administrator’’ for ‘‘Secretary’’.

Subsec. (e). Pub. L. 91–604, §15(c)(2), substituted ‘‘Administrator’’ for ‘‘Secretary’’ wherever appearing, substituted ‘‘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 ‘‘establish technical advisory committees composed of recognized experts in various aspects of air pollution to assist in the examination and evaluation of research

progress and proposals and to avoid duplication of research’’ 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 programs relating to the control of hydrocarbon emissions

from evaporation of gasoline and nitrogen and aldehyde

oxide emission from gasoline and diesel powered vehicles 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 recommendation 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 recommendations 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).

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

TERMINATION OF REPORTING REQUIREMENTS

For termination, effective May 15, 2000, of provisions

in subsec. (i) of this section requiring quadrennial reports 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.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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.

TERMINATION OF ADVISORY COMMITTEES

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, Government Organization and Employees.

PILOT DESIGN PROGRAMS

Pub. L. 106–246, div. B, title II, §2603, July 13, 2000, 114

Stat. 558, required the Administrator of the Environmental 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.

NATIONAL ACID LAKES REGISTRY

Section 405 of Pub. L. 101–549 provided that: ‘‘The Administrator 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.’’

ASSESSMENT OF INTERNATIONAL AIR POLLUTION

CONTROL TECHNOLOGIES

Section 901(e) of Pub. L. 101–549 directed Administrator of Environmental Protection Agency to conduct

a study that compares international air pollution control technologies of selected industrialized countries to

determine if there exist air pollution control technologies 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, submit to Congress a report detailing the results of such

study.

WESTERN STATES ACID DEPOSITION RESEARCH

Section 901(g) of Pub. L. 101–549 provided that:
§ 7404 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6218

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

2So in original. The word ‘‘and’’ probably should appear.

‘‘(1) The Administrator of the Environmental Protection Agency shall sponsor monitoring and research and

submit to Congress annual and periodic assessment reports 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 acidification, particularly with respect to high elevation

watersheds.

‘‘(2) The Administrator of the Environmental Protection 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 increases 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 paragraph in the reports issued to Congress under paragraph (1).’’

CONSULTATION WITH AND TRANSMISSION OF REPORTS

AND STUDIES TO CONGRESSIONAL COMMITTEE

Pub. L. 95–95, title I, §101(c), Aug. 7, 1977, 91 Stat. 687,

provided that: ‘‘The Administrator of the Environmental Protection Agency shall consult with the House

Committee on Science and Technology [now Committee on Science, Space, and Technology] on the environmental 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 demonstration issues shall be transmitted to the Committee on Science and Technology [now Committee on

Science, Space, and Technology] at the same time they

are made available to other committees of the Congress.’’

STUDY OF SUBSTANCES DISCHARGED FROM EXHAUSTS

OF MOTOR VEHICLES

Pub. L. 86–493, June 8, 1960, 74 Stat. 162, directed Surgeon General of Public Health Service to conduct a

thorough study for purposes of determining, with respect to the various substances discharged from exhausts 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 report on results of the study, together with such recommendations, 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 research

The Administrator shall give special emphasis

to research and development into new and improved methods, having industry-wide application, for the prevention and control of air pollution resulting from the combustion of fuels. In

furtherance of such research and development

he shall—

(1) conduct and accelerate research programs directed toward development of improved, 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 evaporation of fuels,

(D) improving the efficiency of fuels combustion so as to decrease atmospheric emissions, and

(E) producing synthetic or new fuels

which, when used, result in decreased atmospheric emissions.1

(2) provide for Federal grants to public or

nonprofit agencies, institutions, and organizations and to individuals, and contracts with

public or private agencies, institutions, or persons, for payment of (A) part of the cost of acquiring, constructing, or otherwise securing

for research and development purposes, new or

improved devices or methods having industrywide application of preventing or controlling

discharges into the air of various types of pollutants; (B) part of the cost of programs to develop low emission alternatives to the present

internal combustion engine; (C) the cost to

purchase vehicles and vehicle engines, or portions thereof, for research, development, and

testing purposes; and (D) carrying out the

other provisions of this section, without regard 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 military 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 improved processes and plant designs to the

point where they can be demonstrated on a

large and practical scale;

(4) construct, operate, and maintain, or assist in meeting the cost of the construction,

operation, and maintenance of new or improved demonstration plants or processes

which have promise of accomplishing the purposes of this chapter; 2

(5) study new or improved methods for the

recovery and marketing of commercially valuable byproducts resulting from the removal of

pollutants.

(b) Powers of Administrator in establishing research and development programs

In carrying out the provisions of this section,

the Administrator may—

(1) conduct and accelerate research and development of cost-effective instrumentation

techniques to facilitate determination of

quantity and quality of air pollutant emissions, including, but not limited to, automotive emissions;
Page 6219 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7405

(2) utilize, on a reimbursable basis, the facilities of existing Federal scientific laboratories;

(3) establish and operate necessary facilities

and test sites at which to carry on the research, testing, development, and programming necessary to effectuate the purposes of

this section;

(4) acquire secret processes, technical data,

inventions, patent applications, patents, licenses, and an interest in lands, plants, and facilities, and other property or rights by purchase, 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 development 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, distribution, 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 diesel 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.)

CODIFICATION

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 Contracts.

Section was formerly classified to section 1857b–1 of

this title.

PRIOR PROVISIONS

A prior section 104 of act July 14, 1955, was renumbered section 105 by Pub. L. 90–148 and is classified to

section 7405 of this title.

AMENDMENTS

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 subsec. (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 ending June 30, 1973, and $150,000,000 for the fiscal year ending June 30, 1974, and $150,000,000 for the fiscal year ending June 30, 1975. Amounts appropriated pursuant to

this subsection shall remain available until expended.’’

1974—Subsec. (c). Pub. L. 93–319 authorized appropriation of $150,000,000 for fiscal year ending June 30, 1975.

1973—Subsec. (c). Pub. L. 93–15 authorized appropriation 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 provisions authorizing research programs directed toward

development of techniques for improving the efficiency

of fuels combustion so as to decrease atmospheric emissions, and producing synthetic or new fuels which result 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 ‘‘Administrator’’ for ‘‘Secretary’’.

Subsec. (c). Pub. L. 91–604, §13(a), substituted provisions 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 appropriation of $45,000,000 for fiscal year ending June 30, 1970.

HYDROGEN FUEL CELL VEHICLE STUDY AND TEST

PROGRAM

Section 807 of Pub. L. 101–549 provided that: ‘‘The Administrator 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 development 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 construction of a prototype, and a demonstration. This study

and test program should be completed and a report submitted 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 vehicle.’’

COMBUSTION OF CONTAMINATED USED OIL IN SHIPS

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 complete a study and submit a report to Congress evaluating the health and environmental impacts of the combustion 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 relevant factors and impacts. In preparing such study, the

Administrator shall obtain the view and comments of

all interested persons and shall consult with the Secretary of Transportation and the Secretary of the department in which the Coast Guard is operating.’’

EXTENSION TO AUG. 31, 1970 OF AUTHORIZATION PERIOD

FOR FISCAL YEAR 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 available through Aug. 31, 1970, notwithstanding any provisions of this section.

§ 7405. Grants for support of air pollution planning and control programs

(a) Amounts; limitations; assurances of plan development capability

(1)(A) The Administrator may make grants to

air pollution control agencies, within the meaning 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-
§ 7405 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6220

1So 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 activity related to the planning, developing, establishing, 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) and

which contributes less than the required twofifths minimum shall have 3 years following November 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 contribution accordingly.

(C) With respect to any air quality control region or portion thereof for which there is an applicable 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 carrying out such applicable implementation plan.

(2) Before approving any 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 provides for

adequate representation of appropriate State,

interstate, local, and (when appropriate) international, interests in the air quality control region.

(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 reduce 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 control region, including the concentration of industries, other commercial establishments, population 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 Administrator may find necessary to carry out the purpose of this section. In establishing regulations

for the granting of such funds the Administrator

shall, so far as practicable, give due consideration 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 Administrator 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 appropriation 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 expenditures 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 fiscal year, the Administrator shall compare an

agency’s prospective expenditure level to that of

its second preceding fiscal year. The Administrator shall revise the current regulations which

define applicable nonrecurrent and recurrent expenditures, and in so doing, give due consideration to exempting an agency from the limitations of this paragraph and subsection (a) of this

section due to periodic increases experienced by

that agency from time to time in its annual expenditures for purposes acceptable to the Administrator 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 Administrator, after notice and opportunity for public

hearing, determines that a reduction in expenditures is attributable to a non-selective reduction 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 Administrator is satisfied that such a grant will be so

used to supplement and, to the extent practicable, 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 reduced 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 expenses, and any other costs in connection with

the detail of any officer or employee to the recipient 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 reduced shall be available for payment of such

costs by the Administrator, but shall, for the

purpose of determining the amount of any grant
Page 6221 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7405

to a recipient under subsection (a) of this section, be deemed to have been paid to such agency.

(e) Notice and opportunity for hearing when affected by adverse action

No application by a State for a grant under

this section may be disapproved by the Administrator 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 without prior notice and opportunity for a public

hearing in the affected State (or in one of the affected 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.)

CODIFICATION

Section was formerly classified to section 1857c of

this title.

PRIOR PROVISIONS

A prior section 105 of act July 14, 1955, was renumbered 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.

AMENDMENTS

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 pollution control agencies in an amount up to two-thirds

of the cost of planning, developing, establishing, or improving, and up to one-half of the cost of maintaining,

programs for the prevention and control of air pollution 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 section 7602(b) of this title in an amount up to threefourths of the cost of planning, developing, establishing, or improving, and up to three-fifths of the cost of

maintaining, any program for the prevention and control of air pollution or implementation of national primary 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 existing 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 expenditures of non-Federal funds for other than nonrecurrent expenditures for air pollution control programs 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 expenditures 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 satisfied 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 supplant such State, local, or other non-Federal funds. No

grant 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.’’

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 appropriation 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 appropriation 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 opportunity for hearing, determines that a reduction in expenditures 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 programs during the preceding fiscal year’’.

Subsec. (c). Pub. L. 95–95, §102(b), provided that in fiscal 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 programs implementing national primary and secondary

ambient air quality standards, for provisions authorizing 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 responsibilities for carrying out the applicable implementation plan with respect to the air quality control region 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 activities, 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 limitation on portion of total funds which might be granted

for air pollution control programs in any one State

from 121

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

chapter, inserted provisions allowing grants to air pollution control agencies up to one-half of cost of maintaining programs for prevention and control of air pollution, and authorized Secretary to make grants of up

to three-fifths of cost of maintaining regional air pollution control programs.

Subsec. (b). Pub. L. 89–675, §3(a)(2), substituted ‘‘for

the purpose of’’ for ‘‘under’’, permitted grantees to reduce annual expenditures to the extent that nonrecurrent 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 preceding 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 subsection (a) of this section shall be granted for air pollution 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’’.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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 region designated pursuant to section 7407 of this

title or of implementing section 7506a of this

title (relating to control of interstate air pollution) or section 7511c of this title (relating to

control of interstate ozone pollution), the Administrator 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 control 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 authorized 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.)

CODIFICATION

Section was formerly classified to section 1857c–1 of

this title.

PRIOR PROVISIONS

A prior section 106 of act July 14, 1955, was renumbered section 117 by Pub. L. 91–604 and is classified to

section 7417 of this title.

AMENDMENTS

1990—Pub. L. 101–549, §102(f)(2)(A), inserted ‘‘or of implementing section 7506a of this title (relating to control 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 pollution) 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 probable 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 program 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)’’, substituted provisions authorizing Federal grants for the

purpose of developing implementation plans and provisions requiring the designated State agency to be capable of recommending plans for implementation of national primary and secondary ambient air quality

standards, for provisions authorizing Federal grants for

the purpose of expediting the establishment of air quality standards and provisions requiring the designated

State agency to be capable of recommending standards

of air quality and plans for implementation thereof, respectively, 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 responsibility for assuring air quality within the entire geographic area comprising such State by submitting 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 within 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 subsection (c) of this section, shall be an air quality 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 approval of the Administrator.

(c) Authority of Administrator to designate regions; notification of Governors of affected

States

The Administrator shall, within 90 days after

December 31, 1970, after consultation with appropriate 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 designation made under this subsection.

(d) Designations

(1) Designations generally

(A) Submission by Governors of initial designations 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 national 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 portions 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 pollutant,

(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 information as meeting or not meeting the national primary or secondary ambient air

quality standard for the pollutant.

The Administrator may not require the Governor 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 national ambient air quality standard, the Administrator shall promulgate the designations of all areas (or portions thereof) submitted under subparagraph (A) as expeditiously 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 extended 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 Administrator deems necessary to the designations

of the areas (or portions thereof) submitted

under subparagraph (A) (including to the

boundaries of such areas or portions thereof). 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 notification no later than 120 days before the date

the Administrator promulgates the designation, including any modification thereto. If

the Governor fails to submit the list in

whole or in part, as required under subparagraph (A), the Administrator shall promulgate 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 nonattainment, attainment, or unclassifiable,

the Administrator shall act on such designations in accordance with the procedures

under paragraph (3) (relating to redesignation).

(iv) A designation for an area (or portion

thereof) made pursuant to this subsection

shall remain in effect until the area (or portion 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 paragraph (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 within 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 subparagraph (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 redesignations

(A) The Administrator shall publish a notice

in the Federal Register promulgating any designation under paragraph (1) or (5), or announcing any designation under paragraph (4),

or promulgating any redesignation under

paragraph (3).

(B) Promulgation or announcement of a designation under paragraph (1), (4) or (5) shall
§ 7407 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6224

not be subject to the provisions of sections 553

through 557 of title 5 (relating to notice and

comment), except nothing herein shall be construed as precluding such public notice and

comment whenever possible.

(3) Redesignation

(A) Subject to the requirements of subparagraph (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 Administrator may at any time notify the Governor

of any State that available information indicates that the designation of any area or portion of an area within the State or interstate

area should be revised. In issuing such notification, which shall be public, to the Governor,

the Administrator shall provide such information 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 Governor 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 described in subparagraph (B) (or paragraph

(1)(B)(iii)), the Administrator shall promulgate 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 Administrator under subparagraph (A), the Administrator shall promulgate such redesignation, if

any, that the Administrator deems appropriate.

(D) The Governor of any State may, on the

Governor’s own motion, submit to the Administrator a revised designation of any area or

portion thereof within the State. Within 18

months of receipt of a complete State redesignation submittal, the Administrator shall approve or deny such redesignation. The submission 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 permanent and enforceable reductions in emissions resulting from implementation of the

applicable implementation plan and applicable Federal air pollutant control regulations

and other permanent and enforceable reductions;

(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, carbon 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, affirms or reaffirms the designation of, or redesignates (as the case may be), all areas (or

portions thereof) of the Governor’s State as

attainment, nonattainment, or unclassifiable 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 Administrator shall promulgate such designations,

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 clause (i) of this subparagraph, a designation for an area (or portion

thereof), the Administrator shall promulgate the designation that the Administrator

deems appropriate.

(iii) No nonattainment area may be redesignated as an attainment area under this

subparagraph.

(iv) Notwithstanding paragraph (1)(C)(ii) of

this subsection, if an ozone or carbon monoxide 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 pollution control agencies) notifies the Administrator that additional time is necessary to

evaluate the application of clause (v). Whenever a Governor has submitted such a notice

to the Administrator, such boundary revision shall occur on the later of the date 8

months after such classification or 14
Page 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 consolidated metropolitan statistical area

should be included within the nonattainment area. Whenever a Governor finds and

demonstrates to the satisfaction of the Administrator, and the Administrator concurs

in such finding, that with respect to a portion of a metropolitan statistical area or

consolidated metropolitan statistical area,

sources in the portion do not contribute significantly to violation of the national ambient air quality standard, the Administrator

shall approve the Governor’s request to exclude such portion from the nonattainment

area. In making such finding, the Governor

and the Administrator shall consider factors

such as population density, traffic congestion, 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 Register 29383 (Aug. 7, 1987) as a Group I area

(except to the extent that such identification 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 violation 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 Regulations) 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 particulates) that the Administrator promulgated pursuant to this subsection (as in effect immediately before November 15, 1990)

shall remain in effect for purposes of implementing the maximum allowable increases

in concentrations of particulate matter

(measured in terms of total suspended particulates) 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 Administrator’s discretion at any time the Administrator

deems appropriate, require a State to designate areas (or portions thereof) with respect

to the national ambient air quality standard

for lead in effect as of November 15, 1990, in accordance with the procedures under subparagraphs (A) and (B) of paragraph (1), except

that in applying subparagraph (B)(i) of paragraph (1) the phrase ‘‘2 years from the date of

promulgation of the new or revised national

ambient air quality standard’’ shall be replaced by the phrase ‘‘1 year from the date the

Administrator notifies the State of the requirement 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 designations referred to in paragraph (1) for the

July 1997 PM2.5 national ambient air quality

standards for each area within the State,

based on air quality monitoring data collected 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 paragraph (1), promulgate the designations referred to in subparagraph (A) for each area

of each State for the July 1997 PM2.5 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 promulgated 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 recommendations stemming from the Grand

Canyon Visibility Transport Commission

Report dated June 1996, including the submission of State implementation plan revisions by the States of Arizona, California,

Colorado, Idaho, Nevada, New Mexico, Oregon, Utah, or Wyoming by December 31,

2003, for implementation of regional haze requirements 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 redesignate from time to time the air quality control regions within such State for purposes of efficient and effective air quality management.

Upon such redesignation, the list under subsection (d) of this section shall be modified accordingly.
§ 7407 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6226

1See 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 Administrator 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 Administrator 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.)

REFERENCES IN TEXT

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.

CODIFICATION

Section was formerly classified to section 1857c–2 of

this title.

PRIOR PROVISIONS

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 renumbered section 111 by Pub. L. 90–148 and is classified to

section 7411 of this title.

AMENDMENTS

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 provisions which required States to submit lists of regions

not in compliance on Aug. 7, 1977, with certain air quality 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).

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

OZONE AND PARTICULATE MATTER STANDARDS

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 subsection (a)), section 6101, subsections (a) and (b) of section 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 remain 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 PM2.5, in the

United States and the States should receive full funding for the monitoring efforts;

‘‘(2) such data would provide a basis for designating

areas as attainment or nonattainment for any PM2.5

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 ‘Administrator’) in a memorandum dated July 16, 1997, to complete the next periodic review of the particulate matter national ambient air quality standards by July

2002 in order to determine ‘whether to revise or maintain the standards’;

‘‘(4) the Administrator has stated that 3 years of air

quality monitoring data for fine particle levels,

measured as PM2.5 and performed in accordance with

any applicable Federal reference methods, is appropriate for designating areas as attainment or nonattainment pursuant to the July 1997 promulgated

standards; and

‘‘(5) the Administrator has acknowledged that in

drawing boundaries for attainment and nonattainment areas for the July 1997 ozone national air quality standards, Governors would benefit from considering 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 nonattainment designations respecting any PM2.5 national 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 particulate matter standards as set forth in the President’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 Environmental 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 PM2.5 monitoring network necessary to implement the national ambient air quality

standards for PM2.5 under section 109 of the Clean Air

Act [42 U.S.C. 7409]. This implementation shall not result 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

PM2.5 monitors must be restored to State or local air

programs in fiscal year 1999.

‘‘(b) EPA and the States, consistent with their respective authorities under the Clean Air Act [42 U.S.C.

7401 et seq.], shall ensure that the national network
Page 6227 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7408

(designated in subsection (a)) which consists of the

PM2.5 monitors necessary to implement the national

ambient air quality standards is established by December 31, 1999.

‘‘(c)(1) The Governors shall be required to submit designations 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 PM2.5 national ambient

air quality standard within 1 year after receipt of 3

years of air quality monitoring data performed in accordance with any applicable Federal reference methods for the relevant areas. Only data from the monitoring network designated in subsection (a) and other Federal reference method PM2.5 monitors shall be considered for such designations. Nothing in the previous sentence shall be construed as affecting the Governor’s authority to designate an area initially as nonattainment, and the Administrator’s authority to promulgate

the designation of an area as nonattainment, under section 107(d)(1) of the Clean Air Act, based on its contribution to ambient air quality in a nearby nonattainment area.

‘‘(2) For any area designated as nonattainment for

the July 1997 PM2.5 national ambient air quality standard 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 paragraph (2) to be submitted at the same time as State implementation plan revisions referred to in section 172 of

the Clean Air Act [42 U.S.C. 7502] implementing the revised 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 designations 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 PM2.5 national ambient air

quality standard by the earlier of 1 year after the initial designations required under subsection (c)(1) are

required to be submitted or December 31, 2005.

‘‘(e) FIELD STUDY.—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 PM2.5

Federal Reference Method to differentiate those particles that are larger than 2.5 micrometers in diameter;

‘‘(2) develop a Federal reference method to measure

directly particles that are larger than 2.5 micrometers 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 composition of coarse particles; and

‘‘(4) submit a report on the study and responsibilities 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 ambient air quality standards.

‘‘(b) The Administrator shall promulgate final designations no later than 1 year after the designations required under subsection (a) are required to be submitted.

‘‘SEC. 6104. ADDITIONAL PROVISIONS.

‘‘Nothing in sections 6101 through 6103 shall be construed by the Administrator of Environmental Protection Agency or any court, State, or person to affect any

pending litigation or to be a ratification of the ozone or

PM2.5 standards.’’

PENDING ACTIONS AND PROCEEDINGS

Suits, actions, and other proceedings lawfully commenced 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.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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 techniques

(a) Air pollutant list; publication and revision by

Administrator; issuance of air quality criteria 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 ambient air, in varying quantities. The criteria for

an air pollutant, to the extent practicable, shall

include information on—

(A) those variable factors (including atmospheric conditions) which of themselves or in
§ 7408 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6228

1See 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; establishment; membership

(1) Simultaneously with the issuance of criteria under subsection (a) of this section, the

Administrator shall, after consultation with appropriate advisory committees and Federal departments and agencies, issue to the States and

appropriate air pollution control agencies information on air pollution control techniques,

which information shall include data relating to

the cost of installation and operation, energy requirements, emission reduction benefits, and environmental impact of the emission control

technology. Such information shall include such

data as are available on available technology

and alternative methods of prevention and control of air pollution. Such information shall also

include data on alternative fuels, processes, and

operating methods which will result in elimination or significant reduction of emissions.

(2) In order to assist in the development of information on pollution control techniques, the

Administrator may establish a standing consulting committee for each air pollutant included in

a list published pursuant to subsection (a)(1) of

this section, which shall be comprised of technically qualified individuals representative of

State and local governments, industry, and the

academic community. Each such committee

shall submit, as appropriate, to the Administrator information related to that required by

paragraph (1).

(c) Review, modification, and reissuance of criteria or information

The Administrator shall from time to time review, and, as appropriate, modify, and reissue

any criteria or information on control techniques issued pursuant to this section. Not later

than six months after August 7, 1977, the Administrator shall revise and reissue criteria relating

to concentrations of NO2 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, nitrosamines, 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 information 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 planning process, update the June 1978 Transportation-Air Quality Planning Guidelines and publish guidance on the development and implementation of transportation and other measures

necessary to demonstrate and maintain attainment of national ambient air quality standards.

Such guidelines shall include information on—

(1) methods to identify and evaluate alternative 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 resources necessary to implement the plan, including 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 continuous 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 Transportation, and after providing public notice and

opportunity for comment, regarding the formulation and emission reduction potential of

transportation control measures related to

criteria pollutants and their precursors, including, 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 vehicles;

(iii) employer-based transportation management 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 occupancy 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 services;

(ix) programs to limit portions of road surfaces 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 facilities and other facilities, including bicy-
Page 6229 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7408

2So 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 permit flexible work schedules;

(xiv) programs and ordinances to facilitate

non-automobile travel, provision and utilization of mass transit, and to generally reduce

the need for single-occupant vehicle travel,

as part of transportation planning and development efforts of a locality, including programs 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 transportation 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 reduction 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 public 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 increase in the emissions or formation of any

other pollutant.

(2) In publishing such information the Administrator shall also include an assessment of—

(A) the relative effectiveness of such processes, 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 pollutants (as identified by the Administrator in the

Administrator’s sole discretion).

(h) RACT/BACT/LAER clearinghouse

The Administrator shall make information regarding emission control technology available

to the States and to the general public through

a central database. Such information shall include all control technology information received pursuant to State plan provisions requiring permits for sources, including operating permits 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.)

CODIFICATION

November 15, 1990, referred to in subsec. (e), was in

the original ‘‘enactment of the Clean Air Act Amendments 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.

PRIOR PROVISIONS

A prior section 108 of act July 14, 1955, was renumbered section 115 by Pub. L. 91–604 and is classified to

section 7415 of this title.

AMENDMENTS

1998—Subsec. (f)(3), (4). Pub. L. 105–362 struck out par.

(3), which required reports by the Secretary of Transportation 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 August 7, 1977, and from time to time thereafter, publish

guidelines on the basic program elements for the planning process assisted under section 7505 of this title.’’

Subsec. (f)(1). Pub. L. 101–549, §108(b), in introductory

provisions, substituted present provisions for provisions relating to Federal agencies, States, and air pollution 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 information prepared in cooperation with Secretary of Transportation, regarding processes, procedures, and methods 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), substituted ‘‘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 months
§ 7409 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6230

after Aug. 7, 1977, to revise and reissue criteria relating

to concentrations of NO2 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 carcinogenic and potentially carcinogenic derivatives of

oxides of nitrogen.

Subsecs. (e), (f). Pub. L. 95–95, §105, added subsecs. (e)

and (f).

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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 standard 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 publication 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, simultaneously with the issuance of such criteria and

information, proposed national primary and secondary 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 standards 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 quality 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 welfare from any known or anticipated adverse effects 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 standard for nitrogen dioxide

The Administrator shall, not later than one

year after August 7, 1977, promulgate a national

primary ambient air quality standard for NO2

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 standards; independent scientific review committee; 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 promulgated under this section and shall make such revisions in such criteria and standards and promulgate such new standards as may be appropriate in accordance with section 7408 of this

title and subsection (b) of this section. The Administrator may review and revise criteria or

promulgate new standards earlier or more frequently than required under this paragraph.

(2)(A) The Administrator shall appoint an

independent scientific review committee composed 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 referred 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 promulgated under this section and shall recommend to the Administrator any new national

ambient air quality standards and revisions of

existing criteria and standards as may be appropriate under section 7408 of this title and subsection (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 required information, (iii) advise the Administrator on the relative contribution to air pollution concentrations of natural as well as anthropogenic activity, and (iv) advise the Administrator of any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and

maintenance of such national ambient air quality 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.)

CODIFICATION

Section was formerly classified to section 1857c–4 of

this title.

PRIOR PROVISIONS

A prior section 109 of act July 14, 1955, was renumbered section 116 by Pub. L. 91–604 and is classified to

section 7416 of this title.

AMENDMENTS

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

(c).

Subsec. (d). Pub. L. 95–95, §106(a), added subsec. (d).

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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.

TERMINATION OF ADVISORY COMMITTEES

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 Appendix to Title 5, Government Organization and Employees.

ROLE OF SECONDARY STANDARDS

Pub. L. 101–549, title VIII, §817, Nov. 15, 1990, 104 Stat.

2697, provided that:

‘‘(a) REPORT.—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 environment. 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 section 108 [42 U.S.C. 7408] and other pollutants which

may be listed;

‘‘(2) estimate welfare and environmental costs incurred as a result of such effects;

‘‘(3) examine the role of secondary standards and

the State implementation planning process in preventing 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 meeting 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) SUBMISSION TO CONGRESS; COMMENTS; AUTHORIZATION.—(1) The report shall be transmitted to the Congress 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 Administrator shall provide an opportunity for public

comment on the proposed report. The Administrator

shall include in the final report a summary of the comments 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 Administrator; 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 Administrator, within 3 years (or such shorter period 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 pollutant, 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 Administrator (either as a part of a plan submitted

under the preceding sentence or separately)

within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national ambient air quality secondary

standard (or revision thereof), a plan which provides for implementation, maintenance, and enforcement 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 hearing. Each such plan shall—

(A) include enforceable emission limitations

and other control measures, means, or techniques (including economic incentives such as

fees, marketable permits, and auctions of

emissions rights), as well as schedules and

timetables for compliance, as may be necessary 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 enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source

within the areas covered by the plan as nec-
§ 7410 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6232

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 provisions 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 nonattainment 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 implementation 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 applicable requirements of sections 7426 and 7415 of

this title (relating to interstate and international 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 purpose local governments for such purpose) will

have adequate personnel, funding, and authority 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 implementation 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 regional government, agency, or instrumentality for the implementation of any plan provision, the State has responsibility for ensuring

adequate implementation of such plan provision;

(F) require, as may be prescribed by the Administrator—

(i) the installation, maintenance, and replacement of equipment, and the implementation 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 contingency 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 Administrator that the plan is substantially inadequate to attain the national ambient air

quality standard which it implements or to

otherwise comply with any additional requirements 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 section 7421 of this title (relating to consultation), section 7427 of this title (relating to public notification), and part C of this subchapter

(relating to prevention of significant deterioration of air quality and visibility protection);

(K) provide for—

(i) the performance of such air quality

modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions

of any air pollutant for which the Administrator 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 permitting 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 permit, and

(ii) if the owner or operator receives a permit 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 participation 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 chapter 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 attainment and maintenance of any national ambient air quality standard within the period permitted in this section. If the Administrator determines 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

1See 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 approve 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 orders under section 7413(d) 1 of this title, suspensions under subsection (f) or (g) of this section

(relating to temporary energy or economic authority), orders under section 7419 of this title

(relating to primary nonferrous smelters), or extensions of compliance in decrees entered under

section 7413(e) 1 of this title (relating to ironand steel-producing operations) have been granted, if such plan would have met the requirements of this section if no such exemptions, orders, 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 implementation plan, but the Administrator may

not require as a condition of approval of such

plan under this section, any indirect source review program. The Administrator may approve

and enforce, as part of an applicable implementation 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 include any indirect source review program for

any air quality control region, or portion thereof.

(iii) Any State may revise an applicable implementation 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 authority to promulgate, implement and enforce regulations under subsection (c) of this section respecting indirect source review programs which

apply only to federally assisted highways, airports, and other major federally assisted indirect sources and federally owned or operated indirect 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 subject 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 facility-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 pollution concentrations—

(i) exceeding any national primary ambient

air quality standard for a mobile source-related air pollutant after the primary standard attainment date, or

(ii) preventing maintenance of any such

standard after such date.

(E) For purposes of this paragraph and paragraph (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 control system for purposes of meeting the requirements of an order under section 7413(d) 1 of this

title or section 7419 of this title (relating to primary nonferrous smelter orders), the owner or

operator of such source may not temporarily reduce 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 determines necessary, extend the period for submission of any plan or portion thereof which implements 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 Administrator of proposed regulations setting forth

implementation plan; transportation regulations study and report; parking surcharge;

suspension authority; plan implementation

(1) The Administrator shall promulgate a Federal 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 revision, 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 regulations previously required by the Administrator shall be void upon June 22, 1974. This subparagraph shall not prevent the Administrator
§ 7410 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6234

from approving parking surcharges if they are

adopted and submitted by a State as part of an

applicable implementation plan. The Administrator may not condition approval of any implementation 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 vehicles.

(ii) The term ‘‘management of parking supply’’ shall include any requirement providing

that any new facility containing a given number 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 preferential bus/carpool lanes shall be promulgated

after June 22, 1974, by the Administrator pursuant 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 officer of any general purpose unit of local government, 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. Nothing in this paragraph shall prevent the Administrator from implementing or enforcing any applicable 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 implementation 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 Governor of the State, which application shall include a certification by the Governor that he

will revise such plan in accordance with subparagraph (B).

(B) In the case of any applicable implementation 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 transportation needs, as expeditiously as is practicable; and

(ii) implement transportation control measures necessary to attain and maintain national ambient air quality standards,

and such revised plan shall, for the purpose of

implementing such comprehensive public transportation 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 subparagraph (A), provide for emissions reductions

equivalent to the reductions which may reasonably 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 subparagraph (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; determination by President

(1) Upon application by the owner or operator

of a fuel burning stationary source, and after notice and opportunity for public hearing, the

Governor of the State in which such source is located 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 offsets) 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 President determines that a national or regional energy emergency of such severity exists, a temporary emergency suspension of any part of an

applicable implementation plan or of any requirement under section 7651j of this title (concerning excess emissions penalties or offsets)

adopted by the State may be issued by the Governor 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 involving high levels of unemployment or loss of

necessary energy supplies for residential

dwellings; and

(B) such unemployment or loss can be totally or partially alleviated by such emergency suspension.

Not more than one such suspension may be issued 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

2See References in Text note below.

main in effect for a maximum of four months or

such lesser period as may be specified in a disapproval order of the Administrator, if any. The

Administrator may disapprove such suspension

if he determines that it does not meet the requirements 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 temporary 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 suspension 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 pollution, 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 suspension of the part of the applicable implementation plan for such State which is proposed to

be revised with respect to such source. The determination 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 remain in effect for a maximum of four months or

such lesser period as may be specified in a disapproval order of the Administrator. The Administrator may disapprove such suspension if

he determines that it does not meet the requirements of this subsection.

(3) The Governor may include in any temporary 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 applicable implementation plan

(1) Not later than 5 years after November 15,

1990, and every 3 years thereafter, the Administrator shall assemble and publish a comprehensive 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 (relating to emergency suspensions), an exemption

under section 7418 of this title (relating to certain Federal facilities), an order under section

7413(d) 2 of this title (relating to compliance orders), a plan promulgation under subsection (c)

of this section, or a plan revision under subsection (a)(3) of this section; no order, suspension, plan revision, or other action modifying

any requirement of an applicable implementation plan may be taken with respect to any stationary source by the State or by the Administrator.

(j) Technological systems of continuous emission

reduction on new or modified stationary

sources; compliance with performance standards

As a condition for issuance of any permit required under this subchapter, the owner or operator of each new or modified stationary source

which is required to obtain such a permit must

show to the satisfaction of the permitting authority that the technological system of continuous 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 modification 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 minimum criteria that any plan submission must

meet before the Administrator is required to

act on such submission under this subsection. The criteria shall be limited to the

information necessary to enable the Administrator to determine whether the plan submission complies with the provisions of this

chapter.

(B) Completeness finding

Within 60 days of the Administrator’s receipt 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-
§ 7410 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6236

mine whether the minimum criteria established 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 Administrator (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 pursuant 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 established pursuant to paragraph (1), if applicable (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 paragraph (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 applicable requirements of this chapter, the Administrator may approve the plan revision in

part and disapprove the plan revision in part.

The plan revision shall not be treated as meeting the requirements of this chapter until the

Administrator approves the entire plan revision as complying with the applicable requirements of this chapter.

(4) Conditional approval

The Administrator may approve a plan revision 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 disapproval 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 maintain the relevant national ambient air quality

standard, to mitigate adequately the interstate 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 require the State to revise the plan as necessary

to correct such inadequacies. The Administrator shall notify the State of the inadequacies, and may establish reasonable deadlines

(not to exceed 18 months after the date of such

notice) for the submission of such plan revisions. 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 Administrator may adjust any dates applicable

under such requirements as appropriate (except 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 designation, redesignation, classification, or reclassification was in error, the Administrator may

in the same manner as the approval, disapproval, or promulgation revise such action

as appropriate without requiring any further

submission from the State. Such determination and the basis thereof shall be provided to

the State and public.

(l) Plan revisions

Each revision to an implementation plan submitted 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 concerning 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 sanctions 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 Administrator determines reasonable and appropriate, for the purpose of ensuring that the requirements of this chapter relating to such plan

or plan item are met. The Administrator shall,

by rule, establish criteria for exercising his authority 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 period following the finding, disapproval, or determination referred to in section 7509(a) of this

title, such sanctions are not applied on a statewide basis where one or more political subdivisions covered by the applicable implementation

plan are principally responsible for such deficiency.

(n) Savings clauses

(1) Existing plan provisions

Any provision of any applicable implementation plan that was approved or promulgated by
Page 6237 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410

3So in original. Probably should be followed by a comma.

the Administrator pursuant to this section as

in effect before November 15, 1990, shall remain in effect as part of such applicable implementation plan, except to the extent that a

revision to such provision is approved or promulgated by the Administrator pursuant to

this chapter.

(2) Attainment dates

For any area not designated nonattainment,

any plan or plan revision submitted or required to be submitted by a State—

(A) in response to the promulgation or revision 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 November 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 inadequacy, 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 stationary sources prescribed in subsection (a)(2)(I) of

this section (as in effect immediately before

November 15, 1990) applied by virtue of a finding of the Administrator that the State containing such area had not submitted an implementation plan meeting the requirements of

section 7502(b)(6) of this title (relating to establishment of a permit program) (as in effect

immediately before November 15, 1990) or

7502(a)(1) of this title (to the extent such requirements 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 relevant air pollutant or pollutants shall be constructed or modified in such area until the Administrator finds that the plan for such area

meets the applicable requirements of section

7502(c)(5) of this title (relating to permit programs) or subpart 5 of part D of this subchapter (relating to attainment of the primary

national ambient air quality standard for sulfur 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 applicable to all areas (except as expressly provided

otherwise in the plan) located within the exterior boundaries of the reservation, notwithstanding the issuance of any patent and including rights-of-way running through the reservation.

(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 information 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.)

REFERENCES IN TEXT

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 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 subsecs.

(a)(3)(C), (6), (f)(5), (g)(3), and (i), was amended generally 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 orders and steel industry compliance extension, respectively.

Section 1857c–10 of this title, as in effect before August 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 classified 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 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. Section 7413 of this title was subsequently 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.

CODIFICATION

Section was formerly classified to section 1857c–5 of

this title.

PRIOR PROVISIONS

A prior section 110 of act July 14, 1955, was renumbered section 117 by Pub. L. 91–604 and is classified to

section 7417 of this title.

AMENDMENTS

1990—Subsec. (a)(1). Pub. L. 101–549, §101(d)(8), substituted ‘‘3 years (or such shorter period as the Administrator may prescribe)’’ for ‘‘nine months’’ in two

places.
§ 7410 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6238

Subsec. (a)(2). Pub. L. 101–549, §101(b), amended par.

(2) generally, substituting present provisions for provisions 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 portion 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 approve 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 implementation plans be revised to include comprehensive measures and requirements.

Subsec. (a)(4). Pub. L. 101–549, §101(d)(2), struck out

par. (4) which set forth requirements for review procedure.

Subsec. (c)(1). Pub. L. 101–549, §102(h), amended par.

(1) generally, substituting present provisions for provisions relating to preparation and publication of regulations setting forth an implementation plan, after opportunity 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 suspend measures in implementation plans relating to retrofits, gas rationing, and reduction of on-street parking.

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 subsec. (d) which defined an applicable implementation

plan for purposes of this chapter.

Subsec. (e). Pub. L. 101–549, §101(d)(5), struck out subsec. (e) which permitted an extension of time for attainment 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 (concerning 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 revision’’ 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 annually 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 subsecs. (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 reference 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), substituted ‘‘(A) except as may be provided in subparagraph (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 modification, 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 necessary to assure (i) that national ambient air quality

standards are achieved and maintained, and (ii) a procedure’’ 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 attainment 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 deterioration of air quality or to protect visibility, and (ii) insuring compliance with the requirements of section

7426 of this title, relating to interstate pollution abatement’’ for ‘‘it contains adequate provisions for intergovernmental cooperation, including measures necessary 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 otherwise comply with any additional requirements established under the Clean Air Act Amendments of 1977’’

after ‘‘to achieve the national ambient air quality primary 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 subpar. (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), directed that any portion of a plan relating to any measure described in first sentence of 7421 of this title (relating to consultation) or the consultation process required under such section 7421 of this title not be required 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 secondary ambient air quality standard in a State’’.

Subsec. (f). Pub. L. 95–95, §107(a), substituted provisions relating to the handling of national or regional

energy emergencies for provisions relating to the postponement of compliance by stationary sources or classes of moving sources with any requirement of applicable implementation plans.

Subsec. (g). Pub. L. 95–95, §108(g), added subsec. (g) relating 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 subsec. (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 subsec. (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 redesignated par. (1), and added par. (2).

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

PENDING ACTIONS AND PROCEEDINGS

Suits, actions, and other proceedings lawfully commenced 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.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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.

MODIFICATION OR RESCISSION OF IMPLEMENTATION

PLANS APPROVED AND IN EFFECT PRIOR TO AUG. 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 Amendments of 1977, see section 406(c) of Pub. L. 95–95, set out

as an Effective Date of 1977 Amendment note under section 7401 of this title.

SAVINGS PROVISION

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, Education, 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 section 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 implementation plan, or any portion thereof, is not consistent 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 ambient air quality standards in the time required by such

Act. If the Administrator so determines, he shall, within 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, including 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 construed as repealing or modifying the powers of the Administrator 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 chapter].’’

FEDERAL ENERGY ADMINISTRATOR

‘‘Federal Energy Administrator’’, for purposes of this

chapter, to mean Administrator of Federal Energy Administration 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 Administrator takes office and after Federal Energy Administration ceases to exist, see section 798 of Title 15, Commerce and Trade.

Federal Energy Administration terminated and functions vested by law in Administrator thereof transferred to Secretary of Energy (unless otherwise specifically provided) by sections 7151(a) and 7293 of this title.

§ 7411. Standards of performance for new stationary sources

(a) Definitions

For purposes of this section:

(1) The term ‘‘standard of performance’’

means a standard for emissions of air pollutants which reflects the degree of emission limitation 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 requirements) the Administrator determines has been

adequately demonstrated.

(2) The term ‘‘new source’’ means any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable 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 relating to nonroad engines shall be construed to

apply to stationary internal combustion engines.

(4) The term ‘‘modification’’ means any

physical change in, or change in the method of
§ 7411 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6240

1See References in Text note below.

operation of, a stationary source which increases the amount of any air pollutant emitted 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 continuous emission reduction’’ means—

(A) a technological process for production

or operation by any source which is inherently 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 supersedes 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 modification 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 systems; 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 categories of stationary sources. He shall include a

category of sources in such list if in his judgment it causes, or contributes significantly to,

air pollution which may reasonably be anticipated 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 publish 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 promulgate, 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 requirements of the previous sentence, the Administrator need not review any such standard if the

Administrator determines that such review is

not appropriate in light of readily available information on the efficacy of such standard.

Standards of performance or revisions thereof

shall become effective upon promulgation. When

implementation and enforcement of any requirement of this chapter indicate that emission limitations and percent reductions beyond those required by the standards promulgated under this

section are achieved in practice, the Administrator shall, when revising standards promulgated 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 section.

(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 subsection (h) of this section, nothing in this section shall be construed to require, or to authorize the Administrator to require, any new or

modified source to install and operate any particular technological system of continuous

emission reduction to comply with any new

source standard of performance.

(6) The revised standards of performance required 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 Administrator 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 regulations which shall establish a procedure similar

to that provided by section 7410 of this title

under which each State shall submit to the Administrator a plan which (A) establishes standards of performance for any existing source for

any air pollutant (i) for which air quality criteria have not been issued or which is not included 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 permit the State in applying a standard of performance 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 consideration, among other factors, the remaining useful life of the existing source to which such

standard applies.

(2) The Administrator shall have the same authority—

(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 performance promulgated under this section, it

shall be unlawful for any owner or operator of

any new source to operate such source in violation 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 subsection (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 standards of performance for at least 25 percent of

such categories of sources within 2 years after

November 15, 1990;

(B) propose regulations establishing standards 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 November 15, 1990.

(2) In determining priorities for promulgating

standards for categories of major stationary

sources for the purpose of paragraph (1), the Administrator 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 consequent 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 subsection, 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 regulations, the Administrator shall revise such regulations 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 reasonably 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 considered under subsection (f)(2) of this section,

the Administrator shall revise the list under

subsection (b)(1)(A) of this section to apply properly such criteria.

(4) Upon application of the Governor of a State

showing that—

(A) a new, innovative, or improved technology or process which achieves greater continuous emission reduction has been adequately demonstrated for any category of stationary sources, and

(B) as a result of such technology or process,

the new source standard of performance in effect 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 consideration the cost of achieving such emission reduction, and any non-air quality health and

environmental impact and energy requirements) has been adequately demonstrated,

the Administrator shall revise such standard of

performance for such category accordingly.

(5) Unless later deadlines for action of the Administrator 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, either—

(A) find that such application does not contain the requisite showing and deny such application, or

(B) grant such application and take the action required under this subsection.

(6) Before taking any action required by subsection (f) of this section or by this subsection,

the Administrator shall provide notice and opportunity for public hearing.

(h) Design, equipment, work practice, or operational standard; alternative emission limitation

(1) For purposes of this section, if in the judgment 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 combination thereof, which reflects the best technological system of continuous emission reduction

which (taking into consideration the cost of

achieving such emission reduction, and any non-
§ 7411 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6242

air quality health and environmental impact

and energy requirements) the Administrator determines has been adequately demonstrated. In

the event the Administrator promulgates a design or equipment standard under this subsection, he 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) 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 measurement 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 satisfaction of the Administrator that an alternative

means of emission limitation will achieve a reduction in emissions of any air pollutant at

least equivalent to the reduction in emissions of

such air 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) 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 thereof, described in this subsection shall be treated

as a standard of performance for purposes of the

provisions of this chapter (other than the provisions of subsection (a) of this section and this

subsection).

(i) Country elevators

Any regulations promulgated by the Administrator under this section applicable to grain elevators 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 continuous 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 encourage the use of an innovative technological

system or systems of continuous emission reduction. The Administrator may, with the consent 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 operate 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 otherwise 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 unreasonable 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 determining whether an unreasonable risk exists

under clause (iii), the Administrator shall consider, among other factors, whether and to what

extent the use of the proposed technological system will cause, increase, reduce, or eliminate

emissions of any unregulated pollutants; available 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 systems which may be used to conform to standards

under this section without causing or contributing to such unreasonable risk. The Administrator 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 emission of any unregulated pollutant from a system

if such pollutant was not emitted, or was emitted 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 Administrator determines to be necessary to assure—

(i) emissions from the source will not prevent attainment and maintenance of any national 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 technological system of continuous emission reduction

shall not exceed such number as the Administrator 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 Administrator, 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 determines that such system has failed to—

(I) achieve at least an equivalent continuous emission reduction to that required to

be achieved under the standards of performance 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 operation,

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 reduction is used.

(2)(A) If a waiver under paragraph (1) is terminated 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 performance 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 minimize 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.)

REFERENCES IN TEXT

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.

CODIFICATION

Section was formerly classified to section 1857c–6 of

this title.

PRIOR PROVISIONS

A prior section 111 of act July 14, 1955, was renumbered section 118 by Pub. L. 91–604 and is classified to

section 7418 of this title.

AMENDMENTS

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 pollutant 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 stationary internal combustion engines.’’

Subsec. (b)(1)(B). Pub. L. 101–549, §108(e)(1), substituted ‘‘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 sentence ‘‘Notwithstanding the requirements of the previous sentence, the Administrator need not review any

such standard if the Administrator determines that

such review is not appropriate in light of readily available information on the efficacy of such standard.’’,

and inserted at end ‘‘When implementation and enforcement of any requirement of this chapter indicate

that emission limitations and percent reductions beyond those required by the standards promulgated

under this section are achieved in practice, the Administrator 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 directed 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 provisions requiring the Administrator to promulgate regulations listing the categories of major stationary

sources not on the required list by Aug. 7, 1977, and regulations establishing standards of performance for such

categories.

Subsec. (g)(5) to (8). Pub. L. 101–549, §302(b), redesignated 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 pollution which may reasonably be anticipated to result in

an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness as a hazardous air pollutant under section 7412 of this title the

Administrator shall revise the list of hazardous air pollutants 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 promulgate such emission standards applicable to such category of sources.’’
§ 7412 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6244

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 subsection (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 emissions of air pollutants which reflects’’, ‘‘and the percentage reduction achievable’’ for ‘‘achievable’’, and

‘‘technological system of continuous emission reduction which (taking into consideration the cost of

achieving such emission reduction, and any nonair

quality health and environment impact and energy requirements)’’ for ‘‘system of emission reduction which

(taking into account the cost of achieving such reduction)’’ 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 characteristics of the fuel after extraction and prior to

combustion may be credited, as determined under regulations 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 emission 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), redesignated 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 appropriate,’’ 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 standard applies.

Subsecs. (f) to (i). Pub. L. 95–95, §109(a), added subsecs. (f) to (i).

Subsecs. (j), (k). Pub. L. 95–190, §14(a)(8), (9), redesignated subsec. (k) as (j) and, as so redesignated, substituted ‘‘(B)’’ for ‘‘(8)’’ as designation for second subpar. in par. (2). Former subsec. (j), added by Pub. L.

95–95, §109(e), which related to compliance with applicable 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’’.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

REGULATIONS

Section 403(b), (c) of Pub. L. 101–549 provided that:

‘‘(b) REVISED REGULATIONS.—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, require 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) APPLICABILITY.—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.’’

TRANSFER OF FUNCTIONS

Enforcement functions of Administrator or other official 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 transferred 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 Appendix to Title 5, Government Organization and Employees. Office of Federal Inspector for the Alaska Natural Gas Transportation System abolished and functions 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 Inspector note under section 719e of Title 15, Commerce

and Trade. Functions and authority vested in Secretary of Energy subsequently transferred to Federal

Coordinator for Alaska Natural Gas Transportation

Projects by section 720d(f) of Title 15.

PENDING ACTIONS AND PROCEEDINGS

Suits, actions, and other proceedings lawfully commenced 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.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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

1See References in Text note below.

(1) Major source

The term ‘‘major source’’ means any stationary source or group of stationary sources

located within a contiguous area and under

common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more

of any combination of hazardous air pollutants. The Administrator may establish a lesser quantity, or in the case of radionuclides different criteria, for a major source than that

specified in the previous sentence, on the basis

of the potency of the air pollutant, persistence, potential for bioaccumulation, other

characteristics of the air pollutant, or other

relevant factors.

(2) Area source

The term ‘‘area source’’ means any stationary source of hazardous air pollutants that is

not a major source. For purposes of this section, 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 physical change in, or change in the method of operation of, a major source which increases the

actual emissions of any hazardous air pollutant emitted by such source by more than a de

minimis amount or which results in the emission of any hazardous air pollutant not previously 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 resources, including adverse impacts on populations of endangered or threatened species or

significant degradation of environmental quality 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 potential 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 generating 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 stationary source other than a new source.

(11) Carcinogenic effect

Unless revised, the term ‘‘carcinogenic effect’’ shall have the meaning provided by the

Administrator under Guidelines for Carcinogenic Risk Assessment as of the date of enactment.1 Any revisions in the existing Guidelines shall be subject to notice and opportunity 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-Cresol
§ 7412 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6246

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 arsine)

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 applies: Unless otherwise specified, these listings are defined 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

2So in original. Probably should be ‘‘effects’’.

1 X′CN where X = H′ or any other group where a formal 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 publish the results thereof and, where appropriate, revise such list by rule, adding pollutants which present, or may present, through

inhalation or other routes of exposure, a

threat of adverse human health effects (including, but not limited to, substances which

are known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive

dysfunction, or which are acutely or chronically toxic) or adverse environmental effects

whether through ambient concentrations, bioaccumulation, 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 listed under section 7408(a) of this title or to any

pollutant which is in a class of pollutants listed under such section. No substance, practice,

process or activity regulated under subchapter

VI of this chapter shall be subject to regulation under this section solely due to its adverse 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 petition 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 receipt of a petition, the Administrator shall either 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 environmental 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, bioaccumulation or deposition of the substance

are known to cause or may reasonably be anticipated to cause adverse effects to human

health or adverse environmental effects.

(C) The Administrator shall delete a substance from the list upon a showing by the petitioner or on the Administrator’s own determination that there is adequate data on the

health and environmental effects of the substance to determine that emissions, ambient

concentrations, bioaccumulation or deposition

of the substance may not reasonably be anticipated to cause any adverse effects to the

human health or adverse environmental effects.

(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 Administrator’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 promulgating any emission standards pursuant to

subsection (d) of this section applicable to any

source category or subcategory of a listed hazardous 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 information on the health or environmental effects

of a substance is not sufficient to make a determination required by this subsection, the

Administrator may use any authority available to the Administrator to acquire such information.

(5) Test methods

The Administrator may establish, by rule,

test measures and other analytic procedures

for monitoring and measuring emissions, ambient concentrations, deposition, and bioaccumulation 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 section.

(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, and
§ 7412 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6248

shall from time to time, but no less often than

every 8 years, revise, if appropriate, in response 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 pursuant to subsection (b) of this section. To the

extent practicable, the categories and subcategories 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 Administrator’s authority to establish subcategories

under this section, as appropriate.

(2) Requirement for emissions standards

For the categories and subcategories the Administrator lists, the Administrator shall establish emissions standards under subsection

(d) of this section, according to the schedule in

this subsection and subsection (e) of this section.

(3) Area sources

The Administrator shall list under this subsection each category or subcategory of area

sources which the Administrator finds presents a threat of adverse effects to human

health or the environment (by such sources individually or in the aggregate) warranting regulation 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 subcategories of area sources to ensure that area

sources representing 90 percent of the area

source emissions of the 30 hazardous air pollutants that present the greatest threat to

public health in the largest number of urban

areas are subject to regulation under this section. Such regulations shall be promulgated

not later than 10 years after November 15, 1990.

(4) Previously regulated categories

The Administrator may, in the Administrator’s discretion, list any category or subcategory of sources previously regulated under

this section as in effect before November 15,

1990.

(5) Additional categories

In addition to those categories and subcategories of sources listed for regulation pursuant to paragraphs (1) and (3), the Administrator may at any time list additional categories and subcategories of sources of hazardous air pollutants according to the same criteria for listing applicable under such paragraphs. 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 November 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-tetrachlorodibenzo-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 promulgated 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 electric utility steam generating units.

(7) Research facilities

The Administrator shall establish a separate

category covering research or laboratory facilities, 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 development into new processes and products, where

such source is operated under the close supervision 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 unless the Administrator finds that such listing

would be inconsistent with the goals and requirements 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 either subparagraphs (C) or (D) of subsection

(b)(3) of this section.

(B) The Administrator may delete any

source category from the list under this subsection, on petition of any person or on the

Administrator’s own motion, whenever the

Administrator makes the following determination 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 individual 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 environmental effects, a determination that

emissions from no source in the category or

subcategory concerned (or group of sources
Page 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 adverse 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 petition under this paragraph within 1 year after

the petition is filed.

(d) Emission standards

(1) In general

The Administrator shall promulgate regulations 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 section. The Administrator may distinguish

among classes, types, and sizes of sources

within a category or subcategory in establishing such standards except that, there shall be

no delay in the compliance date for any standard 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 require the maximum degree of reduction in

emissions of the hazardous air pollutants subject to this section (including a prohibition on

such emissions, where achievable) that the Administrator, 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 emission 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 process changes, substitution of materials or

other modifications,

(B) enclose systems or processes to eliminate emissions,

(C) collect, capture or treat such pollutants when released from a process, stack,

storage or fugitive emissions point,

(D) are design, equipment, work practice,

or operational standards (including requirements 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 subparagraphs (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 confidential business information, or any trade

secret or any other intellectual property

right.

(3) New and existing sources

The maximum degree of reduction in emissions 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 controlled similar source, as determined by the

Administrator. Emission standards promulgated 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 stringent than—

(A) the average emission limitation

achieved by the best performing 12 percent

of the existing sources (for which the Administrator has emissions information), excluding those sources that have, within 18

months before the emission standard is proposed or within 30 months before such standard 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) applicable 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 Administrator may consider such threshold level,

with an ample margin of safety, when establishing emission standards under this subsection.

(5) Alternative standard for area sources

With respect only to categories and subcategories of area sources listed pursuant to

subsection (c) of this section, the Administrator may, in lieu of the authorities provided

in paragraph (2) and subsection (f) of this section, elect to promulgate standards or requirements 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 reduce emissions of hazardous air pollutants.

(6) Review and revision

The Administrator shall review, and revise

as necessary (taking into account developments 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 interpreted, construed or applied to diminish or replace the requirements of a more stringent

emission limitation or other applicable requirement established pursuant to section 7411

of this title, part C or D of this subchapter, or
§ 7412 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6250

other authority of this chapter or a standard

issued under State authority.

(8) Coke ovens

(A) Not later than December 31, 1992, the Administrator shall promulgate regulations establishing emission standards under paragraphs (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 equivalent) luting compounds to prevent door

leaks, and other operating practices and

technologies for their effectiveness in reducing coke oven emissions, and their suitability 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 technologies, and other appropriate emission

control and coke production technologies, as

to their effectiveness in reducing coke oven

emissions and their capability for production 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 seconds visible emissions per charge, with no exclusion for emissions during the period after

the closing of self-sealing oven doors. Notwithstanding subsection (i) of this section, the

compliance date for such emission standards

for existing coke oven batteries shall be December 31, 1995.

(B) The Administrator shall promulgate

work practice regulations under this subsection for coke oven batteries requiring, as

appropriate—

(i) the use of sodium silicate (or equivalent) 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 qualify 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 exceed 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 period after the closing of self-sealing doors.

Notwithstanding subsection (i) of this section,

the compliance date for such emission standards 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 licensed by the Nuclear Regulatory Commission

(or an Agreement State) is required to be promulgated under this section if the Administrator determines, by rule, and after consultation 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 provides an ample margin of safety to protect the

public health. Nothing in this subsection shall

preclude or deny the right of any State or political subdivision thereof to adopt or enforce

any standard or limitation respecting emissions 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 promulgated under this subsection shall be effective upon promulgation.

(e) Schedule for standards and review

(1) In general

The Administrator shall promulgate regulations establishing emission standards for categories and subcategories of sources initially

listed for regulation pursuant to subsection

(c)(1) of this section as expeditiously as practicable, 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 batteries 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 subcategories 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 effects of such pollutants on public health and

the environment;

(B) the quantity and location of emissions

or reasonably anticipated emissions of hazardous air pollutants that each category or

subcategory will emit; and
Page 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 establishing a date for the promulgation of emission standards for each category and subcategory of sources listed pursuant to subsection (c)(1) and (3) of this section which shall

be consistent with the requirements of paragraphs (1) and (2). The determination of priorities for the promulgation of standards pursuant to this paragraph is not a rulemaking and

shall not be subject to judicial review, except

that, failure to promulgate any standard pursuant to the schedule established by this paragraph 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 standards pursuant to subsection (d) of this section

applicable to publicly owned treatment works

(as defined in title II of the Federal Water Pollution 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 comment, to Congress on—

(A) methods of calculating the risk to public health remaining, or likely to remain,

from sources subject to regulation under

this section after the application of standards under subsection (d) of this section;

(B) the public health significance of such

estimated remaining risk and the technologically and commercially available methods 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 background concentrations of hazardous air pollutants, any uncertainties in risk assessment methodology or other health assessment technique, and any negative health or

environmental consequences to the community of efforts to reduce such risks; and

(D) recommendations as to legislation regarding such remaining risk.

(2) Emission standards

(A) If Congress does not act on any recommendation submitted under paragraph (1), the

Administrator shall, within 8 years after promulgation 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 provide an ample margin of safety to protect public health in accordance with this section (as

in effect before November 15, 1990) or to prevent, taking into consideration costs, energy,

safety, and other relevant factors, an adverse

environmental effect. Emission standards promulgated 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 Administrator determines that a more stringent

standard is necessary to prevent, taking into

consideration costs, energy, safety, and other

relevant factors, an adverse environmental effect. 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 subsection for such source category.

(B) Nothing in subparagraph (A) or in any

other provision of this section shall be construed as affecting, or applying to the Administrator’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 promulgate 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 concerned. In the case of categories or subcategories for which standards under subsection (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 subsection (d) of this section to make the determination 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, and
§ 7412 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6252

(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 Administrator 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 subsection (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 pollutants without CAS numbers under this subsection, the Administrator shall establish

such standards with respect to the health and

environmental effects of the substances actually emitted by sources and direct transformation 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 pollutant shall not be considered a modification, if

such increase in the quantity of actual emissions of any hazardous air pollutant from such

source will be offset by an equal or greater decrease 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 Administrator 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, publish 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 pollutants) 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 modifications

(A) After the effective date of a permit program 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 control 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 limitations have been established by the Administrator.

(B) After the effective date of a permit program under subchapter V of this chapter in

any State, no person may construct or reconstruct any major source of hazardous air pollutants, unless the Administrator (or the

State) determines that the maximum achievable 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 Administrator.

(3) Procedures for modifications

The Administrator (or the State) shall establish reasonable procedures for assuring

that the requirements applying to modifications under this section are reflected in the

permit.

(h) Work practice standards and other requirements

(1) In general

For purposes of this section, if it is not feasible in the judgment of the Administrator to

prescribe or enforce an emission standard for

control of a hazardous air pollutant or pollutants, the Administrator may, in lieu thereof,

promulgate a design, equipment, work practice, or operational standard, or combination

thereof, which in the Administrator’s judgment is consistent with the provisions of subsection (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 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 measurement methodology to a particular class of sources is

not practicable due to technological and economic limitations.

(3) Alternative standard

If after notice and opportunity for comment,

the owner or operator of any source establishes 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 reduction 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 emission standard whenever it is feasible to promulgate and enforce a standard in such terms.

(i) Schedule for compliance

(1) Preconstruction and operating requirements

After the effective date of any emission

standard, limitation, or regulation under subsection (d), (f) or (h) of this section, no person

may construct any new major source or reconstruct any existing major source subject to

such emission standard, regulation or limitation 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 paragraph (1), a new source which commences construction 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 promulgated 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 promulgation.

(3) Compliance schedule for existing sources

(A) After the effective date of any emissions

standard, limitation or regulation promulgated under this section and applicable to a

source, no person may operate such source in

violation of such standard, limitation or regulation 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, except as provided in subparagraph (B) and paragraphs (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 extension permitting an existing source up to 1

additional year to comply with standards

under subsection (d) of this section if such additional period is necessary for the installation of controls. An additional extension of up

to 3 years may be added for mining waste operations, if the 4-year compliance time is insufficient 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 determines 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 paragraph may be extended for 1 or more additional 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 permit allowing an existing source, for which the

owner or operator demonstrates that the

source has achieved a reduction of 90 per centum or more in emissions of hazardous air pollutants (95 per centum in the case of hazardous

air pollutants which are particulates) from the

source, to meet an alternative emission limitation reflecting such reduction in lieu of an

emission limitation promulgated under subsection (d) of this section for a period of 6

years from the compliance date for the otherwise applicable standard, provided that such

reduction is achieved before the otherwise applicable standard under subsection (d) of this

section is first proposed. Nothing in this paragraph shall preclude a State from requiring reductions 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 reduction referred to in subparagraph (A) after

the proposal of an applicable standard but before January 1, 1994, may qualify under subparagraph (A), if the source makes an enforceable commitment to achieve such reduction

before the proposal of the standard. Such commitment shall be enforceable to the same extent 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 emissions in the base year are artificially or substantially greater than emissions in other

years prior to implementation of emissions reduction 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 verifiable 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 paragraph
§ 7412 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6254

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 emission limitation under this paragraph. An alternative emission limitation under this paragraph shall not be available with respect to

standards or requirements promulgated pursuant to subsection (f) of this section and the

Administrator shall, for the purpose of determining whether a standard under subsection

(f) of this section is necessary, review emissions from sources granted an alternative

emission limitation under this paragraph at

the same time that other sources in the category 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 dioxins and furans, the Administrator shall by

regulation limit the use of offsetting reductions in emissions of other hazardous air pollutants from the source as counting toward

the 90 per centum reduction in such high-risk

pollutants qualifying for an alternative emissions 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 section 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) controlled pursuant to an action described in subparagraph (A) or (B) shall be required to comply 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 reconstruction is commenced after the date an

emission standard applicable to such source is

proposed pursuant to subsection (d) of this section but before the date an emission standard

applicable to such source is proposed pursuant

to subsection (f) of this section shall not be required to comply with the emission standard

under subsection (f) of this section until the

date 10 years after the date construction or reconstruction 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, subparagraph (B), and subparagraph (C), and complies with the provisions of subparagraph (E),

shall not be required to achieve emission limitations promulgated under subsection (f) of

this section until January 1, 2020.

(B)(i) Not later than December 31, 1992, the

Administrator shall promulgate emission limitations 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 centum 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 period after the closing of self-sealing oven doors

(or the total mass emissions equivalent). The

rulemaking in which such emission limitations are promulgated shall also establish an

appropriate measurement methodology for determining compliance with such emission limitations, 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 leaking doors, shall take into consideration alternative test methods that reflect the best technology and practices actually applied in the

affected industries, and shall assure that the

final test methods are consistent with the performance of such best technology and practices.

(ii) If the Administrator fails to promulgate

such emission limitations under this subparagraph prior to the effective date of such emission limitations, the emission limitations applicable to coke oven batteries under this subparagraph shall be—

(I) 3 per centum leaking doors (5 per centum 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 exclusion for emissions during the period after

the closing of self-sealing oven doors.

(C) Not later than January 1, 2007, the Administrator shall review the emission limitations 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 existing battery. Such emission limitations shall

be no less stringent than the emission limitation promulgated under subparagraph (B).

Notwithstanding paragraph (2) of this subsection, the compliance date for such emission
Page 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 section by the date such emission limitations

would otherwise apply to such coke oven battery, in lieu of the emission limitations and

the compliance dates provided under subparagraphs (B) and (C) of this paragraph. Any such

owner or operator shall be legally bound to

comply with such emission limitations promulgated under subsection (f) of this section

with respect to such coke oven battery as of

January 1, 2003. If no such emission limitations have been promulgated for such coke

oven battery, the Administrator shall promulgate such emission limitations in accordance

with subsection (f) of this section for such

coke oven battery.

(E) Coke oven batteries qualifying for an extension 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 Administrator to determine the appropriate level of

any emission standard established by the Administrator 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 subsection (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 potential 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 November 15, 1990.

(2) Failure to promulgate a standard

In the event that the Administrator fails to

promulgate a standard for a category or subcategory of major sources by the date established 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 paragraph (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 application for a permit required by this subsection,

any failure to have a permit shall not be a violation of paragraph (2), unless the delay in

final action is due to the failure of the applicant to timely submit information required or

requested to process the application. The Administrator shall not later than 18 months

after November 15, 1990, and after notice and

opportunity for comment, establish requirements for applications under this subsection

including a standard application form and criteria 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 section 7661d of this title. In the event that the

Administrator (or the State) disapproves a

permit application submitted under this subsection 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 subchapter V of this chapter and shall contain

emission limitations for the hazardous air pollutants subject to regulation under this section and emitted by the source that the Administrator (or the State) determines, on a

case-by-case basis, to be equivalent to the limitation 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 section. 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 section. 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 emission standard that is applicable to the major

source prior to the date on which a permit application is approved, the emission limitation

in the permit shall reflect the promulgated

standard rather than the emission limitation

determined pursuant to paragraph (5), provided that the source shall have the compliance 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 permit under this subsection after the date on

which the permit has been issued, the Admin-
§ 7412 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6256

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 hazardous air pollutants from area sources may individually, or in the aggregate, present significant risks to public health in urban areas.

Considering the large number of persons exposed and the risks of carcinogenic and other

adverse health effects from hazardous air pollutants, ambient concentrations characteristic of large urban areas should be reduced to

levels substantially below those currently experienced. It is the purpose of this subsection

to achieve a substantial reduction in emissions 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 attributable to emissions from such sources.

(2) Research program

The Administrator shall, after consultation

with State and local air pollution control officials, conduct a program of research with respect to sources of hazardous air pollutants in

urban areas and shall include within such program—

(A) ambient monitoring for a broad range

of hazardous air pollutants (including, but

not limited to, volatile organic compounds,

metals, pesticides and products of incomplete combustion) in a representative number 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 transformation and other factors which can elevate public health risks from such pollutants.

Health effects considered under this program

shall include, but not be limited to, carcinogenicity, mutagenicity, teratogenicity, neurotoxicity, 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 report the preliminary results of such research

not later than 3 years after November 15, 1990.

(3) National strategy

(A) Considering information collected pursuant 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 comment, 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 number of urban areas and that are or will be

listed pursuant to subsection (b) of this section, and

(ii) identify the source categories or subcategories 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 subparagraph, 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 hazardous air pollutants from area sources that

will be implemented by the Administrator

under the authority of this or other laws (including, but not limited to, the Toxic Substances Control Act [15 U.S.C. 2601 et seq.], the

Federal Insecticide, Fungicide and Rodenticide Act [7 U.S.C. 136 et seq.] and the Resource Conservation and Recovery Act [42

U.S.C. 6901 et seq.]) or by the States. The

strategy shall achieve a reduction in the incidence of cancer attributable to exposure to

hazardous air pollutants emitted by stationary 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 interpreted to preclude or delay implementation of

actions with respect to area sources of hazardous air pollutants under consideration pursuant 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 assuring that all sources are in compliance with all

requirements not later than 9 years after November 15, 1990.

(G) As part of such strategy the Administrator shall provide for ambient monitoring

and emissions modeling in urban areas as appropriate 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 Administrator shall also encourage and support

areawide strategies developed by State or

local air pollution control agencies that are
Page 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 control officials, the Administrator shall prepare

guidelines for control technologies or management practices which may be applicable to

various categories or subcategories of area

sources.

(5) Report

The Administrator shall report to the Congress 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 pollutants from area sources. The reports shall also

identify specific metropolitan areas that continue 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 requirements 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 submitted by a State under this subsection may

provide for partial or complete delegation of

the Administrator’s authorities and responsibilities 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 developing programs for submittal under this subsection. 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 quantity. 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 pursuant to subsection (b) of this section.

(3) Technical assistance

The Administrator shall establish and maintain an air toxics clearinghouse and center to

provide technical information and assistance

to State and local agencies and, on a cost recovery 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 conduct research on methods for preventing,

measuring and controlling emissions and evaluating 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 Administrator may make grants, subject to such terms

and conditions as the Administrator deems appropriate, to such State for the purpose of assisting the State in developing and implementing a program for submittal and approval

under this subsection. Programs assisted

under this paragraph may include program

elements addressing air pollutants or extremely hazardous substances other than

those specifically subject to this section.

Grants under this paragraph may include support for high-risk point source review as provided in paragraph (2) and support for the development 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 program submitted by a State, and after notice

and opportunity for public comment, the Administrator shall either approve or disapprove

such program. The Administrator shall disapprove any program submitted by a State, if

the Administrator determines that—

(A) the authorities contained in the program are not adequate to assure compliance

by all sources within the State with each applicable standard, regulation or requirement

established by the Administrator under this

section;

(B) adequate authority does not exist, or

adequate resources are not available, to implement the program;

(C) the schedule for implementing the program and assuring compliance by affected

sources is not sufficiently expeditious; or

(D) the program is otherwise not in compliance with the guidance issued by the Administrator under paragraph (2) or is not

likely to satisfy, in whole or in part, the objectives of this chapter.

If the Administrator disapproves a State program, the Administrator shall notify the State

of any revisions or modifications necessary to

obtain approval. The State may revise and resubmit 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 administering and enforcing a program approved

pursuant to this subsection in accordance with
§ 7412 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6258

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 opportunity for public comment, approve a program 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 approved program may take any action authorized to be taken by a State under this section.

(9) Permit authority

Nothing in this subsection shall affect the

authorities and obligations of the Administrator 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 identify and assess the extent of atmospheric deposition of hazardous air pollutants (and in the

discretion of the Administrator, other air pollutants) 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 Chesapeake Bay, Lake Champlain and coastal waters, including monitoring of the Great

Lakes through the monitoring network established 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 pollutants (and their atmospheric transformation

precursors);

(C) conduct research to develop and improve monitoring methods and to determine

the relative contribution of atmospheric pollutants 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 pursuant to the Federal Water Pollution Control 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 coastal waters and characterize the sources of

such pollutants.

(2) Great Lakes monitoring network

The Administrator shall oversee, in accordance with Annex 15 of the Great Lakes Water

Quality Agreement, the establishment and operation of a Great Lakes atmospheric deposition network to monitor atmospheric deposition of hazardous air pollutants (and in the

Administrator’s discretion, other air pollutants) 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 deposition 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 pollutants through the Great Lakes, to determine

the portion of water pollution loadings attributable to atmospheric deposition of such

pollutants, and to support development of

remedial action plans and other management plans as required by the Great Lakes

Water Quality Agreement.

(C) The Administrator shall assure that

the data collected by the Great Lakes atmospheric deposition monitoring network is

in a format compatible with databases sponsored by the International Joint Commission, 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 atmospheric deposition stations to monitor deposition of hazardous air pollutants (and in the

Administrator’s discretion, other air pollutants) 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 characterize 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 relative contribution of atmospheric pollutants
Page 6259 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

to pollutant loadings. For purposes of this subsection, ‘‘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 pursuant to section 1461 of title 16.

(5) Report

Within 3 years of November 15, 1990, and biennially thereafter, the Administrator, in cooperation with the Under Secretary of Commerce for Oceans and Atmosphere, shall submit 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 assessment of—

(A) the contribution of atmospheric deposition 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 contribute 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 requirements, standards, and limitations pursuant to this chapter and other applicable

Federal laws as are necessary to assure protection of human health and the environment.

(6) Additional regulation

As part of the report to Congress, the Administrator shall determine whether the other

provisions of this section are adequate to prevent serious adverse effects to public health

and serious or widespread environmental effects, including such effects resulting from indirect exposure pathways, associated with atmospheric 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 bioaccumulate. 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 standards or control measures as may be necessary

and appropriate to prevent such effects, including effects due to bioaccumulation and indirect 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 subject 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 anticipated to occur as a result of emissions by

electric utility steam generating units of pollutants listed under subsection (b) of this section after imposition of the requirements of

this chapter. The Administrator shall report

the results of this study to the Congress within 3 years after November 15, 1990. The Administrator shall develop and describe in the Administrator’s report to Congress alternative

control strategies for emissions which may

warrant regulation under this section. The Administrator shall regulate electric utility

steam generating units under this section, if

the Administrator finds such regulation is appropriate and necessary after considering the

results of the study required by this subparagraph.

(B) The Administrator shall conduct, and

transmit to the Congress not later than 4

years after November 15, 1990, a study of mercury 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 environmental effects of such emissions, technologies 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 (including consumption by sensitive populations)

without adverse effects to public health.

(2) Coke oven production technology study

(A) The Secretary of the Department of Energy and the Administrator shall jointly undertake a 6-year study to assess coke oven production emission control technologies and to

assist in the development and commercialization of technically practicable and economically 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 Administrator 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 existing coke oven production design.

(B) The Secretary and the Administrator are

authorized to enter into agreements with persons who propose to develop, install and operate coke production emission control technologies which have the potential for signifi-
§ 7412 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6260

3So 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 Secretary shall submit to Congress a report on

the results of the study and shall make recommendations to the Administrator identifying

practicable and economically viable control

technologies for coke oven production facilities to reduce residual risks remaining after

implementation of the standard under subsection (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 authorized by this paragraph.

(3) Publicly owned treatment works

The Administrator may conduct, in cooperation with the owners and operators of publicly

owned treatment works, studies to characterize emissions of hazardous air pollutants emitted by such facilities, to identify industrial,

commercial and residential discharges that

contribute to such emissions and to demonstrate control measures for such emissions.

When promulgating any standard under this

section applicable to publicly owned treatment works, the Administrator may provide

for control measures that include pretreatment of discharges causing emissions of

hazardous air pollutants and process or product substitutions or limitations that may be

effective in reducing such emissions. The Administrator 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 subsection (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 located 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 sulfide associated with the extraction of oil and

natural gas resources. To the extent practicable, the assessment shall build upon and

not duplicate work conducted for an assessment 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, techniques 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 recommendations, and shall, as appropriate, develop

and implement a control strategy for emissions of hydrogen sulfide to protect human

health and the environment, based on the findings 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 comprehensive 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 appropriate.

(7) RCRA facilities

In the case of any category or subcategory of

sources the air emissions of which are regulated under subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.], the Administrator 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 requirements 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 arrangements with the National Academy of

Sciences to conduct a review of—

(A) risk assessment methodology used by

the Environmental Protection Agency to determine 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 humans of hazardous air pollutants; and
Page 6261 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

(B) the techniques used for estimating exposure to hazardous air pollutants (for hypothetical and actual maximally exposed individuals 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, including, 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 Environment and Public Works, the House Committee on Energy and Commerce, the Risk Assessment and Management Commission established 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 conduct tests, keep and produce records, and

make reports respecting research or other activities 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 Sciences prepared pursuant to this subsection and

the views of the Science Advisory Board, with

respect to such report. Prior to the promulgation 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 Assessment or a detailed explanation of the reasons that any recommendations contained in

the report of the National Academy of Sciences will not be implemented. The publication 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 Research Center

(1) Establishment

The Administrator shall oversee the establishment of a National Urban Air Toxics Research Center, to be located at a university, a

hospital, or other facility capable of undertaking and maintaining similar research capabilities 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 Directors to be comprised of 9 members, the appointment 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 selected based on their respective academic and

professional backgrounds and expertise in

matters relating to public health, environmental pollution and industrial hygiene. The

duties of the Board of Directors shall be to determine 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 experience from the National Institute of Environmental Health Sciences, the Center for Disease Control, the Environmental Protection

Agency, the National Cancer Institute, and

others, and the Panel shall conduct peer review and evaluate research results. The Panel

shall assist the Board in developing the research agenda, reviewing proposals and applications, and advise on the awarding of research 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 before 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 before the date of enactment of such Amendments 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 modified 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 petition
§ 7412 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6262

4So 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 enactment, 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 enactment 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) elemental phosphorous plants, (B) grate calcination 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 emissions 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 [November 15, 1990], shall remain in effect for

radionuclide emissions from non-Department

of Energy Federal facilities that are not licensed by the Nuclear Regulatory Commission, coal-fired utility and industrial boilers,

underground uranium mines, surface uranium

mines, and disposal of uranium mill tailings

piles, unless the Administrator, in the Administrator’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 November 15, 1990, with respect to medical research or treatment facilities shall take effect

for two years following November 15, 1990, unless the Administrator makes a determination

pursuant to a rulemaking under subsection

(d)(9) of this section. If the Administrator determines that the regulatory program established 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 determines that such regulatory program does provide an ample margin of safety to protect the

public health, the Administrator is not required to promulgate a standard under this

section for such facilities, as provided in subsection (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 minimize 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 appropriate 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 releases 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 substance 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 release may occur.

(D) The term ‘‘retail facility’’ means a stationary 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 purposes of promulgating such list, the Administrator shall use, but is not limited to, the list

of extremely hazardous substances published

under the Emergency Planning and Community 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 ammonia, methyl chloride, ethylene oxide, vinyl

chloride, methyl isocyanate, hydrogen cyanide, ammonia, hydrogen sulfide, toluene

diisocyanate, phosgene, bromine, anhydrous

hydrogen chloride, hydrogen fluoride, anhydrous 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 releases. Regulations establishing the list shall

include an explanation of the basis for establishing the list. The list may be revised from

time to time by the Administrator on the Administrator’s own motion or by petition and

shall be reviewed at least every 5 years. No air

pollutant for which a national primary ambient air quality standard has been established

shall be included on any such list. No substance, 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 substance; 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 unburned 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 establish by rule, a threshold quantity for the

substance, taking into account the toxicity,

reactivity, volatility, dispersibility, combustibility, 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 independent safety board to be known as the Chemical

Safety and Hazard Investigation Board.

(B) The Board shall consist of 5 members, including 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 demonstrated knowledge in the fields of accident

reconstruction, safety engineering, human factors, toxicology, or air pollution regulation.

The terms of office of members of the Board

shall be 5 years. Any member of the Board, including 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 exercise the executive and administrative functions of the Board.

(C) The Board shall—

(i) investigate (or cause to be investigated), determine and report to the public

in writing the facts, conditions, and circumstances and the cause or probable cause of

any accidental release resulting in a fatality, 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 Administration, concerned with the safety of

chemical production, processing, handling

and storage, and other interested persons

recommending measures to reduce the likelihood or the consequences of accidental releases and proposing corrective steps to

make chemical production, processing, handling 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 Secretary 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 release; and

(iii) establish by regulation requirements

binding on persons for reporting accidental

releases into the ambient air subject to the

Board’s investigatory jurisdiction. Reporting releases to the National Response Center, in lieu of the Board directly, shall satisfy such regulations. The National Response

Center shall promptly notify the Board of

any releases which are within the Board’s jurisdiction.

(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 memorandum of understanding with the National

Transportation Safety Board to assure coordination of functions and to limit duplication of

activities which shall designate the National

Transportation Safety Board as the lead agency 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 understanding with the Occupational Safety and Health
§ 7412 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6264

5So in original. Probably should be paragraph ‘‘(7)(B)’’.

6So in original. The word ‘‘or’’ probably should appear.

7So 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 research and studies with respect to the potential for accidental releases, whether or not an

accidental release has occurred, where there is

evidence which indicates the presence of a potential hazard or hazards. To the extent practicable, the Board shall conduct such studies

in cooperation with other Federal agencies

having emergency response authorities, State

and local governmental agencies and associations 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 accompanied by recommendations to the Administrator on the use of hazard assessments in

preventing the occurrence and minimizing the

consequences of accidental releases of extremely hazardous substances. The recommendations 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 prevention of accidental releases and to minimize the

consequences of those releases that do occur.

The recommendations shall also include a description 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 paragraph (8)(B) 5 in preventing accidental releases.

The Board may from time to time review and

revise its recommendations under this subparagraph.

(I) Whenever the Board submits a recommendation 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 recommendation by the Administrator shall indicate

whether the Administrator will—

(i) initiate a rulemaking or issue such orders as are necessary to implement the recommendation in full or in part, pursuant to

any timetable contained in the recommendation; 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 schedule contained in the recommendation, shall be

accompanied by a statement from the Administrator setting forth the reasons for such determination.

(J) The Board may make recommendations

with respect to accidental releases to the Secretary of Labor. Whenever the Board submits

such recommendation, the Secretary shall respond to such recommendation formally and

in writing not later than 180 days after receipt

thereof. The response to the Board’s recommendation by the Administrator 7 shall indicate whether the Secretary will—

(i) initiate a rulemaking or issue such orders as are necessary to implement the recommendation in full or in part, pursuant to

any timetable contained in the recommendation; 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 Administrator of the Environmental Protection Agency and to the Administrator of the Occupational Safety and Health Administration recommending the adoption of regulations for the

preparation of risk management plans and

general requirements for the prevention of accidental releases of regulated substances into

the ambient air (including recommendations

for listing substances under paragraph (3)) and

for the mitigation of the potential adverse effect 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 threshold amounts. The Board may include proposed

rules or orders which should be issued by the

Administrator under authority of this subsection 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 recommendations 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 administrative law judge employed by or assigned to the

Board, or any officer or employee duly designated by the Board, may for the purpose of

carrying out duties authorized by subparagraph (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 production of evidence and may require by
Page 6265 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

8So in original. Probably should be ‘‘subparagraph’’.

order that any person engaged in the production, processing, handling, or storage of extremely hazardous substances submit written reports and responses to requests and

questions within such time and in such form

as the Board may require; and

(ii) upon presenting appropriate credentials and a written notice of inspection authority, enter any property where an accidental release causing a fatality, serious injury or substantial property damage has occurred and do all things therein necessary

for a proper investigation pursuant to subparagraph (C) and inspect at reasonable

times records, files, papers, processes, controls, and facilities and take such samples as

are relevant to such investigation.

Whenever the Administrator or the Board conducts an inspection of a facility pursuant to

this subsection, employees and their representatives shall have the same rights to participate 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 subparagraph (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 contracts, leases, cooperative agreements or other

transactions as may be necessary in the conduct 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 subparagraph (C)(iii) it shall be unlawful for any

person to fail to report any release of any extremely hazardous substance as required by

such subparagraph. The Administrator is authorized to enforce any regulation or requirements 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 chapter, as a request made by the Administrator

under section 7414 of this title and may be enforced 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 subsection8 (G) and section 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 information, 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 section 1905 of title 18, except that such record,

report, or information may be disclosed to

other officers, employees, and authorized representatives of the United States concerned

with carrying out this chapter or when relevant under any proceeding under this chapter. This subparagraph does not constitute authority to withhold records, reports, or information from the Congress.

(R) Whenever the Board submits or transmits any budget estimate, budget request,

supplemental budget request, or other budget

information, legislative recommendation, prepared 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 Administrator or any Federal agency or to judicial

review in any court. No officer or agency of

the United States shall have authority to require the Board to submit its budget requests

or estimates, legislative recommendations,

prepared testimony, comments, recommendations or reports to any officer or agency of the

United States for approval or review prior to

the submission of such recommendations, testimony, comments or reports to the Congress.

In the performance of their functions as established by this chapter, the members, officers

and employees of the Board shall not be responsible to or subject to supervision or direction, 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 section shall affect the application of title 5 to officers 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, information on accidental releases which have been

investigated by or reported to the Board during 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 implement such recommendations, an identification of priorities for study and investigation

in the succeeding year, progress in the development of risk-reduction technologies and the

response to and implementation of significant

research findings on chemical safety in the

public and private sector.
§ 7412 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6266

(7) Accident prevention

(A) In order to prevent accidental releases of

regulated substances, the Administrator is authorized to promulgate release prevention, detection, and correction requirements which

may include monitoring, record-keeping, reporting, 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 including, but not limited to, the size, location,

process, process controls, quantity of substances handled, potency of substances, and

response capabilities present at any stationary source. Regulations promulgated pursuant

to this subparagraph shall have an effective

date, as determined by the Administrator, assuring compliance as expeditiously as practicable.

(B)(i) Within 3 years after November 15, 1990,

the Administrator shall promulgate reasonable regulations and appropriate guidance to

provide, to the greatest extent practicable, for

the prevention and detection of accidental releases of regulated substances and for response

to such releases by the owners or operators of

the sources of such releases. The Administrator shall utilize the expertise of the Secretaries of Transportation and Labor in promulgating such regulations. As appropriate,

such regulations shall cover the use, operation, 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 inspections. The regulations shall include procedures and measures for emergency response

after an accidental release of a regulated substance 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 categories of sources and the voluntary actions of

such sources to prevent such releases and respond 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 stationary 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 accidental 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 environment. Such plan shall provide for compliance with the requirements of this subsection

and shall also include each of the following:

(I) a hazard assessment to assess the potential 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 affected 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 releases;

(II) a program for preventing accidental

releases of regulated substances, including

safety precautions and maintenance, monitoring and employee training measures to

be used at the source; and

(III) a response program providing for specific actions to be taken in response to an

accidental release of a regulated substance

so as to protect human health and the environment, including procedures for informing

the public and local agencies responsible for

responding to accidental releases, emergency health care, and employee training

measures.

At the time regulations are promulgated

under this subparagraph, the Administrator

shall promulgate guidelines to assist stationary sources in the preparation of risk management plans. The guidelines shall, to the extent

practicable, include model risk management

plans.

(iii) The owner or operator of each stationary 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 Administrator 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 releases 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 regularly 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 required by the Administrator, by rule.

(C) Any regulations promulgated pursuant

to this subsection shall to the maximum extent practicable, consistent with this subsection, be consistent with the recommendations and standards established by the American 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 requirements under this paragraph with any requirements 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 Transportation. Nothing in this subsection shall be

interpreted, construed or applied to impose requirements affecting, or to grant the Administrator, the Chemical Safety and Hazard Investigation Board, or any other agency any authority to regulate (including requirements

for hazard assessment), the accidental release

of radionuclides arising from the construction

and operation of facilities licensed by the Nuclear 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 regulation or requirement in violation of such regulation or requirement. Each regulation or requirement under this subsection shall for purposes of sections 7413, 7414, 7416, 7420, 7604, and

7607 of this title and other enforcement provisions of this chapter, be treated as a standard

in effect under subsection (d) of this section.

(F) Notwithstanding the provisions of subchapter 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 requirements 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 regulations affecting occupational safety and health.

(H) PUBLIC ACCESS TO OFF-SITE CONSEQUENCE

ANALYSIS INFORMATION.—

(i) DEFINITIONS.—In this subparagraph:

(I) COVERED 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 Government;

(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 government;

(ee) an individual affiliated with an entity that has been given, by a State or

local government, responsibility for preventing, 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) OFFICIAL 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 preventing, planning for, or responding to accidental releases.

(III) OFF-SITE CONSEQUENCE ANALYSIS INFORMATION.—The term ‘‘off-site consequence 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 alternative release scenarios, and any electronic data base created by the Administrator from those portions.

(IV) RISK MANAGEMENT PLAN.—The term

‘‘risk management plan’’ means a risk

management plan submitted to the Administrator by an owner or operator of a

stationary source under subparagraph

(B)(iii).

(ii) REGULATIONS.—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 analysis information for reduction in the risk

of accidental releases; and

(II) based on the assessment under subclause (I), promulgate regulations governing 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 consequence analysis information for a limited number of stationary sources located 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 stationary sources located in the person’s State;

(dd) allows a State or local covered

person 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 request to the Administrator, off-site consequence analysis information that is

not available to the person under item

(cc).

(iii) AVAILABILITY UNDER FREEDOM OF INFORMATION ACT.—

(I) FIRST YEAR.—Off-site consequence

analysis information, and any ranking of

stationary sources derived from the information, shall not be made available under

section 552 of title 5 during the 1-year period beginning on August 5, 1999.
§ 7412 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6268

9So in original. Probably should be ‘‘(i)(II)’’.

(II) AFTER FIRST YEAR.—If the regulations 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 derived from the information, shall not be

made available under section 552 of title 5

after the end of that period.

(III) APPLICABILITY.—Subclauses (I) and

(II) apply to off-site consequence analysis

information submitted to the Administrator before, on, or after August 5, 1999.

(iv) AVAILABILITY OF INFORMATION DURING

TRANSITION PERIOD.—The Administrator

shall make off-site consequence analysis information available to covered persons for

official use in a manner that meets the requirements of items (cc) through (ee) of

clause (ii)(II), and to the public in a form

that does not make available any information 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) PROHIBITION ON UNAUTHORIZED DISCLOSURE OF INFORMATION BY COVERED PERSONS.—

(I) IN GENERAL.—Beginning on August 5,

1999, a covered person shall not disclose to

the public off-site consequence analysis information in any form, or any statewide or

national ranking of identified stationary

sources derived from such information, except 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) CRIMINAL PENALTIES.—Notwithstanding section 7413 of this title, a covered person that willfully violates a restriction or

prohibition established by this subparagraph (including the regulations promulgated under clause (ii)) shall, upon conviction, be fined for an infraction under section 3571 of title 18 (but shall not be subject to imprisonment) for each unauthorized disclosure of off-site consequence

analysis information, except that subsection (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 disclosure of off-site consequence analysis information for each specific stationary

source shall be considered a separate offense. The total of all penalties that may

be imposed on a single person or organization under this item shall not exceed

$1,000,000 for violations committed during

any 1 calendar year.

(III) APPLICABILITY.—If the owner or operator of a stationary source makes offsite consequence analysis information relating 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 availability of the information.

(IV) LIST.—The Administrator shall

maintain and make publicly available a

list of all stationary sources that have provided notification under subclause

(III)(bb).

(vi) NOTICE.—The Administrator shall provide 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 established 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 official use under the regulations promulgated

under clause (ii).

(vii) QUALIFIED RESEARCHERS.—

(I) IN 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 information, including facility identification, to any qualified researcher, including

a qualified researcher from industry or

any public interest group.

(II) LIMITATION 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, received under this clause.

(viii) READ-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 public of off-site consequence analysis information 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 information may be made.

(ix) VOLUNTARY INDUSTRY ACCIDENT PREVENTION STANDARDS.—The Environmental

Protection Agency, the Department of Justice, and other appropriate agencies may

provide technical assistance to owners and

operators of stationary sources and participate in the development of voluntary industry standards that will help achieve the objectives set forth in paragraph (1).

(x) EFFECT ON STATE OR LOCAL LAW.—

(I) IN GENERAL.—Subject to subclause

(II), this subparagraph (including the regulations promulgated under this subparagraph) shall supersede any provision of
Page 6269 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412

State or local law that is inconsistent with

this subparagraph (including the regulations).

(II) AVAILABILITY OF INFORMATION UNDER

STATE LAW.—Nothing in this subparagraph

precludes a State from making available

data on the off-site consequences of chemical releases collected in accordance with

State law.

(xi) REPORT.—

(I) IN 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 promulgated under this paragraph have resulted

in actions, including the design and maintenance 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 Attorney General, using available data to the

extent possible, and a sampling of covered

stationary sources selected at the discretion of the Attorney General, and in consultation with appropriate State, local,

and Federal governmental agencies, affected industry, and the public, shall review the vulnerability of covered stationary sources to criminal and terrorist activity, current industry practices regarding site security, and security of transportation of regulated substances. The Attorney General shall submit this report, containing the results of the review, together

with recommendations, if any, for reducing 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 Congress.

(II) INTERIM 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 Environment and Public Works of the United

States Senate, and other relevant committees of Congress, an interim report that includes, 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 expected to occur that could cause the

findings of the report under subclause (I)

to be different than the preliminary findings.

(III) AVAILABILITY OF INFORMATION.—Information that is developed by the Attorney General or requested by the Attorney

General and received from a covered stationary source for the purpose of conducting the review under subclauses (I) and (II)

shall be exempt from disclosure under section 552 of title 5 if such information would

pose a threat to national security.

(xii) SCOPE.—This subparagraph—

(I) applies only to covered persons; and

(II) does not restrict the dissemination

of off-site consequence analysis information by any covered person in any manner

or form except in the form of a risk management plan or an electronic data base

created by the Administrator from off-site

consequence analysis information.

(xiii) AUTHORIZATION 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 promulgated under clause (ii)), to remain available until expended.

(8) Research on hazard assessments

The Administrator may collect and publish

information on accident scenarios and consequences covering a range of possible events for

substances listed under paragraph (3). The Administrator shall establish a program of longterm research to develop and disseminate information on methods and techniques for hazard assessment which may be useful in improving and validating the procedures employed in the preparation of hazard assessments 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 endangerment to the human health or welfare or the

environment because of an actual or threatened accidental release of a regulated substance, the Administrator may secure such relief 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 occurs shall have jurisdiction to grant such relief 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 limited to, issuing such orders as may be necessary to protect human health. The Administrator 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 paragraph 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,
§ 7412 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6270

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], sections 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 release prevention, mitigation and response authorities of the various Federal agencies and

shall clarify and coordinate agency responsibilities to assure the most effective and efficient implementation of such authorities and

to identify any deficiencies in authority or resources which may exist. The President may

utilize the resources and solicit the recommendations of the Chemical Safety and Hazard

Investigation Board in conducting such review. 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 Government making such recommendations for

change in law as the President may deem appropriate. 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 standard (including any procedural requirement)

that is more stringent than a regulation, requirement, limitation or standard in effect

under this subsection or that applies to a substance not subject to this subsection.

(s) Periodic report

Not later than January 15, 1993 and every 3

years thereafter, the Administrator shall prepare and transmit to the Congress a comprehensive report on the measures taken by the Agency and by the States to implement the provisions 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.)

REFERENCES IN TEXT

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 generally 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 subsec. (k)(3)(C), is Pub. L. 94–469, Oct. 11, 1976, 90 Stat.

2003, as amended, which is classified generally to chapter 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 section 136 of Title 7 and Tables.

The Resource Conservation and Recovery Act, referred to in subsec. (k)(3)(C), probably means the Resource 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 complete 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 III
Page 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 Occupational 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.

CODIFICATION

In subsec. (r)(6)(N), ‘‘section 6101 of title 41’’ substituted 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 Contracts.

Section was formerly classified to section 1857c-7 of

this title.

AMENDMENTS

1999—Subsec. (r)(2)(D). Pub. L. 106–40, §2(5), added

subpar. (D).

Subsec. (r)(4). Pub. L. 106–40, §2, substituted ‘‘Administrator—

‘‘(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 submit 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, substituting present provisions for provisions which related to: in subsec. (a), definitions; in subsec. (b), list of

hazardous air pollutants, emission standards, and pollution 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 reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness’’ for ‘‘may cause, or contribute to, an increase in mortality or an increase in

serious irreversible, or incapacitating reversible, illness’’.

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).

CHANGE OF NAME

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 Energy and Commerce of House of Representatives, and

jurisdiction over matters relating to securities and exchanges and insurance generally transferred to Committee on Financial Services of House of Representatives by House Resolution No. 5, One Hundred Seventh

Congress, Jan. 3, 2001.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

TERMINATION OF REPORTING REQUIREMENTS

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.

PENDING ACTIONS AND PROCEEDINGS

Suits, actions, and other proceedings lawfully commenced 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.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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.

DELEGATION OF AUTHORITY

Memorandum of President of the United States, Aug.

19, 1993, 58 F.R. 52397, provided:

Memorandum for the Administrator of the Environmental 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 undertake 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 Response Team and other appropriate agencies and departments, to conduct a review of release prevention,

mitigation, and response authorities of Federal agencies 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 Response Team and other appropriate agencies and de-
§ 7412 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6272

partments, to prepare and transmit a message to the

Congress concerning the release prevention, mitigation, and response activities of the Federal Government

with such recommendations for change in law as you

deem appropriate, to the extent such message is required by section 112(r)(10) of the Act.

The authority delegated by this memorandum may be

further redelegated within the Environmental Protection Agency.

You are hereby authorized and directed to publish

this memorandum in the Federal Register.

WILLIAM J. CLINTON.

Memorandum of President of the United States, Jan.

27, 2000, 65 F.R. 8631, provided:

Memorandum for the Attorney General[, ] the Administrator 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 delegate 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 Protection Agency (EPA) the authority vested in the President under section 112(r)(7)(H)(ii)(I)(bb) of the Act to

assess 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 promulgate regulations, based on these assessments, governing the distribution of off-site consequence analysis information. These regulations, in proposed and final

form, shall be subject to review and approval by the Director of the Office of Management and Budget.

The Administrator of EPA is authorized and directed

to publish this memorandum in the Federal Register.

WILLIAM J. CLINTON.

REPORTS

Pub. L. 106–40, §3(b), Aug. 5, 1999, 113 Stat. 213, provided that:

‘‘(1) DEFINITION OF ACCIDENTAL RELEASE.—In this subsection, 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) REPORT 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 National Fire Protection Association Code for Liquefied

Petroleum Gas that will result in the provision of information to local emergency response personnel concerning the off-site effects of accidental releases of substances exempted from listing under section 112(r)(4)(B)

of the Clean Air Act (as added by section 3).

‘‘(3) REPORT ON COMPLIANCE WITH CERTAIN INFORMATION SUBMISSION REQUIREMENTS.—Not later than 3 years

after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress 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 personnel respond to chemical accidents or related environmental or public health threats; and

‘‘(B) contains an analysis of the adequacy of the information required to be submitted and the efficacy

of the methods for delivering the information to local

emergency response personnel.’’

REEVALUATION OF REGULATIONS

Pub. L. 106–40, §3(c), Aug. 5, 1999, 113 Stat. 213, provided that: ‘‘The President shall reevaluate the regulations 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 Register stating that such reevaluation has been completed

and that a determination has been made not to modify

the regulations. Such notice shall include an explanation of the basis of such decision.’’

PUBLIC MEETING DURING MORATORIUM PERIOD

Pub. L. 106–40, §4, Aug. 5, 1999, 113 Stat. 214, provided

that:

‘‘(a) IN GENERAL.—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 discuss 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 conduct a joint meeting. In lieu of conducting such a meeting, small business stationary sources as defined in section 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 information 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 promulgated under section 112(r)(7)(B)(i) of the Clean Air Act.

‘‘(b) ENFORCEMENT.—The Administrator of the Environmental Protection Agency may bring an action in

the appropriate United States district court against

any person who fails or refuses to comply with the requirements of this section, and such court may issue

such orders, and take such other actions, as may be

necessary to require compliance with such requirements.’’

RISK ASSESSMENT AND MANAGEMENT COMMISSION

Section 303 of Pub. L. 101–549 provided that:

‘‘(a) ESTABLISHMENT.—There is hereby established a

Risk Assessment and Management Commission (hereafter 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 management 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) CHARGE.—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 assessment in establishing emission or effluent standards,

ambient standards, exposure standards, acceptable

concentration levels, tolerances or other environmental 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 lifetime 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, effluent standards, ambient standards, exposures standards, acceptable concentration levels, tolerances and

other environmental criteria, reductions in the number of persons exposed at various levels of risk, the

incidence of cancer, and other public health factors;

‘‘(3) methods to reflect uncertainties in measurement 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 existence 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 exposed, incidence of cancer, the cost and technical feasibility 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 possible or desirable to develop a consistent risk assessment methodology, or a consistent standard of acceptable risk, among various Federal programs.

‘‘(c) MEMBERSHIP.—Such Commission shall be composed of ten members who shall have knowledge or experience in fields of risk assessment or risk management, 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 appointed by the Minority Leader of the House of Representatives, two members to be appointed by the Majority Leader of the Senate, one member to be appointed by the Minority Leader of the Senate, and one

member to be appointed by the President of the National Academy of Sciences. Appointments shall be

made not later than 18 months after the date of enactment of the Clean Air Act Amendments of 1990 [Nov. 15,

1990].

‘‘(d) ASSISTANCE FROM AGENCIES.—The Administrator

of the Environmental Protection Agency and the heads

of all other departments, agencies, and instrumentalities of the executive branch of the Federal Government 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) STAFF AND CONTRACTS.—

‘‘(1) In the conduct of the study required by this

section, the Commission is authorized to contract (in

accordance with Federal contract law) with nongovernmental 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 attending 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 allowed travel expenses, including per diem in lieu of

subsistence as authorized by law for persons in the

Government service employed intermittently.

‘‘(f) REPORT.—A report containing the results of all

Commission studies and investigations under this section, together with any appropriate legislative recommendations 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 recommendations with respect to the appropriate use of risk assessment and risk management in Federal regulatory programs to prevent cancer or other chronic health effects

which may result from exposure to hazardous substances. 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) AUTHORIZATION.—There are authorized to be appropriated such sums as are necessary to carry out the

activities of the Commission established by this section.’’

[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 Organization 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.]

FLEXIBLE IMPLEMENTATION OF THE MERCURY AND AIR

TOXICS STANDARDS RULE

Memorandum of President of the United States, Dec.

21, 2011, 76 F.R. 80727, provided:

Memorandum for the Administrator of the Environmental 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 collectively are among the largest sources of such pollution 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 Americans—including children, older Americans, and other

vulnerable populations. Consistent with Executive

Order 13563 (Improving Regulation and Regulatory Review), the estimated benefits of the MATS Rule far exceed the estimated costs.

The MATS Rule can be implemented through the use

of demonstrated, existing pollution control technologies. 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 reliability 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.
§ 7413 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6274

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 installation 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 requirements 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 additional year, should unusual circumstances arise that

warrant such flexibility.

To address any concerns with respect to electric reliability 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 predictability and reduce uncertainty,’’ and should include

engagement and coordination with DOE, the Federal

Energy Regulatory Commission, State utility regulators, 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 comply with the MATS Rule is necessary for the installation of technology; and (b) under section 113(a) of the

Clean Air Act in the event that additional time to comply with the MATS Rule is necessary to address a specific and documented electric reliability issue. This information should describe the process for working with

entities with relevant expertise to identify circumstances where electric reliability concerns might justify 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 entities, its officers, employees, or agents, or any other

person.

You are hereby authorized and directed to publish

this memorandum in the Federal Register.

BARACK OBAMA.

§ 7413. Federal enforcement

(a) In general

(1) Order to comply with SIP

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 requirement or prohibition

of an applicable implementation plan or permit, 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 prohibitions of such plan or permit,

(B) issue an administrative penalty order

in accordance with subsection (d) of this section, or

(C) bring a civil action in accordance with

subsection (b) of this section.

(2) State failure to enforce SIP or permit program

Whenever, on the basis of information available to the Administrator, the Administrator

finds that violations of an applicable implementation plan or an approved permit program 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 Administrator 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 failure extends beyond the 30th day after such notice (90 days in the case of such permit program), the Administrator shall give public notice of such finding. During the period beginning 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 ‘‘period 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 prohibition,

(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 enforceable 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 requirement or prohibition of this subchapter,

section 7603 of this title, subchapter IV–A, subchapter 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 section,

(B) issue an order requiring such person to

comply with such requirement or prohibition,
Page 6275 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7413

1So 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 commence 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 opportunity 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 compliance which the Administrator determines is

reasonable, taking into account the seriousness of the violation and any good faith efforts

to comply with applicable requirements. In

any case in which an order under this subsection (or notice to a violator under paragraph (1)) is issued to a corporation, a copy of

such order (or notice) shall be issued to appropriate corporate officers. An order issued

under this subsection shall require the person

to whom it was issued to comply with the requirement as expeditiously as practicable, but

in no event longer than one year after the date

the order was issued, and shall be nonrenewable. No order issued under this subsection

shall prevent the State or the Administrator

from assessing any penalties nor otherwise affect or limit the State’s or the United States

authority to enforce under other provisions of

this chapter, nor affect any person’s obligations to comply with any section of this chapter or with a term or condition of any permit

or applicable implementation plan promulgated or approved under this chapter.

(5) Failure to comply with new source requirements

Whenever, on the basis of any available information, the Administrator finds that a

State is not acting in compliance with any requirement or prohibition of the chapter relating to the construction of new sources or the

modification of existing sources, the Administrator may—

(A) issue an order prohibiting the construction or modification of any major stationary source in any area to which such requirement applies; 1

(B) issue an administrative penalty order

in accordance with subsection (d) of this section, 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 action 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 operator of an affected source, a major emitting facility, 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 permit. Such an action shall be commenced (A)

during any period of federally assumed enforcement, 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 prohibition of this subchapter, section 7603 of this

title, subchapter IV–A, subchapter V, or subchapter VI of this chapter, including, but not

limited to, a requirement or prohibition of any

rule, order, waiver or permit 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).

(3) Whenever such person 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.

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 defendant’s principal place of business is located,

and such court shall have jurisdiction to restrain 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 reasonable 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 requirement or prohibition of an applicable implementation 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 person is violating such requirement or prohibition), any order under subsection (a) of this section, requirement or prohibition of section

7411(e) of this title (relating to new source performance 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 title
§ 7413 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6276

2So 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 prohibition of subchapter IV–A of this chapter (relating 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 chapter) 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 person under this paragraph, the maximum punishment shall be doubled with respect to both the

fine and imprisonment.

(2) Any person who knowingly—

(A) makes any false material statement, representation, or certification in, or omits material information from, or knowingly alters,

conceals, or fails to file or maintain any notice, application, record, report, plan, or other

document required pursuant to this chapter to

be either filed or maintained (whether with respect to the requirements imposed by the Administrator or by a State);

(B) fails to notify or report as required under

this chapter; or

(C) falsifies, tampers with, renders inaccurate, or fails to install any monitoring device 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 violation committed after a first conviction of such

person under this paragraph, the maximum punishment 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 subchapter, 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 violation committed after a first conviction of such

person under this paragraph, the maximum punishment 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 listed 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 listed in section 7412 of this title, and who at the

time negligently 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 for not more

than 1 year, or both. If a conviction of any person under this paragraph is for a violation committed 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 listed 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 listed 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 committing 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 committed after a first conviction of such person under

this paragraph, the maximum punishment shall

be doubled with respect to both the fine and imprisonment. For any air pollutant for which the

Administrator has set an emissions standard or

for any source for which a permit has been issued under subchapter V of this chapter, a release of such pollutant in accordance with that

standard or permit shall not constitute a violation of this paragraph or paragraph (4).

(B) In determining whether a defendant who is

an individual knew that the violation placed another person in imminent danger of death or serious bodily injury—

(i) the defendant is responsible only for actual 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 defendant took affirmative steps to be shielded from

relevant information.

(C) It is an affirmative defense to a prosecution that the conduct charged was freely consented 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 scientific experimentation conducted by professionally approved methods and such other person had been made aware of the risks involved

prior to giving consent.

The defendant may establish an affirmative defense under this subparagraph by a preponderance of the evidence.

(D) All general defenses, affirmative defenses,

and bars to prosecution that may apply with respect 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 justification 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 entity, other than a government, established or organized for any purpose, and such term includes

a corporation, company, association, firm, partnership, joint stock company, foundation, institution, trust, society, union, or any other association 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 entities 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 administrative 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 requirement or prohibition of an applicable implementation plan (such order shall be issued (i)

during any period of federally assumed enforcement, or (ii) more than thirty days following the date of the Administrator’s notification 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 requirement 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 paragraph 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 Administrator and the Attorney General jointly

determine that a matter involving a larger penalty amount or longer period of violation is appropriate for administrative penalty action. Any

such determination by the Administrator and

the Attorney General shall not be subject to judicial review.

(2)(A) An administrative penalty assessed

under paragraph (1) shall be assessed by the Administrator 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 paragraph. Before issuing such an order, the Administrator 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, modify, 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 regulations 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 assessment or to request a hearing on the field citation. 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 section 554 or 556 of title 5, but shall provide a reasonable 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 violation 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 administrative 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 assessment 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 penalty assessment constitutes an abuse of discretion. Such order or penalty assessment shall not

be subject to review by any court except as provided in this paragraph. In any such proceedings, 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 administrative penalty order—

(A) after the order or assessment has become

final, or
§ 7413 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6278

3So 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 decision 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 assessment 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 penalty and interest, the United States enforcement expenses, including but not limited to attorneys fees and costs incurred by the United

States for collection proceedings and a quarterly nonpayment penalty for each quarter during which such failure to pay persists. Such nonpayment penalty shall be 10 percent of the aggregate 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 consideration (in addition to such other factors as justice 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 violation as established by any credible evidence

(including evidence other than the applicable

test method), payment by the violator of penalties previously assessed for the same violation, 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 number 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 assessment may be made under section 7420 of this

title, where the Administrator or an air pollution 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 continued 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, except to the extent that the violator can prove by

a preponderance of the evidence that there were

intervening days during which no violation occurred 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 information 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 enforced under this section. Such payment is subject to available appropriations for such purposes 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 performance 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 settlement agreement of any kind under this chapter 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 criminal penalties, or judgments subject to Department 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 Administrator or the Attorney General, as appropriate,

shall promptly consider any such written comments and may withdraw or withhold his consent to the proposed order or agreement if the

comments disclose facts or considerations which

indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of this chapter. Nothing in this subsection 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 ‘‘operator’’, 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 engineer or technician responsible for the operation,

maintenance, repair, or monitoring of equipment and facilities and who often has supervisory and training duties but who is not senior

management personnel or a corporate officer.

Except in the case of knowing and willful violations, for purposes of subsection (c)(4) of this

section, the term ‘‘a person’’ shall not include

an employee who is carrying out his normal activities and who is not a part of senior management personnel or a corporate officer. Except in

the case of knowing and willful violations, for

purposes of paragraphs (1), (2), (3), and (5) of subsection (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.)

CODIFICATION

Section was formerly classified to section 1857c–8 of

this title.

AMENDMENTS

1990—Pub. L. 101–549 amended section generally, substituting present provisions for provisions which related to: in subsec. (a), finding of violation, notice, compliance order, civil action, State failure to enforce

plan, and construction or modification of major stationary 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, including 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 penalties under section 7420 of this title, expanded jurisdictional provisions to authorize actions in districts in

which the violation occurred and to authorize the district court to restrain violations, to require compliance, 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 enactment 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 ‘‘penalties), 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 applicable 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 reference to subsec. (b)(3) or (g) of section 7420 of this

title.

Subsec. (d)(2). Pub. L. 95–190, §14(a)(16), inserted provisions relating to determinations by the Administrator 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), substituted ‘‘title) upon’’ for ‘‘title upon’’.

Subsec. (d)(5)(A). Pub. L. 95–190, §14(a)(18), substituted ‘‘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 Administrator)’’.

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 enforcement’’.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

PENDING ACTIONS AND PROCEEDINGS

Suits, actions, and other proceedings lawfully commenced 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.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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.

TRANSFER OF FUNCTIONS

Federal Power Commission terminated and its functions, personnel, property, funds, etc., transferred to

Secretary of Energy (except for certain functions transferred to Federal Energy Regulatory Commission) by

sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of this

title.
§ 7414 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6280

1So in original.

2So in original. The ‘‘and’’ probably should not appear.

3The period probably should be ‘‘; and’’.

4So in original. Probably should not be capitalized.

5See References in Text note below.

§ 7414. Recordkeeping, inspections, monitoring,

and entry

(a) Authority of Administrator or authorized representative

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 section 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 engines)—

(1) the Administrator may require any person 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 monitoring equipment, and use such audit procedures, or methods;

(D) sample such emissions (in accordance

with such procedures or methods, at such locations, at such intervals, during such periods and in such manner as the Administrator shall prescribe);

(E) keep records on control equipment parameters, production variables or other indirect data when direct monitoring of emissions is impractical;

(F) submit compliance certifications in accordance with subsection (a)(3) of this section; and

(G) provide such other information as the

Administrator may reasonably require; and 2

(2) the Administrator or his authorized representative, upon presentation of his credentials—

(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 located, and

(B) may at reasonable times have access to

and copy any records, inspect any monitoring 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 certifications. Compliance certifications shall include (A) identification of the applicable requirement that is the basis of the certification, (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. Compliance certifications and monitoring data

shall be subject to subsection (c) of this section. Submission of a compliance certification

shall in no way limit the Administrator’s authorities to investigate or otherwise implement 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 delegate 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 section in a State.

(c) Availability of records, reports, and information 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 showing 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 information or particular portion thereof confidential in

accordance with the purposes of section 1905 of

title 18, except that such record, report, or information may be disclosed to other officers, employees, 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 monitoring

(1) In the case of any emission standard or

limitation or other requirement which is adopted by a State, as part of an applicable implementation plan or as part of an order under section 7413(d) 5 of this title, before carrying out an

entry, inspection, or monitoring under paragraph (2) of subsection (a) of this section with

respect to such standard, limitation, or other requirement, the Administrator (or his representatives) shall provide the State air pollution control agency with reasonable prior notice of such
Page 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 Administrator 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 notice under this paragraph. Nothing in this section shall be construed to require notification to

any State agency of any action taken by the Administrator with respect to any standard, limitation, 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 paragraph shall be a defense in any enforcement action brought by the Administrator or shall

make inadmissible as evidence in any such action any information or material obtained notwithstanding 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.)

REFERENCES IN TEXT

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 amended, no longer relates to final compliance orders.

CODIFICATION

Section was formerly classified to section 1857c–9 of

this title.

AMENDMENTS

1990—Subsec. (a). Pub. L. 101–549, §702(a)(1), which directed that ‘‘or’’ be struck out in first sentence immediately 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 ‘‘performance 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 follows: ‘‘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 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 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 reasonably 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 manufacturer of motor vehicles or motor vehicle engines)’’

for ‘‘carrying out sections 119 or 303’’ in cl. (iii) preceding par. (1), substituted ‘‘any person subject to any requirement 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 reference 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 section’’.

Subsec. (d). Pub. L. 95–95, §113, added subsec. (d).

1974—Subsec. (a). Pub. L. 93–319 inserted reference to

section 119.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

PENDING ACTIONS AND PROCEEDINGS

Suits, actions, and other proceedings lawfully commenced 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.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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 constituted international agency has reason to believe that any air pollutant or pollutants emit-
§ 7415 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6282

ted in the United States cause or contribute to

air pollution which may reasonably be anticipated 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 applicable implementation plan as is inadequate

to prevent or eliminate the endangerment referred to in subsection (a) of this section. Any

foreign country so affected by such emission of

pollutant or pollutants shall be invited to appear at any public hearing associated with any

revision of the appropriate portion of the applicable 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 abatement 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 section 7409 of this title unless the Administrator,

after consultation with all agencies which were

party to the conference, rescinds any such recommendation 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, renumbered §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.)

CODIFICATION

Section was formerly classified to section 1857d of

this title.

AMENDMENTS

1977—Pub. L. 95–95 completely revised section by substituting provisions establishing a mechanism for the

Administrator to trigger a revision of a State implementation plan under section 7410(a)(2)(H) upon a petition 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 encouragement 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), redesignated 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 appearing. 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 ‘‘Administrator’’ for ‘‘Secretary’’ wherever appearing.

Subsec. (f). Pub. L. 91–604, §15(c)(2), substituted ‘‘Administrator’’ 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), substituted ‘‘Administrator’’ for ‘‘Secretary’’ and ‘‘subsection (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 requirement 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), redesignated 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 covering matters before the conference, raised from three

weeks to thirty days the required notice of the conference, and inserted provisions for notice by newspapers, presentation of views on the Federal report, and

transcript of proceedings. Former subsec. (d) redesignated (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 interested 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 subsec. (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 codification 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 existing provisions as cl. (A) and added cl. (B).

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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.

UNITED STATES-CANADIAN NEGOTIATIONS ON AIR

QUALITY

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 becoming increasingly concerned about the effects of pollution, particularly that resulting from power generation facilities, since the facilities of each country affect the environment of the other;

‘‘(3) the United States and Canada have subscribed

to international conventions; have joined in the environmental work of the United Nations, the Organization for Economic Cooperation and Development, and

other international environmental forums; and have

entered into and implemented effectively the provisions 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 environmental 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 affected States, should take whatever diplomatic actions

appear necessary to reduce or eliminate any undesirable impact upon the United States and Canada resulting 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 (preempting certain State regulation of moving

sources) nothing in this chapter shall preclude

or deny the right of any State or political subdivision 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 limitation 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.)

REFERENCES IN TEXT

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 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 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 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.

CODIFICATION

Section was formerly classified to section 1857d–1 of

this title.

AMENDMENTS

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 provided, 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.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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.
§ 7417 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6284

1See Codification note below.

2See References in Text note below.

§ 7417. Advisory committees

(a) Establishment; membership

In order to obtain assistance in the development and implementation of the purposes of this

chapter including air quality criteria, recommended control techniques, standards, research and development, and to encourage the

continued efforts on the part of industry to improve 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 concerning air quality from the standpoint of

health, welfare, economics or technology.

(b) Compensation

The members of any other advisory committees 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 Administrator, shall be entitled to receive compensation at a rate to be fixed by the Administrator, but not exceeding $100 per diem, including 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, independence 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.)

REFERENCES IN TEXT

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).

CODIFICATION

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 subsec. (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.

AMENDMENTS

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), redesignated 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 ‘‘conferences or meetings or while otherwise serving’’ for

‘‘conferences or meetings of the Board or while otherwise serving’’. Former subsec. (b), setting out the duties 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 redesignated subsecs. (d) and (e) as (a) and (b), respectively.

1970—Subsec. (a). Pub. L. 91–604, §15(c)(2), substituted

‘‘Environmental Protection Agency’’ for ‘‘Department

of Health, Education, and Welfare’’ and ‘‘Administrator’’ for ‘‘Secretary’’.

Subsec. (b). Pub. L. 91–604, §15(c)(2), substituted ‘‘Administrator’’ for ‘‘Secretary’’ wherever appearing.

Subsec. (c). Pub. L. 91–604, §15(c)(2), substituted ‘‘Environmental 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 provisions establishing in the Department of Health, Education, and Welfare an Air Quality Advisory Board and

providing for the appointment and term of its members

for provisions directing the Secretary to maintain liaison 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 setting out the duties of the Air Quality Advisory Board

for provisions requiring the Secretary to make semiannual reports to Congress on measures being taken toward the resolution of vehicle exhaust pollution problems.

Subsecs. (c) to (e). Pub. L. 90–148 added subsecs. (c) to

(e).

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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

TERMINATION OF ADVISORY COMMITTEES

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 facilities

(a) General compliance

Each department, agency, and instrumentality 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, administrative authority, and process and sanctions respecting the control and abatement of air pollution 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 requirement 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 exercise of any Federal, State, or local administrative authority, and (D) to any process and sanction, whether enforced in Federal, State, or

local courts, or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees 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 instrumentality 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 excess of one year, but additional exemptions may

be granted for periods of not to exceed one year

upon the President’s making a new determination. In addition to any such exemption of a particular emission source, the President may, if he

determines it to be in the paramount interest of

the United States to do so, issue regulations exempting from compliance with the requirements

of this section any weaponry, equipment, aircraft, 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 Congress all exemptions from the requirements of

this section granted during the preceding calendar year, together with his reason for granting each such exemption.

(c) Government vehicles

Each department, agency, and instrumentality of executive, legislative, and judicial

branches of the Federal Government shall comply with all applicable provisions of a valid inspection 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 instrumentality of executive, legislative, and judicial

branches of the Federal Government having jurisdiction over any property or facility shall require all employees which operate motor vehicles on the property or facility to furnish proof

of compliance with the applicable requirements

of any vehicle inspection 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 for the State in which

such property or facility is located (without regard to whether such vehicles are registered in

the State). The installation shall use one of the

following methods to establish proof of compliance—

(1) presentation by the vehicle owner of a

valid certificate of compliance from the vehicle inspection and maintenance program;

(2) presentation by the vehicle owner of

proof of vehicle registration within the geographic area covered by the vehicle inspection

and maintenance program (except for any program whose enforcement mechanism is not

through the denial of vehicle registration);

(3) another method approved by the vehicle

inspection and maintenance program administrator.

(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,
§ 7419 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6286

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.)

CODIFICATION

Section was formerly classified to section 1857f of

this title.

AMENDMENTS

1990—Subsec. (a). Pub. L. 101–549, §235, inserted heading.

Pub. L. 101–549, §101(e), amended second sentence generally. Prior to amendment, second sentence read as

follows: ‘‘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 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 ‘‘section 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 existing first sentence as subsec. (a) and inserted provisions enumerating the legal and administrative areas

to which the compliance requirements apply and directing 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 inserted 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 reconsider the need for such an exemption at three-year intervals.

1970—Pub. L. 91–604, §5, struck out lettered designations (a) and (b), and, as so redesignated, substituted

provisions requiring Federal facilities to comply with

Federal, State, local, and interstate air pollution control and abatement requirements and provisions authorizing the President to exempt, under the specified

terms and conditions, any emission source of any department, etc., in the executive branch from compliance with control and abatement requirements, for provisions requiring, to the extent practicable and consistent with the interests of the United States and within

any available appropriations, Federal facilities to cooperate with the Department of Health, Education, and

Welfare and with any air pollution control agency to

prevent and control air pollution and provisions authorizing the Secretary to establish classes of potential

pollution sources for which any Federal department or

agency having jurisdiction over any facility was required 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.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

TERMINATION OF REPORTING REQUIREMENTS

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.

TRANSFER OF FUNCTIONS

For transfer of authorities, functions, personnel, and

assets of the Coast Guard, including the authorities

and functions of the Secretary of Transportation relating 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 Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set

out as a note under section 542 of Title 6.

PENDING ACTIONS AND PROCEEDINGS

Suits, actions, and other proceedings lawfully commenced 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.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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.

EXECUTIVE ORDER NO. 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.

EXECUTIVE ORDER NO. 11507

Ex. Ord. No. 11507, Feb. 4, 1970, 35 F.R. 2573, which provided 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; statement of grounds for application; findings

(1) Upon application by the owner or operator

of a primary nonferrous smelter, a primary nonferrous 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 located, but no such order issued by the State

shall take effect until the Administrator determines that such order has been issued in accordance with the requirements of this chapter.

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 determine whether or not such order has been issued by the State in accordance with the requirements of this chapter. If the Administrator
Page 6287 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7419

1See 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 nonferrous 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 primary 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 statement 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 Administrator or the State in any case in which

such State or Administrator is acting on its own

initiative. Such statement (including such documents 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 issuance 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 findings 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 implementation 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 primary 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 limitation applicable to such smelter which will

enable it to achieve compliance with such requirement 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 consideration).

(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 compliance with subsection (d) of this section and, in

the case of a second order, to procuring, installing, and operating the necessary means of emission limitation as expeditiously as practicable

after the Administrator determines such means

have been adequately demonstrated to be reasonably available within the meaning of subsection (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 respect to which such order is issued beyond January 1, 1983. The second such order shall not result in the postponement of such requirement

beyond January 1, 1988.

(d) Interim measures; continuous emission reduction 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 Administrator 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, extensions, waivers, enforcement orders, delayed compliance 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 necessary, and

(ii) such measures as the Administrator determines 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 Administrator shall condition the use of any such interim measures upon the agreement of the

owner or operator of the smelter—

(i) to comply with such conditions as the Administrator determines are necessary to maximize the reliability and enforceability of such

interim measures, as applied to the smelter, in

attaining and maintaining the national ambient air quality standards to which the order

relates, and

(ii) to commit reasonable resources to research and development of appropriate emission 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, after
§ 7420 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6288

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 application 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 Administrator shall require the smelter involved to

present information relating to any alleged cessation 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 appropriate. Such report, findings, and recommendations shall be available to the public, and shall

be taken into account by the State or the Administrator 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 Administrator may, on his own motion, conduct an investigation 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 technology and supplemental controls and which receives an initial primary nonferrous smelter

order under this section, no additional continuous emission reduction technology shall be required 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 available for the primary nonferrous smelter industry.

(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 determines 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 issued demonstrates that prompt termination of

such order would result in undue hardship, the

termination shall become effective at the earliest practicable date on which such undue hardship 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 compliance with the requirement with respect to

which such order was granted,

(3) give notice of noncompliance and commence 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.)

REFERENCES IN TEXT

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.

PRIOR PROVISIONS

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 provided 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.

AMENDMENTS

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’’.

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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 public hearing, the Administrator shall promulgate

regulations requiring the assessment and collection 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 circumstances described in subsection (b)(2)(B) of this

section.
Page 6289 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7420

1See References in Text note below.

(2)(A) Except as provided in subparagraph (B)

or (C) of this paragraph, the State or the Administrator shall assess and collect a noncompliance penalty against every person who owns or

operates—

(i) a major stationary source (other than a

primary nonferrous smelter which has received 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 compliance 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 compliance 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 suspension referred to in subparagraph (B), or

Federal or State consent decree is in effect),

or a primary nonferrous smelter which has received 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 subparagraph, the costs referred to in such subsection (d)(2) shall be the economic value of noncompliance 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 subparagraph (A)(i) and (ii), the owner or operator

of any source shall be exempted from the duty

to pay a noncompliance penalty under such requirements with respect to that source if, in accordance with the procedures in subsection (b)(5)

of this section, the owner or operator demonstrates that the failure of such source to comply 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 before August 7, 1977);

(ii) in the case of a coal-burning source

granted an extension under the second sentence 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 provisions of section 792(a) and (b) of title 15 or

under any legislation which amends or supersedes such provisions;

(iii) the use of innovative technology sanctioned by an enforcement order under section

7413(d)(4) 1 of this title;

(iv) an inability to comply with any such requirement, 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 entirely beyond the control of the owner or operator of such source or of any entity controlling, controlled by, or under common control

with the owner or operator of such source; or

(v) the conditions by reason of which a temporary 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 increments 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 noncompliance if he finds that such instance of noncompliance is de minimis in nature and in duration.

(b) Regulations

Regulations under subsection (a) of this section shall—

(1) permit the assessment and collection of

such penalty by the State if the State has a

delegation of authority in effect under subsection (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 effect but fails with respect to any particular

person or source to assess or collect the penalty 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 noncompliance under this section to each person

referred to in subsection (a)(2)(A) of this section with respect to each source owned or operated by such person which is not in compliance as provided in such subsection, not later

than July 1, 1979, or thirty days after the discovery 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 subsection (d)(2) of this section) and the schedule 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-
§ 7420 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6290

essary for an independent verification thereof, to the State and to the Administrator, or

(B) submit a petition, within forty–five

days after the issuance of such notice, challenging such notice of noncompliance or alleging entitlement to an exemption under

subsection (a)(2)(B) of this section with respect 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 substantially 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 Administrator 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 requirements of this section;

(7) require payment, in accordance with subsection (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 notice is given unless there has been a final determination granting a petition under paragraph (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 calculated or the payment schedule proposed by

such owner or operator under paragraph (4), if

the Administrator finds after notice and opportunity for a hearing on the record that the

penalty or schedule does not meet the requirements 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 noncompliance penalty under this section, the State

shall provide notice thereof to the Administrator. 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 assessment 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 objects, he shall immediately establish a substitute 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 subsection (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 assessment, a schedule for payment, and the information 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 person controlling, controlled by or under common

control with such source) to assist in determining 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 Administrator 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 capital 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 subparagraph (B) made during any quarter is not

subtracted for such quarter from the costs under

subparagraph (A), such expenditure may be subtracted 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 notice of noncompliance under subsection (b)(3) of

this section with respect to any source or on

January 1, 1980, whichever is later. Such first
Page 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 requirement, the State (or the Administrator as

the case may be) shall review the actual expenditures made by the owner or operator of such

source for the purpose of attaining and maintaining 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 Treasury, as the case may be) at appropriate prevailing 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 Treasury) 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 penalty for each quarter during which such failure

to pay persists. Such nonpayment penalty shall

be in an amount equal to 20 percent of the aggregate amount of such person’s penalties and nonpayment 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 requirements

Any orders, payments, sanctions, or other requirements under this section shall be in addition 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 emission 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, whichever 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.)

REFERENCES IN TEXT

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 August 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 particular which is classified to subsec. (d)(5) of section

7413 of this title. Section 7413(d) 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 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 Amendments of 1977).’’ See paragraph set out above for explanation of codification.

AMENDMENTS

1990—Subsec. (a)(2)(A). Pub. L. 101–549 inserted reference 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 consent 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 orders 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 established by a State, and substituted references to noncompliance for references to delayed compliance in two
§ 7421 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6292

1See References in Text note below.

1See References in Text note below.

2So 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), substituted ‘‘(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’’.

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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 chapter requiring applicable implementation plans

to contain—

(1) any transportation controls, air quality

maintenance plan requirements or preconstruction 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 enforcement orders), the State shall provide a satisfactory process of consultation with general purpose local governments, designated organizations of elected officials of local governments

and any Federal land manager having authority

over Federal land to which the State plan applies, effective with respect to any such requirement which is adopted more than one year after

August 7, 1977, as part of such plan. Such process

shall be in accordance with regulations promulgated 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 immediately 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 action of the Administrator approving any portion

of a plan referred to in this subsection may petition 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.)

REFERENCES IN TEXT

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.

AMENDMENTS

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.’’

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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 relevant 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 public health. If the Administrator makes an affirmative 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 substance which, in the judgment of the Administrator, causes, or contributes to, air pollution

which may reasonably be anticipated to result

in an increase in mortality or an increase in serious irreversible, or incapacitating reversible,

illness), or shall include each category of stationary sources emitting such substance in significant amounts in the list published under section 7411(b)(1)(A) of this title, or take any combination of such actions.

(b) Revision authority

Nothing in subsection (a) of this section shall

be construed to affect the authority of the Administrator to revise any list referred to in subsection (a) of this section with respect to any

substance (whether or not enumerated in subsection (a) of this section).

(c) Consultation with Nuclear Regulatory Commission; 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 consult 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 Regulatory Commission shall enter into an interagency 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 establishment, implementation, and enforcement of
Page 6293 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7424

emission limitations, standards of performance,

and other requirements and authorities (substantive and procedural) under this chapter respecting the emission of such material (or component or derivative thereof) from such sources

or facilities.

(3) In case of any standard or emission limitation promulgated by the Administrator, under

this chapter or by any State (or the Administrator) under any applicable implementation

plan under this chapter, if the Nuclear Regulatory Commission determines, after notice and

opportunity for public hearing that the application of such standard or limitation to a source

or facility within the jurisdiction of the Commission 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.)

REFERENCES IN TEXT

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).

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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.

TRANSFER OF FUNCTIONS

For transfer of certain functions from Nuclear Regulatory 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.

STUDY BY ADMINISTRATOR OF ENVIRONMENTAL

PROTECTION AGENCY

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 sulfates, 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 sulfates, cadmium, arsenic, and polycyclic organic matter.

§ 7423. Stack heights

(a) Heights in excess of good engineering practice; 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 determined under regulations promulgated by the

Administrator), or

(2) any other dispersion technique.

The preceding sentence shall not apply with respect to stack heights in existence before December 31, 1970, or dispersion techniques implemented before such date. In establishing an

emission limitation for coal-fired steam electric

generating units which are subject to the provisions of section 7418 of this title and which commenced operation before July 1, 1957, the effect

of the entire stack height of stacks for which a

construction contract was awarded before February 8, 1974, may be taken into account.

(b) Dispersion technique

For the purpose of this section, the term ‘‘dispersion 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 opportunity for public hearing, promulgate regulations to carry out this section. For purposes of

this section, good engineering practice means,

with respect to stack heights, the height necessary 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, eddies and wakes which may be created by the

source itself, nearby structures or nearby terrain obstacles (as determined by the Administrator). 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 opportunity for public hearing, to the satisfaction of

the Administrator, that a greater height is necessary 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.)

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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 implementation plan which relate to major fuel burning

sources and shall determine—

(1) the extent to which compliance with requirements 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 reasonably be anticipated to be inadequate to

meet the requirements of this chapter in such

State on a reliable and long-term basis by reason 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 locally 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.
§ 7425 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6294

(b) Plan revision

(1) Not later than eighteen months after August 7, 1977, the Administrator shall review the

submissions of the States under subsection (a) of

this section and shall require each State to revise its plan if, in the judgment of the Administrator, such plan revision is necessary to assure

that such plan will be adequate to assure compliance with the requirements of this chapter in

such State on a reliable and long-term basis,

taking into account the actual or potential prohibitions on use of petroleum products or natural gas, or both, under any other authority of

law.

(2) Before requiring a plan revision under this

subsection, with respect to any State the Administrator shall take into account the report

of the review conducted by such State under

paragraph (1) and shall consult with the Governor of the State respecting such required revision.

(July 14, 1955, ch. 360, title I, §124, as added Pub.

L. 95–95, title I, §122, Aug. 7, 1977, 91 Stat. 722.)

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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 hearing—

(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 minimize significant local or regional economic disruption or unemployment which would otherwise result from use by such source (or class or

category) of—

(A) coal or coal derivatives other than locally 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 implementation plan.

(b) Use of locally or regionally available coal or

coal derivatives to comply with implementation 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 category thereof) from using fuels other than locally or regionally available coal or coal derivatives to comply with implementation plan requirements. In taking any action under this subsection, the Governor, the President, or the

President’s designee as the case may be, shall

take into account, the final cost to the consumer of such an action.

(c) Contracts; schedules

The Governor, in the case of action under subsection (b)(1) of this section, or the Administrator, 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 require by rule or order for good cause) for supplies of regionally available coal or coal derivatives,

(2) enter into contracts to acquire any additional 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 derivatives as fuel, and

(3) comply with such schedules (including increments of progress), timetables and other requirements as may be necessary to assure

compliance with the requirements of this

chapter.

Requirements under this subsection shall be established simultaneously with, and as a condition of, any action under subsection (b) of this

section.

(d) Existing or new major fuel burning stationary 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 equivalent), as determined by the Administrator,

and

(2) which are not in compliance with the requirements of an applicable implementation

plan or which are prohibited from burning oil

or natural gas, or both, under any other authority 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) promulgated under section 7410(c) of this title, any

rule or order under subsection (c) of this section
Page 6295 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7426

1See 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 corresponding rule or order under subsection (c) of

this section, shall be treated as part of the applicable 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 of

the 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 ‘‘locally or regionally available coal or coal derivatives’’ means coal or coal derivatives which is,

or can in the judgment of the State or the Administrator 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.)

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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 (relating to significant deterioration of air

quality) or

(B) which may significantly contribute to

levels of air pollution in excess of the national 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 affected by such source at least sixty days prior

to the date on which commencement of construction is to be permitted by the State providing notice, and

(2) identify all major existing stationary

sources which may have the impact described

in paragraph (1) with respect to new or modified 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 petition the Administrator for a finding that any

major source or group of stationary sources

emits or would emit any air pollutant in violation 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 violation of this section and the applicable implementation 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 period if such source complies with such emission

limitations and compliance schedules (containing 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 expeditiously as practicable, but in no case later

than three years after the date of such finding.

Nothing in the preceding sentence shall be construed 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 permitted 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.)

REFERENCES IN TEXT

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.

AMENDMENTS

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 directed the insertion of ‘‘this section and’’ after ‘‘violation 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 ‘‘section 7410(a)(2)(E)(i) of this title’’ in par. (1) and penultimate sentence.

1977—Subsec. (a)(1). Pub. L. 95–190 substituted ‘‘(relating to significant deterioration of air quality)’’ for

‘‘, relating to significant deterioration of air quality’’.

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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.
§ 7427 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6296

1So in original. Probably should be ‘‘calendar year’’.

1So in original. Section enacted without a subsec. (b). 1So in original. Probably should be ‘‘subsection’’.

§ 7427. Public notification

(a) Warning signs; television, radio, or press notices 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 exceeded and the ways in which the public can participate in regulatory and other efforts to improve air quality. Such measures may include

the posting of warning signs on interstate highway access points to metropolitan areas or television, radio, or press notices or information.

(b) Grants

The Administrator is authorized to make

grants to States to assist in carrying out the requirements 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.)

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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 August 7, 1977, each applicable implementation

plan shall contain requirements that—

(1) any board or body which approves permits 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 orders 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 entities which are more stringent than the requirements of paragraph (1) and (2), and the Administrator shall approve any such more stringent requirements submitted as part of an implementation plan.

(July 14, 1955, ch. 360, title I, §128, as added Pub.

L. 95–95, title I, §125, Aug. 7, 1977, 91 Stat. 725.)

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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 performance standards and other requirements

pursuant to section 7411 of this title and this

section for each category of solid waste incineration 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 incineration 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 subparagraph shall alter any schedule for the promulgation 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 subsequently modified pursuant to the schedule established 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 incineration 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 incineration units combusting commercial or industrial waste shall be proposed not later than

36 months after November 15, 1990, and promulgated not later than 48 months after November 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 incineration 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 section1 (a)(4) that

the Administrator, 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

units in each category. The Administrator

may distinguish among classes, types (including mass-burn, refuse-derived fuel, modular

and other types of units), and sizes of units

within a category in establishing such standards. The degree of reduction in emissions

that is deemed achievable for new units in a
Page 6297 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7429

2So 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 determined by the Administrator. Emissions standards for existing units in a category may be

less stringent than standards for new units in

the same category but shall not be less stringent 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 proposed or 30 months before the date such standards are promulgated, whichever is later).

(3) Control methods and technologies

Standards under section 7411 of this title and

this section applicable to solid waste incineration units shall be based on methods and

technologies for removal or destruction of pollutants before, during, or after combustion,

and shall incorporate for new units siting requirements that minimize, on a site specific

basis, to the maximum extent practicable, potential risks to public health or the environment.

(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 limitations for the following substances or mixtures:

particulate matter (total and fine), opacity (as

appropriate), sulfur dioxide, hydrogen chloride, oxides of nitrogen, carbon monoxide,

lead, cadmium, mercury, and dioxins and dibenzofurans. The Administrator may promulgate numerical emissions limitations or provide for the monitoring of postcombustion

concentrations of surrogate substances, parameters or periods of residence time in excess

of stated temperatures with respect to pollutants 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 category of solid waste incineration units, and at

5 year intervals thereafter, the Administrator

shall review, and in accordance with this section 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 incineration units shall include guidelines promulgated pursuant to section 7411(d) of this

title and this section applicable to existing

units. Such guidelines shall include, as provided in this section, each of the elements required by subsection (a) of this section (emissions limitations, notwithstanding any restriction in section 7411(d) of this title regarding 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 Administrator 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 respect to such units. The State plan shall be at

least as protective as the guidelines promulgated 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 disapproved by the Administrator.

(3) Federal plan

The Administrator shall develop, implement

and enforce a plan for existing solid waste incineration units within any category located

in any State which has not submitted an approvable plan under this subsection with respect to units in such category within 2 years

after the date on which the Administrator promulgated 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 performance 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 incineration 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 relating to the operation of the unit and its pollution control technology as the Administrator

determines are appropriate; and

(3) to report the results of such monitoring.

Such regulations shall contain provisions regarding the frequency of monitoring, test methods and procedures validated on solid waste incineration 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 purposes of enforcement actions. Such regulations
§ 7429 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6298

shall require that copies of the results of such

monitoring be maintained on file at the facility

concerned and that copies shall be made available 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 promote 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 authorize any State to implement a model program for

the training of solid waste incineration unit operators and high-capacity fossil fuel fired plant

operators, if the State has adopted a program

which is at least as effective as the model program developed by the Administrator. Beginning 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 unlawful to operate any unit in the category unless

each person with control over processes affecting emissions from such unit has satisfactorily

completed a training program meeting the requirements established by the Administrator

under this subsection.

(e) Permits

Beginning (1) 36 months after the promulgation of a performance standard under subsection

(a) of this section and section 7411 of this title

applicable to a category of solid waste incineration 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, whichever is later, each unit in the category shall operate pursuant to a permit issued under this

subsection and subchapter V of this chapter.

Permits required by this subsection may be renewed 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 reviewed every 5 years after date of issuance or reissuance. Each permit shall continue in effect

after the date of issuance until the date of termination, unless the Administrator or State determines 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, instrumentality 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 Administrator 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 endanger public health or the environment. The

Administrator’s determination under the preceding sentence is a discretionary decision.

(f) Effective date and enforcement

(1) New units

Performance standards and other requirements promulgated pursuant to this section

and section 7411 of this title and applicable to

new solid waste incineration units shall be effective as of the date 6 months after the date

of promulgation.

(2) Existing units

Performance standards and other requirements 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 requirements are promulgated, whichever is earlier.

(3) Prohibition

After the effective date of any performance

standard, emission limitation or other requirement promulgated pursuant to this section 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 limitation, 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 limitation or other requirement established pursuant 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 multiple 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 primary purpose of recovering metals, (B) qualifying small power production facilities, as defined in section 796(17)(C) of title 16, or qualifying cogeneration facilities, as defined in sec-
Page 6299 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7429

3So in original. Probably should be ‘‘the’’.

tion 796(18)(B) of title 16, which burn homogeneous 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 production 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 provided 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, exceed 50 per centum of the original cost of construction and installation of the unit (not including the cost of any land purchased in connection with such construction or installation) 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, commercial, institutional, and industrial sources consisting of paper, wood, yard wastes, food

wastes, plastics, leather, rubber, and other

combustible materials and non-combustible

materials such as metal, glass and rock, provided that: (A) the term does not include industrial 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 aggregate, 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 subdivision thereof to adopt or enforce any regulation, requirement, limitation or standard relating to solid waste incineration units that is

more stringent than a regulation, requirement, 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 ambient air quality standard, except that no solid

waste incineration unit subject to performance 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 standards under section 7412(f) of this title for a category of solid waste incineration units, if promulgation 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 subsection (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 consumption measured on a Btu basis, during a period

or periods to be determined by the Administrator, 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 implementation plan under section 7475 of this title (relating 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 construction 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.)

REFERENCES IN TEXT

Section 306 of the Clean Air Act Amendments of 1990,

referred to in subsec. (g), probably means section 306 of
§ 7430 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6300

1So in original. Probably should be ‘‘anticipated’’.

2So in original. Section was enacted without an opening parenthesis.

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 chapter 82 (§6901 et seq.) 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.

REVIEW OF ACID GAS SCRUBBING REQUIREMENTS

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 review the availability of acid gas scrubbers as a pollution control technology for small new units and for existing units (as defined in 54 Federal Register 52190 (December 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 Administrator shall review and, if necessary, revise, the

methods (‘‘emission factors’’) used for purposes

of this chapter to estimate the quantity of emissions of carbon monoxide, volatile organic compounds, 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 established by the Administrator. The Administrator shall permit any person to demonstrate

improved emissions estimating techniques, and

following approval of such techniques, the Administrator shall authorize the use of such techniques. Any such technique may be approved

only after appropriate public participation.

Until the Administrator has completed the revision required by this section, nothing in this

section shall be construed to affect the validity

of emission factors established by the Administrator 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 infringement on the existing authority of counties

and cities to plan or control land use, and nothing in this chapter provides or transfers authority 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.)

PART B—OZONE PROTECTION

§§ 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 activities 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 unaffected 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 stratosphere.

SIMILAR PROVISIONS

For provisions relating to stratospheric ozone protection, see section 7671 et seq. of this title.

PART C—PREVENTION OF SIGNIFICANT

DETERIORATION OF AIR QUALITY

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 seashores, and other areas of special national or

regional natural, recreational, scenic, or historic value;

(3) to insure that economic growth will

occur in a manner consistent with the preservation of existing clean air resources;

(4) to assure that emissions from any source

in any State will not interfere with any portion 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 increased air pollution in any area to which this

section applies is made only after careful evaluation of all the consequences of such a decision and after adequate procedural opportunities 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

EFFECTIVE DATE

Subpart effective Aug. 7, 1977, except as otherwise expressly 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.

GUIDANCE DOCUMENT

Section 127(c) of Pub. L. 95–95 required Administrator, not later than 1 year after Aug. 7, 1977, to publish 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 promulgated.

STUDY AND REPORT ON PROGRESS MADE IN PROGRAM

RELATING TO SIGNIFICANT DETERIORATION OF AIR

QUALITY

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 carrying 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 implementation plan shall contain emission limitations

and such other measures as may be necessary, as

determined under regulations promulgated

under this part, to prevent significant deterioration 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.)

AMENDMENTS

1990—Pub. L. 101–549 substituted ‘‘designated pursuant to section 7407 of this title as attainment or unclassifiable’’ 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 redesignated. 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 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

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 unclassifiable 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.)

AMENDMENTS

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 subsequent to August 7, 1977, or which may occur subsequent

to November 15, 1990.’’

Subsec. (b). Pub. L. 101–549, §110(2), substituted ‘‘designated pursuant to section 7407(d) of this title as attainment 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; requirement 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 national ambient air quality standards for any period other than an annual period, such regulations shall permit such maximum allowable increase to be exceeded during one such period per

year.

(b) Maximum allowable increases in concentrations over baseline concentrations

(1) For any class I area, the maximum allowable increase in concentrations of sulfur dioxide

and particulate matter over the baseline concentration 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 allowable increase in concentrations of sulfur dioxide

and particulate matter over the baseline concentration 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................................. 20
§ 7474 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6302

1So in original. The period probably should be a comma. 1So in original. Probably should be ‘‘paragraphs’’.

Twenty-four-hour maximum .......................... 91

Three-hour maximum ..................................... 512

(3) For any class III area, the maximum allowable increase in concentrations of sulfur dioxide

and particulate matter over the baseline concentration 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 standard, or

(B) the concentration permitted under the

national primary ambient air quality standard,

whichever concentration is lowest for such pollutant for such period of exposure.

(c) Orders or rules for determining compliance

with maximum allowable increases in ambient 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 public hearing, issue orders or promulgate rules

providing that for purposes of determining compliance 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 attributable to the increase in emissions from stationary sources which have converted from

the use of petroleum products, or natural gas,

or both, by reason of an order which is in effect 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 effective date of such order.1

(B) the concentrations of such pollutant attributable 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 curtailment plan in effect pursuant to the Federal

Power Act [16 U.S.C. 791a et seq.] over the

emissions from such sources before the effective date of such plan,

(C) concentrations of particulate matter attributable to the increase in emissions from

construction or other temporary emission-related activities, and

(D) the increase in concentrations attributable to new sources outside the United

States over the concentrations attributable to

existing sources which are included in the

baseline concentration determined in accordance 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 applicable. If both such order and plan are applicable, 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 Administrator and the Administrator determines that

such order or rule is in compliance with the provisions 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.)

REFERENCES IN TEXT

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.

AMENDMENTS

1977—Subsec. (a). Pub. L. 95–190 inserted ‘‘section’’ before ‘‘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 exceeds ten thousand acres in size.

The extent of the areas referred to in paragraph1 (1) and (2) 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. Any

area (other than an area referred to in paragraph (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 session (unless State law provides that such redesignation must be specifically approved by

State legislation) and if general purpose units

of local government representing a majority of
Page 6303 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7474

2So 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 pollutant 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 recommendations; regulations; disapproval of redesignation

(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 affected by the proposed redesignation. Prior to

any such public hearing a satisfactory description and analysis of the health, environmental,

economic, social, and energy effects of the proposed 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 subparagraph (A) respecting the redesignation of

any area under this subsection, if such area includes 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 recommendations 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 (together with the reasons for making such redesignation against the recommendation of the

Federal land manager).

(C) The Administrator shall promulgate regulations 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 inspection 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 redesignation 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 reservations of federally recognized Indian tribes

may be redesignated only by the appropriate Indian governing body. Such Indian governing

body shall be subject in all respect to the provisions of subsection (e) of this section.

(d) Review of national monuments, primitive

areas, and national preserves

The Federal Land Manager shall review all national monuments, primitive areas, and national

preserves, and shall recommend any appropriate

areas for redesignation as class I where air quality related values are important attributes of

the area. The Federal Land Manager shall report

such recommendations, within2 supporting

analysis, to the Congress and the affected States

within one year after August 7, 1977. The Federal

Land Manager shall consult with the appropriate States before making such recommendations.

(e) Resolution of disputes between State and Indian tribes

If any State affected by the redesignation of

an area by an Indian tribe or any Indian tribe affected 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 construction in any State which the Governor of an affected State or governing body of an affected Indian 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 Indian ruling body may request the Administrator

to enter into negotiations with the parties involved to resolve such dispute. If requested by

any State or Indian tribe involved, the Administrator shall make a recommendation to resolve

the dispute and protect the air quality related

values of the lands involved. If the parties involved do not reach agreement, the Administrator shall resolve the dispute and his determination, 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 quality management or have air quality related values 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.)

AMENDMENTS

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 subsequent to August 7, 1977, or which may occur subsequent 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 area
§ 7475 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6304

(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 construction is commenced

No major emitting facility on which construction is commenced after August 7, 1977, may be

constructed in any area to which this part applies unless—

(1) a permit has been issued for such proposed facility in accordance with this part setting forth emission limitations for such facility which conform to the requirements of this

part;

(2) the proposed permit has been subject to a

review in accordance with this section, the required analysis has been conducted in accordance with regulations promulgated by the Administrator, and a public hearing has been

held with opportunity for interested persons

including representatives of the Administrator

to appear and submit written or oral presentations on the air quality impact of such

source, alternatives thereto, control technology 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 construction 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 applies more than one time per year, (B) national ambient air quality standard in any air

quality control region, or (C) any other applicable emission standard or standard of performance under this chapter;

(4) the proposed facility is subject to the

best available control technology for each pollutant subject to regulation under this chapter

emitted from, or which results from, such facility;

(5) the provisions of subsection (d) of this

section with respect to protection of class I

areas have been complied with for such facility;

(6) there has been an analysis of any air

quality impacts projected for the area as a result of growth associated with such facility;

(7) the person who owns or operates, or proposes to own or operate, a major emitting facility 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 allowable increases required under subsection

(a)(3) of this section shall not apply to maximum allowable increases for class II areas in the

case of an expansion or modification of a major

emitting facility which is in existence on August 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 section 7410 of this title for a major emitting facility 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 application.

(d) Action taken on permit applications; notice;

adverse impact on air quality related values;

variance; emission limitations

(1) Each State shall transmit to the Administrator 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 affected 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 affirmative responsibility to protect the air quality related 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 management of any lands within a class I area or the

Federal Land Manager of such lands, or the Administrator, or the Governor of an adjacent

State containing such a class I area files a notice 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 concentrations which exceed the maximum allowable increases for a class I area.
Page 6305 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7475

(ii) In any case where the Federal Land Manager demonstrates to the satisfaction of the

State that the emissions from such facility will

have an adverse impact on the air quality-related values (including visibility) of such lands,

notwithstanding the fact that the change in air

quality resulting from emissions from such facility will not cause or contribute to concentrations which exceed the maximum allowable increases 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 contribute to concentrations which exceed the maximum 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 maximum allowable increases over the baseline concentration 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 allowable 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 Governor, 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 variance is granted, a permit may be issued to such

source pursuant to the requirements of this subparagraph.

(ii) In any case in which the Governor recommends a variance under this subparagraph in

which the Federal Land Manager does not concur, 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 recommendations. The President shall approve or disapprove

such recommendation within ninety days after

his receipt of the recommendations of the Governor 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 permit as may be necessary to assure that emissions of sulfur oxides from such facility will not

(during any day on which the otherwise applicable maximum allowable increases are exceeded)

cause or contribute to concentrations which exceed the following maximum allowable increases

for such areas over the baseline concentration

for such pollutant and to assure that such emissions will not cause or contribute to concentrations which exceed the otherwise applicable

maximum allowable increases for periods of exposure 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 facility, any area having an elevation of 900 feet or

more above the base of the stack of such facility, 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 Administrator, 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 proposed 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 include 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 application for a permit under this part unless the

State, in accordance with regulations promulgated by the Administrator, determines that a

complete and adequate analysis for such purposes 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 respecting the analysis required under this subsection which regulations—
§ 7476 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6306

1So in original. Probably should be ‘‘of’’.

(A) shall not require the use of any automatic 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 operation 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 particularity each air quality model or models to be

used under specified sets of conditions for purposes of this part.

Any model or models designated under such regulations 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 potentially affected by emissions from a source applying 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.)

AMENDMENTS

1977—Subsec. (a)(1). Pub. L. 95–190, §14(a)(44), substituted ‘‘part;’’ for ‘‘part:’’.

Subsec. (a)(3). Pub. L. 95–190, §14(a)(45), inserted provision 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 concentrations of such pollutant which exceed’’ for ‘‘together 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, petrochemical oxidants, and nitrogen oxides

In the case of the pollutants hydrocarbons,

carbon monoxide, photochemical oxidants, and

nitrogen oxides, the Administrator shall conduct a study and not later than two years after

August 7, 1977, promulgate regulations to prevent 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 promulgated after August 7, 1977, he shall promulgate such regulations not more than 2 years

after the date of promulgation of such standards.

(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 Administrator who shall approve or disapprove the plan

within 25 months after such date or 1 promulgation in the same manner as required under section 7410 of this title.

(c) Contents of regulations

Such regulations shall provide specific numerical 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 purposes

The regulations of the Administrator under

subsection (a) of this section shall provide specific measures at least as effective as the increments established in section 7473 of this title to

fulfill such goals and purposes, and may contain

air quality increments, emission density requirements, or other measures.

(e) Area classification plan not required

With respect to any air pollutant for which a

national ambient air quality standard is established other than sulfur oxides or particulate

matter, an area classification plan shall not be

required under this section if the implementation 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 classification plan for such pollutant. Such other provisions referred to in the preceding sentence need

not require the establishment of maximum allowable 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 particulate 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 substituted 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 regulations 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.)

AMENDMENTS

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 proposed to be constructed in any area designated

pursuant to section 7407(d) of this title as attainment or unclassifiable and which is not subject 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.)

AMENDMENTS

1990—Pub. L. 101–549, §708, substituted ‘‘construction

or modification of a major emitting facility’’ for ‘‘construction of a major emitting facility’’.

Pub. L. 101–549, §110(3), substituted ‘‘designated pursuant to section 7407(d) as attainment or unclassifiable’’ 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 implementation plan is in effect for any area, which plan

meets the requirements of this part to prevent

significant deterioration of air quality with respect to any air pollutant, applicable regulations under this chapter prior to August 7, 1977,

shall remain in effect to prevent significant deterioration 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 requirements of section 7472(a), section 7473(b) or section 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 accordance with the definition of ‘‘commenced’’ in section 7479(2) of this title) after June 1, 1975, and

prior to August 7, 1977, the review and permitting 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.)

AMENDMENTS

1977—Subsec. (b). Pub. L. 95–190 substituted ‘‘(in accordance 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 potential 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 hundred 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, hydrofluoric, sulfuric, and nitric acid plants, petroleum refineries, lime plants, phosphate rock

processing plants, coke oven batteries, sulfur

recovery plants, carbon black plants (furnace

process), primary lead smelters, fuel conversion 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 transfer facilities with a capacity exceeding three

hundred thousand barrels, taconite ore processing 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 caused

to begin, a continuous program of physical onsite construction of the facility or (ii) entered

into binding agreements or contractual obligations, which cannot be canceled or modified

without substantial loss to the owner or operator, to undertake a program of construction

of the facility to be completed within a reasonable time.

(B) The term ‘‘necessary preconstruction approvals or permits’’ means those permits or

approvals, required by the permitting authority as a precondition to undertaking any activity under clauses (i) or (ii) of subparagraph

(A) of this paragraph.

(C) The term ‘‘construction’’ when used in

connection with any source or facility, includes the modification (as defined in section

7411(a) of this title) of any source or facility.

(3) The term ‘‘best available control technology’’ means an emission limitation based

on the maximum degree of reduction of each
§ 7491 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6308

pollutant subject to regulation under this

chapter emitted from or which results from

any major emitting facility, which the permitting authority, on a case-by-case basis, taking

into account energy, environmental, and economic impacts and other costs, determines is

achievable for such facility through application of production processes and available

methods, systems, and techniques, including

fuel cleaning, clean fuels, or treatment or innovative fuel combustion techniques for control of each such pollutant. In no event shall

application of ‘‘best available control technology’’ 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 paragraph as it existed prior to November 15, 1990.

(4) The term ‘‘baseline concentration’’

means, with respect to a pollutant, the ambient 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 Protection 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 emitting facility on which construction commenced prior to January 6, 1975, but which has

not begun operation by the date of the baseline 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 allowable 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.)

AMENDMENTS

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 ‘‘including 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 increase 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).

STUDY OF MAJOR EMITTING FACILITIES WITH

POTENTIAL OF EMITTING 250 TONS PER YEAR

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

CODIFICATION

As originally enacted, subpart II of part C of subchapter 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 mandatory 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 consultation with other Federal land managers shall review all mandatory class I Federal areas and

identify those where visibility is an important

value of the area. From time to time the Secretary of the Interior may revise such identifications. Not later than one year after August

7, 1977, the Administrator shall, after consultation with the Secretary of the Interior, promulgate a list of mandatory class I Federal areas in

which he determines visibility is an important

value.

(3) Not later than eighteen months after August 7, 1977, the Administrator shall complete a

study and report to Congress on available methods for implementing the national goal set forth

in paragraph (1). Such report shall include recommendations for—

(A) methods for identifying, characterizing,

determining, quantifying, and measuring visibility 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 visibility impairment.

Such report shall also identify the classes or

categories of sources and the types of air pollutants which, alone or in conjunction with other

sources or pollutants, may reasonably be anticipated to cause or contribute significantly to impairment of visibility.

(4) Not later than twenty-four months after

August 7, 1977, and after notice and public hearing, the Administrator shall promulgate regulations 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 section 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 emissions from which may reasonably be anticipated to cause or contribute to any impairment 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 requirement 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 promulgated under section 7410(c) of this title)

emits any air pollutant which may reasonably 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 technology, as determined by the State (or the

Administrator in the case of a plan promulgated 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) strategy for making reasonable progress toward

meeting the national goal specified in subsection (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 limitations required under this paragraph shall be determined pursuant to guidelines, promulgated

by the Administrator under paragraph (1).

(c) Exemptions

(1) The Administrator may, by rule, after notice and opportunity for public hearing, exempt

any major stationary source from the requirement 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 reasonably 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 Administrator under subsection (a)(2) of this section 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 appropriate 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 proposed 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 appropriate 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 section, 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 ‘‘nondiscretionary 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 compliance, and the energy and nonair quality environmental impacts of compliance, and the remaining useful life of any existing source subject to such requirements;

(2) in determining best available retrofit

technology the State (or the Administrator in

determining emission limitations which reflect such technology) shall take into consideration 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 improvement 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 indirectly from human activities;

(4) the term ‘‘as expeditiously as practicable’’ 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 Administrator 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 reduction in visual range and atmospheric discoloration; and
§ 7492 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6310

1So in original. Words ‘‘subsection (b) of this section’’ probably should be ‘‘paragraph (2)’’.

2So 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 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 250 tons of refuse per

day, hydrofluoric, sulfuric, and nitric acid

plants, petroleum refineries, lime plants, phosphate rock processing plants, coke oven batteries, sulfur recovery plants, carbon black

plants (furnace process), primary lead smelters, fuel conversion plants, sintering plants,

secondary metal production facilities, chemical process plants, fossil-fuel boilers of more

than 250 million British thermal units per

hour heat input, petroleum storage and transfer facilities with a capacity exceeding 300,000

barrels, taconite ore processing facilities,

glass fiber processing plants, charcoal production facilities.

(July 14, 1955, ch. 360, title I, §169A, as added

Pub. L. 95–95, title I, §128, Aug. 7, 1977, 91 Stat.

742.)

EFFECTIVE DATE

Subpart effective Aug. 7, 1977, except as otherwise expressly 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 identify and evaluate sources and source regions of

both visibility impairment and regions that provide predominantly clean air in class I areas. A

total of $8,000,000 per year for 5 years is authorized to be appropriated for the Environmental

Protection Agency and the other Federal agencies 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 visibility impairing pollution and clean air corridors;

(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 research required in subsection (a)(1) of this section as well as other available scientific and

technical data, studies, and other available information pertaining to visibility source-receptor relationships, the Administrator shall conduct an assessment and evaluation that identifies, to the extent possible, sources and source

regions of visibility impairment including natural 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 provisions 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 transmit 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 pollutants that includes such States. The Administrator, upon the Administrator’s own motion

or upon petition from the Governor of any affected State, or upon the recommendations of

a transport commission established under subsection (b) of this section1 may—

(A) add any State or portion of a State to

a visibility transport region when the Administrator determines that the interstate

transport of air pollutants from such State

significantly contributes to visibility impairment 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 significantly 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 minimum) each of the following members:

(A) the Governor of each State in the Visibility Transport Region, or the Governor’s

designee;

(B) The 2 Administrator or the Administrator’s designee; and

(C) A 2 representative of each Federal agency charged with the direct management of

each class I area or areas within the Visibility Transport Region.

(3) Ex officio members

All representatives of the Federal Government 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 Federal 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 information, including studies conducted pursuant to subsection (a)(1) of this section, pertaining to adverse impacts on visibility from

potential or projected growth in emissions

from sources located in the Visibility Transport Region; and

(2) shall, within 4 years of establishment,

issue a report to the Administrator recommending what measures, if any, should be

taken under this chapter to remedy such adverse impacts. The report required by this subsection shall address at least the following

measures:

(A) the establishment of clean air corridors, 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 construction of new major stationary sources or

major modifications to existing sources in

such clean air corridors specifically including 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 account the studies pursuant to subsection (a)(1)

of this section and the reports pursuant to subsection (d)(2) of this section and any other relevant information, within eighteen months of

receipt of the report referred to in subsection

(d)(2) of this section, carry out the Administrator’s regulatory responsibilities under section

7491 of this title, including criteria for measuring ‘‘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 section 7410 of this title to contain such emission

limits, schedules of compliance, and other measures as may be necessary to carry out regulations 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, establish a visibility transport commission for the

region affecting the visibility of the Grand Canyon 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.)

REFERENCES IN TEXT

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 section 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.

PART D—PLAN REQUIREMENTS FOR

NONATTAINMENT AREAS

SUBPART 1—NONATTAINMENT AREAS IN GENERAL

§ 7501. Definitions

For the purpose of this part—

(1) REASONABLE FURTHER PROGRESS.—The

term ‘‘reasonable further progress’’ means

such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Administrator for the purpose of

ensuring attainment of the applicable national

ambient air quality standard by the applicable

date.

(2) NONATTAINMENT AREA.—The term ‘‘nonattainment area’’ means, for any air pollutant, an area which is designated ‘‘nonattainment’’ 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 emissions 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 allowable under applicable new source standards

of performance.

(4) The terms ‘‘modifications’’ and ‘‘modified’’ mean the same as the term ‘‘modification’’ 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.)

AMENDMENTS

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), amended pars. (1) and (2) generally. Prior to amendment, pars.

(1) and (2) read as follows:

‘‘(1) The term ‘reasonable further progress’ means annual incremental reductions in emissions of the applicable 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 ambient 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 data
§ 7502 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6312

or which is calculated by air quality modeling (or other

methods determined by the Administrator to be reliable) to exceed any national ambient air quality standard for such pollutant. Such term includes any area

identified under subparagraphs (A) through (C) of section 7407(d)(1) of this title.’’

EFFECTIVE DATE

Part effective Aug. 7, 1977, except as otherwise expressly 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 national ambient air quality standard (or any revised 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 pursuant to paragraph (2), and for other purposes. In

determining the appropriate classification, if

any, for a nonattainment area, the Administrator may consider such factors as the severity of nonattainment in such area and the

availability and feasibility of the pollution

control measures that the Administrator believes may be necessary to provide for attainment of such standard in such area.

(B) The Administrator shall publish a notice

in the Federal Register announcing each classification 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 provisions of sections 553 through 557 of title 5 (concerning notice and comment) and shall not be

subject to judicial review until the Administrator 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 respect to nonattainment areas for which classifications are specifically provided under other

provisions of this part.

(2) Attainment dates for nonattainment areas

(A) The attainment date for an area designated nonattainment with respect to a national 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 Administrator may extend the attainment date to the

extent the Administrator determines appropriate, for a period no greater than 10 years

from the date of designation as nonattainment, considering the severity of nonattainment and the availability and feasibility of

pollution control measures.

(B) The attainment date for an area designated nonattainment with respect to a secondary 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 nonattainment under section 7407(d) of this title.

(C) Upon application by any State, the Administrator 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 requirements 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 minimal 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 issued under this subparagraph for a single nonattainment area.

(D) This paragraph shall not apply with respect to nonattainment areas for which attainment 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 according to which the State containing such area

shall submit 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. Such schedule shall

at a minimum, include a date or dates, extending 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) required 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 practicable (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 national primary ambient air quality standards.

(2) RFP

Such plan provisions shall require reasonable further progress.

(3) Inventory

Such plan provisions shall include a comprehensive, 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 attainment of the applicable national ambient

air quality standard by the applicable attainment date.

(5) Permits for new and modified major stationary 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 enforceable emission limitations, and such other control measures, means or techniques (including

economic incentives such as fees, marketable

permits, and auctions of emission rights), as

well as schedules and timetables for compliance, 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 applicable provisions of section 7410(a)(2) of this

title.

(8) Equivalent techniques

Upon application by any State, the Administrator may allow the use of equivalent modeling, emission inventory, and planning procedures, unless the Administrator determines

that the proposed techniques are, in the aggregate, less effective than the methods specified

by the Administrator.

(9) Contingency measures

Such plan shall provide for the implementation 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 attainment 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 finding 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 section 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 requirements. In order to facilitate submittal by the

States of adequate and approvable plans consistent 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, interpretations, or information provided before November 15, 1990.

(e) Future modification of standard

If the Administrator relaxes a national primary ambient air quality standard after November 15, 1990, the Administrator shall, within 12

months after the relaxation, promulgate requirements 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 nonattainment 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.)

AMENDMENTS

1990—Pub. L. 101–549 amended section generally, substituting present provisions for provisions which related 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 applicable standard not later than July 1, 1987.

1977—Subsec. (b)(4). Pub. L. 95–190, §14(a)(55), substituted ‘‘subsection (a) of this section’’ for ‘‘paragraph

(1)’’.

Subsec. (c). Pub. L. 95–190, §14(a)(56), substituted ‘‘December 31’’ for ‘‘July 1’’.

NONATTAINMENT AREAS

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, December 21, 1976, as may be modified by rule of the Administrator, shall apply except that the baseline to be

used for determination of appropriate emission offsets

under such regulation shall be the applicable implementation plan of the State in effect at the time of application 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 regulation 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 sufficient to demonstrate that the requirements of subparagraph (C) are being met;
§ 7503 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6314

1See References in Text note below. 2So 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 requirements referred to in paragraphs (2) and (3) of section 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 reduction 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 reduction as would result from the application of the regulation referred to in paragraph (1).

The Administrator shall terminate such waiver if in his

judgment the reduction in emissions actually being attained 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 sentence if he is satisfied that such State is in compliance

with all requirements of this subsection.

‘‘(3) Operating permits may be issued to those applicants 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 enactment of this Act [Aug. 7, 1977] if such construction permits 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.’’

STATE IMPLEMENTATION PLAN REVISION

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 Amendment 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 defined 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 section] (respecting impossibility of attainment before

1983), such State shall adopt and submit to the Administrator 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 applicable implementation plan approved under section 7410 of this title and this part, the permitting agency determines that—

(A) by the time the source is to commence

operation, sufficient offsetting emissions reductions 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 construct or modify so as to represent (when

considered together with the plan provisions

required under section 7502 of this title) reasonable further progress (as defined in section 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 Development, as a zone to which economic development 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 operated by such person (or by any entity controlling, 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 applicable 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 nonattainment 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 control techniques for such proposed source demonstrates 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 precondition of the issuance of a permit under paragraph (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 applicable implementation plan to meet the requirements 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 November 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 pollutant 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 nonattainment 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 increased 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 requirement. 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 technology information from permits issued under

this section will be promptly submitted to the

Administrator for purposes of making such information 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 innovative means emission increases from rocket engine 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 satisfaction 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 allowable 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 motors or engines at the facility is required for a

program essential to the national security.

(4) The source will comply with an alternative measure, imposed by the permitting authority, designed to offset any emission increases 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 average cost of stationary source control measures adopted in that area during the previous

3 years. The permitting authority shall utilize

the fees in a manner that maximizes the emissions 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.)

REFERENCES IN TEXT

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.

AMENDMENTS

1990—Pub. L. 101–549, §102(c)(1), made technical

amendment to section catchline.

Pub. L. 101–549, §102(c)(2), (8), designated existing provisions 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 approved 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 development 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 implemented’’ 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’’ before ‘‘implementation plan’’, and substituted ‘‘source’’

for ‘‘facility’’ wherever appearing.
§ 7504 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6316

Par. (4). Pub. L. 95–190, §14(a)(58), added par. (4).

FAILURE TO ATTAIN NATIONAL PRIMARY AMBIENT AIR

QUALITY STANDARDS UNDER CLEAN AIR ACT

Pub. L. 100–202, §101(f) [title II], Dec. 22, 1987, 101 Stat.

1329–187, 1329–199, provided that: ‘‘No restriction or prohibition 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 national primary ambient air quality standard under the

Clean Air Act [this chapter] for photochemical oxidants (ozone) or carbon monoxide (or both) by December 31, 1987, (2) the failure of any State to adopt and

submit to the Administrator of the Environmental Protection 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 December 31, 1987, (3) the failure of any State or designated 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 section] for the construction or modification of a source in

a nonattainment area shall not be denied solely or partially by reason of the reference contained in section

171(l) of such Act [section 7501(1) of this title] to the applicable 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 Environmental 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 governments shall, before the date required for submittal of the inventory described under sections

7511a(a)(1) and 7512a(a)(1) of this title, jointly review and update as necessary the planning procedures 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 officials shall determine which elements of a revised implementation plan will be developed,

adopted, and implemented (through means including 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 organization certified by the State, in consultation with elected officials of local governments

and in accordance with the determination under

the second sentence of this subsection. Such organization shall include elected officials of local

governments in the affected area, and representatives of the State air quality planning agency,

the State transportation planning agency, the

metropolitan planning organization designated

to conduct the continuing, cooperative and comprehensive transportation planning process for

the area under section 134 of title 23, the organization responsible for the air quality maintenance planning process under regulations implementing this chapter, and any other organization with responsibilities for developing, submitting, 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 provisions 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, cooperative and comprehensive transportation planning 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 included 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.)

AMENDMENTS

1990—Pub. L. 101–549 amended section generally, substituting present provisions for provisions which related to: in subsec. (a), preparation of implementation

plan by designated organization; and in subsec. (b), coordination 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 planning responsibilities recognized by the State

under section 7504(a) of this title for payment of

the reasonable costs of developing a plan revision 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 organization for transportation or air quality maintenance 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 section 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 pollutant 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 redesignation. The plan shall contain such additional 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 Administrator 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 section.

(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 requirements of this part shall continue in force

and effect with respect to such area.

(d) Contingency provisions

Each plan revision submitted under this section shall contain such contingency provisions

as the Administrator deems necessary to assure

that the State will promptly correct any violation of the standard which occurs after the redesignation 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 concerned which were contained in the State implementation 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 requirement that the State revise its State implementation plan unless the Administrator, in the Administrator’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 promulgated plans

(1) No department, agency, or instrumentality

of the Federal Government shall engage in, support 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 conform to an implementation plan approved or

promulgated under section 7410 of this title. The

assurance of conformity to such an implementation plan shall be an affirmative responsibility

of the head of such department, agency, or instrumentality. Conformity to an implementation plan means—

(A) conformity to an implementation plan’s

purpose of eliminating or reducing the severity 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 violation 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 standard or any required interim emission reductions 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 metropolitan planning organization or other agency

authorized to make such estimates.

(2) Any transportation plan or program developed 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, accept or fund any transportation plan, program

or project unless such plan, program or project

has been found to conform to any applicable implementation plan in effect under this chapter.

In particular—

(A) no transportation plan or transportation

improvement program may be adopted by a

metropolitan planning organization designated under title 23 or chapter 53 of title 49,

or be found to be in conformity by a metropolitan planning organization until a final determination has been made that emissions expected from implementation of such plans and

programs are consistent with estimates of

emissions from motor vehicles and necessary

emissions reductions contained in the applicable 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 transportation control measures consistent with

schedules included in the applicable implementation plan;

(C) a transportation project may be adopted

or approved by a metropolitan planning organization or any recipient of funds designated
§ 7506 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6318

1See References in Text note below.

under title 23 or chapter 53 of title 49, or found

in conformity by a metropolitan planning organization or approved, accepted, or funded by

the Department of Transportation only if it

meets either the requirements of subparagraph (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 determination for the program was adequate to

determine emissions.

(D) Any project not referred to in subparagraph (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 reduction projections and schedules assigned to

such plans and programs in the applicable implementation 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 Regulations (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 estimates of mobile source emissions;

(ii) provide for the expeditious implementation of transportation control measures in

the applicable implementation plan; and

(iii) with respect to ozone and carbon monoxide 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 conform 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 determination may be made as part of either the

conformity determination for the transportation program or for the individual project

taken as a whole during the environmental review phase of project development.

(4) CRITERIA AND PROCEDURES FOR DETERMINING

CONFORMITY.—

(A) IN 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) TRANSPORTATION PLANS, PROGRAMS, AND

PROJECTS.—The Administrator, with the concurrence of the Secretary of Transportation,

shall promulgate, and periodically update, criteria and procedures for demonstrating and assuring conformity in the case of transportation plans, programs, and projects.

(C) CIVIL ACTION TO COMPEL PROMULGATION.—

A civil action may be brought against the Administrator and the Secretary of Transportation under section 7604 of this title to compel promulgation of such criteria and procedures 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 organizations and the Secretary of Transportation with State and local air quality agencies and State departments of transportation before such organizations and the

Secretary make conformity determinations;

(ii) address the appropriate frequency for

making conformity determinations, but the

frequency for making conformity determinations on updated transportation plans and

programs shall be every 4 years, except in a

case in which—

(I) the metropolitan planning organization elects to update a transportation plan

or program more frequently; or

(II) the metropolitan planning organization is required to determine conformity

in accordance with paragraph (2)(E); and

(iii) address how conformity determinations will be made with respect to maintenance plans.

(E) INCLUSION 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 criteria 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 Administrator’s criteria and procedures for consultation, enforcement and enforceability.
Page 6319 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7506

2So in original. Probably should be ‘‘paragraph (5),’’.

(F) Compliance with the rules of the Administrator 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 respect to a transportation plan, program, or

project shall consider the effect on emissions

of any such project funded, approved, or implemented prior to the conformity determination.

(5) APPLICABILITY.—This subsection shall

apply only with respect to—

(A) a nonattainment area and each pollutant

for which the area is designated as a nonattainment area; and

(B) an area that was designated as a nonattainment area but that was later redesignated by the Administrator as an attainment

area and that is required to develop a maintenance 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 subsection 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 national ambient air quality standard for which an

area is newly designated nonattainment and

does not affect the area’s requirements with respect to all other national ambient air quality

standards for which the area is designated nonattainment or has been redesignated from nonattainment to attainment with a maintenance

plan pursuant to section 7505a 1 of this title (including any pre-existing national ambient air

quality standard for a pollutant for which a new

or revised standard has been issued).

(7) CONFORMITY HORIZON FOR TRANSPORTATION

PLANS.—

(A) IN GENERAL.—Each conformity determination required under this section for a

transportation plan under section 134(i) of

title 23 or section 5303(i) of title 49 shall require 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 consultation with the air pollution control agency 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 improvement program or the project requires approval before the subsequent conformity determination.

(B) REGIONAL EMISSIONS ANALYSIS.—The conformity 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 subparagraph (A).

(C) EXCEPTION.—In any case in which an area

has a revision to an implementation plan

under section 7505a(b) of this title and the Administrator 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 Regulations (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 solicitation of public comments and consideration of

such comments, shall be required to extend

only through the last year of the implementation plan required under section 7505a(b) of

this title.

(D) EFFECT OF ELECTION.—Any election by a

metropolitan planning organization under this

paragraph shall continue in effect until the

metropolitan planning organization elects

otherwise.

(E) AIR POLLUTION CONTROL AGENCY DEFINED.—In this paragraph, the term ‘‘air pollution 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) SUBSTITUTION OF TRANSPORTATION CONTROL

MEASURES.—

(A) IN GENERAL.—Transportation control

measures that are specified in an implementation plan may be replaced or added to the implementation plan with alternate or additional 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 replaced control measure in the implementation 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 practicable after the implementation plan date

but not later than the date on which emission reductions are necessary to achieve

the purpose of the implementation plan;

(iii) if the substitute and additional control measures are accompanied with evidence of adequate personnel and funding and
§ 7506 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6320

3So in original. Probably should be ‘‘Notwithstanding’’.

authority under State or local law to implement, monitor, and enforce the control

measures;

(iv) if the substitute and additional control measures were developed through a collaborative 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 opportunity for comment; and

(v) if the metropolitan planning organization, State air pollution control agency, and

the Administrator concur with the equivalency of the substitute or additional control

measures.

(B) ADOPTION.—(i) Concurrence by the metropolitan planning organization, State air pollution control agency and the Administrator

as required by subparagraph (A)(v) shall constitute adoption of the substitute or additional control measures so long as the requirements of subparagraphs (A)(i), (A)(ii), (A)(iii)

and (A)(iv) are met.

(ii) Once adopted, the substitute or additional 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 Administrator 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 applicable plan.

(C) NO REQUIREMENT FOR EXPRESS PERMISSION.—The substitution or addition of a transportation 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 applicable implementation plan that expressly permits such a substitution or addition.

(D) NO REQUIREMENT FOR NEW CONFORMITY

DETERMINATION.—The substitution or addition

of a transportation control measure in accordance with this paragraph shall not require—

(i) a new conformity determination for the

transportation plan; or

(ii) a revision of the implementation plan.

(E) CONTINUATION 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 adopted by the State pursuant to subparagraph (B).

(F) EFFECT OF ADOPTION.—Adoption of a substitute control measure shall constitute rescission of the previously applicable control

measure.

(9) LAPSE OF CONFORMITY.—If a conformity determination required under this subsection for a

transportation plan under section 134(i) of title

23 or section 5303(i) of title 49 or a transportation 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 deadline and such failure is not corrected by additional 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 transportation plan shall lapse.

(10) LAPSE.—In this subsection, the term

‘‘lapse’’ means that the conformity determination 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 national 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, consistent with statutory requirements for allocation among States or other jurisdictions, to the

implementation of those portions of plans prepared under this section to achieve and maintain 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.)

REFERENCES IN TEXT

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 sharing 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.

CODIFICATION

In subsecs. (c)(2) and (d), ‘‘chapter 53 of title 49’’ substituted for ‘‘the Urban Mass Transportation Act [49

App. U.S.C. 1601 et seq.]’’ and in subsec. (c)(4)(F) substituted 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 of
Page 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 Transportation Act of 1964 be deemed to be references to the

Federal Transit Act.

AMENDMENTS

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 substituted ‘‘The Administrator shall promulgate, and periodically update,’’ for ‘‘No later than one year after

November 15, 1990, the Administrator shall promulgate’’, designated second sentence as subpar. (B), inserted 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 Administrator, 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 subpar. (E) and struck out former subpar. (E) which read

as follows: ‘‘Such procedures shall also include a requirement that each State shall submit to the Administrator and the Secretary of Transportation within 24

months of November 15, 1990, a revision to its implementation 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 implementation of approved or promulgated plans.

Subsec. (c). Pub. L. 101–549, §101(f), designated existing 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 ‘‘conform to a plan after it’’, ‘‘conform to an implementation 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—’’ followed 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 ‘‘national’’ before ‘‘primary’’.

REGULATIONS

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 Agency shall promulgate revised regulations to implement

the changes made by this section [amending this section].’’

§ 7506a. Interstate transport commissions

(a) Authority to establish interstate transport regions

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 Administrator may establish, by rule, a transport

region for such pollutant that includes such

States. The Administrator, on the Administrator’s own motion or upon petition from the Governor 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 believe that the interstate transport of air pollutants from such State significantly contributes 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 emissions in that State or portion of the State pursuant 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 participation 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 minimum) each of the following members:

(A) The Governor of each State in the region or the designee of each such Governor.

(B) The Administrator or the Administrator’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 region concerned.

(D) An air pollution control official representing each State in the region, appointed by the Governor.

Decisions of, and recommendations and requests to, the Administrator by each transport

commission may be made only by a majority

vote of all members other than the Administrator 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 mitigating the interstate pollution, and recommend
§ 7507 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6322

to the Administrator such measures as the

Commission determines to be necessary to ensure 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 Advisory 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 transport region is substantially inadequate to meet

the requirements of section 7410(a)(2)(D) of this

title. The Administrator shall approve, disapprove, or partially approve and partially disapprove such a request within 18 months of its

receipt and, to the extent the Administrator approves such request, issue the finding under section 7410(k)(5) of this title at the time of such

approval. In acting on such request, the Administrator shall provide an opportunity for public

participation and shall address each specific recommendation made by the commission. Approval or disapproval of such a request shall

constitute final agency action within the meaning 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.)

REFERENCES IN TEXT

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 actions as are referred to in section 7543(a) of this

title respecting such vehicles if—

(1) such standards are identical to the California 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 commencement 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.)

AMENDMENTS

1990—Pub. L. 101–549 added sentence at end prohibiting States from limiting or prohibiting sale or manufacture of new vehicles or engines certified in California 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 documents under section 7408 of this title for purposes of assisting States in implementing requirements 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 described 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 determined 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 criteria established in relation to any such element 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 provisions 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 adequate maintenance plan, or has failed to make

any submission, as may be required under this

chapter, other than one described under paragraph (1) or (2), that satisfies the minimum

criteria established in relation to such submission under section 7410(k)(1)(A) of this title, or

(B) disapproves in whole or in part a submission described under subparagraph (A), or

(4) finds that any requirement of an approved 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 determination referred to in paragraphs (1), (2), (3),

and (4), one of the sanctions referred to in subsection (b) of this section shall apply, as selected by the Administrator, until the Administrator determines that the State has come into
Page 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 Administrator 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, sanctions 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 section, the Administrator may withhold all or

part of the grants for support of air pollution

planning and control programs that the Administrator 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 prohibition, applicable to a nonattainment area, on

the approval by the Secretary of Transportation 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 avoidance of, accidents. Such prohibition shall become effective upon the selection by the Administrator of this sanction.

(B) In addition to safety, projects or grants

that may be approved by the Secretary, notwithstanding 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 employers to reduce employee work-trip-related vehicle emissions;

(iv) highway ramp metering, traffic signalization, and related programs that improve traffic flow and achieve a net emission

reduction;

(v) fringe and transportation corridor

parking facilities serving multiple occupancy vehicle programs or transit operations;

(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 congestion, and vehicle information systems, to reduce congestion and emissions; and

(viii) such other transportation-related

programs as the Administrator, in consultation with the Secretary of Transportation,

finds would improve air quality and would

not encourage single occupancy vehicle capacity.

In considering such measures, the State

should seek to ensure adequate access to

downtown, other commercial, and residential

areas, and avoid increasing or relocating emissions and congestion rather than reducing

them.

(2) Offsets

In applying the emissions offset requirements 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 nonattainment area, but not later than 6 months after

such date, the Administrator shall determine,

based on the area’s air quality as of the attainment date, whether the area attained the standard 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 supplement such determination at any time based

on more complete information or analysis concerning the area’s air quality as of the attainment date.

(d) Consequences for failure to attain

(1) Within 1 year after the Administrator publishes 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 implementation 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 addition, 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 revision 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 nonattainment’’.

(July 14, 1955, ch. 360, title I, §179, as added Pub.

L. 101–549, title I, §102(g), Nov. 15, 1990, 104 Stat.

2420.)
§ 7509a TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6324

1So in original. Probably should be ‘‘this’’.

2So 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 required under this chapter shall be approved by

the Administrator if—

(1) such plan or revision meets all the requirements applicable to it under the 1 chapter

other than a requirement that such plan or revision demonstrate attainment and maintenance 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 implementation plan of such State would be adequate to attain and maintain 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, 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 attainment 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 ambient air quality standard for carbon monoxide by

the applicable attainment date, but for emissions 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 applicable attainment date, but for emissions emanating 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.)

ESTABLISHMENT OF PROGRAM TO MONITOR AND IMPROVE AIR QUALITY IN REGIONS ALONG BORDER BETWEEN UNITED STATES AND MEXICO

Section 815 of Pub. L. 101–549 provided that:

‘‘(a) IN GENERAL.—The Administrator of the Environmental Protection Agency (hereinafter referred to as

the ‘Administrator’) is authorized, in cooperation with

the Department of State and the affected States, to negotiate with representatives of Mexico to authorize a

program to monitor and improve air quality in regions

along the border between the United States and Mexico. The program established under this section shall

not extend beyond July 1, 1995.

‘‘(b) MONITORING AND REMEDIATION.—

‘‘(1) MONITORING.—The monitoring component of

the program conducted under this section shall identify and determine sources of pollutants for which national ambient air quality standards (hereinafter referred to as ‘NAAQS’) and other air quality goals

have been established in regions along the border between the United States and Mexico. Any such monitoring component of the program shall include, but

not be limited to, the collection of meteorological

data, the measurement of air quality, the compilation 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 program 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 parties.

‘‘(2) REMEDIATION.—The Administrator is authorized to negotiate with appropriate representatives of

Mexico to develop joint remediation measures to reduce 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 remediation 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 material and financial assistance of the United States.

‘‘(c) ANNUAL REPORTS.—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 primary and secondary NAAQS. The report issued by the

Administrator under this paragraph shall include recommendations on funding mechanisms to assist in implementation of monitoring and remediation efforts.

‘‘(d) FUNDING AND PERSONNEL.—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 assistance of the United States is provided to implement

monitoring and remediation programs in Mexico, the

Administrator shall develop grant agreements with appropriate representatives of Mexico to assure the accuracy and completeness of monitoring data and the performance 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 practicable, utilize resources of Mexico where such utilization 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 insure 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 designation, 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 November 15, 1990

Moderate .. 0.138 up to 0.160 ... 6 years after November 15, 1990

Serious ..... 0.160 up to 0.180 ... 9 years after November 15, 1990

Severe ...... 0.180 up to 0.280 ... 15 years after November 15, 1990

Extreme ... 0.280 and above ... 20 years after November 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 severe 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 nonattainment area. The provisions of section

7502(a)(1)(B) of this title (relating to lack of notice 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 Administrator may, in the Administrator’s discretion, within 90 days after the initial classification, by the procedure required under paragraph

(3), adjust the classification to place the area in

such other category. In making such adjustment, the Administrator may consider the number of exceedances of the national primary ambient air quality standard for ozone in the area,

the level of pollution transport between the area

and other affected areas, including both intrastate and interstate transport, and the mix of

sources and air pollutants in the area.

(5) Upon application by any State, the Administrator may extend for 1 additional year (hereinafter 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 requirements and commitments pertaining to the

area in the applicable implementation plan,

and

(B) no more than 1 exceedance of the national ambient air quality standard level for

ozone has occurred in the area in the year preceding the Extension Year.

No more than 2 one-year extensions may be issued under this paragraph for a single nonattainment 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 subsection (a)(3) 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 between November 15, 1990, and the

date the area is classified under this paragraph.

(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 Extreme 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 subparagraph (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, identifying each area that the Administrator has determined under subparagraph (A) as having

failed to attain and identifying the reclassification, if any, described under subparagraph

(A).

(3) Voluntary reclassification

The Administrator shall grant the request of

any State to reclassify a nonattainment area
§ 7511a TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6326

1So in original. Probably should be ‘‘terms’’.

in that State in accordance with table 1 of

subsection (a) of this section to a higher classification. The Administrator shall publish a

notice in the Federal Register of any such request 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 provisions 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 NOx 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 subparagraph (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 section 7511a(g) of this title, the new source review requirements applicable under this subpart in Extreme Areas shall apply in the area

and the term1

‘‘major source’’ and ‘‘major stationary source’’ shall have the same meaning

as in Extreme Areas.

(C) In addition to the requirements of subparagraph (A) for those areas referred to in

subparagraph (A) and not covered by subparagraph (B), the provisions referred to in subparagraph (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 Administrator modifies the method of determining

compliance with the national primary ambient 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 ‘‘Marginal 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 classified 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.)

EXEMPTIONS FOR STRIPPER WELLS

Section 819 of Pub. L. 101–549 provided that: ‘‘Notwithstanding any other provision of law, the amendments to the Clean Air Act made by section 103 of the

Clean Air Act Amendments of 1990 [enacting this section 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 provisions 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 nonattainment areas), and by section 106 of such amendments [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 Revenue Code of 1986 [26 U.S.C. 4996(b)(7)], as in effect before 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 amendments 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 designated 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 Marginal Area (or portion thereof, to the extent

specified in this subsection), submit to the Administrator the State implementation plan revisions (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 provided by the Administrator.

(2) Corrections to the State implementation

plan

Within the periods prescribed in this paragraph, the State shall submit a revision to the

State implementation plan that meets the following requirements—

(A) Reasonably available control technology

corrections

For any Marginal Area (or, within the Administrator’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 provisions to correct requirements in (or add requirements to) the plan concerning reasonably available control technology as were required 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

1So 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 program, the State shall submit, immediately

after November 15, 1990, a revision that includes 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 section 7502(b)(11)(B) of this title (as in effect

immediately before November 15, 1990) or the

program already included in the plan, whichever is more stringent.

(ii) Within 12 months after November 15,

1990, the Administrator shall review, revise,

update, and republish in the Federal Register the guidance for the States for motor

vehicle inspection and maintenance programs required by this chapter, taking into

consideration the Administrator’s investigations and audits of such program. The guidance shall, at a minimum, cover the frequency of inspections, the types of vehicles

to be inspected (which shall include leased

vehicles that are registered in the nonattainment area), vehicle maintenance by

owners and operators, audits by the State,

the test method and measures, including

whether centralized or decentralized, inspection methods and procedures, quality of inspection, components covered, assurance

that a vehicle subject to a recall notice from

a manufacturer has complied with that notice, and effective implementation and enforcement, including ensuring that any retesting of a vehicle after a failure shall include proof of corrective action and providing for denial of vehicle registration in the

case of tampering or misfueling. The guidance which shall be incorporated in the applicable State implementation plans by the

States shall provide the States with continued reasonable flexibility to fashion effective, reasonable, and fair programs for

the affected consumer. No later than 2 years

after the Administrator promulgates regulations 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 section.

(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 accordance with sections 7502(c)(5) and 7503

of this title, for the construction and operation of each new or modified major stationary source (with respect to ozone) to

be located in the area.

(ii) Provisions to correct requirements in

(or add requirements to) the plan concerning 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 November 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 revised 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 organic compounds provide the State with a

statement, in such form as the Administrator may prescribe (or accept an equivalent 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 submitted at least every year thereafter. The statement shall contain a certification that the

information contained in the statement is

accurate to the best knowledge of the individual certifying the statement.

(ii) The State may waive the application of

clause (i) to any class or category of stationary 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 Administrator or other methods acceptable to the

Administrator.

(4) General offset requirement

For purposes of satisfying the emission offset requirements of this part, the ratio of total

emission reductions of volatile organic compounds 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 requirements of this subsection shall apply in lieu

of any requirement that the State submit a

demonstration that the applicable implementation plan provides for attainment of the ozone

standard by the applicable attainment date in

any Marginal Area. Section 7502(c)(9) of this
§ 7511a TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6328

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 Moderate Area, make the submissions described

under subsection (a) of this section (relating to

Marginal Areas), and shall also submit the revisions to the applicable implementation plan described 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 provide 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 emissions of volatile organic compounds and oxides of nitrogen as necessary to attain the

national primary ambient air quality standard for ozone by the attainment date applicable under this chapter. This subparagraph

shall not apply in the case of oxides of nitrogen for those areas for which the Administrator determines (when the Administrator

approves the plan or plan revision) that additional 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 satisfaction of the Administrator that—

(I) new source review provisions are applicable in the nonattainment areas in the

same manner and to the same extent as required under subsection (e) of this section

in the case of Extreme Areas (with the exception that, in applying such provisions,

the terms ‘‘major source’’ and ‘‘major stationary 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 technology is required for all existing major

sources (as defined in subclause (I)); and

(III) the plan reflecting a lesser percentage than 15 percent includes all measures

that can feasibly be implemented in the

area, in light of technological achievability.

To qualify for a lesser percentage under this

clause, 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 category.

(B) Baseline emissions

For purposes of subparagraph (A), the term

‘‘baseline emissions’’ means the total

amount of actual VOC or NOx emissions from

all anthropogenic sources in the area during

the calendar year 1990, excluding emissions

that would be eliminated under the regulations described in clauses (i) and (ii) of subparagraph (D).

(C) General rule for creditability of reductions

Except as provided under subparagraph

(D), emissions reductions are creditable toward the 15 percent required under subparagraph (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 implementation plan, rules promulgated by the Administrator, 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 subparagraph (A):

(i) Any measure relating to motor vehicle exhaust or evaporative emissions promulgated by the Administrator by January 1, 1990.

(ii) Regulations concerning Reid Vapor

Pressure promulgated by the Administrator 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 corrections 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 (concerning corrections to motor vehicle inspection and maintenance programs).

(2) Reasonably available control technology

The State shall submit a revision to the applicable implementation plan to include provisions to require the implementation of reasonably available control technology under section 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 implementation 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 the
Page 6329 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511a

2So in original. Probably should be section ‘‘7625’’.

3So in original. Probably should be ‘‘increased’’.

applicable implementation plan to require

all owners or operators of gasoline dispensing systems to install and operate, by the

date prescribed under subparagraph (B), a

system for gasoline vapor recovery of emissions from the fueling of motor vehicles. The

Administrator shall issue guidance as appropriate as to the effectiveness of such system.

This subparagraph shall apply only to facilities 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 facilities.

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 reference to the term ‘‘adoption date’’ shall be

considered a reference to the date of adoption by the State of requirements for the installation and operation of a system for gasoline vapor recovery of emissions from the

fueling of motor vehicles.

(4) Motor vehicle inspection and maintenance

For all Moderate Areas, the State shall submit, immediately after November 15, 1990, a

revision to the applicable implementation

plan that includes provisions necessary to provide 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 program).

(5) General offset requirement

For purposes of satisfying the emission offset requirements of this part, the ratio of total

emission reductions of volatile organic compounds 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 described under subsection (b) of this section (relating 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 following the promulgation of rules by the Administrator 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 nitrogen 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 ambient 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 national ambient air quality standard by the

applicable attainment date. This attainment

demonstration must be based on photochemical grid modeling or any other analytical method determined by the Administrator, in the Administrator’s discretion, to

be at least as effective.

(B) Reasonable further progress demonstration

A demonstration that the plan, as revised,

will result in VOC emissions reductions from

the baseline emissions described in subsection (b)(1)(B) of this section equal to the

following amount averaged over each consecutive 3-year period beginning 6 years

after November 15, 1990, until the attainment date:

(i) at least 3 percent of baseline emissions 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 Administrator that the plan reflecting such
§ 7511a TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6330

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 requirement shall be reviewed at each milestone 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 reasonable time to implement such measures.

The emission reductions described in this

subparagraph shall be calculated in accordance with subsection (b)(1)(C) and (D) of this

section (concerning creditability of reductions). The reductions creditable for the period 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) NOx 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 implementation plan, as revised, provides for reductions of emissions of VOC’s and oxides of

nitrogen (calculated according to the creditability 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 required under subparagraph (B). Within 1 year

after November 15, 1990, the Administrator

shall issue guidance concerning the conditions under which NOx control may be substituted for VOC control or may be combined with VOC control in order to maximize

the reduction in ozone air pollution. In accord with such guidance, a lesser percentage

of VOCs may be accepted as an adequate

demonstration for purposes of this subsection.

(3) Enhanced vehicle inspection and maintenance program

(A) Requirement for submission

Within 2 years after November 15, 1990, the

State shall submit a revision to the applicable implementation plan to provide for an

enhanced program to reduce hydrocarbon

emissions and NOx 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 population of 200,000 or more.

(B) Effective date of State programs; guidance

The State program required under subparagraph (A) shall take effect no later than

2 years from November 15, 1990, and shall

comply in all respects with guidance published in the Federal Register (and from

time to time revised) by the Administrator

for enhanced vehicle inspection and maintenance programs. Such guidance shall include—

(i) a performance standard achievable by

a program combining emission testing, including on-road emission testing, with inspection to detect tampering with emission 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 necessary to reasonably assure that adequate

management resources, tools, and practices 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 Administrator.

(C) State program

The State program required under subparagraph (A) shall include, at a minimum,

each of the following elements—

(i) Computerized emission analyzers, including on-road testing devices.

(ii) No waivers for vehicles and parts

covered by the emission control performance warranty as provided for in section

7541(b) of this title unless a warranty remedy has been denied in writing, or for tampering-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 annually as determined by the Administrator

on the basis of the Consumer Price Index

in the same manner as provided in subchapter V of this chapter).

(iv) Enforcement through denial of vehicle 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 necessary adjustment, repair, and maintenance, unless the State demonstrates to

the satisfaction of the Administrator that

a biennial inspection, in combination with

other features of the program which exceed the requirements of this chapter, will

result in emission reductions which equal

or exceed the reductions which can be obtained through such annual inspections.

(vi) Operation of the program on a centralized basis, unless the State demonstrates to the satisfaction of the Administrator that a decentralized program will

be equally effective. An electronically connected testing system, a licensing system,
Page 6331 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511a

4So 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 Administrator, as equally effective for such purposes.

(vii) Inspection of emission control diagnostic systems and the maintenance or repair of malfunctions or system deterioration identified by or affecting such diagnostics systems.

Each State shall biennially prepare a report

to the Administrator which assesses the

emission reductions achieved by the program 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 established by the Administrator.

(4) Clean-fuel vehicle programs

(A) Except to the extent that substitute provisions have been approved by the Administrator 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 necessary 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-producing and toxic air emissions equal to those

achieved under part C of subchapter II of this

chapter, or the percentage thereof attributable to the portion of the clean-fuel vehicle

program for which the revision is to substitute. The Administrator may approve such

revision only if it consists exclusively of provisions other than those required under this

chapter for the area. Any State seeking approval of such revision must submit the revision to the Administrator within 24 months of

November 15, 1990. The Administrator shall approve or disapprove any such revision within

30 months of November 15, 1990. The Administrator shall publish the revision submitted by

a State in the Federal Register upon receipt.

Such notice shall constitute a notice of proposed rulemaking on whether or not to approve such revision and shall be deemed to

comply with the requirements concerning notices of proposed rulemaking contained in sections 553 through 557 of title 5 (related to notice and comment). Where the Administrator

approves such revision for any area, the State

need not submit the revision required by subparagraph (A) for the area with respect to the

portions of the Federal clean-fuel vehicle program for which the Administrator has approved 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 addition to any sanctions available under section 7509 of this title, the State may not receive credit, in any demonstration of attainment or reasonable further progress for the

area, for any emission reductions from implementation of the corresponding aspects of the

Federal clean-fuel vehicle requirements established in part C of subchapter II of this chapter.

(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 attainment. 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 submit a revision of the applicable implementation plan that includes a transportation control 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 congestion rather than reduce them. Such revision shall be developed in accordance with

guidance issued by the Administrator pursuant 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.
§ 7511a TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6332

5So 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 increase (other than a de minimis 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, 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 organic compounds concerned from other operations, 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 applying section 7503(a)(2) of this title in the case of

any such modification, the best available control 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 policies and procedures for implementing the provisions 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 minimis 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, except that if the owner or operator of the

source elects to offset the increase by a greater reduction in emissions of volatile organic

compounds from other operations, units, or

activities within the source at an internal offset 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 required under section 7502(c)(9) of this title, the

plan revision shall provide for the implementation of specific measures to be undertaken if

the area fails to meet any applicable milestone. 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 offset requirements of this part, the ratio of total

emission reductions of volatile organic compounds to total increase emissions of such air

pollutant shall be at least 1.2 to 1.

Any reference to ‘‘attainment date’’ in subsection (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 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 25 tons per year of volatile organic compounds.

(1) Vehicle miles traveled

(A) Within 2 years after November 15, 1990,

the State shall submit a revision that identifies and adopts specific enforceable transportation control strategies and transportation

control measures to offset any growth in emissions 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 subsection5

(b)(2)(B) and (c)(2)(B) of this section (pertaining to periodic emissions reduction requirements). The State shall consider measures

specified in section 7408(f) of this title, and

choose from among and implement such measures as necessary to demonstrate attainment

with the national ambient air quality standards; 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 congestion rather than reduce them.

(B) The State may also, in its discretion,

submit a revision at any time requiring employers 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 employers in such area increase average passenger occupancy per vehicle in commuting

trips between home and the workplace during

peak travel periods. 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
Page 6333 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511a

6So in original. Probably should be ‘‘paragraphs’’.

7So in original. Probably should be ‘‘de minimis’’.

8So 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 employers to reduce work-related vehicle trips and

miles travelled by employees may, in accordance with State law, remove such provisions

from the implementation plan, or withdraw its

submission, if the State notifies the Administrator, in writing, that the State has undertaken, or will undertake, one or more alternative methods that will achieve emission reductions equivalent to those to be achieved by

the removed or withdrawn provisions.

(2) Offset requirement

For purposes of satisfying the offset requirements 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 requires all existing major sources in the nonattainment area to use best available control

technology (as defined in section 7479(3) of this

title) for the control of volatile organic compounds, 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 incorporated 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 Extreme Area, make the submissions described

under subsection (d) of this section (relating to

Severe Areas), and shall also submit the revisions to the applicable implementation plan (including the plan items) described under this subsection. The provisions of clause (ii) of subsection (c)(2)(B) of this section (relating to reductions 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’’ includes 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 requirements 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 requires all existing major sources in the nonattainment area to use best available control

technology (as defined in section 7479(3) of this

title) for the control of volatile organic compounds, 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 pursuant 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 applicable implementation plan, permit, or this

chapter.

(3) Use of clean fuels or advanced control technology

For Extreme Areas, a plan revision shall be

submitted within 3 years after November 15,

1990, to require, effective 8 years after November 15, 1990, that each new, modified, and existing electric utility and industrial and commercial 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 ‘‘primary 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 traffic hours

For Extreme Areas, each implementation

plan revision under this subsection may contain 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 control
§ 7511a TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6334

techniques or improvement of existing control

technologies, and an attainment demonstration based on such provisions, if the State

demonstrates to the satisfaction of the Administrator that—

(A) such provisions are not necessary to

achieve the incremental emission reductions

required during the first 10 years after November 15, 1990; and

(B) the State has submitted enforceable

commitments to develop and adopt contingency 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 before proposed implementation of the plan provisions and approved or disapproved by the Administrator in accordance with section 7410 of

this title. The contingency measures shall be

adequate to produce emission reductions sufficient, 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 applicable dates. If the Administrator determines that an Extreme Area has failed to

achieve an emission reduction requirement set

forth in subsection (b)(1) or (c)(2) of this section, and that such failure is due in whole or

part to an inability to fully implement provisions 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) NOx 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 benefits 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 revision) 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 reductions 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 excess reductions in emissions of NOx 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 reductions in emissions of NOx are emission reductions 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 NOx are, for—

(i) nonattainment areas not within an ozone

transport region under section 7511c of this

title, emission reductions that the Administrator determines would not contribute to attainment 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 Congress, 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 intervals 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 emissions during the preceding intervals equivalent to the total emission reductions required

to be achieved by the end of such interval pursuant 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 section 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 milestone has been met. 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, by rule. The Administrator 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.
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 Administrator determines that the area has not

met any applicable milestone, the State shall

elect, within 90 days after such failure or determination—

(A) to have the area reclassified to the

next higher classification,

(B) to implement specific additional measures adequate, as determined by the Administrator, to meet the next milestone as provided in the applicable contingency plan, or

(C) to adopt an economic incentive program as described in paragraph (4).

If the State makes an election under subparagraph (B), the Administrator shall, within 90

days after the election, review such plan and

shall, if the Administrator finds the contingency plan inadequate, require further measures 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 election, the State shall submit a revision of the

applicable implementation plan for the area

that meets the requirements of this paragraph. The Administrator shall review such

plan revision and approve or disapprove the revision 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 nondiscriminatory system, consistent with applicable law

regarding interstate commerce, of State established emissions fees or a system of marketable permits, or a system of State fees on sale

or manufacture of products the use of which

contributes to ozone formation, or any combination of the foregoing or other similar measures. The program may also include incentives

and requirements to reduce vehicle emissions

and vehicle miles traveled in the area, including any of the transportation control measures 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 subparagraph (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 guidelines shall require that any revenues generated by the plan provisions adopted pursuant 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 development of innovative technologies for the control of ozone air pollution and for the development of lower-polluting solvents and surface coatings. Such assistance shall not provide for the payment of more than 75 percent

of either the costs of any project to develop

such a technology or the costs of development 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 Administrator determines that the area has not met

any applicable milestone, the State shall,

within 9 months after such failure or determination, submit a plan revision to implement

an economic incentive program which meets

the requirements of paragraph (4). The Administrator 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 discretion, as a rural transport area within the

meaning of paragraph (2), shall be treated by operation 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 nonattainment area as a rural transport area if the

Administrator finds that sources of VOC (and,

where the Administrator determines relevant,

NOx) emissions within the area do not make a

significant contribution to the ozone concentrations measured in the area or in other areas.

(i) Reclassified areas

Each State containing an ozone nonattainment area reclassified under section 7511(b)(2) of

this title shall meet such requirements of subsections (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 Administrator 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 portion 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—
§ 7511b TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6336

(A) take all reasonable steps to coordinate,

substantively and procedurally, the revisions and implementation of State implementation plans applicable to the nonattainment 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 revision of a State implementation plan submitted

under this part for a State in which part of a

multi-State ozone 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 portion of a multi-State ozone nonattainment

area fails to provide a demonstration of attainment 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 demonstration but for the failure of one or more

other States in which other portions of the

area are located to commit to the implementation of all measures required under this section (relating to plan submissions and requirements for ozone nonattainment areas). If the

Administrator makes such finding, the provisions 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 nonattainment 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.)

REFERENCES IN TEXT

The Natural Gas Policy Act of 1978, referred to in subsec. (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.

AMENDMENTS

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-related 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 average 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 revision is submitted which shall convincingly demonstrate compliance with the requirements of this

paragraph not later than 4 years after such date.’’

MORATORIUM ON CERTAIN EMISSIONS TESTING

REQUIREMENTS

Pub. L. 104–59, title III, §348, Nov. 28, 1995, 109 Stat.

617, provided that:

‘‘(a) IN GENERAL.—The Administrator of the Environmental 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 program as a means of compliance with section 182 or 187

of the Clean Air Act (42 U.S.C. 7511a; 7512a), but the Administrator may approve such a program if a State

chooses to adopt the program as a means of compliance

with such section.

‘‘(b) LIMITATION ON PLAN DISAPPROVAL.—The Administrator shall not disapprove or apply an automatic discount 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) EMISSIONS REDUCTION CREDITS.—

‘‘(1) STATE PLAN REVISION; APPROVAL.—Within 120

days of the date of the enactment of this subsection

[Nov. 28, 1995], a State may submit an implementation 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 Administrator shall approve the program based on the full

amount of credits proposed by the State for each element 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 Administrator proposed revisions to the implementation

plan, has all of the statutory authority necessary to

implement the revisions, and has proposed a regulation to make the revisions, the Administrator may

approve the revisions without regard to whether or

not such regulation has been issued as a final regulation by the State.

‘‘(2) EXPIRATION 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) FINAL APPROVAL.—The Administrator shall

grant final approval of the revision based on the credits 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 compliance with the Clean Air Act [42 U.S.C. 7401 et seq.].

‘‘(4) BASIS OF APPROVAL; NO AUTOMATIC DISCOUNT.—

Any determination with respect to interim or full approval 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 program.’’

§ 7511b. Federal ozone measures

(a) Control techniques guidelines for VOC

sources

Within 3 years after November 15, 1990, the Administrator shall issue control techniques guidelines, 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 control 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 significant contribution to the formation of ozone

air pollution in ozone nonattainment areas, including 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 Administrator shall periodically review and, if necessary, 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 control 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 solvents to such level as the Administrator determines may be achieved through the adoption of

best available control measures. Such control

technology guidance 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 technology

guidance. In developing control technology guidance under this subsection, the Administrator

shall consult with the Secretary of Defense, the

Secretary of Transportation, and the Administrator of the National Aeronautics and Space

Administration with regard to the establishment of specifications for such coatings. In evaluating VOC reduction strategies, the guidance

shall take into account the applicable requirements 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 solvents to such level as the Administrator determines may be achieved through the adoption of

the best available control measures. Such control 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 technology guidance. In developing control techniques guidelines under this subsection, the Administrator shall consult with the appropriate

Federal agencies.

(c) Alternative control techniques

Within 3 years after November 15, 1990, the Administrator shall issue technical documents

which identify alternative controls for all categories 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 Administrator shall provide guidance to the States

to be used in evaluating the relative cost-effectiveness of various options for the control of

emissions from existing stationary sources of

air pollutants which contribute to nonattainment of the national ambient air quality standards 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, processes, methods, systems or techniques, including chemical reformulation, product or

feedstock substitution, repackaging, and directions for use, consumption, storage, or

disposal.

(B) Consumer or commercial product

The term ‘‘consumer or commercial product’’ means any substance, product (including paints, coatings, and solvents), or article

(including any container or packaging) held

by any person, the use, consumption, storage, disposal, destruction, or decomposition

of which may result in the release of volatile

organic compounds. The term does not include 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 distribution 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 interstate commerce in the United States.
§ 7511b TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6338

(2) Study and report

(A) Study

The Administrator shall conduct a study

of the emissions of volatile organic compounds into the ambient air from consumer

and commercial products (or any combination thereof) in order to—

(i) determine their potential to contribute to ozone levels which violate the national ambient air quality standard for

ozone; and

(ii) establish criteria for regulating consumer and commercial products or classes

or categories thereof which shall be subject 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 subparagraph (A)(ii), the Administrator shall take

into consideration each of the following:

(i) The uses, benefits, and commercial

demand of consumer and commercial products.

(ii) The health or safety functions (if

any) served by such consumer and commercial products.

(iii) Those consumer and commercial

products which emit highly reactive volatile 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 environmental 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 reactivity-adjusted basis, from consumer or commercial products in areas that violate the

NAAQS for ozone. Credit toward the 80 percent emissions calculation shall be given for

emission reductions from consumer or commercial products made after November 15,

1990. At such time, the Administrator shall

divide the list into 4 groups establishing priorities for regulation based on the criteria

established in paragraph (2). Every 2 years

after promulgating such list, the Administrator shall regulate one group of categories

until all 4 groups are regulated. The regulations 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 regulation, control or prohibit any activity, including the manufacture or introduction

into commerce, offering for sale, or sale of

any consumer or commercial product which

results in emission of volatile organic compounds into the ambient air.

(B) Regulated entities

Regulations under this subsection may be

imposed only with respect to regulated entities.

(C) Use of CTGS

For any consumer or commercial product

the Administrator may issue control techniques guidelines under this chapter in lieu

of regulations required under subparagraph

(A) if the Administrator determines that

such guidance will be substantially as effective as regulations in reducing emissions of

volatile organic compounds which contribute 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, including requirements for registration and labeling, self-monitoring and reporting, prohibitions, limitations, or economic incentives (including 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 established or made.

(6) Enforcement

Any regulation established under this subsection shall be treated, for purposes of enforcement 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 promulgated under this subsection. If the Administrator finds the State procedure is adequate,

the Administrator shall approve such procedure. Nothing in this paragraph shall prohibit

the Administrator from enforcing any applicable regulations under this subsection.

(8) Size, etc.

No regulations regarding the size, shape, or

labeling of a product may be promulgated, unless the Administrator determines such regulations 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 shall
Page 6339 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511b

1So in original. Probably should be capitalized.

consult with the Administrator regarding

whether any other State or local subdivision

has promulgated or is promulgating regulations on any products covered under this part.

The Administrator shall establish a clearinghouse 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 defined in section 2101 of title 46) which the Administrator 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 reasonably available control technology, considering costs, any nonair-quality benefits, environmental impacts, energy requirements and

safety factors associated with alternative control techniques. To the extent practicable

such standards shall apply to loading and unloading 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 Administrator finds (after consultation with the Secretary 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 regulations to ensure the safety of the equipment

and operations which are to control emissions

from the loading and unloading of tank vessels, 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 subdivision regarding emissions from the loading

and unloading of tank vessels shall be consistent with the regulations regarding safety of

the Department in which the Coast Guard is

operating.

(3) Agency authority

(A) The Administrator shall ensure compliance with the tank vessel emission standards

prescribed under paragraph (1)(A). The Secretary of the Department in which the Coast

Guard is operating shall also ensure compliance with the tank vessel standards prescribed

under paragraph (1)(A).

(B) The Secretary of the Department in

which the Coast Guard is operating shall ensure compliance with the regulations issued

under paragraph (2).

(4) State or local standards

After the Administrator promulgates standards 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 enforcement of this chapter, as a standard under section 7411 of this title and any violation of such

standard shall be treated as a violation of a requirement 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 Environmental 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 Administrator shall obtain input from States, local

subdivisions thereof, and others. The study shall

be completed and a report submitted to Congress 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 registered 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 employment or educational study in the United

States, may enter a covered ozone nonattainment area from a foreign country bordering 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 applicable implementation plan in the nonattainment area.

(B) Applicability

Subparagraph (A) shall not apply if the operator presents documentation at the United

States border entry point establishing that

the vehicle has complied with such inspection 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 violates, or attempts to violate, paragraph (1) a

civil penalty of not more than $200 for the sec-
§ 7511c TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6340

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 alternative approach to facilitate the compliance, by some or all foreign-registered

motor vehicles, with the motor vehicle inspection and maintenance requirements that

are—

(i) related to emissions of air pollutants;

(ii) in effect under the applicable implementation plan in the covered ozone nonattainment area; and

(iii) applicable to motor vehicles of the

same 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.)

REFERENCES IN TEXT

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.

AMENDMENTS

1998—Subsec. (h). Pub. L. 105–286 added subsec. (h).

EFFECTIVE DATE OF 1998 AMENDMENT; PUBLICATION OF

PROHIBITION

Pub. L. 105–286, §3, Oct. 27, 1998, 112 Stat. 2774, provided that:

‘‘(a) IN GENERAL.—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]. Nothing in that amendment shall require action that is inconsistent with the obligations of the United States

under any international agreement.

‘‘(b) INFORMATION.—As soon as practicable after the

date of the enactment of this Act, the appropriate

agency of the United States shall distribute information to publicize the prohibition set forth in the amendment made by section 2.’’

TRANSFER OF FUNCTIONS

For transfer of authorities, functions, personnel, and

assets of the Coast Guard, including the authorities

and functions of the Secretary of Transportation relating 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 Security, and the Department of Homeland Security Reorganization 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), comprised of the States of Connecticut, Delaware,

Maine, Maryland, Massachusetts, New Hampshire, 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 region established for ozone, except to the extent

inconsistent with the provisions of this section.

The Administrator shall convene the commission required (under section 7506a(b) of this

title) as a result of the establishment of such region 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 metropolitan 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 issued before or after November 15, 1990.

(2) Within 3 years after November 15, 1990, the

Administrator shall complete a study identifying control measures capable of achieving emission reductions comparable to those achievable

through vehicle refueling controls contained in

section 7511a(b)(3) of this title, and such measures 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 least
Page 6341 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511d

1So in original. Probably should not be capitalized.

2So 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 nonattainment area.

(c) Additional control measures

(1) Recommendations

Upon petition of any State within a transport region established for ozone, and based on

a majority vote of the Governors on the Commission1 (or their designees), the Commission1

may, after notice and opportunity for public

comment, develop recommendations for additional 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 recommendations prepared by a commission pursuant to paragraph (1) (the date of receipt of

which shall hereinafter in this section be referred to as the ‘‘receipt date’’), the Administrator shall—

(A) immediately publish in the Federal

Register a notice stating that the recommendations are available and provide an opportunity for public hearing within 90 days

beginning on the receipt date; and

(B) commence a review of the recommendations to determine whether the control 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 consult with members of the commission of the

affected States and shall take into account

the data, views, and comments received pursuant 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 Federal Register. If the Administrator disapproves or partially disapproves the recommendations, 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 otherwise 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 disapproved portion of the recommendations to

the requirements of this section.

(5) Finding

Upon approval or partial approval of recommendations 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 applies, 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 finding 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 Administrator 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 determinations.

(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 attain

(a) General rule

Each implementation plan revision required

under section 7511a(d) and (e) of this title (relating to the attainment plan for Severe and Extreme ozone nonattainment areas) shall provide

that, if the area to which such plan revision applies has failed to attain the national primary

ambient air quality standard for ozone by the

applicable attainment date, each major stationary source of VOCs located in the area shall, except as otherwise provided under subsection (c)

of this section, pay a fee to the State as a penalty for such failure, computed in accordance

with subsection (b) of this section, for each calendar 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 accordance with paragraph (3), per ton of VOC emitted 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 provide, as the lower of the amount of actual VOC
§ 7511e TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6342

emissions (‘‘actuals’’) or VOC emissions allowed 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 implementation plan (‘‘allowables’’)) during the attainment year. Notwithstanding the preceding

sentence, the Administrator may issue guidance authorizing the baseline amount to be determined in accordance with the lower of average 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 beginning after 1990, in accordance with section

7661a(b)(3)(B)(v) of this title (relating to inflation 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 procedures promulgated by the Administrator, the

unpaid fees required under subsection (a) of this

section. If the Administrator makes such a finding under section 7509(a)(4) of this title, the Administrator may collect fees for periods before

the determination, plus interest computed in accordance with section 6621(a)(2) of title 26 (relating to computation of interest on underpayment

of Federal taxes), to the extent the Administrator 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 applicable attainment date, no sanction under this section or under any other provision of this chapter

shall apply if the area can demonstrate, consistent with guidance issued by the Administrator,

that attainment in the area is prevented because of ozone or ozone precursors transported

from other areas. The prohibition applies only

in cases in which the area has met all requirements 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 nonattainment area as of November 15, 1990, has not violated the national primary ambient air quality

standard for ozone for the 36-month period commencing on January 1, 1987, and ending on December 31, 1989, the Administrator shall suspend

the application of the requirements of this subpart 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 Administrator determines that the area attained

the standard, the Administrator shall require, as

part of the order, the State to submit a maintenance 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. NOx and VOC study

The Administrator, in conjunction with the

National Academy of Sciences, shall conduct a

study on the role of ozone precursors in tropospheric ozone formation and control. The study

shall examine the roles of NOx and VOC emission

reductions, the extent to which NOx reductions

may contribute (or be counterproductive) to

achievement of attainment in different nonattainment areas, the sensitivity of ozone to the

control of NOx, the availability and extent of

controls for NOx, the role of biogenic VOC emissions, 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 information and studies, as well as develop additional information, in conducting the study required 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 attainment 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

1So 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 practicable but not later than the date provided in

table 1:

TABLE 3 1

Area

classification Design value Primary standardattainment 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 required under section 7407 of this title (designating 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 notice-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 Administrator may, in the Administrator’s discretion, within 90 days after November 15, 1990, by

the procedure required under paragraph (2), adjust the classification of the area. In making

such adjustment, the Administrator may consider 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 affected areas, and the mix of sources and air pollutants in the area. The Administrator may

make the same adjustment for purposes of paragraphs (2), (3), (6), and (7) of section 7512a(a) of

this title.

(4) Upon application by any State, the Administrator may extend for 1 additional year (hereinafter in this subpart referred to as the ‘‘Extension Year’’) the date specified in table 1 of subsection (a) of this section if—

(A) the State has complied with all requirements and commitments pertaining to the

area in the applicable implementation plan,

and

(B) no more than one exceedance of the national 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 issued under this paragraph for a single nonattainment area.

(b) New designations and reclassifications

(1) New designations to nonattainment

Any area that is designated attainment or

unclassifiable for carbon monoxide under section 7407(d)(4) of this title, and that is subsequently redesignated to nonattainment for

carbon monoxide 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 subsections (a)(1)

and (a)(4) 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 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 between 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 nonattainment area, the Administrator shall determine, 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, identifying each area that the Administrator has

determined, under subparagraph (A), as having failed to attain and identifying the reclassification, if any, described under subparagraph (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 Moderate Area (or portion thereof, to the extent

specified in guidance of the Administrator issued 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 emissions from all sources, as described in section

7502(c)(3) of this title, in accordance with guidance 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 12.7
§ 7512a TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6344

1So in original. Subsec. (a)(1) of this section does not contain

a subpar. (B).

ppm at the time of classification, the plan revision 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 Administrator, in consultation with the Secretary of Transportation, within 6 months

after November 15, 1990. The plan revision

shall provide for annual updates of the forecasts to be submitted to the Administrator together with annual reports regarding the extent to which such forecasts proved to be accurate. Such annual reports shall contain estimates 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 control measures as required in section

7511a(d)(1)(A) of this title except that such revision shall be for the purpose of reducing CO

emissions rather than volatile organic compound 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 revision shall provide for the implementation of

specific measures to be undertaken if any estimate 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 without further action by the State or the Administrator 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 implementation 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 necessary to ensure that the applicable implementation 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 thereafter, until the area is redesignated to attainment, a revised inventory meeting the requirements of subsection (a)(1) of this section.

(6) Enhanced vehicle inspection and maintenance

No later than 2 years after November 15,

1990, in the case of Moderate Areas with a design value greater than 12.7 ppm at the time of

classification, a revision that includes provisions 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 annual 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 November 15, 1990, a revision to provide, and a

demonstration that the plan as revised will

provide, for attainment of the carbon monoxide 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 implementation 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 Serious 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 revision and other items described under this subsection.

(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 reducing 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 subchapter II of this chapter, if the State fails to
Page 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 Statistical 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 defined by the United States Office of Management and Budget) in which the area is located,

be blended, during the portion of the year in

which the area is prone to high ambient concentrations of carbon monoxide (as determined by the Administrator), with fuels containing such level of oxygen as is necessary, in

combination with other measures, 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. The revision shall provide that such requirement shall take effect

no later than October 1, 1993, and shall include

a program for implementation and enforcement of the requirement consistent with guidance 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 demonstrates to the satisfaction of the Administrator 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 emissions of CO

(1) Serious Areas

In the case of Serious Areas in which stationary 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 maintenance, or oxygenated fuels where the Administrator 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 annual emission reductions required by December 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 Administrator 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 milestone

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 implement an economic incentive and transportation control program as described in section

7511a(g)(4) of this title. Such revision shall be

sufficient to achieve the specific annual reductions 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 portion 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, substantively and procedurally, the revisions and

implementation of State implementation

plans applicable to the nonattainment area

concerned. The Administrator may not approve 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 portion of a multi-State nonattainment area fails

to provide a demonstration of attainment of

the national ambient air quality standard for
§ 7513 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6346

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 implementation of all measures required under

this section (relating to plan submissions for

carbon monoxide nonattainment areas). If the

Administrator makes such finding, in the portion 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 chapter, by reason of the failure to make such

demonstration.

(f) Reclassified areas

Each State containing a carbon monoxide nonattainment area reclassified under section

7512(b)(2) of this title shall meet the requirements of subsection (b) 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 Administrator 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 monoxide 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 applicable in the area, and such program, in combination 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 approval of the plan revision and before attainment of the national primary ambient air quality 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.)

MORATORIUM ON CERTAIN EMISSIONS TESTING

REQUIREMENTS

For provisions prohibiting Administrator of Environmental 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 designation, by operation of law, as a moderate PM–10

nonattainment area (also referred to in this subpart 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 (relating to area designations) for each PM–10 nonattainment area, the Administrator shall publish 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-comment and judicial review) shall apply with respect to such classification.

(b) Reclassification as Serious

(1) Reclassification before attainment date

The Administrator may reclassify as a Serious PM–10 nonattainment area (identified in

this subpart also as a ‘‘Serious Area’’) any

area that the Administrator determines cannot practicably attain the national ambient

air quality standard for PM–10 by the attainment date (as prescribed in subsection (c) of

this section) for Moderate Areas. The Administrator 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 reclassify appropriate areas by June 30, 1991,

and take final action by December 31, 1991.

(B) For areas subsequently designated nonattainment, the Administrator shall reclassify 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 attainment 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 operation of law as a Serious Area; and

(B) the Administrator shall publish a notice in the Federal Register no later than 6

months following the attainment date, identifying the area as having failed to attain

and identifying the reclassification described under subparagraph (A).

(c) Attainment dates

Except as provided under subsection (d) of this

section, the attainment dates for PM–10 nonattainment 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 nonattainment for PM–10 under section 7407(d)(4) of this

title, the attainment date shall not extend beyond 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 year
Page 6347 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7513a

1So in original. Probably should be ‘‘subsection’’. 1So in original. Probably should be ‘‘subsection’’.

beginning after the area’s designation as nonattainment, except that, for areas designated

nonattainment for PM–10 under section

7407(d)(4) of this title, the date shall not extend beyond December 31, 2001.

(d) Extension of attainment date for Moderate

Areas

Upon application by any State, the Administrator may extend for 1 additional year (hereinafter referred to as the ‘‘Extension Year’’) the

date specified in paragraph1 (c)(1) if—

(1) the State has complied with all requirements 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 issued under the subsection for a single nonattainment area.

(e) Extension of attainment date for Serious

Areas

Upon application by any State, the Administrator may extend the attainment date for a Serious Area beyond the date specified under subsection (c) of this section, if attainment by the

date established under subsection (c) of this section would be impracticable, the State has complied with all requirements and commitments

pertaining to that area in the implementation

plan, and the State demonstrates to the satisfaction 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 attainment 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 nonattainment, the types and numbers of sources or other

emitting activities in the area (including the influence of uncontrollable natural sources and

transboundary emissions from foreign countries), the population exposed to concentrations

in excess of the standard, the presence and concentration of potentially toxic substances in the

mix of particulate emissions in the area, and the

technological and economic feasibility of various control measures. The Administrator may

not approve an extension until the State submits 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 Administrator 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 specific date for attainment of the standard where

the Administrator determines that nonanthropogenic sources of PM–10 contribute significantly to the violation of the PM–10 standard 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 Moderate 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 requirements 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 provide for attainment by the applicable attainment date; or (ii) a demonstration that attainment 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 designation in the case of an area classified as moderate 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 section 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 nonattainment, for those areas designated nonattainment 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 paragraph1 (a)(1) (relating 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 quality
§ 7513b TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6348

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 expeditious 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 required for an area under paragraph (1)(A) no

later than 4 years after reclassification of the

area to Serious, except that for areas reclassified under section 7513(b)(2) of this title, the

State shall submit the attainment demonstration 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’’ include any stationary source or group of stationary 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 approved under this section have been implemented 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 demonstration under this subsection is adequate

within 90 days after the Administrator’s receipt

of a demonstration which contains the information 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 Administrator 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 revision 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 attained by the applicable attainment date, the

State in which such area is located shall, after

notice and opportunity for public comment, submit within 12 months after the applicable attainment date, plan revisions which provide for

attainment of the PM–10 air quality standard

and, from the date of such submission until attainment, 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 inventory prepared for such area.

(e) PM–10 precursors

The control requirements applicable under

plans in effect under this part for major stationary 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 regarding 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 curtailments) and prescribed silvicultural and agricultural burning, no later than 18 months following

November 15, 1990. The Administrator shall also

examine other categories of sources contributing 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 subchapter IV–A of this chapter and other provisions 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 OXIDES, NITROGEN DIOXIDE, OR LEAD

§ 7514. Plan submission deadlines

(a) Submission

Any State containing an area designated or redesignated under section 7407(d) of this title as
Page 6349 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

nonattainment with respect to the national primary ambient air quality standards for sulfur

oxides, nitrogen dioxide, or lead subsequent to

November 15, 1990, shall submit to the Administrator, within 18 months of the designation, an

applicable implementation plan meeting the requirements of this part.

(b) States lacking fully approved State implementation plans

Any State containing an area designated nonattainment 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 implementation plan complying with the requirements 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 (except 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 expeditiously 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 Administrator under this chapter, as in effect before November 15, 1990, shall remain in effect according to its terms, except to the extent otherwise 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 nonattainment 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 pollutant.

(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

PART A—MOTOR VEHICLE EMISSION AND FUEL

STANDARDS

§ 7521. Emission standards for new motor vehicles 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 prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his

judgment cause, or contribute to, air pollution

which may reasonably be anticipated to endanger public health or welfare. Such standards

shall be applicable to such vehicles and engines

for their 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 systems or incorporate devices to prevent 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 Administrator finds necessary to permit the development and application of the requisite technology, giving appropriate consideration to the

cost of compliance within such period.

(3)(A) IN GENERAL.—(i) Unless the standard is

changed as provided in subparagraph (B), regulations under paragraph (1) of this subsection applicable 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 technology which the Administrator determines will

be available for the model year to which such

standards apply, giving appropriate consideration to cost, energy, and safety factors associated with the application of such technology.

(ii) In establishing classes or categories of vehicles 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) REVISED STANDARDS FOR HEAVY DUTY

TRUCKS.—(i) On the basis of information available to the Administrator concerning the effects

of air pollutants emitted from heavy-duty vehicles or engines and from other sources of mobile

source related pollutants on the public health
§ 7521 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6350

1See 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 thereafter, the regulations under paragraph (1) of this

subsection applicable to emissions of oxides of

nitrogen (NOx) 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) LEAD TIME AND STABILITY.—Any standard

promulgated or revised under this paragraph

and applicable to classes or categories of heavyduty vehicles or engines shall apply for a period

of no less than 3 model years beginning no earlier than the model year commencing 4 years

after such revised standard is promulgated.

(D) REBUILDING PRACTICES.—The Administrator 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, including 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 reasonably be anticipated to endanger public health or

welfare taking costs into account. Any regulation shall take effect after a period the Administrator finds necessary to permit the development and application of the requisite control

measures, giving appropriate consideration to

the cost of compliance within the period and energy and safety factors.

(E) MOTORCYCLES.—For purposes of this paragraph, motorcycles and motorcycle engines

shall 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 reclassifying 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 promulgated 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 reductions 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 complying with requirements prescribed under this

subchapter if such device, system, or element of

design will cause or contribute to an unreasonable risk to public health, welfare, or safety in

its operation or function.

(B) In determining whether an unreasonable

risk exists under subparagraph (A), the Administrator shall consider, among other factors, (i)

whether and to what extent the use of any device, system, or element of design causes, increases, 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 associated with the use of such device, system, or element of design, and (iii) the availability of other

devices, systems, or elements of design which

may be used to conform to requirements prescribed under this subchapter without causing

or contributing to such unreasonable risk. The

Administrator shall include in the consideration

required by this paragraph all relevant information 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 compliance 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 standards for new motor vehicles in order to insure

effective connection between such fill pipe and

any vapor recovery system which the Administrator determines may be required to comply

with such vapor recovery regulations. In promulgating such standards the Administrator

shall take into consideration limits on fill pipe

diameter, minimum design criteria for nozzle retainer lips, limits on the location of the unleaded fuel restrictors, a minimum access zone

surrounding a fill pipe, a minimum pipe or nozzle 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 restraints of an adequate leadtime for design and

production.

(C) Nothing in subparagraph (A) shall (i) prevent the Administrator from specifying different

nozzle and fill neck sizes for gasoline with additives and gasoline without additives or (ii) permit the Administrator to require a specific location, 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) ONBOARD VAPOR RECOVERY.—Within 1 year

after November 15, 1990, the Administrator shall,

after consultation with the Secretary of Transportation 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 vehicles manufactured beginning in the fourth

model year after the model year in which the

standards are promulgated and thereafter shall
Page 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:

IMPLEMENTATION SCHEDULE FOR ONBOARD VAPOR

RECOVERY REQUIREMENTS

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 capture efficiency of 95 percent. The requirements

of section 7511a(b)(3) of this title (relating to

stage II gasoline vapor recovery) for areas classified 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 requirements 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 Administrator determines that onboard emissions

control systems required under this paragraph

are in widespread use throughout the motor vehicle fleet.

(b) Emissions of carbon monoxide, hydrocarbons,

and oxides of nitrogen; annual report to Congress; 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 vehicles and engines manufactured during model

years 1977 through 1979 shall contain standards

which provide that such emissions from such vehicles and engines may not exceed 1.5 grams per

vehicle mile of hydrocarbons and 15.0 grams per

vehicle mile of carbon monoxide. The regulations under subsection (a) of this section applicable to emissions of carbon monoxide from

light-duty vehicles and engines manufactured

during the model year 1980 shall contain standards which provide that such emissions may not

exceed 7.0 grams per vehicle mile. The regulations under subsection (a) of this section applicable 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 applicable to light-duty vehicles and engines manufactured in model year 1970. Unless waived as provided in paragraph (5),1 regulations under subsection (a) of this section applicable to emissions of carbon monoxide from light-duty vehicles 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 applicable to light-duty vehicles and engines manufactured 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 manufactured 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 Administrator 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 Administrator 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 manufacturers and purchased from such manufacturers; and

(ii) such manufacturer lacks the financial

resources and technological ability to develop

such technology.

(C) The Administrator may promulgate regulations under subsection (a)(1) of this section revising any standard prescribed or previously revised 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 regulation 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 manufacturer’s annual production period (as determined by the Administrator) which includes

January 1 of such calendar year. If the manufacturer 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 beginning 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-
§ 7521 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6352

2So in original. Probably should be ‘‘(4)’’.

3So 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 primarily 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 regulations promulgated by the Administrator) in

excess of six thousand pounds. Such term includes any such vehicle which has special features enabling off-street or off-highway operation and use.

(3) 2 Upon the petition of any manufacturer,

the Administrator, after notice and opportunity

for public hearing, may waive the standard required under subparagraph (B) of paragraph (1)

to not exceed 1.5 grams of oxides of nitrogen per

vehicle 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 innovative 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 Administrator 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 potential for long-term air quality benefit and

has the potential to meet or exceed the average 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 subparagraph3 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 National Academy of Sciences; reports to Administrator and Congress; availability of information

(1) The Administrator shall undertake to enter

into appropriate arrangements with the National Academy of Sciences to conduct a comprehensive study and investigation of the technological feasibility of meeting the emissions

standards required to be prescribed by the Administrator 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 paragraph (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 investigation 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 authorized by paragraph (1) of this subsection. For the

purpose of furnishing such information, the Administrator may use any authority he has under

this chapter (A) to obtain information from any

person, and (B) to require such person to conduct such tests, keep such records, and make

such reports respecting research or other activities conducted by such person as may be reasonably necessary to carry out this subsection.

(d) Useful life of vehicles

The Administrator shall prescribe regulations

under which the useful life of vehicles and engines shall be determined for purposes of subsection (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 requirement 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 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;

(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 Administrator determines that a period of use of

greater duration or mileage is appropriate;

and

(3) in the case of any motorcycle or motorcycle engine, be a period of use the Administrator shall determine.

(e) New power sources or propulsion systems

In the event of a new power source or propulsion system for new motor vehicles or new

motor vehicle engines is submitted for certification pursuant to section 7525(a) of this title,

the Administrator may postpone certification

until he has prescribed standards for any air pollutants emitted by such vehicle or engine which

in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to
Page 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 distribution of motor vehicles or engines manufactured 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 require a percentage of reduction in the emissions

of such vehicles which is greater than the required 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 altitude emissions from vehicles manufactured during model year 1970. In no event shall regulations applicable to high altitude vehicles manufactured 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 paragraph (2) and before promulgating any such regulation, the Administrator shall consider and

make a finding with respect to—

(A) the economic impact upon consumers,

individual high altitude dealers, and the automobile industry of any such regulation, including the economic impact which was experienced as a result of the regulation imposed

during model year 1977 with respect to high altitude certification requirements;

(B) the present and future availability of

emission control technology capable of meeting the applicable vehicle and engine emission

requirements without reducing model availability; 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 NOx

Effective with respect to the model year 1994

and thereafter, the regulations under subsection (a) of this section applicable to emissions of nonmethane hydrocarbons (NMHC),

carbon monoxide (CO), and oxides of nitrogen

(NOx) 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 volume of such vehicles and trucks shall comply

with the levels specified in table G. The percentage shall be as specified in the implementation schedule below:

TABLE G—EMISSION STANDARDS FOR NMHC, CO, AND NOx 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 NOx NMHC CO NOx

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 NOx, the applicable standards for NOx 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).

IMPLEMENTATION SCHEDULE FOR TABLE G

STANDARDS

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 standards which provide that such emissions from a

percentage of each manufacturer’s sales volume of such vehicles and trucks shall not exceed the levels specified in the table below.

The percentage shall be as specified in the Implementation Schedule below.
§ 7521 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6354

PM STANDARD FOR LDTS 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 certification 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 standard.

The applicable useful life, for purposes of certification 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.

IMPLEMENTATION SCHEDULE FOR PM STANDARDS

Model year Light-duty

vehicles LDTs

1994 ................................. 40%*

1995 ................................. 80%* 40%*

1996 ................................. 100%* 80%*

IMPLEMENTATION SCHEDULE FOR PM

STANDARDS—CONTINUED

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 monoxide (CO), oxides of nitrogen (NOx), and particulate matter (PM) from light-duty trucks (LDTs)

of more than 6,000 lbs. gross vehicle weight rating (GVWR) shall contain standards which provide 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 percent in model year 1996 and 100 percent thereafter.

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 NOx NMHC CO NOx 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 emissions from light-duty vehicles and light-duty

trucks should be required pursuant to this subchapter. The study shall consider whether to establish with respect to model years commencing

after January 1, 2003, the standards and useful

life period for gasoline and diesel-fueled lightduty vehicles and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs. or less specified in the following table:

TABLE 3—PENDING EMISSION STANDARDS FOR GASOLINE AND DIESEL FUELED LIGHT-DUTY VEHICLES

AND LIGHT-DUTY TRUCKS 3,750 LBS. LVW OR LESS

Pollutant Emission level*

NMHC ........................................... 0.125 GPM

NOx ............................................... 0.2 GPM

CO ................................................ 1.7 GPM

*Emission levels are expressed in grams per mile

(GPM). For vehicles and engines subject to this subsection for purposes of subsection (d) of this section

and any reference thereto, the useful life of such vehicles 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 attain or maintain the national ambient air quality 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 vehicles and light-duty trucks with a loaded vehicle 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 meeting 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 primary
Page 6355 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

ambient air quality standards pursuant to

State implementation plans and other requirements of this chapter, including their feasibility 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 conducted under subparagraph (A). Before submittal of such report the Administrator shall provide a reasonable opportunity for public comment and shall include a summary of such comments 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 submitted 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 stringent 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 emissions from such vehicles will be needed and

cost effective, taking into consideration alternatives as provided in paragraph (2)(A)(ii).

The rulemaking under this paragraph shall commence within 3 months after submission of the

report to Congress under paragraph (2)(B).

(B) If the Administrator determines under subparagraph (A) that—

(i) there is no need for further reductions in

emissions as provided in paragraph (2)(A);

(ii) the technology for meeting more stringent 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 emissions from such vehicles will not be needed or

cost effective, taking into consideration alternatives as provided in paragraph (2)(A)(ii),

the Administrator shall not promulgate more

stringent standards than those in effect pursuant to subsections (g) and (h) of this section.

Nothing in this paragraph shall prohibit the Administrator from exercising the Administrator’s

authority under subsection (a) of this section to

promulgate more stringent standards for lightduty vehicles and light-duty trucks with a loaded 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 subparagraph (A) that—

(i) there is a need for further reductions in

emissions as provided in paragraph (2)(A);

(ii) the technology for meeting more stringent 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 emissions from such vehicles will be needed and

cost effective, taking into consideration alternatives 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 alternative standards (and useful life periods) which

are more stringent than those referred to in subsections (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 construed 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 paragraph. 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 citizen suits).

(E) Unless the Administrator determines not

to promulgate more stringent standards as provided in subparagraph (B) or to postpone the effective date of standards referred to in Table 3

in paragraph (1) or to establish alternative

standards as provided in subparagraph (C), effective with respect to model years commencing

after January 1, 2003, the regulations under subsection (a) of this section applicable to emissions of nonmethane hydrocarbons (NMHC), oxides of nitrogen (NOx), and carbon monoxide

(CO) from motor vehicles and motor vehicle engines in the classes specified in Table 3 in paragraph (1) above shall contain standards which

provide that emissions may not exceed the pending emission levels specified in Table 3 in paragraph (1).

(j) Cold CO standard

(1) Phase I

Not later than 12 months after November 15,

1990, the Administrator shall promulgate regulations under subsection (a) of this section applicable to emissions of carbon monoxide from

1994 and later model year light-duty vehicles

and light-duty trucks when operated at 20 degrees Fahrenheit. The regulations shall contain standards which provide that emissions of

carbon monoxide from a manufacturer’s vehicles when operated at 20 degrees Fahrenheit

may not exceed, in the case of light-duty vehicles, 10.0 grams per mile, and in the case of

light-duty trucks, a level comparable in stringency to the standard applicable to light-duty

vehicles. The standards shall take effect after

model year 1993 according to a phase-in schedule which requires a percentage of each manufacturer’s sales volume of light-duty vehicles
§ 7521 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6356

and light-duty trucks to comply with applicable standards after model year 1993. The percentage shall be as specified in the following

table:

PHASE-IN SCHEDULE FOR COLD START STANDARDS

Model Year Percentage

1994 ......................................................... 40

1995 ......................................................... 80

1996 and after .......................................... 100

(2) Phase II

(A) Not later than June 1, 1997, the Administrator 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 degrees Fahrenheit.

(B)(i) If as of June 1, 1997, 6 or more nonattainment areas have a carbon monoxide design value of 9.5 ppm or greater, the regulations under subsection (a)(1) of this section applicable to emissions of carbon monoxide from

model year 2002 and later model year lightduty vehicles and light-duty trucks shall contain 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 subparagraph whether 6 or more nonattainment

areas have a carbon monoxide design value of

9.5 ppm or greater, the Administrator shall exclude the areas of Steubenville, Ohio, and Oshkosh, Wisconsin.

(3) Useful-life for phase I and phase II standards

In the case of the standards referred to in

paragraphs (1) and (2), for purposes of certification 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 appropriate 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 subsection (d) of this section.

(4) Heavy-duty vehicles and engines

The Administrator may also promulgate

regulations under subsection (a)(1) of this section applicable to emissions of carbon monoxide 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 Administrator). The regulations shall take effect as expeditiously 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 consideration to fuel volatility, and to cost, energy,

and safety factors associated with the application of the appropriate technology. The Administrator shall commence a rulemaking under

this subsection within 12 months after November 15, 1990. If final regulations are not promulgated 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 unregulated 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 available 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 subsection (a)(1) of this section or section

7545(c)(1) of this title containing reasonable requirements 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 Administrator determines reflect the greatest degree of emission reduction achievable through

the application of technology which will be

available, taking into consideration the standards established under subsection (a) of this

section, the availability and costs of the technology, 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 a
Page 6357 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

5So 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 regulations under subsection (a) of this section requiring manufacturers to install on all new

light duty vehicles and light duty trucks diagnostics 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 operator to the likely need for emission-related

components or systems maintenance or repair,

(C) storing and retrieving fault codes specified by the Administrator, and

(D) providing access to stored information

in a manner specified by the Administrator.

The Administrator may, in the Administrator’s discretion, promulgate regulations requiring 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 Resources Board for such systems.

(3) State inspection

The Administrator shall by regulation require States that have implementation plans

containing motor vehicle inspection and maintenance programs to amend their plans within

2 years after promulgation of such regulations

to provide for inspection of onboard diagnostics 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 subsection, the Administrator shall require—

(A) that any connectors through which the

emission control diagnostics system is accessed 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 require (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 repairing or servicing of motor vehicles or motor vehicle engines, and the Administrator for use

by any such persons, with any and all information needed to make use of the emission control diagnostics system prescribed under this

subsection and such other information including 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 franchised dealers or other persons engaged in the

repair, diagnosing, or servicing of motor vehicles or motor vehicle engines. Such information shall also be available to the Administrator, subject to section 7542(c) of this title,

in carrying out the Administrator’s responsibilities 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 emissions 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 horsepower 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.)

REFERENCES IN TEXT

The enactment of the Clean Air Act Amendments of

1990, referred to in subsec. (a)(3)(B), probably means the
§ 7521 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6358

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.

CODIFICATION

Section was formerly classified to section 1857f–1 of

this title.

AMENDMENTS

1990—Subsec. (a)(3)(A). Pub. L. 101–549, §201(1), added

subpar. (A) and struck out former subpar. (A) which related to promulgation of regulations applicable to reduction of emissions from heavy-duty vehicles or engines 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 subpar. (B) and struck out former subpar. (B) which read

as follows: ‘‘During the period of June 1 through December 31, 1978, in the case of hydrocarbons and carbon

monoxide, or during the period of June 1 through December 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 promulgate regulations revising any standard prescribed

as provided in subparagraph (A)(ii) for any class or category of heavy-duty vehicles or engines. Such standard

shall apply only for the period of three model years beginning 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 available for production of such period and shall prescribe a

revised emission standard in accordance with such determination. Such revised standard shall require a reduction of emissions from any standard which applies

in the previous model year.’’

Subsec. (a)(3)(C). Pub. L. 101–549, §201(1), added subpar. (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 subparagraph (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 methods, or other alternatives reasonably expected to be

available for production for such model year without

increasing cost or decreasing fuel economy to an excessive and unreasonable degree; and

‘‘(ii) the National Academy of Sciences has not,

pursuant to its study and investigation under subsection (c) of this section, issued a report substantially contrary to the findings of the Administrator

under clause (i).’’

Subsec. (a)(3)(D). Pub. L. 101–549, §201(1), added subpar. (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 subparagraph (B) which shall contain—

‘‘(i) a summary of the health effects found, or believed 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 regulations under part C of subchapter I (relating to significant deterioration) in relation to the cost-effectiveness 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 manufacturer for purposes of meeting the standards promulgated as provided in subparagraph (A)(ii) or, if applicable, 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, redesignated 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 engines 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 information 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 subsection changing any standard prescribed in subparagraph (A)(ii) (or revised under subparagraph (B) or previously 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), substituted ‘‘requirements prescribed under this subchapter’’ for ‘‘standards prescribed under this subsection’’.

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 uncontrolled 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 economy, economic costs of such technology, administrative 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, standards requiring the use of onboard hydrocarbon technology which shall not become effective until the introduction to the model year for which it would be feasible to implement such standards, taking into consideration compliance costs and the restraints of an adequate 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 earliest feasible model year), the test procedure promul-
Page 6359 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7521

gated under paragraph (2) for measurement of evaporative 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 follows: ‘‘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 nitrogen 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 Administrator 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 engines’’.

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 established pursuant to this section. Such reports shall include information regarding the continuing effects of

such air pollutants subject to standards under this section 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 application 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 required 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 declares and establishes as a research objective, the development of propulsion systems and emission control

technology to achieve standards which represent a reduction 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 manufacturer 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 operation of light duty motor vehicles that meet this research objective, in addition to any other applicable

standards or requirements for other pollutants under

this chapter. Such demonstration vehicles shall be submitted to the Administrator no later than model year

1979 and in each model year thereafter. Such demonstration shall, in accordance with applicable regulations, 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 capability of the manufacturers, and (C) assure the utilization 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 requirement 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

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 subsec. (m) at end) subsec. (f) relating to regulations applicable to buses for model years after 1990.

Subsecs. (g) to (i). Pub. L. 101–549, §203(a), added subsecs. (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), restructured 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 otherwise provided in subsection (b) of this section the Administrator’’ for ‘‘The Administrator’’, ‘‘cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare’’ for

‘‘causes or contributes to, or is likely to cause or contribute 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 systems or incorporate devices’’ for ‘‘useful life (as determined under subsection (d) of this section) whether

such vehicles and engines are designed as complete systems or incorporated devices’’.

Subsec. (a)(2). Pub. L. 95–95, §214(a), substituted ‘‘prescribed 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), substituted 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 monoxide, and June 1, 1980, in the case of oxides of nitrogen’’ 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 vehicles 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 provisions 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.
§ 7521 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6360

Subsec. (b)(1)(B). Pub. L. 95–190, §14(a)(64), (65), substituted ‘‘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 actually measured from light-duty vehicles manufactured

during model year 1971 which were not subject to any

Federal or State emission standards for oxides of nitrogen, and inserted provisions directing the Administrator 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 technology 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 provisions setting up a procedure under which a manufacturer 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 manufacturer, after Jan. 1, 1975, could apply for a one-year suspension 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 motorcycles 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 pollution which may reasonably be anticipated to endanger’’ 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), substituted ‘‘model year 1977’’ for ‘‘model year 1975’’ in

provisions requiring a reduction of at least 90 per centum from the emissions allowable under standards for

model year 1970 and inserted provisions covering regulations 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 provisions 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 manufactured 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 application 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, inserted references to the useful life of engines, and substituted the emission of any air pollutant for the emission of any kind of substance as the subject to be regulated, 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.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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.

STUDY ON OXIDES OF NITROGEN FROM LIGHT-DUTY

VEHICLES

Section 202(a) of Pub. L. 95–95 provided that the Administrator of the Environmental Protection Agency

conduct a study of the public health implications of attaining 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.

STUDY OF CARBON MONOXIDE INTRUSION INTO

SUSTAINED-USE VEHICLES

Section 226 of Pub. L. 95–95 provided that the Administrator, in conjunction with the Secretary of Transportation, study the problem of carbon monoxide intrusion into the passenger area of sustained-use motor vehicles and that within one year the Administrator report to the Congress respecting the results of such

study.

CONTINUING COMPREHENSIVE STUDIES AND

INVESTIGATIONS BY NATIONAL ACADEMY OF SCIENCES

Section 403(f) of Pub. L. 95–95 provided that: ‘‘The Administrator of the Environmental Protection Agency

shall undertake to enter into appropriate arrangements

with the National Academy of Sciences to conduct continuing 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 standards 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.]

STUDY ON EMISSION OF SULFUR-BEARING COMPOUNDS

FROM MOTOR VEHICLES AND MOTOR VEHICLE AND

AIRCRAFT ENGINES

Section 403(g) of Pub. L. 95–95 provided that the Administrator of the Environmental Protection Agency

conduct a study and report to the Congress by the date

one year after Aug. 7, 1977, on the emission of sulfurbearing compounds from motor vehicles and motor vehicle engines and aircraft engines.

EX. ORD. NO. 13432. COOPERATION AMONG AGENCIES IN

PROTECTING THE ENVIRONMENT WITH RESPECT TO

GREENHOUSE GAS EMISSIONS FROM MOTOR VEHICLES,

NONROAD VEHICLES, AND NONROAD ENGINES

Ex. Ord. No. 13432, May 14, 2007, 72 F.R. 27717, provided:

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:

SECTION 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 Department of Transportation, the Department of Energy, and the Environmental Protection Agency to protect 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.

SEC. 2. Definitions. As used in this order:

(a) ‘‘agencies’’ refers to the Department of Transportation, the Department of Energy, and the Environmental 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 indirectly 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 September 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.

SEC. 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 emissions, or to substantially and predictably affect emissions, 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 maximum 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 recommendations provided by the other agencies;

(c) in undertaking such a regulatory action, exercise

authority vested by law in the head of such agency effectively, in a manner consistent with the effective exercise by the heads of the other agencies of the authority vested in them by law; and

(d) obtain, to the extent permitted by law, concurrence or other views from the heads of the other agencies during the development and preparation of the regulatory 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.

SEC. 4. Duties of the Heads of Agencies. (a) To implement 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 Committee on Climate Change Science and Technology, continue to conduct and share research designed to advance 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 policy set forth in section 1 of this order;

(4) coordinate with the other agencies to avoid duplication 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 whenever a regulatory action will have a significant effect

on agriculture related to the production or use of ethanol, biodiesel, or other renewable fuels, including actions 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 regulatory actions to which section 3 refers, such as publication of notices in the Federal Register and receipt of

comments in response to notices.

SEC. 5. Duties of the Director of the Office of Management and Budget and the Chairman of the Council on Environmental 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 implementation 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 Management and Budget may require the heads of the agencies

to submit reports to, and coordinate with, such Office

on matters related to this order.

SEC. 6. General Provisions. (a) This order shall be implemented in accordance with applicable law and subject to the availability of appropriations.

(b) This order shall not be construed to impair or

otherwise affect the functions of the Director of the Office of Management and Budget relating to budget, administrative, and legislative proposals.

(c) This order is not intended to, and does not, create

any right, benefit or privilege, substantive or procedural, 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.

GEORGE W. BUSH.
§ 7522 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6362

1So 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 delivery for introduction, into commerce, or (in the

case of any person, except as provided by regulation of the Administrator), the importation

into the United States, of any new motor vehicle 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 covered by a certificate of conformity issued (and

in effect) under regulations prescribed under

this part or part C in the case of clean-fuel vehicles (except as provided in subsection (b) of

this section);

(2)(A) 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;

(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 perform tests, or have tests performed as required

under section 7542 of this title;

(D) for any manufacturer to fail to make information available as provided by regulation

under section 7521(m)(5) of this title;

(3)(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

person knowingly to remove or render inoperative 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 principal effect of the part or component is to bypass, 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 vehicle 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 engine unless such manufacturer has complied

with (i) the requirements of section 7541(a)

and (b) of this title with respect to such vehicle or engine, and unless a label or tag is

affixed to such vehicle or engine in accordance 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 complied with the corresponding requirements of

part C of this subchapter 1

(B) to fail or refuse to comply with the requirements 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 corresponding requirements of part C of this

subchapter in the case of clean fuel vehicles,

to provide directly or indirectly in any communication to the ultimate purchaser or any

subsequent purchaser that the coverage of

any warranty under this chapter is conditioned 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 corresponding 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 adjustment 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 vehicle or motor vehicle engine. For the purposes

of the preceding sentence, the term ‘‘manufacturer parts’’ means, with respect to a motor vehicle engine, parts produced or sold by the manufacturer 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 repair or replace any other item and the device or

element is replaced upon completion of the procedure, and (ii) such action thereafter results in

the proper functioning of the device or element

referred to in paragraph (3). 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 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 device or element is replaced upon completion of
Page 6363 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7522

the conversion procedure and such action results in proper functioning of the device or element when the motor vehicle operates on conventional fuel.

(b) Exemptions; refusal to admit vehicle or engine 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, requirements, and limitations applicable to it

under this part. The Secretary of the Treasury

shall, if a motor vehicle or engine is finally refused admission under this paragraph, cause disposition thereof in accordance with the customs

laws unless it is exported, under regulations prescribed by such Secretary, within ninety days of

the date of notice of such refusal or such additional time as may be permitted pursuant to

such regulations, except that disposition in accordance with the customs laws may not be

made in such manner as may result, directly or

indirectly, in the sale, to the ultimate consumer, of a new motor vehicle or new motor vehicle 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 engine shall comply with the standards of such

country which is to receive such vehicle or engine.

(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.)

CODIFICATION

Section was formerly classified to section 1857f–2 of

this title.

AMENDMENTS

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 design, referred to in par. (3), would not be deemed prohibited acts.

Subsec. (a)(1). Pub. L. 101–549, §228(e)(1), inserted ‘‘or

part C of this subchapter in the case of clean-fuel vehicles’’ before ‘‘(except’’.

Subsec. (a)(2). Pub. L. 101–549, §228(a), amended par.

(2) generally. Prior to amendment, par. (2) read as follows: ‘‘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 follows:

‘‘(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 manufacturer or dealer knowingly to remove or render inoperative 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 repairing, servicing, selling, leasing, or trading motor vehicles or motor vehicle engines, or who operates a fleet

of motor vehicles, knowingly 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 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 modifications 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 adjustment or alteration of such element) be treated as a

prohibited act under par. (3) if the action is in accordance 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 ‘‘section 7521 of this title’’ for ‘‘subsection (a) of this sec-
§ 7523 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6364

1So 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 regarding exceptions in the case of importation of new

motor vehicles or new motor vehicle engines, and substituted ‘‘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 purposes of codification, are translated as ‘‘section 7542 of

this title’’.

Subsec. (a)(3). Pub. L. 91–604, §§7(a)(3), 11(a)(2)(A), substituted ‘‘part’’ for ‘‘subchapter’’ and inserted provisions prohibiting the knowing removal or inoperation

by manufacturers or dealers of devices or elements of

design after sale and delivery to the ultimate purchaser.

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 ‘‘Secretary’’.

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 imported by any person’’ for ‘‘importation by a manufacturer’’, and ‘‘part’’ for ‘‘subchapter’’.

Subsec. (b)(3). Pub. L. 91–604, §7(a)(7)(A), inserted provision 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 ‘‘conformity with regulations prescribed under this subchapter’’ for ‘‘conformity with regulations prescribed

under section 7521 of this title’’ in par. (1).

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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 section 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 witnesses who are required to attend a district

court in any district may run into any other district.

(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.)

CODIFICATION

Section was formerly classified to section 1857f–3 of

this title.

AMENDMENTS

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.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

PENDING ACTIONS AND PROCEEDINGS

Suits, actions, and other proceedings lawfully commenced 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 manufacturer 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 person 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 respect 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 violates section 7522(a)(2) of this title shall be subject to a civil penalty of not more than $25,000

per day of violation.

(b) Civil actions

The Administrator may commence a civil action 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 United
Page 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 defendant resides or has the Administrator’s principal

place of business, and the court shall have jurisdiction 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 economic 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 violation, 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 action, 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 penalties

(1) Administrative penalty authority

In lieu of commencing a civil action under

subsection (b) of this section, the Administrator 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, except that the maximum amount of penalty

sought against each violator in a penalty assessment proceeding shall not exceed $200,000,

unless the Administrator and the Attorney

General jointly determine that a matter involving 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 reasonable rules for discovery and other procedures for hearings under this paragraph. Before issuing such an order, the Administrator

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.

The Administrator may compromise, or remit,

with or without conditions, any administrative penalty which may be imposed under this

section.

(2) Determining amount

In determining the amount of any civil penalty assessed under this subsection, the Administrator shall take into account the gravity of the violation, the economic 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 violation,

the effect of the penalty on the violator’s ability 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 Administrator’s authority to enforce any provision

of this chapter; except that any violation,

(i) with respect to which the Administrator has commenced and is diligently prosecuting 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 obligation 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 simultaneously send a copy of the filing by certified mail to the Administrator and the Attorney 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 evidence in the record, taken as a whole, to support 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 penalties unless the Administrator’s assessment

of the penalty constitutes an abuse of discretion. 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 judgment in favor of the Administrator,

the Administrator shall request the Attorney

General to bring a civil action in an appropriate district court to recover the amount assessed (plus interest at rates established pursuant 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 action, the validity, amount, and appropriateness of the penalty shall not be subject to review. Any person who fails to pay on a timely

basis the amount of an assessment of a civil
§ 7525 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6366

penalty as described in the first sentence of

this paragraph shall be required to pay, in addition to that amount and interest, the United

States’ enforcement expenses, including attorneys fees and costs for collection proceedings,

and a quarterly nonpayment penalty for each

quarter during which such failure to pay persists. The nonpayment penalty shall be in an

amount equal to 10 percent of the aggregate

amount of that person’s penalties and nonpayment 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.)

CODIFICATION

Section was formerly classified to section 1857f–4 of

this title.

AMENDMENTS

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 person 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 respect to paragraph (1), (3), or (4) of section 7522(a) of

this title shall constitute a separate offense with respect to each motor vehicle or motor vehicle engine.’’

1977—Pub. L. 95–95 substituted ‘‘Any person who violates 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.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except 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 conformity

(1) The Administrator shall test, or require to

be tested in such manner as he deems appropriate, any new motor vehicle or new motor vehicle engine submitted by a manufacturer to determine whether such vehicle or engine conforms with the regulations prescribed under section 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 Administrator shall not require, for purposes of determining compliance with regulations under section 7521 of this title for the useful life of the vehicle or engine, operation of any vehicle or engine manufactured during such model year for

more than 5,000 miles or 160 hours, respectively,

unless the Administrator, by regulation, prescribes otherwise. The Administrator shall

apply any adjustment factors that the Administrator deems appropriate to assure that each vehicle 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 conform to the standards required to be prescribed

under section 7521(b) of this title. If the Administrator finds on the basis of such tests that

such vehicle or engine conforms to such standards, the Administrator shall issue a verification of compliance with emission standards for

such system when incorporated in vehicles of a

class of which the tested vehicle is representative. He shall inform manufacturers and the National 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 requirements for preliminary testing by qualified independent laboratories) as the Administrator may

prescribe by regulations.

(3)(A) A certificate of conformity may be issued under this section only if the Administrator 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 incorporated 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 subparagraph (A) of this paragraph. Such requirements 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 November 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 inspection methods and procedures established

under section 7541(b) of this title for that model
Page 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 programs cannot reasonably influence or control.

The conditions shall include fuel characteristics, ambient temperature, and short (30 minutes 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 engine 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 subparagraph (A), as the Administrator deems appropriate.

(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 conform with the regulations with respect to which

the certificate of conformity was issued, the Administrator 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 engines 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 manufacturer. 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 manufacturer), and shall apply until such time as

the Administrator finds that vehicles and engines manufactured by the manufacturer do conform 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 requirements, he shall issue a certificate of conformity applicable to such vehicle or engine.

(ii) If, based on tests conducted under paragraph (1) on any new vehicle or engine, the Administrator determines that such vehicle or engine 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 vehicle 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 properly conducted or any sampling methods have

been properly applied, and make a determination on the record with respect to any suspension 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 resides 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 provided 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 additional evidence is material and that there were

reasonable grounds for the failure to adduce

such evidence in the proceeding before the Administrator, the court may order such additional evidence (and evidence in rebuttal thereof) 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 evidence so taken and he shall file such modified or

new findings, and his recommendation, if any,

for the modification or setting aside of his original determination, with the return of such additional 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 provided in such chapter.

(c) Inspection

For purposes of enforcement of this section,

officers or employees duly designated by the Administrator, upon presenting appropriate credentials 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 conducting tests under regulations of the Administrator. Each such inspection shall be commenced and completed with reasonable promptness.

(d) Rules and regulations

The Administrator shall by regulation establish 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 vehicle or motor vehicle engine submitted by a manufacturer 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 described in such nontechnical manner as will rea-
§ 7525 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6368

1So in original. Probably should be ‘‘light-duty’’.

2See References in Text note below.

3So in original. Probably should be ‘‘subsections’’.

sonably disclose to prospective ultimate purchasers 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 duty1 vehicles and engines manufactured during or after model year 1984 and all

light-duty trucks manufactured during or after

model year 1995 shall comply with the requirements 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 standard 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 manufactured by a manufacturer notwithstanding the

failure of such vehicles or engines to meet such

standard if such manufacturer pays a nonconformance penalty as provided under regulations 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 notwithstanding 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 standard promulgated under section 7521(a) of this

title with respect to such class or category exceeds the percentage determined under regulations 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 engines which are not in compliance with the regulations 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 paragraph (1) shall, not later than one year after August 7, 1977, provide for nonconformance penalties in amounts determined under a formula

established by the Administrator. Such penalties 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 standards 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 disadvantage to manufacturers whose engines or vehicles 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 conformity 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 necessary the regulations under subsection3 (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 conditions under which motor vehicles are used, including 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.)

REFERENCES IN TEXT

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).

CODIFICATION

Section was formerly classified to section 1857f–5 of

this title.

PRIOR PROVISIONS

A prior section 206 of act July 14, 1955, related to testing of motor vehicles and motor vehicle engines and

was classified to section 1857f–5 of this title, prior to repeal by Pub. L. 91–604.

AMENDMENTS

1990—Subsec. (a)(1). Pub. L. 101–549, §208(b), inserted

new third sentence and struck out former third sentence which read as follows: ‘‘In the case of any manufacturer of vehicles or vehicle engines whose projected

sales in the United States for any model year (as determined by the Administrator) will not exceed three hundred, 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 engine shall not require operation of any vehicle or engine 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 assure that each such vehicle or engine will comply dur-
Page 6369 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7541

1So 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 section 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 ‘‘announce in the Federal Register and’’ after ‘‘The Administrator 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 provisions 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), substituted ‘‘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 requirements’’ for ‘‘such regulations’’.

Subsec. (b)(2)(A)(ii). Pub. L. 95–95, §214(c)(2), substituted ‘‘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’’ before ‘‘be’’.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

EFFECTIVE DATE

Section 8(b) of Pub. L. 91–604 provided that: ‘‘The

amendments made by this section [enacting this section and section 7541 of this title] shall not apply to vehicles or engines imported into the United States before the sixtieth day after the date of enactment of this

Act [Dec. 31, 1970].’’

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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 actual use

(a) Warranty; certification; payment of replacement costs of parts, devices, or components

designed for emission control

(1) Effective with respect to vehicles and engines 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 purchaser that such vehicle or engine is (A) designed, 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 warranty shall require that the vehicle or engine is

free from any such defects for the warranty period provided under subsection (i) of this section.

(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 vehicle 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 subsection (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 section 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 interfere 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 replacement by the vehicle manufacturer and such replacement shall be provided without cost to the

ultimate purchaser, subsequent purchaser, or

dealer. The term ‘‘designed for emission control’’ 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 components 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 throughout 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 emission standards of such regulations, (ii) such

methods and procedures are in accordance with

good engineering practices, and (iii) such methods and procedures are reasonably capable of

being correlated with tests conducted under section 7525(a)(1) of this title, then—

(1) he shall establish such methods and procedures by regulation, and

(2) at such time as he determines that inspection facilities or equipment are available

for purposes of carrying out testing methods

and procedures established under paragraph
§ 7541 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6370

(1), he shall prescribe regulations which shall

require manufacturers to warrant the emission 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 purchaser 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 ultimate purchaser (or any subsequent purchaser) of such vehicle or engine having to

bear any penalty or other sanction (including the denial of the right to use such vehicle 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 section.

(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 maintained and used, do not conform to the regulations prescribed under section 7521 of this

title, when in actual use throughout their useful 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 submit a plan for remedying the nonconformity of

the vehicles or engines with respect to which

such notification is given. The plan shall provide that the nonconformity of any such vehicles or engines which are properly used and

maintained will be remedied at the expense of

the manufacturer. If the manufacturer disagrees with such determination of nonconformity and so advises the Administrator,

the Administrator shall afford the manufacturer and other interested persons an opportunity 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 nonconformity, he shall, within 60 days after the completion of such hearing, order the manufacturer

to provide prompt notification of such nonconformity in accordance with paragraph (2).

(2) Any notification required by paragraph

(1) with respect to any class or category of vehicles or engines shall be given to dealers, ultimate purchasers, and subsequent purchasers

(if known) in such manner and containing such

information as the Administrator may by regulations require.

(3)(A) The manufacturer shall furnish with

each new motor vehicle or motor vehicle engine written instructions for the proper maintenance and use of the vehicle or engine by the

ultimate purchaser and such instructions shall

correspond to regulations which the Administrator shall promulgate. The manufacturer

shall provide in boldface type on the first page

of the written maintenance instructions notice that maintenance, replacement, or repair

of the emission control devices and systems

may be performed by any automotive repair

establishment or individual using any automotive part which has been certified as provided in subsection (a)(2) of this section.

(B) The instruction under subparagraph (A)

of this paragraph shall not include any condition on the ultimate purchaser’s using, in connection with such vehicle or engine, any component 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 between service performed by the franchised

dealers of such manufacturer or any other

service establishments with which such manufacturer 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 Administrator that the vehicle or engine will function properly only if the component or service 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 indicate by means of a label or tag permanently

affixed to such vehicle or engine that such vehicle 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 relating to control of motor vehicle emissions as

the Administrator shall prescribe by regulation.

(4) INTERMEDIATE IN-USE STANDARDS.—

(A) MODEL YEARS 1994 AND 1995.—For lightduty trucks of up to 6,000 lbs. gross vehicle

weight rating (GVWR) and light-duty vehicles 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 NOx

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

2So 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 NOx

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) MODEL 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 vehicles 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 NOx 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 NOx for

purposes of this subsection shall be those set

forth in Table B below in lieu of the standards for such air pollutants otherwise applicable under this subchapter.

TABLE B—INTERMEDIATE IN-USE STANDARDS

LDTS MORE THAN 6,000 LBS. GVWR

Vehicle type NMHC CO NOx

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) USEFUL 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) FINAL IN-USE STANDARDS.—(A) After the

model year 1995, 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 lightduty trucks of up to 6,000 lbs. gross vehicle

weight rating (GVWR) and light duty2 vehicles, the standards for NMHC, CO, and NOx

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 subsection, the applicable useful life shall be (i) 5

years or 50,000 miles (or the equivalent) whichever first occurs in the case of standards applicable 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 certification at 100,000 miles, except that no testing

shall be done beyond 7 years or 75,000 miles, or

the equivalent whichever first occurs.

LDTS UP TO 6,000 LBS. GVWR AND LIGHT-DUTY

VEHICLE SCHEDULE FOR IMPLEMENTATION OF

FINAL IN-USE STANDARDS

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 NOx 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 applicable useful life shall be (i) 5 years or 50,000

miles (or the equivalent) whichever first occurs in the case of standards applicable for

purposes of certification at 50,000 miles; and

(ii) 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 no testing

shall be done beyond 7 years or 90,000 miles (or

the equivalent) whichever first occurs.

LDTS OF MORE THAN 6,000 LBS. GVWR IMPLEMENTATION SCHEDULE FOR IMPLEMENTATION OF

FINAL IN-USE STANDARDS

Model year Percent

1998 ......................................................... 50

1999 ......................................................... 100

(6) DIESEL 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 standards under section 7521(g) of this title for NOx

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 testing shall not be done for a period beyond 7

years or 75,000 miles (or the equivalent) whichever 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 compliance with the standards under section 7521(h)

of this title for NOx 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-
§ 7541 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6372

3So 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 advertisement a statement respecting the cost or value of

emission control devices or systems, such manufacturer shall set forth in such statement the

cost or value attributed to such devices or systems by the Secretary of Labor (through the Bureau of Labor Statistics). The Secretary of

Labor, and his representatives, shall have the

same access for this purpose to the books, documents, papers, and records of a manufacturer as

the Comptroller General has to those of a recipient 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 provided 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 warranted 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 vehicle 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 manufacturer 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 purchaser (except that no new motor vehicle manufacturer 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 section 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), except as provided in paragraph (2). For purposes

of subsection (a)(1) of this section and subsection (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 Administrator subsequently modifies such regulation.

(2) Specified major emission control components

In the case of a specified major emission

control component, the warranty period for

new light-duty trucks and new light-duty vehicles and engines manufactured in the model

year 1995 and thereafter for purposes of subsection (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 device, except that the Administrator may designate any other pollution control device or

component as a specified major emission control component if—

(A) the device or component was not in

general use on vehicles and engines manufactured 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 deflation as calculated by the Administrator at

the time of such determination.

For purposes of this paragraph, the term ‘‘onboard emissions diagnostic device’’ means any

device installed for the purpose of storing or

processing emissions related diagnostic information, 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 paragraph.

(3) Instructions

Subparagraph (A) of subsection (b)(2) of this

section shall apply only where the Administrator has made a determination that the instructions concerned conform to the requirements 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.)

CODIFICATION

Section was formerly classified to section 1857f–5a of

this title.

PRIOR PROVISIONS

A prior section 207 of act July 14, 1955, was renumbered section 208 by Pub. L. 91–604 and is classified to

section 7542 of this title.

AMENDMENTS

1990—Subsec. (a)(1). Pub. L. 101–549, §209(4), inserted

at end ‘‘In the case of vehicles and engines manufactured in the model year 1995 and thereafter such warranty 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 provisions and par. (2)(B), and struck out closing provisions which read as follows: ‘‘For purposes of the warranty under this subsection, for the period after twenty-four months or twenty-four thousand miles (whichever 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 provisions 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’’.

EFFECTIVE DATE OF 1990 AMENDMENT

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 manufactured in model year 1995 and thereafter.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

EFFECTIVE DATE

Section not applicable to vehicles or engines imported 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.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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 manufacturer of new motor vehicle or engine parts or

components, and other persons subject to the requirements of this part or part C of this subchapter, shall establish and maintain records,

perform tests where such testing is not otherwise reasonably available under this part and

part C of this subchapter (including fees for testing), make reports and provide information the

Administrator may reasonably require to determine whether the manufacturer or other person

has acted or is acting in compliance with this

part and part C of this subchapter and regulations thereunder, or to otherwise carry out the

provision of this part and part C of this subchapter, 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 section, officers or employees duly designated by

the Administrator upon presenting appropriate

credentials are authorized—

(1) to enter, at reasonable times, any establishment 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 observing any activity conducted pursuant to

subsection (a) of this section, and

(2) to inspect records, files, papers, processes, controls, and facilities used in performing 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 emission data), to which the Administrator has access under this section, if made public, would di-
§ 7543 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6374

vulge methods or processes entitled to protection as trade secrets of that person, the Administrator shall consider the record, report, or information or particular portion thereof confidential in accordance with the purposes of section 1905 of title 18. Any authorized representative 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 disclosing records, reports or information to other

officers, employees or authorized representatives of the United States concerned with carrying out this chapter or when relevant in any

proceeding under this chapter. Nothing in this

section shall authorize the withholding of information 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.)

CODIFICATION

Section was formerly classified to section 1857f–6 of

this title.

PRIOR PROVISIONS

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, renumbered 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.

AMENDMENTS

1990—Pub. L. 101–549 amended section generally, substituting present provisions for provisions which related to: in subsec. (a), manufacturer’s responsibility; and

in subsec. (b), availability to public except for trade secrets.

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), substituted provisions authorizing the Administrator to

make available to the public any records, reports, of information obtained under subsec. (a) of this section, except those shown to the Administrator to be entitled to

protection as trade secrets, for provisions that all information reported or otherwise obtained by the Secretary 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 certification, inspection, or any other approval relating to the control of emissions from any new

motor vehicle or new motor vehicle engine as

condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment.

(b) Waiver

(1) The Administrator shall, after notice and

opportunity for public hearing, waive application of this section to any State which has

adopted standards (other than crankcase emission standards) for the control of emissions from

new motor vehicles or new motor vehicle engines prior to 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. No

such waiver shall be granted if the Administrator finds that—

(A) the determination of the State is arbitrary and capricious,

(B) such State does not need such State

standards to meet compelling and extraordinary 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 stringent 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 paragraph (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 paragraph (1), compliance with such State standards

shall be treated as compliance with applicable

Federal standards for purposes of this subchapter.

(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 approval 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 waiver is in effect under subsection (b) of this section.

(d) Control, regulation, or restrictions on registered 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 of
Page 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 construction 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 subparagraph (A) or (B) of paragraph (1), the Administrator shall, after notice and opportunity for public hearing, authorize California

to adopt and enforce standards and other requirements relating to the control of emissions from such vehicles or engines if California determines that California standards will

be, in the aggregate, at least as protective of

public health and welfare as applicable Federal standards. No such authorization shall be

granted if the Administrator finds that—

(i) the determination of California is arbitrary and capricious,

(ii) California does not need such California standards to meet compelling and extraordinary conditions, or

(iii) California standards and accompanying enforcement procedures are not consistent 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 enforce, 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 authorized by the Administrator under subparagraph (A), and

(ii) California and such State adopt such

standards at least 2 years before commencement 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.)

CODIFICATION

Section was formerly classified to section 1857f–6a of

this title.

PRIOR PROVISIONS

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 repeal by Pub. L. 89–675, §2(b), Oct. 15, 1966, 80 Stat. 954.

AMENDMENTS

1990—Subsec. (e). Pub. L. 101–549 added subsec. (e).

1977—Subsec. (b). Pub. L. 95–95, §207, designated existing 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 extraordinary conditions or that such State standards and accompanying 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), substituted ‘‘part’’ for ‘‘subchapter’’.

Subsec. (b). Pub. L. 91–604, §15(c)(2), substituted ‘‘Administrator’’ for ‘‘Secretary’’.

Subsec. (c). Pub. L. 91–604, §11(a)(2)(A), substituted

‘‘part’’ for ‘‘subchapter’’.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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 developing 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 consistent with any highway safety program developed 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 discontinued or rendered inoperative.

Grants may be made under this section by way

of reimbursement in any case in which amounts
§ 7545 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6376

1So 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.)

CODIFICATION

Section was formerly classified to section 1857f–6b of

this title.

PRIOR PROVISIONS

A prior section 210 of act July 14, 1955, was renumbered section 211 by Pub. L. 91–604 and is classified to

section 7545 of this title.

AMENDMENTS

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 authorizing the Administrator to make grants to appropriate State agencies for the development and maintenance 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 agencies for the development of meaningful uniform motor

vehicle emission device inspection and emission testing

programs.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except 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 designate 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 manufacturer or processor of any such fuel or additive

may sell, offer for sale, or introduce into commerce such fuel or additive unless the Administrator has registered such fuel or additive in accordance 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 notify 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 regular 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, teratogenic, or mutagenic effects); and

(B) to furnish the description of any analytical technique that can be used to detect and

measure any additive in such fuel, the recommended range of concentration of such additive, 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 extent to which such emissions affect the public

health or welfare.

Tests under subparagraph (A) shall be conducted

in conformity with test procedures and protocols established by the Administrator. The result of such tests shall not be considered confidential.

(3) Upon compliance with the provision of this

subsection, including assurances that the Administrator will receive changes in the information required, the Administrator shall register

such fuel or fuel additive.

(4) STUDY ON CERTAIN FUEL ADDITIVES AND

BLENDSTOCKS.—

(A) IN 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 populations), 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 then1 Administrator;

(VI) ethanol;

(VII) iso-octane; and

(VIII) alkylates; and

(ii) conduct a study on the effects on public health (including the effects on children,

pregnant women, minority or low-income

communities, and other sensitive populations), air quality, and water resources of

the adjustment for ethanol-blended reformulated gasoline to the volatile organic compounds performance requirements that are

applicable under paragraphs (1) and (3) of

subsection (k) of this section; and

(iii) submit to the Committee on Environment and Public Works of the Senate and

the Committee on Energy and Commerce of

the House of Representatives a report describing the results of the studies under

clauses (i) and (ii).

(B) CONTRACTS FOR STUDY.—In carrying out

this paragraph, the Administrator may enter

into one or more contracts with nongovernmental entities such as—

(i) the national energy laboratories; and

(ii) institutions of higher education (as defined in section 1001 of title 20).
Page 6377 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

2So 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 subsection (b) of this section or other information

available to him, by regulation, control or prohibit the manufacture, introduction into commerce, 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 vehicle if, in the judgment of the Administrator,

any fuel or fuel additive or any emission product

of such fuel or fuel additive causes, or contributes, to air pollution or water pollution (including any degradation in the quality of groundwater) 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 performance of any emission control device or system

which is in general use, or which the Administrator 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 Administrator pursuant to clause (A) of paragraph (1) except after consideration of all relevant medical

and scientific evidence available to him, including consideration of other technologically or

economically feasible means of achieving emission 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 consideration 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 proposed control or prohibition with emission control devices or systems which are or will be in

general use and do not require the proposed control or prohibition. On request of a manufacturer of motor vehicles, motor vehicle engines,

fuels, or fuel additives submitted within 10 days

of notice of proposed rulemaking, the Administrator shall hold a public hearing and publish

findings with respect to any matter he is required 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 public health or welfare to the same or greater degree than the use of the fuel or fuel additive proposed to be prohibited.

(3)(A) For the purpose of obtaining evidence

and data to carry out paragraph (2), the Administrator may require the manufacturer of any

motor vehicle or motor vehicle engine to furnish

any information which has been developed concerning the emissions from motor vehicles resulting 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 subparagraph (A), section 7607(a) of this title (relating

to subpenas) shall be applicable.

(4)(A) Except as otherwise provided in subparagraph (B) or (C), no State (or political subdivision 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 engine—

(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 component of a fuel or fuel additive, unless State

prohibition or control is identical to the prohibition or control prescribed by the Administrator.

(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 prohibition 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 approve such provision in an implementation plan,

or promulgate an implementation plan containing such a provision, only if he finds that the

State control or prohibition is necessary to

achieve the national primary or secondary ambient air quality standard which the plan implements. 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 impracticable. 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 Secretary of Energy, the Administrator determines

that—

(I) extreme and unusual fuel or fuel additive

supply circumstances exist in a State or region of the Nation which prevent the distribution 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 pipeline
§ 7545 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6378

3So 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 prudent planning on the part of the suppliers of

the fuel or fuel additive to such State or region; and

(III) it is in the public interest to grant the

waiver (for example, when a waiver is necessary 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 determinations required under clause (ii), such a temporary extreme and unusual fuel and fuel additive supply circumstances waiver shall be permitted only if—

(I) the waiver applies to the smallest geographic area necessary to address the extreme

and unusual fuel and fuel additive supply circumstances;

(II) the waiver is effective for a period of 20

calendar days or, if the Administrator determines that a shorter waiver period is adequate, for the shortest practicable time period

necessary to permit the correction of the extreme and unusual fuel and fuel additive supply circumstances and to mitigate impact on

air quality;

(III) the waiver permits a transitional period, the exact duration of which shall be determined 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 notice to all parties in the motor fuel distribution system, and local and State regulators, in

the State or region to be covered by the waiver.

The term ‘‘motor fuel distribution system’’ as

used in this clause shall be defined by the Administrator through rulemaking.

(iv) Within 180 days of August 8, 2005, the Administrator shall promulgate regulations to implement 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 Administrator pursuant to this section or pursuant to

a regulation promulgated pursuant to this section; and

(II) subject any State or person to an enforcement action, penalties, or liability solely

arising from actions taken pursuant to the issuance of a waiver under this subparagraph.

(v)(I) 3 The Administrator shall have no authority, when considering a State implementation plan or a State implementation plan revision, 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 September 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 paragraph as of September 1, 2004, in all State implementation plans and shall publish a list of such

fuels, including the States and Petroleum Administration for Defense District in which they

are used, in the Federal Register for public review 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 implementation plan or if a fuel in a State implementation plan is identical to a Federal fuel formulation 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 Administrator’s authority to approve a control or prohibition respecting any new fuel under this paragraph in a State implementation plan or revision 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 Administrator, after consultation with the Secretary of

Energy, publishes in the Federal Register after

notice and comment a finding that, in the Administrator’s judgment, such control or prohibition 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 particular State’s implementation plan or a revision to that State’s implementation plan, to approve 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 summertime 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 authority of States to require the use of any fuel

additive registered in accordance with subsection (b) of this section, including any fuel additive 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 conduct 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 economic benefit or savings resulting from the

violation. Any violation with respect to a regulation 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 assessed 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 prescribed under subsections (c), (h), (i), (k), (l),

(m), (n), and (o) of this section, to award other

appropriate relief, and to compel the furnishing of information and the conduct of tests required 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 witnesses 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 public 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 registration 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 registered on such date.

(3) In promulgating such regulations, the Administrator 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 responsibility 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 additive upon a finding that any additional testing

of such fuel or fuel additive would be duplicative 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 unlawful for any manufacturer of any fuel to introduce into commerce any gasoline which contains a concentration of manganese in excess of

.0625 grams per gallon of fuel, except as otherwise provided pursuant to a waiver under paragraph (4).

(3) Any manufacturer of any fuel or fuel additive which prior to March 31, 1977, and after January 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 before 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 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 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 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 specified concentration thereof, and the emission

products of such fuel or fuel 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 the motor vehicle,
§ 7545 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6380

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 sections 7525 and 7547(a) of this title. The Administrator 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 judicial 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 gasoline 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 concentration 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 Administrator 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 regulations making it unlawful for any person during the high ozone season (as defined by the

Administrator) to sell, offer for sale, dispense,

supply, offer for supply, transport, or introduce 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 Administrator 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 emission 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 Pressure of 9.0 pounds per square inch (psi) or

lower in any area designated under section

7407 of this title as an attainment area. Notwithstanding the preceding sentence, the Administrator may impose a Reid vapor pressure

requirement lower than 9.0 pounds per square

inch (psi) in any area, formerly an ozone nonattainment 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 subsection shall take effect not later than the

high ozone season for 1992, and shall include

such provisions as the Administrator determines 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 subsection shall be one pound per square inch

(psi) greater than the applicable Reid vapor

pressure limitations established under paragraph (1); Provided, however, That a distributor, blender, marketer, reseller, carrier, retailer, or wholesale purchaser-consumer shall

be deemed to be in full compliance with the

provisions of this subsection and the regulations promulgated thereunder if it can demonstrate (by showing receipt of a certification

or other evidence acceptable to the Administrator) that—

(A) the gasoline portion of the blend complies with the Reid vapor pressure limitations promulgated pursuant to this subsection;

(B) the ethanol portion of the blend does

not exceed its waiver condition under subsection (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 supporting documentation, from the Governor

of a State that the Reid vapor pressure limitation established by paragraph (4) will increase emissions that contribute to air pollution in any area in the State, the Administrator shall, by regulation, apply, in lieu of

the Reid vapor pressure limitation established by paragraph (4), the Reid vapor pressure 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 introduced into commerce in the area during the

high ozone season.

(B) Deadline for promulgation

The Administrator shall promulgate regulations under subparagraph (A) not later

than 90 days after the date of receipt of a notification from a Governor under that subparagraph.

(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

4So in original. Probably should be section ‘‘7625–1’’.

(ii) Extension of effective date based on determination 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 Administrator determines, on the Administrator’s own motion or on petition of

any person and after consultation with

the Secretary of Energy, that the promulgation of regulations described in

subparagraph (A) would result in an insufficient supply of gasoline in the

State, the Administrator, by regulation—

(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 petition submitted under subclause (I) not

later than 180 days after the date of receipt of the petition.

(6) Areas covered

The provisions of this subsection shall apply

only to the 48 contiguous States and the District of Columbia.

(i) Sulfur content requirements for diesel fuel

(1) Effective October 1, 1993, no person shall

manufacture, sell, supply, offer for sale or supply, dispense, transport, or introduce into commerce 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 regulations to implement and enforce the requirements 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 alternative 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 engines shall be 0.10 percent (by weight). The sulfur 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 subsection in the same manner as provided in section 7625 4 of this title. The Administrator shall

take final action on any petition filed under section 7625 4 of this title or this paragraph for an

exemption from the requirements of this subsection, within 12 months from the date of the

petition.

(j) Lead substitute gasoline additives

(1) After November 15, 1990, any person proposing to register any gasoline additive under subsection (a) of this section or to use any previously 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 responsibilities of paragraph (2) of this subsection (in

addition to other information which may be required 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 additives referred to in paragraph (1), the Administrator shall develop and publish a test procedure

to determine the additives’ effectiveness in reducing valve seat wear and the additives’ tendencies to produce engine deposits and other adverse side effects. The test procedures shall be

developed in cooperation with the Secretary of

Agriculture and with the input of additive manufacturers, engine and engine components manufacturers, and other interested persons. The

Administrator shall enter into arrangements

with an independent laboratory to conduct tests

of each additive using the test procedures developed 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 gasoline 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 additive referred to in this subsection. The fee shall

be paid by the person proposing to register the

fuel additive concerned. Such fee shall not exceed $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 appropriation, to remain available until expended, to

carry out the Agency’s activities for which the

fees were collected.
§ 7545 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6382

5So in original. See References in Text note below.

(k) Reformulated gasoline for conventional vehicles

(1) EPA regulations

(A) In general

Not later than November 15, 1991, the Administrator shall promulgate regulations

under this section establishing requirements

for reformulated gasoline to be used in gasoline-fueled vehicles in specified nonattainment 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 consideration the cost of achieving such emission reductions, any nonair-quality and other airquality related health and environmental

impacts and energy requirements.

(B) Maintenance of toxic air pollutant emissions reductions from reformulated gasoline

(i) Definition of PADD

In this subparagraph the term ‘‘PADD’’

means a Petroleum Administration for Defense 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 section 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 annual aggregate emissions of toxic air pollutants for reformulated gasoline produced

or distributed by the refiner or importer

during calendar years 2001 and 2002 (as determined on the basis of data collected by

the Administrator with respect to the refiner or importer).

(iii) Standards applicable to specific refineries 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 produced or distributed by the refiner or importer during calendar years 2001 and

2002.

(II) Applicability of other standards

For any calendar year, the quantity of

gasoline produced or distributed by a refiner 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 specifies, with respect to the previous calendar year—

(aa) the quantity of reformulated

gasoline produced that is in excess of

the average annual quantity of reformulated gasoline produced in 2001 and

2002; and

(bb) the reduction of the average annual aggregate emissions of toxic air

pollutants in each PADD, based on retail survey data or data from other appropriate sources.

(II) Effect of failure to maintain aggregate toxics reductions

If, in any calendar year, the reduction

of the average annual aggregate emissions 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 Administrator, 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 gasoline that contributed to the failure;

and

(bb) promulgate revisions to the regulations 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 reformulated gasoline produced or distributed at each refiner or importer

shall meet the standards applicable

under clause (iii)(I) beginning not later

than April 1 of the calendar year following publication of the report under

subclause (I) and in each calendar year

thereafter.

(vi) Not later than July 1, 2007, the Administrator shall promulgate final regulations 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 the
Page 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 subsections (k)(1)(B)(i) through (k)(1)(B)(v) of

this section shall be null and void and regulations 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 comply with paragraph (3) and with each of the

following requirements (subject to paragraph

(7)):

(A) NOx emissions

The emissions of oxides of nitrogen (NOx)

from baseline vehicles when using the reformulated gasoline shall be no greater than

the level of such emissions from such vehicles when using baseline gasoline. If the Administrator 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 subsection to such gasoline, the Administrator

may, as appropriate to ensure compliance

with this subparagraph, adjust (or waive entirely), any other requirements of this paragraph 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 Administrator may waive the prohibition contained

in this subparagraph for a heavy metal

(other than lead) if the Administrator determines that addition of the heavy metal to

the gasoline will not increase, on an aggregate mass or cancer-risk basis, toxic air pollutant 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 stringent of either the requirements set forth in

subparagraph (A) or the requirements of subparagraph (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 emissions 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 substituted for 15 percent in applying this

clause, except that the Administrator may

adjust such 25 percent requirement to provide 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 reformulated 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 substituted for 15 percent in applying this

clause, except that the Administrator may

adjust such 25 percent requirement to provide 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 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.

Any reduction greater than a specific percentage reduction required under this subparagraph shall be treated as satisfying such percentage reduction requirement.

(4) Certification procedures

(A) Regulations

The regulations under this subsection

shall include procedures under which the Administrator shall certify reformulated gasoline as complying with the requirements established pursuant to this subsection. Under

such regulations, the Administrator shall establish procedures for any person to petition
§ 7545 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6384

6So in original. Probably should be ‘‘properly’’.

the Administrator to certify a fuel formulation, or slate of fuel formulations. Such procedures shall further require that the Administrator shall approve or deny such petition within 180 days of receipt. If the Administrator fails to act within such 180-day period, the fuel shall be deemed certified until

the Administrator completes action on the

petition.

(B) Certification; equivalency

The Administrator shall certify a fuel formulation 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 reductions in emissions of ozone forming volatile organic compounds and emissions of

toxic air pollutants than are achieved by a

reformulated gasoline meeting the applicable 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 pollutants emitted by baseline vehicles when operating on baseline gasoline. For purposes of

this subsection, within 1 year after November 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 subsection:

(A) The sale or dispensing by any person of

conventional gasoline to ultimate consumers in any covered area.

(B) The sale or dispensing by any refiner,

blender, importer, or marketer of conventional gasoline for resale in any covered

area, without (i) segregating such gasoline

from reformulated gasoline, and (ii) clearly

marking such conventional gasoline as ‘‘conventional gasoline, not for sale to ultimate

consumer in a covered area’’.

Any refiner, blender, importer or marketer

who purchases property6 segregated and

marked conventional gasoline, and thereafter

labels, represents, or wholesales such gasoline

as reformulated gasoline shall also be in violation of this subsection. The Administrator

may impose sampling, testing, and recordkeeping requirements upon any refiner, blender, importer, or marketer to prevent violations 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 subpart 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 exceeds 250,000). In any such case, the Administrator shall establish an effective date

for such prohibition as he deems appropriate, 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 Federal 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 insufficient domestic capacity to produce gasoline certified under this subsection, the

Administrator shall, by rule, extend the effective date of such prohibition in Marginal, Moderate, Serious, or Severe Areas

referred to in clause (i) for one additional

year, and may, by rule, renew such extension 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 established by section 7511c(a) of this title,

the Administrator, not later than 180

days after the date of receipt of the application, 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 severe 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 reformulated 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 specified 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 determined 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 petition of any person, after consultation

with the Secretary of Energy, that there

is insufficient capacity to supply reformulated 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 petition submitted under subclause (I) not

later than 180 days after the date of receipt 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 gasoline 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 subparagraph (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 another person for use within the same nonattainment area, for the purpose of complying

with this subsection.

(C) The regulations promulgated under subparagraphs (A) and (B) shall ensure the enforcement of the requirements for the issuance, 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 hydrocarbon content (by volume) for the nonattainment (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 volume) for the nonattainment area (taking

into account all gasoline sold for use in conventional gasoline-fueled vehicles in the

nonattainment area) higher than the average benzene content (by volume) that would

occur in the absence of using any such credits.

(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 importer of gasoline ensuring that gasoline

sold or introduced into commerce by such

refiner, blender, or importer (other than reformulated gasoline subject to the requirements of paragraph (1)) does not result in average per gallon emissions (measured on a

mass basis) of (i) volatile organic compounds, (ii) oxides of nitrogen, (iii) carbon

monoxide, and (iv) toxic air pollutants in excess of such emissions of such pollutants attributable to gasoline sold or introduced

into commerce in calendar year 1990 by that

refiner, blender, or importer. Such regulations shall take effect beginning January 1,

1995.

(B) Adjustments

In evaluating compliance with the requirements of subparagraph (A), the Administrator shall make appropriate adjustments

to insure that no credit is provided for improvement in motor vehicle emissions control in motor vehicles sold after the calendar

year 1990.

(C) Compliance determined for each pollutant independently

In determining whether there is an increase in emissions in violation of the prohibition contained in subparagraph (A) the Administrator 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 nitrogen resulting from adding oxygenates to gasoline may be offset by an equivalent or

greater reduction (on a mass basis) in emissions 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 appropriate compliance periods to be used for assessing compliance with the prohibition contained 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 introduced into commerce by a refiner, blender,

or importer in calendar year 1990, for such

refiner, blender, or importer, baseline gasoline shall be substituted for such 1990 gasoline in determining compliance with subparagraph (A).

(9) Emissions from entire vehicle

In applying the requirements of this subsection, the Administrator shall take into account emissions from the entire motor vehicle, including evaporative, running, refueling,

and exhaust emissions.
§ 7545 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6386

(10) Definitions

For purposes of this subsection—

(A) Baseline vehicles

The term ‘‘baseline vehicles’’ mean representative 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 Administrator) a gasoline which meets the following 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 Administrator). Such specifications shall be the

specifications of 1990 industry average gasoline 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 having the highest ozone design value during

the period 1987 through 1989 shall be ‘‘covered 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 Administrator under this section as complying

with this subsection.

(F) Conventional gasoline

The term ‘‘conventional gasoline’’ means

any gasoline which does not meet specifications set by a certification under this subsection.

(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 consumers in the United States any gasoline which

does not contain additives to prevent the accumulation 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 additives.

(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 nonattainment 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 calculated according to the most recent interpretation methodology issued by the Administrator 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 oxygenated gasoline.

(B) A plan revision which contains such provisions 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 monoxide design value of 9.5 ppm or above. The revision 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 nonattainment area or sold or dispensed directly or indirectly by fuel refiners or marketers to persons

who sell or dispense to ultimate consumers, in

the larger of—

(A) the Consolidated Metropolitan Statistical Area (CMSA) in which the area is located, 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 concentrations of carbon monoxide to contain not

less than 2.7 percent oxygen by weight (subject

to a testing tolerance established by the Administrator). The portion of the year in which

the area is prone to high ambient concentrations of carbon monoxide shall be as determined by the Administrator, but shall not be

less than 4 months. At the request of a State

with respect to any area designated as nonattainment for carbon monoxide, the Administrator may reduce the period specified in the

preceding sentence if the State can demonstrate that because of meteorological conditions, a reduced period will assure that there

will be no exceedances of the carbon monoxide

standard outside of such reduced period. For
Page 6387 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

7So in original. Probably should be ‘‘as of’’. 8So 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 revision 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 requirement 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 paragraph (1) (or at such other date during such

third year as the Administrator establishes

under the preceding provisions of this paragraph) and shall include a program for implementation and enforcement of the requirement 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 satisfaction of the Administrator that the use of

oxygenated gasoline would prevent or interfere with the attainment by the area of a national primary ambient air quality standard

(or a State or local ambient air quality standard) for any air pollutant other than carbon

monoxide.

(B) The Administrator shall, upon demonstration by the State satisfactory to the Administrator, waive the requirement of paragraph (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 Administrator to make a finding that there is, or is

likely to be, for any area, an inadequate domestic supply of, or distribution capacity for,

oxygenated gasoline meeting the requirements

of paragraph (2) or fuel additives (oxygenates)

necessary to meet such requirements. The Administrator shall act on such petition within 6

months after receipt of the petition.

(ii) If the Administrator determines, in response to a petition under clause (i), that

there is an inadequate supply or capacity described 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 subparagraph the Administrator shall consider distribution capacity separately from the adequacy 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 carbon monoxide will have a priority in obtaining

oxygenated gasoline which meets the requirements 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 required under regulations promulgated by the

Administrator to label the fuel dispensing system with a notice that the gasoline is oxygenated and will reduce the carbon monoxide

emissions from the motor vehicle.

(5) Guidelines for credit

The Administrator shall promulgate guidelines, 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 between nonattainment areas.

(6) Attainment areas

Nothing in this subsection shall be interpreted 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 redesignated as attainment for carbon monoxide,

the requirements of this subsection shall remain in effect to the extent such program is

necessary to maintain such standard thereafter in the area.

(7) Failure to attain CO standard

If the Administrator determines under section 7512(b)(2) of this title that the national

primary ambient air quality standard for carbon monoxide 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 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 subsection.

(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 renewable fuel, other than ethanol derived
§ 7545 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6388

9So in original. The word ‘‘and’’ probably should appear.

10So in original. Probably should be ‘‘non-Federal’’.

from corn starch, that has lifecycle greenhouse gas emissions, as determined by the

Administrator, after notice and opportunity for comment, that are at least 50

percent less than baseline lifecycle greenhouse gas emissions.

(ii) Inclusions

The types of fuels eligible for consideration 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 material, including crop residue, other vegetative 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 matter from renewable biomass.

(VI) Butanol or other alcohols produced through the conversion of organic

matter from renewable biomass.

(VII) Other fuel derived from cellulosic

biomass.

(C) Baseline lifecycle greenhouse gas emissions

The term ‘‘baseline lifecycle greenhouse

gas emissions’’ means the average lifecycle

greenhouse gas emissions, as determined by

the Administrator, after notice and opportunity for comment, for gasoline or diesel

(whichever is being replaced by the renewable fuel) sold or distributed as transportation 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 determined by the Administrator, after notice

and opportunity for comment, that are at

least 50 percent less than the baseline

lifecycle greenhouse gas emissions. Notwithstanding the preceding sentence, renewable

fuel derived from co-processing biomass with

a petroleum feedstock shall be advanced

biofuel if it meets the requirements of subparagraph (B), but is not biomass-based diesel.

(E) Cellulosic biofuel

The term ‘‘cellulosic biofuel’’ means renewable 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 percent less than the baseline lifecycle greenhouse 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, nitrous oxide, perfluorocarbons,9 sulfur hexafluoride. 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 emissions’’ 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 Administrator, related to the full fuel lifecycle, including all stages of fuel and feedstock production and distribution, from feedstock

generation or extraction through the distribution and delivery and use of the finished 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 harvested 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 from

actively managed tree plantations on nonfederal 10 land cleared at any time prior to

December 19, 2007, including land belonging to an Indian tribe or an Indian individual, 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, including 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 communities with a global or State ranking of

critically imperiled, imperiled, or rare

pursuant to a State Natural Heritage Program, old growth forest, or late successional forest.

(v) Biomass obtained from the immediate 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 transportation fuel.
Page 6389 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

(K) Small refinery

The term ‘‘small refinery’’ means a refinery 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 engines, 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 renewable 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 noncontiguous States or territories), on an annual

average basis, contains at least the applicable volume of renewable fuel, advanced

biofuel, 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 greenhouse 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 territory at the same time or any time

after the Administrator promulgates

regulations under this subparagraph.

(II) Other actions

In carrying out this clause, the Administrator 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, distributors, 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 promulgate regulations

If the Administrator does not promulgate regulations under clause (i), the percentage of renewable fuel in gasoline sold

or dispensed to consumers in the United

States, on a volume basis, shall be 2.78 percent 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 volume of advanced biofuel for the calendar

years 2009 through 2022 shall be determined in accordance with the following

table:

Applicable

volume of

advanced

biofuel

Calendar year: (in billions of

gallons):
§ 7545 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6390

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 volume of cellulosic biofuel for the calendar

years 2010 through 2022 shall be determined 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 volume of biomass-based diesel for the calendar years 2009 through 2012 shall be determined in accordance with the following table:

Applicable

volume of

biomassbased 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 specified in the tables in clause (i) for calendar

years after the calendar years specified in

the tables shall be determined by the Administrator, in coordination with the Secretary of Energy and the Secretary of Agriculture, based on a review of the implementation of the program during calendar

years specified in the tables, and an analysis of—

(I) the impact of the production and

use of renewable fuels on the environment, including on air quality, climate

change, conversion of wetlands, ecosystems, 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 biomass-based diesel);

(IV) the impact of renewable fuels on

the infrastructure of the United States,

including deliverability of materials,

goods, and products other than renewable fuel, and the sufficiency of infrastructure to deliver and use renewable

fuel;

(V) the impact of the use of renewable

fuels on the cost to consumers of transportation fuel and on the cost to transport goods; and

(VI) the impact of the use of renewable

fuels on other factors, including job creation, the price and supply of agricultural commodities, rural economic development, 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 determinations in clause (ii), for each calendar

year, the applicable volume of advanced

biofuel shall be at least the same percentage of the applicable volume of renewable

fuel as in calendar year 2022.

(iv) Applicable volume of cellulosic biofuel

For the purpose of making the determinations 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 determinations in clause (ii), the applicable volume 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 gasoline sales

Not later than October 31 of each of calendar years 2005 through 2021, the Administrator of the Energy Information Administration 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 calendar 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 Environmental 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 determined 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 redundant 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 greenhouse 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) (relating to cellulosic biofuel) to a lower percentage. For the 50 and 60 percent reductions, the Administrator may make such an

adjustment only if he determines that generally such reduction is not commercially feasible for fuels made using a variety of feedstocks, 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 emissions from renewable fuel may not be reduced below 10 percent, and the specified 60

percent reduction in greenhouse gas emissions from cellulosic biofuel may not be reduced 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 cost

in 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 greenhouse gas levels shall be the minimum possible adjustment for the fuel or fuels concerned, and the adjusted greenhouse gas reduction shall be established at the maximum

achievable level, taking cost in consideration, 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 adjustment) the regulations establishing the adjusted level.

(E) Subsequent adjustments

After the Administrator has promulgated

a final rule under the last sentence of paragraph (2)(A)(i) with respect to the method of

determining lifecycle greenhouse gas emissions, except as provided in subparagraph

(D), the Administrator may not adjust the

percent greenhouse gas reduction levels unless he determines that there has been a significant change in the analytical methodology used for determining the lifecycle greenhouse gas emissions. If he makes such determination, he may adjust the 20, 50, or 60 percent 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 Administrator 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 specified 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 methodology used for determining the lifecycle greenhouse gas emissions, such adjustment, revision, 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, revision, or change.
§ 7545 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6392

(5) Credit program

(A) In general

The regulations promulgated under paragraph (2)(A) shall provide—

(i) for the generation of an appropriate

amount of credits by any person that refines, blends, or imports gasoline that contains 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 paragraph (9)(C).

(B) Use of credits

A person that generates credits under subparagraph (A) may use the credits, or transfer 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 sufficient credits

The regulations promulgated under paragraph (2)(A) shall include provisions allowing any person that is unable to generate or

purchase sufficient credits to meet the requirements 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 renewable fuel requirement under paragraph (2);

and

(ii) generates or purchases additional renewable fuel credits to offset the renewable fuel deficit of the previous year.

(E) Credits for additional renewable fuel

The Administrator may issue regulations

providing: (i) for the generation of an appropriate amount of credits by any person that

refines, blends, or imports additional renewable 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 purpose 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 Information Administration shall conduct a

study of renewable fuel blending to determine whether there are excessive seasonal

variations in the use of renewable fuel.

(B) Regulation of excessive seasonal variations

If, for any calendar year, the Administrator of the Energy Information Administration, based on the study under subparagraph (A), makes the determinations specified in subparagraph (C), the Administrator

of the Environmental Protection Agency

shall promulgate regulations to ensure that

25 percent or more of the quantity of renewable 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 subparagraph (B) are that—

(i) less than 25 percent of the quantity of

renewable fuel necessary to meet the requirements of paragraph (2) has been used

during 1 of the 2 periods specified in subparagraph (D) of the calendar year;

(ii) a pattern of excessive seasonal variation 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 attainment 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 received a waiver under section 7543(b) of this

title shall not be included in the study under

subparagraph (A).

(F) State exemption from seasonality requirements

Notwithstanding any other provision of

law, the seasonality requirement relating to

renewable fuel use established by this paragraph shall not apply to any State that has

received a waiver under section 7543(b) of

this title or any State dependent on refineries in such State for gasoline supplies.

(7) Waivers

(A) In general

The Administrator, in consultation with

the Secretary of Agriculture and the Secretary of Energy, may waive the requirements of paragraph (2) in whole or in part on

petition by one or more States, by any person subject to the requirements of this subsection, 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 Administrator, after public notice and opportunity 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 Administrator, after public notice and oppor-
Page 6393 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

tunity for comment, that there is an inadequate domestic supply.

(B) Petitions for waivers

The Administrator, in consultation with

the Secretary of Agriculture and the Secretary of Energy, shall approve or disapprove a petition for a waiver of the requirements of paragraph (2) within 90 days

after the date on which the petition is received by the Administrator.

(C) Termination of waivers

A waiver granted under subparagraph (A)

shall terminate after 1 year, but may be renewed by the Administrator after consultation 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 production 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 preceding calendar year, the Administrator

shall reduce the applicable volume of cellulosic biofuel required under paragraph

(2)(B) to the projected volume available during that calendar year. For any calendar

year in which the Administrator makes such

a reduction, the Administrator 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.

(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 gallon or the amount by which $3.00 per gallon

exceeds the average wholesale price of a gallon 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 credits’ uses and useful life, as the Administrator deems appropriate to assist market liquidity and transparency, to provide appropriate 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 Administrator 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 applicable volume (as reduced under this subparagraph) 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 requirements established under this paragraph on the price of diesel fuel.

(ii) Waiver

If the Administrator determines that

there is a significant renewable feedstock

disruption or other market circumstances

that 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 subparagraph (A) by an appropriate quantity

that does not exceed 15 percent of the applicable annual requirement for biomassbased diesel. For any calendar year in

which the Administrator makes a reduction under this subparagraph, the Administrator 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 described in clause (ii) is continuing beyond

the 60-day period described in clause (ii) or

this clause, the Administrator, in consultation 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 exceed an additional 15 percent of the applicable 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 requirement 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 following the final year to which the waiver applies, 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 program

(A) In general

Not later than 180 days after August 8,

2005, the Secretary of Energy shall conduct
§ 7545 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6394

11So 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 significant 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 capabilities.

(C) Recommendations by the Secretary

Based on the results of the study, the Secretary of Energy shall make specific recommendations 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 requirement under paragraph (2) by reducing

the national quantity of renewable fuel required 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 requirements 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 calendar 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 requirements 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 disproportionate economic hardship if required to comply with paragraph (2), the

Administrator shall extend the exemption under clause (i) for the small refinery for a period of not less than 2 additional years.

(B) Petitions based on disproportionate economic hardship

(i) Extension of exemption

A small refinery may at any time petition 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 petition 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 Administrator that the small refinery waives the exemption under subparagraph (A), the regulations promulgated under paragraph (2)(A)

shall provide for the generation of credits by

the small refinery under paragraph (5) beginning in the calendar year following the date

of notification.

(D) Opt-in for small refineries

A small refinery shall be subject to the requirements of paragraph (2) if the small refinery 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 production industry using the HerfindahlHirschman Index to determine whether

there is sufficient competition among industry 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 industry participants shall be considered.

(B) Report

Not later than December 1, 2005, and annually thereafter, the Federal Trade Commission shall submit to Congress and the Administrator 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 described in subsection (a)(2) 11 on each individual and entity described in paragraph (2).
Page 6395 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7545

12So in original. No subsec. (p) has been enacted. 13See References in Text note below.

(12) Effect on other provisions

Nothing in this subsection, or regulations issued 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 regarding carbon dioxide or any other greenhouse gas, for purposes of other provisions (including section 7475) of this chapter. The previous sentence shall not affect implementation 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 publish the analysis in final form.

(2) Emissions model

For the purposes of this section, not later

than 4 years after August 8, 2005, the Administrator shall develop and finalize an emissions

model that reflects, to the maximum extent

practicable, the effects of gasoline characteristics or components on emissions from vehicles 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 likely 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 importation

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 receive a grant under this subsection if the production facility—

(A) is located in the United States; and

(B) uses cellulosic or renewable biomass or

waste-derived feedstocks derived from agricultural 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 subsection:

(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, agricultural food and feed crop residues, aquatic

plants, animal wastes, wood and wood residues, paper and paper residues, and other

vegetative waste materials. Old-growth timber 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 retailer, during any month of the year, to blend

at a retail location batches of ethanol-blended

and non-ethanol-blended reformulated gasoline, provided that—

(A) each batch of gasoline to be blended

has been individually certified as in compliance with subsections (h) and (k) of this section 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 gasoline at the retail outlet; and
§ 7545 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6396

(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 defined 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 September 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 location that has blended gasoline within the

past 30 days and is in compliance with subparagraphs (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 authorized under paragraph (1).

(5) Preservation of State law

Nothing in this subsection shall—

(A) preempt existing State laws or regulations regulating the blending of compliant

gasolines; or

(B) prohibit a State from adopting such restrictions in the future.

(6) Regulations

The Administrator shall promulgate, after

notice and comment, regulations implementing 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 implementing regulations required by paragraph

(6) have been promulgated by the Administrator 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 arising from the blending of compliant reformulated gasolines by the retailers.

(9) Formulation of gasoline

This subsection does not grant authority to

the Administrator or any State (or any subdivision thereof) to require reformulation of

gasoline at the refinery to adjust for potential

or actual emissions increases due to the blending 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 rulemaking to establish a uniform per gallon fuel

standard for such fuel and designate an identification 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 rulemaking to establish a uniform per gallon fuel

standard for such fuel and designate an identification 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 annual inspection and enforcement program to ensure 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 renewable fuels, and available vehicle technologies; 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 implement 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; or
Page 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.)

REFERENCES IN TEXT

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 probable 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 section 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.

CODIFICATION

Section was formerly classified to section 1857f–6c of

this title.

PRIOR PROVISIONS

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 section 8(a) of Pub. L. 91–604.

AMENDMENTS

2007—Subsec. (c)(1). Pub. L. 110–140, §208, substituted

‘‘nonroad vehicle if, in the judgment of the Administrator, any fuel or fuel additive or’’ for ‘‘nonroad vehicle (A) if in the judgment of the Administrator’’ and

‘‘air pollution or water pollution (including any degradation 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 manufacturer of any fuel or fuel additive, may waive the prohibitions 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 specified 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 Administrator 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 authorized 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 ‘‘cellulosic biomass ethanol’’, ‘‘waste derived ethanol’’, ‘‘renewable 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 (except in noncontiguous States or territories), on an annual average basis, contains at least the applicable volume of renewable fuel, advanced biofuel, cellulosic

biofuel, and biomass-based 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

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), substituted ‘‘2021’’ for ‘‘2011’’ and ‘‘transportation fuel, biomass-based diesel, and cellulosic biofuel’’ for ‘‘gasoline’’.

Subsec. (o)(3)(B)(i). Pub. L. 110–140, §202(b)(3), substituted ‘‘2021’’ for ‘‘2012’’.

Subsec. (o)(3)(B)(ii)(II). Pub. L. 110–140, §202(b)(4), substituted ‘‘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 considered to be the equivalent of 2.5 gallons of renewable

fuel.’’

Subsec. (o)(5)(E). Pub. L. 110–140, §202(d), added subpar. (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 motion’’ after ‘‘one or more States’’ in introductory provisions.

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 cellulosic biomass, waste-derived ethanol, approved renewable 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), substituted ‘‘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 potential public health effects of such fuel or additive (including, but not limited to, carcinogenic, teratogenic,

or mutagenic effects), and’’.
§ 7545 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6398

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 sentence.

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 existing provisions as subpar. (A), inserted heading, substituted ‘‘Not later than November 15, 1991,’’ for ‘‘Within 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 established by the Administrator) except as otherwise required by this chapter. The Administrator may waive,

in whole or in part, the application of this subparagraph for any ozone nonattainment area upon a determination 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 follows: ‘‘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 subpars. (A) and (B) as cls. (i) and (ii), respectively, of subpar. (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), redesignated 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 minimum 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 nonattainment area (taking into account all gasoline sold for use

in conventional gasoline-fueled vehicles in the nonattainment area) lower than the average gasoline oxygen content (by weight) that would occur in the absence 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) relating 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 importation.

Subsec. (s). Pub. L. 109–58, §1513, added subsec. (s).

1990—Subsec. (a). Pub. L. 101–549, §212, inserted ‘‘(including 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 vehicle.

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 subsection (c) of this section or who fails to furnish any information required by the Administrator under subsection (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 Administrator 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 existing provisions as subpar. (A) and added subpar. (B).

Subsec. (f)(3). Pub. L. 101–549, §214(b), substituted reference to paragraph (1)(A) for reference to paragraph

(1).

Subsec. (g). Pub. L. 101–549, §215, amended subsec. (g)

generally, substituting present provisions for provisions which defined ‘‘gasoline’’, ‘‘refinery’’, and ‘‘small

refinery’’ and which limited Administrator’s authority

to require small refineries to reduce average lead content 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 subsecs. (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), substituted ‘‘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 provision 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 provision 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), substituted ‘‘purpose of obtaining’’ for ‘‘purpose of’’.

Subsec. (d). Pub. L. 92–157, §302(e), substituted ‘‘subsection (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 authority, inserted references to fuel additives, and substituted 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 appearing.

Subsec. (c). Pub. L. 91–604, §9(a), substituted provisions covering the control or prohibition of offending

fuels and fuel additives, for provisions covering trade

secrets and substituted ‘‘Administrator’’ for ‘‘Secretary’’ 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 ‘‘Administrator’’ 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.

EFFECTIVE DATE OF 2007 AMENDMENT

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 section 1824 of Title 2, The Congress.

EFFECTIVE DATE OF 2005 AMENDMENT

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 waiver 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].’’

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

SAVINGS

Pub. L. 109–58, title XV, §1504(d), Aug. 8, 2005, 119

Stat. 1079, provided that:

‘‘(1) IN 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 Administrator [of the Environmental Protection Agency] before the date of enactment of this Act [Aug. 8, 2005] regarding—

‘‘(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 regulations.

‘‘(2) ADJUSTMENT OF STANDARDS.—

‘‘(A) APPLICABILITY.—The Administrator may apply

any adjustments to the standards applicable to a refinery 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)), except that—

‘‘(i) the Administrator shall revise the adjustments 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 reformulated gasoline—

‘‘(I) the Administrator may revise the adjustment to take account of the scope of the prohibition on methyl tertiary butyl ether imposed by a

State; and

‘‘(II) any such adjustment shall require the refiner or importer, to the maximum extent practicable, to maintain the reduction achieved during calendar years 1999 and 2000 in the average annual aggregate emissions of toxic air pollutants

from reformulated gasoline produced or distributed by the refiner or importer.’’

ENVIRONMENTAL AND RESOURCE CONSERVATION IMPACTS

Pub. L. 110–140, title II, §204, Dec. 19, 2007, 121 Stat.

1529, provided that:

‘‘(a) IN GENERAL.—Not later than 3 years after the enactment 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 likely 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, effects 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 subsection, the Administrator may seek the views of the

National Academy of Sciences or another appropriate

independent research institute. The report shall include the annual volume of imported renewable fuels

and feedstocks for renewable fuels, and the environmental 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) EFFECT ON AIR QUALITY AND OTHER ENVIRONMENTAL REQUIREMENTS.—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 section 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 environmental law or regulation.’’

TRANSITION RULES

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 (except 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 baseline 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 reduction requirement and with the 20 percent reduction requirement of section 211(o)(1) of the Clean Air Act. The

terms used in this subsection shall have the same
§ 7545 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6400

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 section 211(o) of the Clean Air Act and the rules promulgated under that section in accordance with the provisions of that section as in effect before the enactment

of this Act and in accordance with the rules promulgated 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.’’

SURVEY OF RENEWABLE FUEL MARKET

Pub. L. 109–58, title XV, §1501(d), Aug. 8, 2005, 119

Stat. 1075, provided that:

‘‘(1) SURVEY 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 Administrator 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 available, a report on the results of the survey under subparagraph (A).

‘‘(2) RECORDKEEPING 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 reports as are necessary to ensure that the survey conducted under paragraph (1) is accurate. The Administrator, to avoid duplicative requirements, shall rely, to

the extent practicable, on existing reporting and recordkeeping requirements and other information available to the Administrator including gasoline distribution patterns that include multistate use areas.

‘‘(3) APPLICABLE LAW.—Activities carried out under

this subsection shall be conducted in a manner designed to protect confidentiality of individual responses.’’

FINDINGS

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 (hereinafter 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 gasoline must contain at least 2 percent oxygen by

weight; and

‘‘(3) the fuel industry responded to the fuel oxygenate standard established by Public Law 101–549 by

making substantial investments in—

‘‘(A) MTBE production capacity; and

‘‘(B) systems to deliver MTBE-containing gasoline to the marketplace.’’

CLAIMS FILED AFTER AUGUST 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] related to allegations involving actual or threatened contamination of methyl tertiary butyl ether (MTBE) may

be removed to the appropriate United States district

court.’’

FINDINGS AND SENSE OF CONGRESS ON ETHANOL USAGE

Pub. L. 100–203, title I, §1508, Dec. 22, 1987, 101 Stat.

1330–29, provided that:

‘‘(a) FINDINGS.—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 declining;

‘‘(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 renewable resource that is in considerable surplus in the

United States;

‘‘(5) the conversion of grain into ethanol would reduce farm program costs and grain surpluses; and

‘‘(6) increasing the quantity of motor fuels that

contain at least 10 percent ethanol from current levels to 50 percent by 1992 would create thousands of

new jobs in ethanol production facilities.

‘‘(b) SENSE OF CONGRESS.—It is the sense of Congress

that the Administrator of the Environmental Protection 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.’’

AGRICULTURAL MACHINERY: STUDY OF UNLEADED FUEL

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 agricultural machinery, and designed to combust fuel containing such additives, study to analyze potential for mechanical 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 Register notice of publication of such study and a summary 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 purposes, and submit to President and Congress a report

containing the study, a summary of comments received

during public hearing (including comments of Secretary), and findings and recommendations of Administrator made in accordance with clause (1), such report

to be transmitted named congressional committees; directed 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 determine 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 Federal Register; provided that until Jan. 1, 1988, no regulation 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 appropriation.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or
Page 6401 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7546

1See References in Text note below.

2So in original.

other actions duly issued, made, or taken by or pursuant 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 section 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 defined 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 ethanol.

(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 demonstrate the feasibility and viability of producing cellulosic biomass ethanol or sucrose-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 cellulosic 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 process 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 repayment of the guaranteed loan.

(4) Limitations

(A) Maximum guarantee

Except as provided in subparagraph (B), a

loan guarantee under this section may be issued 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 exceed 15 percent of the amount of the original guarantee.

(ii) Principal and interest

Subject to subparagraph (A), the Secretary 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 guarantee shall have binding commitments from equity investors to provide an initial equity contribution 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 Secretary 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 production of ethanol at the Center for BiomassBased Energy at the Mississippi State University and the Oklahoma State University,

$4,000,000 for each of fiscal years 2005 through

2007.

(d) Renewable fuel production research and development grants

(1) In general

The Administrator shall provide grants for

the research into, and development and implementation of, renewable fuel production technologies in RFG States with low rates of ethanol production, including low rates of production of cellulosic biomass ethanol.

(2) Eligibility

(A) In general

The entities eligible to receive a grant

under this subsection are academic institu-
§ 7547 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6402

tions in RFG States, and consortia made up

of combinations of academic institutions, industry, 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 assistance

(1) In general

The Secretary may provide grants to merchant producers of cellulosic biomass ethanol

in the United States to assist the producers in

building eligible production facilities described in paragraph (2) for the production of

cellulosic biomass ethanol.

(2) Eligible production facilities

A production facility shall be eligible to receive a grant under this subsection if the production facility—

(A) is located in the United States; and

(B) uses cellulosic biomass feedstocks derived from agricultural residues or municipal 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.)

REFERENCES IN TEXT

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 classified 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.

PRIOR PROVISIONS

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, related 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 renumbered 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 vehicles (other than locomotives or engines used

in locomotives) to determine if such emissions

cause, or significantly contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. Such study

shall be completed within 12 months of November 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 monoxide, oxides of nitrogen, and volatile organic

compounds from new and existing nonroad engines or nonroad vehicles (other than locomotives or engines used in locomotives) are significant contributors to ozone or carbon monoxide 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 regulations under paragraph (3).

(3) If the Administrator makes an affirmative

determination under paragraph (2) the Administrator shall, within 12 months after completion

of the study under paragraph (1), promulgate

(and from time to time revise) regulations containing standards applicable to emissions from

those classes or categories of new nonroad engines and new nonroad vehicles (other than locomotives or engines used in locomotives) which

in the Administrator’s judgment cause, or contribute to, such air pollution. 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 engines or vehicles to

which such standards 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. In determining what degree of reduction will be available, the Administrator

shall first consider standards equivalent in

stringency to standards for comparable motor

vehicles or engines (if any) regulated under section 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 determined by the Administrator).

(4) If the Administrator determines that any

emissions not referred to in paragraph (2) from
Page 6403 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7548

new nonroad engines or vehicles significantly

contribute to air pollution which may reasonably 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 containing standards applicable to emissions from

those classes or categories of new nonroad engines and new nonroad vehicles (other than locomotives or engines used in locomotives) which

in the Administrator’s judgment cause, or contribute to, such air pollution, taking into account costs, noise, safety, and energy factors associated 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 standards 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 compliance within such period and energy and safety.

(c) Safe controls

Effective with respect to new engines or vehicles to which standards under this section apply,

no emission control device, system, or element

of design shall be used in such a new nonroad engine or new nonroad vehicle for purposes of complying with such standards if such device, system, or element of design will cause or contribute to an unreasonable risk to public health,

welfare, or safety in its operation or function. In

determining whether an unreasonable risk exists, the Administrator shall consider factors including those described in section 7521(a)(4)(B) of

this title.

(d) Enforcement

The standards under this section shall be subject 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 prescribed under section 7521 of this title. The Administrator shall revise or promulgate regulations as may be necessary to determine compliance 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.)

CODIFICATION

Section was formerly classified to section 1857f–6f of

this title.

PRIOR PROVISIONS

A prior section 213 of act July 14, 1955, was 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.

AMENDMENTS

1990—Pub. L. 101–549 amended section generally, substituting present provisions for provisions requiring

Administrator and Secretary of Transportation to conduct study on fuel economy improvement for new

motor vehicles manufactured during and after model

year 1980.

REGULATIONS RELATING TO STANDARDS TO REDUCE

EMISSIONS

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 Protection Agency shall propose regulations under the Clean

Air Act [42 U.S.C. 7401 et seq.] that shall contain standards to reduce emissions from new nonroad spark-ignition 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 relationship 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 Congress the findings and results of the study conducted 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 subsection (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.)

PRIOR PROVISIONS

A prior section 214 of act July 14, 1955, was renumbered section 216 by Pub. L. 95–95 and is classified to

section 7550 of this title.

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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.

STUDY ON SUSPENDED PARTICULATE MATTER

Section 403(a) of Pub. L. 95–95 directed Administrator

of EPA, not later than 18 months after Aug. 7, 1977, in
§ 7549 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6404

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 endangerment to public health or welfare presented by such particulate matter and availability of technology for controlling such particulate matter.

§ 7549. High altitude performance adjustments

(a) Instruction of the manufacturer

(1) Any action taken with respect to any element of design installed on or in a motor vehicle

or motor vehicle engine in compliance with regulations 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 accordance with high altitude adjustment instructions provided by the manufacturer under subsection (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 respect to each standard under section 7521 of this

title at least equivalent to that which would result if no such adjustments or modifications

were made, he shall disapprove such instructions. Such finding shall be based upon minimum engineering evaluations consistent with

good engineering practice.

(b) Regulations

(1) Instructions respecting each class or category of vehicles or engines to which this subchapter applies providing for such vehicle and

engine adjustments and modifications as may be

necessary to insure emission control performance at different altitudes shall be submitted by

the manufacturer to the Administrator pursuant

to regulations promulgated by the Administrator.

(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 vehicles moving from high altitude areas to low altitude 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 section 7522(a) of this title) unless the manufacturer demonstrates to the satisfaction of the

Administrator that the use of such manufacturer parts is necessary to insure emission control performance.

(d) State inspection and maintenance programs

Before January 1, 1981 the authority provided

by this section shall be available in any high altitude State (as determined under regulations of

the Administrator under regulations promulgated before August 7, 1977) but after December

31, 1980, such authority shall be available only in

any such State in which an inspection and maintenance program for the testing of motor vehicle emissions has been instituted for the portions 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 altitude conditions’’ refers to high altitude as defined in regulations of the Administrator in effect 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 appropriate, shall establish a research and technology assessment center to provide for the development and evaluation of less-polluting

heavy-duty engines and fuels for use in buses,

heavy-duty trucks, and non-road engines and vehicles, which shall be located at a high-altitude

site that represents high-altitude conditions. In

establishing and funding such a center, the Administrator shall give preference to proposals

which provide for local cost-sharing of facilities

and recovery of costs of operation through utilization 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 effects of tampering on emissions equipment, testing 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. Preference shall be given to existing vehicle emissions testing and research centers that have established reputations for vehicle emissions research and development and training, and that

possess in-house Federal Test Procedure capacity.

(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.)

CODIFICATION

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.

AMENDMENTS

1990—Subsec. (e). Pub. L. 101–549 added subsec. (e).
Page 6405 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7551

1So in original. Probably should be set off by quotation marks.

1977—Subsec. (d). Pub. L. 95–190 substituted ‘‘December 31, 1980’’ for ‘‘December 31, 1981’’.

CHANGE OF NAME

‘‘Federal Transit Administration’’ substituted for

‘‘Urban Mass Transportation Administration’’ in subsec. (e)(2) pursuant to section 3004(b) of Pub. L. 102–240,

set out as a note under section 107 of Title 49, Transportation.

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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 sections 7521, 7522, 7525, 7541, and 7542 of this title

means any person engaged in the manufacturing or assembling of new motor vehicles, new

motor vehicle engines, new nonroad vehicles

or new nonroad engines, or importing such vehicles 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 engines, new nonroad vehicles or new nonroad

engines received by him in commerce.

(2) The term ‘‘motor vehicle’’ means any

self-propelled vehicle designed for transporting persons or property on a street or highway.

(3) Except with respect to vehicles or engines imported or offered for importation, the

term ‘‘new motor vehicle’’ means a motor vehicle the equitable or legal title to which has

never been transferred to an ultimate purchaser; and the term ‘‘new motor vehicle engine’’ 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, manufactured after the effective date of a regulation 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 importation 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 engines 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) commerce between any place in any State and any

place outside thereof; and (B) commerce wholly within the District of Columbia.

(7) VEHICLE 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 abbreviations in parentheses corresponding to

any term referred to in this paragraph shall

have the same meaning as the corresponding

term.

(8) TEST 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) MOTOR VEHICLE OR ENGINE PART MANUFACTURER.—The term ‘‘motor vehicle or engine

part manufacturer’’ as used in sections 7541

and 7542 of this title means any person engaged in the manufacturing, assembling or rebuilding of any device, system, part, component or element of design which is installed in

or on motor vehicles or motor vehicle engines.

(10) NONROAD 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 standards promulgated under section 7411 of this

title or section 7521 of this title.

(11) NONROAD 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; renumbered §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.)

CODIFICATION

Section was formerly classified to section 1857f–7 of

this title.

AMENDMENTS

1990—Par. (1). Pub. L. 101–549, §223(b), inserted references to new nonroad vehicles or new nonroad engines.

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 vehicles 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 Environmental Protection Agency to report to Congress
§ 7552 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6406

1So in original. Probably should be ‘‘section,’’.

respecting the motor vehicle fuel consumption associated 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 Administrator may promulgate (and from time to

time revise) regulations establishing fees to recover 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 monitoring and testing under section 7525(b) of

this title or part C of this subchapter, and

(3) in-use vehicle or engine compliance monitoring 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 nondiscriminatory, including the number of vehicles or engines produced under a certificate of conformity. In the case of heavy-duty engine and vehicle

manufacturers, such fees shall not exceed a reasonable amount to recover an appropriate portion 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 subsection (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 require 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 requiring leaded gasoline

The Administrator shall promulgate regulations applicable to motor vehicle engines and

nonroad engines manufactured after model year

1992 that prohibit the manufacture, sale, or introduction into commerce of any engine that requires 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 Administrator shall promulgate regulations under section 7521(a) of this title applicable to urban

buses for the model year 1994 and thereafter.

Such standards shall be based on the best technology 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 subsection,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 percent of the emissions of particulate matter

(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.

(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 account 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 matter (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 account 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 standard 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 subsection (b) of this section) that all new urban

buses purchased or placed into service by owners or operators of urban buses in all metropolitan statistical areas or consolidated metropolitan statistical areas with a 1980 population of 750,000 or more shall be capable of operating, 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 requirement established pursuant to this paragraph 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 subparagraph (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 requirement established pursuant to this paragraph.

(C) The Administrator may extend the requirements 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 extension.

(d) Retrofit requirements

Not later than 12 months after November 15,

1990, the Administrator shall promulgate regulations under section 7521(a) of this title requiring

that urban buses which—

(1) are operating in areas referred to in subparagraph (A) of subsection (c)(2) of this section (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 established by the Administrator in such regulations. Such emissions standard or emissions

control technology requirement shall reflect the

best retrofit technology and maintenance practices reasonably achievable.

(e) Procedures for administration and enforcement

The Administrator shall establish, within 18

months after November 15, 1990, and in accordance 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 protocols, in-use compliance requirements, and criteria governing evaluation of buses. Procedures

for testing (including, but not limited to, certification testing) shall reflect actual operating

conditions.

(f) Definitions

For purposes of this section—

(1) Urban bus

The term ‘‘urban bus’’ has the meaning provided under regulations of the Administrator

promulgated under section 7521(a) of this title.

(2) Low-polluting fuel

The term ‘‘low-polluting fuel’’ means methanol, 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 vehicles using the fuel and the contribution of

such emissions to ambient levels of air pollutants. For purposes of this paragraph, the term

‘‘methanol’’ includes any fuel which contains

at least 85 percent methanol unless the Administrator 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.)

PART B—AIRCRAFT EMISSION STANDARDS

§ 7571. Establishment of standards

(a) Study; proposed standards; hearings; issuance of regulations

(1) Within 90 days after December 31, 1970, the

Administrator shall commence a study and investigation of emissions of air pollutants from

aircraft in order to determine—

(A) the extent to which such emissions affect air quality in air quality control regions

throughout the United States, and

(B) the technological feasibility of controlling such emissions.

(2)(A) The Administrator shall, from time to

time, issue proposed 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.

(B)(i) The Administrator shall consult with

the Administrator of the Federal Aviation Administration on aircraft engine emission standards.

(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 hearings 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-
§ 7572 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6408

posed regulations, he shall issue such regulations with such modifications as he deems appropriate. 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 necessary (after consultation with the Secretary of

Transportation) to permit the development and

application of the requisite technology, giving

appropriate consideration to the cost of compliance 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 public hearing, on the basis of a finding by the Secretary of Transportation that any such regulation would create a hazard to aircraft safety.

Any such finding shall include a reasonably specific statement of the basis upon which the finding 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.)

CODIFICATION

Section was formerly classified to section 1857f–9 of

this title.

AMENDMENTS

1996—Subsec. (a)(2). Pub. L. 104–264 designated existing 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 proposed 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 endangers the public health or welfare’’.

Subsec. (c). Pub. L. 95–95, §225, substituted ‘‘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 public hearing, on the basis of a finding by

the Secretary of Transportation that any such regulation 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.

EFFECTIVE DATE OF 1996 AMENDMENT

Except as otherwise specifically provided, amendment 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 ending before Oct. 1, 1996, see section 3 of Pub. L. 104–264,

set out as a note under section 106 of Title 49, Transportation.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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.

STUDY AND INVESTIGATION OF UNINSTALLED AIRCRAFT

ENGINES

Pub. L. 101–549, title II, §233, Nov. 15, 1990, 104 Stat.

2529, provided that:

‘‘(a) STUDY.—The Administrator of the Environmental Protection Agency and the Secretary of Transportation, in consultation with the Secretary of Defense, 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 issues and such other issues as they shall deem appropriate—

‘‘(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, design, structure, operation, or performance of aircraft

engines;

‘‘(5) whether such technologies impair the effectiveness and accuracy of aircraft engine safety design,

and performance tests conducted in test cells; and

‘‘(6) the impact of not controlling such oxides of nitrogen in the applicable nonattainment areas and on

other sources, stationary and mobile, on oxides of nitrogen in such areas.

‘‘(b) REPORT, AUTHORITY TO REGULATE.—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 Secretary of Transportation shall submit to Congress a report of the study conducted under this section. Following the completion of such study, any of the States

may adopt or enforce any standard for emissions of oxides of nitrogen from test cells only after issuing a public notice stating whether such standards are in accordance with the findings of the study.’’

§ 7572. Enforcement of standards

(a) Regulations to insure compliance with standards

The Secretary of Transportation, after consultation with the Administrator, shall prescribe 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

1So 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 Department 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 certificate 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 Department 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, modification, 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.)

REFERENCES IN TEXT

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, Transportation. 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 disposition of sections of former Title 49, see Table at the beginning of Title 49.

CODIFICATION

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 section 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 respecting emissions of any air pollutant from any

aircraft or engine thereof unless such standard

is identical to a standard applicable to such aircraft 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.)

CODIFICATION

Section was formerly classified to section 1857f–11 of

this title.

§ 7574. Definitions

Terms used in this part (other than Administrator) 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.)

CODIFICATION

In text, ‘‘section 40102(a) of title 49’’ substituted for

‘‘section 101 of the Federal Aviation Act of 1958’’ 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.

Section was formerly classified to section 1857f–12 of

this title.

PART C—CLEAN FUEL VEHICLES

§ 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), reformulated gasoline, diesel, natural gas, liquefied petroleum gas, and hydrogen) or power

source (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 respect to which such vehicle was certified as a

clean-fuel vehicle meeting the standards applicable 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 oxygenated organic gases containing 5 or fewer

carbon atoms (i.e., aldehydes, ketones, alcohols, ethers, etc.), and all known alkanes,

alkenes, alkynes, and aromatics containing 12

or fewer carbon atoms. To demonstrate compliance with a NMOG standard, NMOG emissions 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 vehicles 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. % ................................. 1.35
§ 7582 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6410

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 definitions of NMOG, base gasoline, and the methods

for making reactivity adjustments, to conform

to the definitions and method used in California under the Low-Emission Vehicle and Clean

Fuel Regulations of the California Air Resources Board, so long as the California definitions are, in the aggregate, at least as protective of public health and welfare as the definitions 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 person for purposes of this paragraph, all motor

vehicles owned or operated, leased or otherwise controlled by such person, by any person

who controls such person, by any person controlled 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 vehicles held for lease or rental to the general public, motor vehicles held for sale by motor vehicle dealers (including demonstration vehicles),

motor vehicles used for motor vehicle manufacturer product evaluations or tests, law enforcement and other emergency vehicles, or

nonroad vehicles (including farm and construction 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 vehicle 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 vehicles 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 vehicles

(a) Promulgation of standards

Not later than 24 months after November 15,

1990, the Administrator shall promulgate regulations under this part containing clean-fuel vehicle standards for the clean-fuel vehicles specified 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 subchapter (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 enforcement, and except to the extent that any such requirement 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 vehicles of the same category and model year, except 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 certification 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 of

certification at 100,000 miles, except that inuse testing shall not be done for a period beyond 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 certification 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 of

certification at 120,000 miles, except that inuse testing shall not be done for a period beyond 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

1So in original. Probably should be ‘‘subsection’’.

§ 7583. Standards for light-duty clean-fuel vehicles

(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 including light-duty trucks of more than 3,750 lbs.

loaded vehicle weight (lvw)) or light-duty vehicles:

(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 following table:

PHASE I CLEAN FUEL VEHICLE EMISSION STANDARDS FOR LIGHT-DUTY TRUCKS OF UP TO 3,750

LBS. LVW AND UP TO 6,000 LBS. GVWR AND

LIGHT-DUTY VEHICLES

Pollutant NMOG CO NOx PM

HCHO

(formaldehyde)

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 applicable useful life shall be 50,000 miles or 100,000 miles, respectively.

(2) Phase II

Beginning with model year 2001, for 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 following table.

PHASE II CLEAN FUEL VEHICLE EMISSION STANDARDS FOR LIGHT-DUTY TRUCKS OF UP TO 3,750

LBS. LVW AND UP TO 6,000 LBS. GVWR AND

LIGHT-DUTY VEHICLES

Pollutant NMOG CO NOx PM*

HCHO

(formaldehyde)

50,000 mile standard.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 applicable useful life shall be 50,000 miles or 100,000 miles, respectively.

(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 paragraph1

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 following table.

PHASE I CLEAN FUEL VEHICLE EMISSION STANDARDS FOR LIGHT-DUTY TRUCKS OF MORE THAN

3,750 LBS. AND UP TO 5,750 LBS. LVW AND UP TO

6,000 LBS. GVWR

Pollutant NMOG CO NOx PM*

HCHO

(formaldehyde)

50,000 mile standard.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 applicable useful life shall be 50,000 miles or 100,000 miles, respectively.

(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 following table.

PHASE II CLEAN FUEL VEHICLE EMISSION 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

Pollutant NMOG CO NOx PM*

HCHO

(formaldehyde)

50,000 mile standard.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 applicable useful life shall be 50,000 miles or 100,000 miles, respectively.

(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 or
§ 7583 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6412

2So 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 exhaust emissions of vehicles within the test

weight categories specified in the following

table shall not exceed the levels specified in

such table.

CLEAN FUEL VEHICLE EMISSION STANDARDS FOR

LIGHT DUTY TRUCKS GREATER THAN 6,000 LBS.

GVWR

Test Weight Category: Up to 3,750 lbs. tw

Pollutant NMOG CO NOx PM*

HCHO

(formaldehyde)

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 NOx PM*

HCHO

(formaldehyde)

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 NOx PM*

HCHO

(formaldehyde)

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 applicable under subsection2 (a), (b), and (c) of this

section for CO, NOx, and HCHO, and if appropriate, 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 established 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 STANDARDS FOR FLEXIBLE- AND DUALFUELED VEHICLES WHEN OPERATING ON CLEAN

ALTERNATIVE FUEL

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 certification under section 7525 of this title, the applicable

useful life shall be 50,000 miles.

For standards under column B, for purposes of certification 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 certification under section 7525 of this title, the applicable

useful life shall be 50,000 miles.

For standards under column B, for purposes of certification under section 7525 of this title, the applicable

useful life shall be 120,000 miles.

(3) NMOG standard for operation on conventional fuel

In addition to the standards referred to in

paragraph (1), the standards established 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:

NMOG STANDARDS FOR FLEXIBLE- AND DUALFUELED VEHICLES WHEN OPERATING ON CONVENTIONAL FUEL

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 0.40
Page 6413 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7584

NMOG STANDARDS FOR FLEXIBLE- AND DUALFUELED VEHICLES WHEN OPERATING ON CONVENTIONAL FUEL

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 certification under section 7525 of this title, the applicable

useful life shall be 50,000 miles.

For standards under column B, for purposes of certification 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 certification under section 7525 of this title, the applicable

useful life shall be 50,000 miles.

For standards under column B, for purposes of certification 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 regulations establishing and implementing a single

set of standards applicable in California pursuant 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 section and such set of 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 set of California standards shall apply to

clean-fuel vehicles in such category in lieu of

the standards otherwise applicable under section 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 regulations establishing and implementing several

different sets of standards applicable in California pursuant 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 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 standards 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 vehicles 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 referred 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 standard 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 period, 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 vehicles

Notwithstanding 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 standards applicable under this part to vehicles of not

more than 8,500 lbs. GVWR are the same as numerical emission standards applicable in California 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 Administrator—

(1) in the same manner and with the same

flexibility as the State of California administers 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 limited to, requirements regarding certification,

production-line testing, and in-use compliance,

unless the Administrator determines (in promulgating the rules establishing the clean fuel vehi-
§ 7585 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6414

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 vehicles (GVWR above 8,500 up to 26,000 lbs.)

(a) Model years after 1997; combined NOx and

NMHC standard

For classes or categories of heavy-duty vehicles 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 (NOx) 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 revised less stringent standard for the vehicles or

engines referred to in subsection (a) of this section 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 determination with regard to the technological feasibility of such 50 percent reduction before December 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 petition is filed.

(3) Any revised less stringent standards promulgated as provided in this subsection shall require 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 nonattainment 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 November 15, 1990, a State implementation plan

revision under section 7410 of this title and

part D of subchapter I of this chapter to establish 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 nonattainment areas to be treated as covered areas

pursuant to this subparagraph, the Administrator shall use the most recent interpretation methodology issued by the Administrator 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 calendar years 1988 and 1989 (as calculated according 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 mobile sources do not contribute significantly

to carbon monoxide exceedances.

(3) Plan revisions for reclassified areas

In the case of ozone nonattainment areas reclassified 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 requirements 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 implementation 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, safety, 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 vehicles in model year 1998 and thereafter purchased 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

1So in original. Probably should be ‘‘light-duty’’.

2So in original. Probably should be ‘‘clean-fuel’’.

CLEAN FUEL VEHICLE PHASE-IN REQUIREMENTS

FOR FLEETS

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 purposes of this section, light duty1 trucks of up to

6,000 lbs. GVWR and light-duty vehicles manufactured in model years 1998 through model year

2000 shall be treated as clean-fuel vehicles only

if such vehicles comply with the standards applicable under section 7583 of this title for vehicles in the same class for the model year 2001.

The requirements of subsection (b) of this section shall take effect on the earlier of the following:

(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 comply 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 requirements of this subsection.

(e) Availability of clean alternative fuel

The plan revision shall require fuel providers

to make clean alternative fuel available to covered fleet operators at locations at which covered 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 vehicles than required under this section.

(B) The purchase of clean fuel 2 vehicles

which meet more stringent standards established 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 demonstrate 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 respect 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 subsection 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 adjusted 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 regulations for such credit program. The State shall

administer the credit program established

under this subsection.

(4) Standards for issuing credits for cleaner vehicles

Solely for purposes of issuing credits under

paragraph (1)(B), the Administrator shall establish 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 applicable to clean-fuel vehicles under this part.

The Administrator shall certify clean fuel 2 vehicles 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 vehicles under 8,500 lbs. GVWR or greater shall

conform as closely as possible to standards

which are established by the State of California for ULEV and ZEV vehicles in the same

class. For vehicles of 8,500 lbs. GVWR or more,

the Administrator shall promulgate comparable standards for purposes of this subsection.

(5) Early fleet credits

The State plan revision shall provide credits

under this subsection to fleet operators that
§ 7587 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6416

1So in original. Probably should be ‘‘clean-fuel’’.

2So 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 department, 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 facilities.

(h) Transportation control measures

The Administrator shall by rule, within 1 year

after November 15, 1990, ensure that certain

transportation 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 subsection 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 applicable requirements of that section. For purposes

of such provisions the conversion of a vehicle to

clean fuel 1 vehicle shall be treated as the purchase of a clean fuel 1 vehicle. Nothing in this

part shall be construed to provide that any covered fleet operator subject to fleet vehicle purchase 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 requirements of this subchapter applicable to new

vehicles, promulgate regulations governing conversions of conventional vehicles to clean-fuel

vehicles. Such regulations shall establish criteria for such conversions which will ensure that

a converted vehicle will comply with the standards applicable under this part to clean-fuel vehicles. Such regulations shall provide for the application to such conversions of the same provisions of this subchapter (including provisions relating to administration enforcement) as are applicable to standards under section2 7582, 7583,

7584, and 7585 of this title, except that in the

case of conversions the Administrator may modify the applicable regulations implementing

such provisions as the Administrator deems necessary to implement this part.

(c) Enforcement

Any person who converts conventional vehicles to clean fuel 1 vehicles pursuant to subsection (b) of this section, shall be considered a

manufacturer for purposes of sections 7525 and

7541 of this title and related enforcement provisions. 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 operations.

(d) Tampering

The conversion from a vehicle capable of operating 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 conversion complies with the regulations promulgated

under subsection (b) of this section.

(e) Safety

The Secretary of Transportation shall, if necessary, 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 operated by an agency, department, or instrumentality 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 reimbursed by Federal agencies if the Administrator

of General Services determines that appropriations provided pursuant to this paragraph are

sufficient to provide for the incremental cost of

such vehicles over the cost of comparable conventional vehicles.

(c) Limitations on appropriations

Funds appropriated pursuant to the authorization under this paragraph shall be applicable

only—

(1) to the portion of the cost of acquisition,

maintenance and operation of vehicles acquired under this subparagraph which exceeds

the cost of acquisition, maintenance and operation 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 purposes required for conventional vehicles; and

(3) to the portion of the costs of acquisition

of clean-fuel vehicles which represents a reduction in revenue from the disposal of such
Page 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 conventional 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 provisions 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.)

CODIFICATION

In subsec. (b), ‘‘sections 601–611 of title 40’’ substituted 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 Buildings, Property, and Works.

ABOLITION OF GENERAL SUPPLY FUND

The General Supply Fund, referred to in subsec. (g),

was abolished and its capital assets and balances transferred 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 program in the State of California to demonstrate

the effectiveness of clean-fuel vehicles in controlling 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 regulations establishing requirements under this section 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 California (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 section 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 produced and distributed by fuel suppliers and

made available in California. At a minimum,

sufficient clean alternative fuels shall be produced, distributed and made available to assure that all clean-fuel vehicles required under

this section can operate, to the maximum extent 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 ensure convenient refueling with clean alternative 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 alternative fuels to be produced, distributed, and

made available based on motor vehicle manufacturers’ projections of future sales of such

vehicles and consultations with the affected

local governments and fuel suppliers.

(B) The State may by regulation grant persons 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 consideration of enforceability, environmental, and

economic factors and upon such terms and

conditions as the State finds appropriate.

(C) The State may also by regulation establish specifications for any clean alternative

fuel produced and made available under this

paragraph as the State finds necessary to reduce or eliminate an unreasonable risk to public health, welfare, or safety associated with

its use or to ensure acceptable vehicle maintenance and performance characteristics.

(D) If a retail gasoline dispensing facility

would have to remove or replace one or more
§ 7589 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6418

1So in original. Probably should be ‘‘clean-fuel’’.

2So in original. Probably should be ‘‘section 7586(f)’’.

3So in original. Probably should be followed by a comma.

4So 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 provisions regarding clean alternative fuels.

(F) If the State of California fails to adopt a

clean fuel program that meets the requirements 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 requirements of this paragraph.

(d) Credits for motor vehicle manufacturers

(1) The Administrator may (by regulation)

grant a motor vehicle manufacturer an appropriate 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 Administrator as provided in paragraph (3) which are

more stringent than the clean-fuel vehicle

standards 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 paragraph, notwithstanding any requirements of

State law or any credits granted with respect

to the same vehicles under any State law,

rule, or regulation.

(2) REGULATIONS AND ADMINISTRATION.—The

Administrator shall administer the credit program established under this subsection. Within

12 months after November 15, 1990, the Administrator shall promulgate regulations for such

credit program.

(3) STANDARDS FOR ISSUING CREDITS FOR CLEANER VEHICLES.—The more stringent standards and

other requirements (including requirements relating to the weighting of credits) established by

the Administrator for purposes of the credit program under 7585(e) 2 of this title (relating to

credits for clean fuel 1 vehicles in the fleets program) 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 Resources Board Low-Emissions Vehicles and

Clean Fuels Program. Such report shall examine

the capability, from a technological standpoint,

of motor vehicle manufacturers and motor vehicle fuel suppliers to comply with the requirements of such program and with the requirements of the California Pilot Program under

this section.

(2) Not later than June 30, 1998, the Administrator 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 expanding 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 November 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 regulations establishing a voluntary opt-in program 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 California 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 chapter as Serious, Severe, or Extreme may submit

a revision of the applicable implementation

plan under part D of subchapter I of this chapter and section 7410 of this title to provide incentives 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 required 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 notice of such provisions to motor vehicle manufacturers 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

1So 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 provide

financial incentives to purchasers of cleanfuel vehicles and to vehicle dealers who sell

high volumes or high percentages of cleanfuel vehicles and to defray the administrative costs of the incentive program.

(B) Provisions to exempt clean-fuel vehicles from high occupancy vehicle or trip reduction 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 vehicles or clean alternative fuels. Such regulations 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.)

REFERENCES IN TEXT

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 classified generally to subchapter IX (§6991 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.

November 15, 1990, referred to in subsec. (e)(3), was in

the original ‘‘the date of the Clean Air Act Amendments 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 nonattainment area which provides that existing

State refueling facilities will be made available

to the public for the purchase of clean alternative fuels or that State-operated refueling facilities for such fuels will be constructed and operated by the State and made available to the

public at reasonable times, taking into consideration 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 purposes 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 applicable the models, lines, or types of, or marketing or price practices, policies, or strategies

for, vehicles subject to this part. Nothing in this

part shall be construed to give the Administrator authority to mandate marketing or pricing practices, policies, or strategies for fuels.

(c) Tank and fuel system safety

The Secretary of Transportation shall, in accordance 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.)

CODIFICATION

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 prescribe such regulations as are necessary to carry

out his functions under this chapter. The Administrator may delegate to any officer or employee of the Environmental Protection Agency

such of his powers and duties under this chapter,

except the making of regulations subject to section 7607(d) of this title, as he may deem necessary or expedient.

(2) Not later than one year after August 7,

1977, the Administrator shall promulgate regulations 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 enforcing the chapter;

(B) to assure at least an adequate quality

audit of each State’s performance and adherence to the requirements of this chapter in implementing and enforcing the chapter, particularly in the review of new sources and in enforcement of the chapter; and

(C) to provide a mechanism for identifying

and standardizing inconsistent or varying criteria, procedures, and policies being employed

by such officers and employees in implementing and enforcing the chapter.
§ 7601 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6420

(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 Protection Agency may be detailed to such agency for

the purpose of carrying out the provisions of

this chapter.

(c) Payments under grants; installments; advances or reimbursements

Payments under grants made under this chapter may be made in installments, and in advance

or by way of reimbursement, as may be determined 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 for

application 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 regulations 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 Indian tribe pertain to the management and protection 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 Administrator, of carrying out the functions to be exercised in a manner consistent with the terms

and purposes of this chapter and all applicable

regulations.

(3) The Administrator may promulgate regulations which establish the elements of tribal implementation plans and procedures for approval

or disapproval of tribal implementation plans

and portions thereof.

(4) In any case in which the Administrator determines that the treatment of Indian tribes as

identical to States is inappropriate or administratively infeasible, the Administrator may provide, by regulation, other means by which the

Administrator will directly administer such provisions so as to achieve the appropriate purpose.

(5) Until such time as the Administrator promulgates regulations pursuant to this subsection, the Administrator may continue to provide 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.)

CODIFICATION

Section was formerly classified to section 1857g of

this title.

AMENDMENTS

1990—Subsec. (a)(1). Pub. L. 101–549, §108(i), inserted

‘‘subject to section 7607(d) of this title’’ after ‘‘regulations’’.

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, Education, and Welfare’’.

Subsec. (b). Pub. L. 91–604, §3(b)(2), substituted ‘‘Environmental Protection Agency’’ for ‘‘Public Health

Service’’ and struck out provisions covering the payment of salaries and allowances.

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

1967—Pub. L. 90–148 reenacted section without

change.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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.

DISADVANTAGED BUSINESS CONCERNS; USE OF QUOTAS

PROHIBITED

Title X of Pub. L. 101–549 provided that:

‘‘SEC. 1001. DISADVANTAGED BUSINESS CONCERNS.

‘‘(a) IN GENERAL.—In providing for any research relating 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) DEFINITION.—

‘‘(1)(A) For purposes of subsection (a), the term ‘disadvantaged business concern’ means a concern—

‘‘(i) which is at least 51 percent owned by one or

more socially and economically disadvantaged individuals or, in the case of a publicly traded company, 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 operations 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 traded
Page 6421 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7602

company at least 51 percent of the stock of the company 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 concern if it is reasonably established that the individual

or individuals referred to in that clause with respect

to that business concern are not experiencing impediments to establishing or developing such concern as

a result of the individual’s identification as a member of a group specified in that clause.

‘‘(C) The following institutions are presumed to be

disadvantaged business concerns for purposes of subsection (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 defined by the Secretary of Education pursuant to the

General Education Provision Act (20 U.S.C. 1221 et

seq.)).

‘‘(iii) Private and voluntary organizations controlled by individuals who are socially and economically disadvantaged.

‘‘(D) A joint venture may be considered to be a disadvantaged business concern under subsection (a),

notwithstanding the size of such joint venture, if—

‘‘(i) a party to the joint venture is a disadvantaged 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 discrimination.

‘‘SEC. 1002. USE OF QUOTAS PROHIBITED.—Nothing in

this title shall permit or require the use of quotas or a

requirement that has the effect of a quota in determining eligibility under section 1001.’’

§ 7602. Definitions

When used in this chapter—

(a) The term ‘‘Administrator’’ means the Administrator 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 authority charged with responsibility for enforcing ordinances or laws relating to the prevention 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 established 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 District 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) substance or matter which is emitted into or otherwise enters the ambient air. 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

particular purpose for which the term ‘‘air pollutant’’ 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 climate, 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 pollutants.

(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 established 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,
§ 7602 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6422

1So in original.

equipment, work practice or operational standard promulgated under this chapter..1

(l) The term ‘‘standard of performance’’ means

a requirement of continuous emission reduction,

including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction.

(m) The term ‘‘means of emission limitation’’

means a system of continuous emission reduction (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 national 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 Administrator to an existing stationary source,

postponing the date required under an applicable implementation plan for compliance by such

source with any requirement of such plan.

(p) The term ‘‘schedule and timetable of compliance’’ means a schedule of required measures

including an enforceable sequence of actions or

operations leading to compliance with an emission limitation, other limitation, prohibition, or

standard.

(q) For purposes of this chapter, the term ‘‘applicable implementation plan’’ means the portion (or portions) of the implementation plan, or

most recent revision thereof, which has been approved under section 7410 of this title, or promulgated under section 7410(c) of this title, or

promulgated or approved pursuant to regulations promulgated under section 7601(d) of this

title and which implements the relevant requirements of this chapter.

(r) INDIAN TRIBE.—The term ‘‘Indian tribe’’

means any Indian tribe, band, nation, or other

organized group or community, including any

Alaska Native village, which is Federally recognized as eligible for the special programs and

services provided by the United States to Indians because of their status as Indians.

(s) VOC.—The term ‘‘VOC’’ means volatile organic compound, as defined by the Administrator.

(t) PM–10.—The term ‘‘PM–10’’ means particulate 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) NOx.—The term ‘‘NOx’’ means oxides of nitrogen.

(w) CO.—The term ‘‘CO’’ means carbon monoxide.

(x) SMALL SOURCE.—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) FEDERAL IMPLEMENTATION PLAN.—The

term ‘‘Federal implementation plan’’ means a

plan (or portion thereof) promulgated by the Administrator to fill all or a portion of a gap or

otherwise correct all or a portion of an inadequacy in a State implementation plan, and

which includes enforceable emission limitations

or other control measures, means or techniques

(including economic incentives, such as marketable permits or auctions of emissions allowances), and provides for attainment of the relevant national ambient air quality standard.

(z) STATIONARY SOURCE.—The term ‘‘stationary 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 engine 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.)

CODIFICATION

Section was formerly classified to section 1857h of

this title.

PRIOR PROVISIONS

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.

AMENDMENTS

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 particular 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 practice 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 instrumentalities of the United States and officers, agents, and employees 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 subsecs. (i) to (p).

1970—Subsec. (a). Pub. L. 91–604, §15(c)(1), substituted

definition of ‘‘Administrator’’ as meaning Administrator of the Environmental Protection Agency for definition of ‘‘Secretary’’ as meaning Secretary of Health,

Education, and Welfare.

Subsecs. (g), (h). Pub. L. 91–604, §15(a)(1), added subsec. (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.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except 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 evidence 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 contributing to the alleged pollution to stop the

emission of air pollutants causing or contributing to such pollution or to take such other action 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 appropriate 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 section before the expiration of that period. Whenever the Administrator brings such an action

within the 60-day period, such order shall remain 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.)

CODIFICATION

Section was formerly classified to section 1857h–1 of

this title.

PRIOR PROVISIONS

A prior section 303 of act July 14, 1955, was renumbered section 310 by Pub. L. 91–604 and is classified to

section 7610 of this title.

AMENDMENTS

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 practicable 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 Administrator shall consult with the State and local authorities in order to confirm the correctness of the information on which the action proposed to be taken is

based and to ascertain the action which such authorities 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 sentence of this subsection before the expiration of such

period. Whenever the Administrator brings such an action 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 practicable 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 necessary 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 Administrator consult with the State and local authorities in order to confirm the correctness of the information 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 period of not more than twenty-four hours unless the Administrator 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).

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

PENDING ACTIONS AND PROCEEDINGS

Suits, actions, and other proceedings lawfully commenced 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.
§ 7604 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6424

1So 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.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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 action on his own behalf—

(1) against any person (including (i) the

United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to

the Constitution) who is alleged to have violated (if there is evidence that the alleged violation 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 perform any act or duty under this chapter which

is not discretionary with the Administrator,

or

(3) against any person who proposes to construct or constructs any new or modified

major emitting facility without a permit required 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, without 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 referred 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 Administrator, (ii) to the State in which the

violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or

(B) if the Administrator or State has commenced and is diligently prosecuting a civil

action in a court of the United States or a

State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any person 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 immediately 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 stationary source of an emission standard or limitation 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 Administrator, 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 consent 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 Administrator during which time the Government

may submit its comments on the proposed consent 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 action 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 temporary restraining order or preliminary injunction is sought, require the filing of a bond or

equivalent security in accordance with the Federal 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 have
Page 6425 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7604

2So in original. The word ‘‘or’’ probably should not appear.

3So in original.

4So in original. The semicolon probably should be a comma.

5So in original. The period probably should be a comma. 6So in original. Probably should be ‘‘this section’’.

under any statute or common law to seek enforcement of any emission standard or limitation 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 interstate authority from—

(1) bringing any enforcement action or obtaining any judicial remedy or sanction in any

State or local court, or

(2) bringing any administrative enforcement

action or obtaining any administrative remedy or sanction in any State or local administrative agency, department or instrumentality,

against the United States, any department,

agency, or instrumentality thereof, or any officer, agent, or employee thereof under State or

local law respecting control and abatement of

air pollution. For provisions requiring compliance by the United States, departments, agencies, instrumentalities, officers, agents, and employees 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 ‘‘emission 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 chapter (relating to nonattainment),,3 section 7419

of this title (relating to primary nonferrous

smelter orders), any condition or requirement

under an applicable implementation plan relating 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), section 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 expressed as an emission standard or otherwise); 4 or

(4) any other standard, limitation, or schedule established under any permit issued pursuant to subchapter V of this chapter or under

any applicable State implementation plan approved 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 implementation 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 authorized to be appropriated and shall remain

available until expended, for use by the Administrator to finance air compliance and enforcement activities. The Administrator shall annually report to the Congress about the sums deposited into the fund, the sources thereof, and

the actual and proposed uses thereof.

(2) Notwithstanding paragraph (1) the court in

any action under this subsection6 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 consistent with this chapter and enhance the public

health or the environment. The court shall obtain 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.)

REFERENCES IN TEXT

The Federal Rules of Civil Procedure, referred to in

subsec. (d), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.

CODIFICATION

Section was formerly classified to section 1857h–2 of

this title.

PRIOR PROVISIONS

A prior section 304 of act July 14, 1955, was renumbered section 311 by Pub. L. 91–604 and is classified to

section 7611 of this title.

AMENDMENTS

1990—Subsec. (a). Pub. L. 101–549, §707(a), (f), in closing provisions, inserted before period at end ‘‘, and to

apply any appropriate civil penalties (except for actions 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 violation has been repeated) or’’ before ‘‘to be in violation’’.

Subsec. (b). Pub. L. 101–549, §302(f), substituted ‘‘section 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 follows: ‘‘In such action under this section, the Administrator, 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 title
§ 7605 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6426

(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 prohibit, exclude, or restrict any State, local, or interstate

authority from bringing any enforcement action or obtaining 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, department, or instrumentality under State or local law.

Subsec. (f)(3). Pub. L. 95–190, §14(a)(78), inserted

‘‘, or’’ after ‘‘(relating to ozone protection)’’, substituted ‘‘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).

EFFECTIVE DATE OF 1990 AMENDMENT

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].’’

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

TERMINATION OF REPORTING REQUIREMENTS

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.

PENDING ACTIONS AND PROCEEDINGS

Suits, actions, and other proceedings lawfully commenced 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.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued made, or taken by or pursuant 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 Administrator

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 Attorney 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 conducted in accordance with, and shall include

participation by, attorneys appointed by the Administrator to the extent authorized by, the

memorandum of understanding between the Department of Justice and the Environmental Protection 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.)

CODIFICATION

Section was formerly classified to section 1857h–3 of

this title.

PRIOR PROVISIONS

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.

AMENDMENTS

1977—Pub. L. 95–95 designated existing provisions as

subsec. (a) and added subsec. (b).

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

PENDING ACTIONS AND PROCEEDINGS

Suits, actions, and other proceedings lawfully commenced 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.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or
Page 6427 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7606

other actions duly issued, made, or taken by or pursuant 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 contract 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 supervised by such person. The prohibition in the

preceding sentence shall continue until the Administrator 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 conviction 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 convicted person.

(b) Notification procedures

The Administrator shall establish procedures

to provide all Federal agencies with the notification 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 quality 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 contracts and each Federal agency which is empowered to extend Federal assistance by way of

grant, loan, or contract to effectuate the purpose and policy of this chapter in such contracting or assistance activities, and (2) setting forth

procedures, sanctions, penalties, and such other

provisions, as the President determines necessary 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.)

CODIFICATION

Subsec. (e) of this section, which required the President 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.

PRIOR PROVISIONS

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, renumbered §316, Dec. 31, 1970, Pub. L. 91–604, §12(a), 84

Stat. 1705, related to appropriations and was classified

to section 1857l of this title, prior to repeal by section

306 of Pub. L. 95–95. See section 7626 of this title.

AMENDMENTS

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.

FEDERAL ACQUISITION REGULATION: CONTRACTOR CERTIFICATION OR CONTRACT CLAUSE FOR ACQUISITION OF

COMMERCIAL ITEMS

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 certification by a contractor under a contract for the acquisition 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 section, since there is nothing in such section 306 that requires such a certification or contract clause.’’

EXECUTIVE ORDER NO. 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 superseded by Ex. Ord. No. 11738, Sept. 10, 1973, 38 F.R.

25161, set out below.

EX. ORD. NO. 11738. ADMINISTRATION OF THE CLEAN AIR

ACT AND THE FEDERAL WATER POLLUTION CONTROL

ACT WITH RESPECT TO FEDERAL CONTRACTS, GRANTS,

OR LOANS

Ex. Ord. No. 11738, Sept. 10, 1973, 38 F.R. 25161,

provided:

By virtue of the authority vested in me by the provisions 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 ordered as follows:

SECTION 1. Policy. It is the policy of the Federal Government to improve and enhance environmental quality. In furtherance of that policy, the program prescribed 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 assistance by way of grant, loan, or contract shall undertake 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 Control Act (hereinafter referred to as ‘‘the Water Act’’) [33

U.S.C. 1251 et seq.].
§ 7607 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6428

1See References in Text note below.

2So in original. Probably should be ‘‘this’’.

3So in original.

SEC. 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 offenses. 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.

SEC. 3. Contracts, Grants, or Loans. (a) Except as provided 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 Administrator 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 assistance 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 section 2.

SEC. 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 require, as a condition of entering into, renewing, or extending any contract for the procurement of goods, materials, or services or extending any assistance by way

of grant, loan, or contract, inclusion of a provision requiring 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 assistance.

SEC. 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.

SEC. 6. Cooperation and Assistance. The head of each

Federal agency shall take such steps as may be necessary 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 addition to any other appropriate action, such officers and

employees shall report promptly any condition in a facility which may involve noncompliance with the Air

Act or the Water Act or any rules, regulations, standards, or guidelines issued pursuant to this Order to the

head of the agency, who shall transmit such reports to

the Administrator.

SEC. 7. Enforcement. The Administrator may recommend to the Department of Justice or other appropriate 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.

SEC. 8. Exemptions—Reports to Congress. (a) Upon a determination 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 exemption shall (A) promptly notify the Administrator of

such exemption and the justification therefor; (B) review 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 determination by the head of the Federal agency concerned.

(2) The Administrator may, by rule or regulation, exempt 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 minimal potential impact upon the environment, or (C) involve 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.

SEC. 9. Related Actions. The imposition of any sanction 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.

SEC. 10. Applicability. This Order shall not apply to

contracts, grants, or loans involving the use of facilities located outside the United States.

SEC. 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 pursuant to this order, Executive Order No. 11602 of June

29, 1971 [formerly set out above], and section 306 of the

Air Act [this section].

SEC. 12. Order Superseded. Executive Order No. 11602 of

June 29, 1971, is hereby superseded.

RICHARD NIXON.

§ 7607. Administrative proceedings and judicial

review

(a) Administrative subpenas; confidentiality; witnesses

In connection with any determination under

section 7410(f) of this title, or for purposes of obtaining information under section 7521(b)(4) 1 or

7545(c)(3) of this title, any investigation, monitoring, reporting requirement, entry, compliance 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, section 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 secret processes of such owner or operator, the Administrator 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

4So in original. Probably should be ‘‘subsection,’’. 5So in original. The word ‘‘to’’ probably should not appear.

closed to other officers, employees, or authorized representatives of the United States concerned with carrying out this chapter, to persons carrying out the National Academy of Sciences’ 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 mileage 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 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 requiring such person to appear

and give testimony before the Administrator to

appear and produce papers, books, and documents before the Administrator, or both, and

any failure to obey such order of the court may

be punished by such court as a contempt thereof.

(b) Judicial review

(1) A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, 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 section 7545 of this title, any standard under section 7571 of this title, any rule issued under section 7413, 7419, or under section 7420 of this title,

or any other nationally applicable regulations

promulgated, or final action taken, by the Administrator 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 promulgating any implementation plan under section 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 effect before August 7, 1977) or under regulations

thereunder, or revising regulations for enhanced

monitoring and compliance certification programs under section 7414(a)(3) of this title, or

any other final action of the Administrator

under this chapter (including any denial or disapproval 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 circuit. 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 Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination. 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 petition 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 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.

(2) Action of the Administrator with respect to

which review could have been obtained under

paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement. Where a final decision by the Administrator defers performance of any nondiscretionary statutory action to a later time, any person

may challenge the deferral pursuant to paragraph (1).

(c) Additional evidence

In any judicial proceeding in which review is

sought of a determination under this chapter required to be made on the record after notice and

opportunity for hearing, if any party applies to

the court for leave to adduce additional evidence, and shows to the satisfaction of the court

that such additional evidence is material and

that there were reasonable grounds for the failure to adduce such evidence in the proceeding

before the Administrator, the court may order

such additional evidence (and evidence in rebuttal thereof) to be taken before the Administrator, 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 recommendation, 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 national ambient air quality standard under section 7409 of this title,

(B) the promulgation or revision of an implementation 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 regulation 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,
§ 7607 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6430

(E) the promulgation or revision of any regulation pertaining to any fuel or fuel additive

under section 7545 of this title,

(F) the promulgation or revision of any aircraft emission standard under section 7571 of

this title,

(G) the promulgation or revision of any regulation under subchapter IV–A of this chapter

(relating to control of acid deposition),

(H) promulgation or revision of regulations

pertaining to primary nonferrous smelter orders under section 7419 of this title (but not including 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 deterioration of air quality and protection of

visibility),

(K) promulgation or revision of regulations

under section 7521 of this title and test procedures 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 regulations promulgated under section 7541 of this

title (relating to warranties and compliance

by vehicles in actual use),

(N) action of the Administrator under section 7426 of this title (relating to interstate

pollution abatement),

(O) the promulgation or revision of any regulation pertaining to consumer and commercial products under section 7511b(e) of this

title,

(P) the promulgation or revision of any regulation pertaining to field citations under section 7413(d)(3) of this title,

(Q) the promulgation or revision of any regulation 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 regulation pertaining to nonroad engines or

nonroad vehicles under section 7547 of this

title,

(S) the promulgation or revision of any regulation relating to motor vehicle compliance

program fees under section 7552 of this title,

(T) the promulgation or revision of any regulation under subchapter IV–A of this chapter

(relating to acid deposition),

(U) the promulgation or revision of any regulation under section 7511b(f) of this title pertaining 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 expressly provided in this subsection, apply to actions to which this subsection applies. This subsection 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 Administrator 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 (identical) docket shall be simultaneously established in the appropriate regional office of the

Environmental Protection Agency.

(3) In the case of any rule to which this subsection 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 policy considerations underlying the proposed

rule.

The statement shall also set forth or summarize

and provide a reference to any pertinent findings, 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 recommendations, an explanation of the reasons for

such differences. All data, information, and documents referred to in this paragraph on which

the proposed rule relies shall be included in the

docket on the date of publication of the proposed rule.

(4)(A) The rulemaking docket required under

paragraph (2) shall be open for inspection by the

public at reasonable times specified in the notice 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 expenses, including personnel costs to do the copying.

(B)(i) Promptly upon receipt by the agency, all

written comments and documentary information on the proposed rule received from any person for inclusion in the docket during the comment period shall be placed in the docket. The

transcript of public hearings, if any, on the proposed 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 determines are of central relevance to the rulemaking 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 Management
Page 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 comments thereon by other agencies and all written

responses to such written comments by the Administrator 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 written comments thereon, all documents accompanying 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 subsection applies (i) the Administrator shall allow

any person to submit written comments, data,

or documentary information; (ii) the Administrator shall give interested persons an opportunity 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 information.

(6)(A) The promulgated rule shall be accompanied by (i) a statement of basis and purpose

like that referred to in paragraph (3) with respect to a proposed rule and (ii) an explanation

of the reasons for any major changes in the promulgated rule from the proposed rule.

(B) The promulgated rule shall also be accompanied by a response to each of the significant

comments, criticisms, and new data submitted

in written or oral presentations during the comment 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 consist 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 judicial 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 proposed. If the Administrator refuses to convene

such a proceeding, such person may seek review

of such refusal in the United States court of appeals for the appropriate circuit (as provided in

subsection (b) of this section). Such reconsideration 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 circuit (as provided in subsection (b) of this section) at the time of the substantive review of

the rule. No interlocutory appeals shall be permitted with respect to such procedural determinations. In reviewing alleged procedural errors, 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 discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory

right; or

(D) without observance of procedure required 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 sentence 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 authorized

Nothing in this chapter shall be construed to

authorize judicial review of regulations or orders of the Administrator under this chapter, except as provided in this section.

(f) Costs

In any judicial proceeding under this section,

the court may award costs of litigation (including reasonable attorney and expert witness fees)

whenever it determines that such award is appropriate.

(g) Stay, injunction, or similar relief in proceedings 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, injunctive, 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 of
§ 7607 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6432

6So in original. Probably should be ‘‘sections’’.

title 5, the Administrator in promulgating any

regulation under this chapter, including a regulation subject to a deadline, shall ensure a reasonable period for public participation of at

least 30 days, except as otherwise expressly provided in section6 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.)

REFERENCES IN TEXT

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 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 particular which is classified

to subsec. (d)(5) of section 7413 of this title. Section

7413(d) 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 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.

CODIFICATION

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.

PRIOR PROVISIONS

A prior section 307 of act July 14, 1955, was renumbered 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.

AMENDMENTS

1990—Subsec. (a). Pub. L. 101–549, §703, struck out par.

(1) designation at beginning, inserted provisions authorizing issuance of subpoenas and administration of

oaths for purposes of investigations, monitoring, reporting 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 section 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 section 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 regulations for enhanced monitoring and compliance certification programs under section 7414(a)(3) of this title,’’

before ‘‘or any other final action of the Administrator’’.

Pub. L. 101–549, §302(g), substituted ‘‘section 7412’’ for

‘‘section 7412(c)’’.

Subsec. (b)(2). Pub. L. 101–549, §707(h), inserted sentence at end authorizing challenge to deferrals of performance 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) generally. 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), redesignated 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 directed that subpar. (H) be amended by substituting

‘‘subchapter VI of this chapter’’ for ‘‘part B of subchapter I of this chapter’’, was executed by making the

substitution in subpar. (I), to reflect the probable intent 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), redesignated 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 redesignated former subpar. (N) as (U).

Subsec. (d)(1)(O) to (T). Pub. L. 101–549, §302(h), redesignated 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 subpar. (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 provision 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 relating 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 authorizing review under section 1857c–10(c)(2)(A), (B), or (C) to

the period prior to Aug. 7, 1977, and provisions authorizing review of denials or disapprovals by the Administrator under subchapter I of this chapter.

Pub. L. 95–95, §305(c), (h), inserted rules or orders issued under section 7420 of this title (relating to noncompliance penalties) and any other nationally applicable regulations promulgated, or final action taken,

by the Administrator under this chapter to the enumeration 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 Administrator 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, inserted 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 determination 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 regulations thereunder and substituted reference to the filing

of a petition within 30 days from the date of promulgation, 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 reference to section ‘‘7545(c)(3)’’ for ‘‘7545(c)(4)’’ of this

title.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

TERMINATION OF ADVISORY COMMITTEES

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 Appendix to Title 5, Government Organization and Employees.

PENDING ACTIONS AND PROCEEDINGS

Suits, actions, and other proceedings lawfully commenced 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.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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 requirements 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 competition or tendency to create a monopoly in any

line of commerce in any section of the country,

the Attorney General may so certify to a district 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.)

CODIFICATION

Section was formerly classified to section 1857h–6 of

this title.

PRIOR PROVISIONS

A prior section 308 of act July 14, 1955, was renumbered section 315 by Pub. L. 91–604 and is classified to

section 7615 of this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant to act July 14, 1955, the Clean Air Act, as in effect
§ 7609 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6434

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 provisions of the authority of the Administrator, contained in any (1) legislation proposed by any

Federal department or agency, (2) newly authorized 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 written comment shall be made public at the conclusion of any such review.

(b) Unsatisfactory legislation, action, or regulation

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 Environmental Quality.

(July 14, 1955, ch. 360, title III, §309, as added

Pub. L. 91–604, §12(a), Dec. 31, 1970, 84 Stat. 1709.)

CODIFICATION

Section was formerly classified to section 1857h–7 of

this title.

PRIOR PROVISIONS

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

1857l of this title, prior to repeal by section 306 of Pub.

L. 95–95. See section 7626 of this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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 responsibilities, under any other provision of law,

of the Administrator or any other Federal officer, 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; renumbered §310 and amended Pub. L. 91–604,

§§12(a), 15(c)(2), Dec. 31, 1970, 84 Stat. 1705, 1713.)

CODIFICATION

Section was formerly classified to section 1857i of

this title.

PRIOR PROVISIONS

A prior section 310 of act July 14, 1955, was renumbered 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 section were contained in section 1857f of this title, act

July 14, 1955, ch. 360, §7, 69 Stat. 323, prior to the general amendment of this chapter by Pub. L. 88–206.

AMENDMENTS

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.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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 chapter shall keep such records as the Administrator

shall prescribe, including records which fully

disclose the amount and disposition by such recipient of the proceeds of such assistance, the

total cost of the project or undertaking in connection 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 General of the United States, or any of their duly

authorized representatives, shall have access for
Page 6435 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7612

the purpose of audit and examinations to any

books, documents, papers, and records of the recipients that are pertinent to the grants received 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; renumbered §311 and amended Pub. L. 91–604,

§§12(a), 15(c)(2), Dec. 31, 1970, 84 Stat. 1705, 1713.)

CODIFICATION

Section was formerly classified to section 1857j of

this title.

AMENDMENTS

1970—Pub. L. 91–604, §15(c)(2), substituted ‘‘Administrator’’ for ‘‘Secretary’’ and ‘‘Secretary of Health, Education, and Welfare’’.

1967—Pub. L. 90–148 reenacted section without

change.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant 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 Analysis (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 Administrator 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 technology-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 emissions of sulfur dioxide or nitrogen oxides;

(5) a limitation under subchapter VI of this

chapter on the production of any ozone-depleting substance; and

(6) any other section of this chapter.

(b) Benefits

In describing the benefits of a standard described in subsection (a) of this section, the Administrator shall consider all of the economic,

public health, and environmental benefits of efforts 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 supported by specific data. The Administrator shall

assess how benefits are measured in order to assure that damage to human health and the environment 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 Administrator 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 described 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 members, the Administrator shall appoint recognized

experts in the fields of the health and environmental effects of air pollution, economic analysis, 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 analysis required under this section and make recommendations 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 methodology; and

(3) prior to the issuance of a report required

under subsection (d) or (e) of this section, review the findings of such report, and make

recommendations to the Administrator concerning the validity and utility of such findings.

(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.)
§ 7613 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6436

1So in original. Probably should be ‘‘section,’’.

CODIFICATION

Subsec. (e) of this section, which required the Administrator, in consultation with the Secretary of Commerce, 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.

AMENDMENTS

1990—Pub. L. 101–549 amended section generally, substituting present provisions for provisions which related to: in subsec. (a), detailed cost estimate, comprehensive cost and economic impact studies, and annual reevaluation; in subsec. (b), personnel study and report to

President and Congress; and in subsec. (c), cost-effectiveness analyses.

1977—Subsec. (c). Pub. L. 95–95 added subsec. (c).

1970—Pub. L. 91–604, §15(c)(2), substituted ‘‘Administrator’’ for ‘‘Secretary’’ wherever appearing.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

TERMINATION OF ADVISORY COUNCILS

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 President 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 otherwise 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 Appendix to Title 5, Government Organization and Employees.

EQUIVALENT AIR QUALITY CONTROLS AMONG TRADING

NATIONS

Section 811 of Pub. L. 101–549 provided that:

‘‘(a) FINDINGS.—The Congress finds that—

‘‘(1) all nations have the responsibility to adopt and

enforce effective air quality standards and requirements and the United States, in enacting this Act

[see Tables for classification], is carrying out its responsibility in this regard;

‘‘(2) as a result of complying with this Act, businesses in the United States will make significant capital investments and incur incremental costs in implementing control technology standards;

‘‘(3) such compliance may impair the competitiveness of certain United States jobs, production, processes, and products if foreign goods are produced

under less costly environmental standards and requirements 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) ACTION BY THE PRESIDENT.—

‘‘(1) IN 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 effects 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) ADDITIONAL REPORTING REQUIREMENTS.—(A) The

evaluation required under paragraph (1)(A) shall examine 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 adjustment measures) for reducing or eliminating competitive disadvantages caused by differences in standards and controls between the United States and each

of its major trading partners.

‘‘(3) PUBLIC 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) INTERIM REPORT.—Within 9 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 an interim report on the progress

being made in complying with paragraph (1).’’

GAO REPORTS ON COSTS AND BENEFITS

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, formerly §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, required annual report to Congress on progress of programs 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 subcontractors on projects assisted under this chapter shall be paid wages at rates not less than

those prevailing for the same type of work on

similar construction in the locality as determined 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 subsection,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

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

91–604, §§12(a), 15(c)(2), Dec. 31, 1970, 84 Stat. 1705,

1713.)

REFERENCES IN TEXT

Reorganization Plan Numbered 14 of 1950, referred to

in text, is set out in the Appendix to Title 5, Government Organization and Employees.

CODIFICATION

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 section of which enacted Title 40, Public Buildings, Property, and Works.

Section was formerly classified to section 1857j–3 of

this title.

AMENDMENTS

1970—Pub. L. 91–604, §15(c)(2), substituted ‘‘Administrator’’ for ‘‘Secretary’’ meaning the Secretary of

Health, Education, and Welfare.

§ 7615. Separability

If any provision of this chapter, or the application of any provision of this chapter to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances, 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.)

CODIFICATION

Section was formerly classified to section 1857k of

this title.

AMENDMENTS

1967—Pub. L. 90–148 reenacted section without

change.

§ 7616. Sewage treatment grants

(a) Construction

No grant which the Administrator is authorized to make to any applicant for construction

of sewage treatment works in any area in any

State may be withheld, conditioned, or restricted by the Administrator on the basis of

any requirement of this chapter except as provided 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 construction 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 expressly quantifies and provides for the increase 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 indirectly, an increase in emissions of any air

pollutant in excess of the increase provided

for under the provisions referred to in paragraph (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 interfere with, or be inconsistent with, the applicable 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 applies, the quantification of emissions referred to

in paragraph (2) shall include the emissions of

any such pollutant resulting directly or indirectly 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.)

REFERENCES IN TEXT

The National Environmental Policy Act, referred to

in subsec. (c), probably means the National Environmental 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.

PRIOR PROVISIONS

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; 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, authorized appropriations

for air pollution control, prior to repeal by section 306

of Pub. L. 95–95. See section 7626 of this title.

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set
§ 7617 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6438

1See 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 Administrator 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 subchapter 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 significant 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 section 7571 of this title.

Nothing in this section shall apply to any standard 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 Federal 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 rulemaking with respect to any standard or regulation to which this section applies, the Administrator shall prepare an economic impact assessment 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 availability together with an explanation of the extent and manner in which the Administrator has

considered the analysis contained in such economic impact assessment in proposing the action. The Administrator shall also provide such

an explanation in his notice of promulgation of

any regulation or standard referred to in subsection (a) of this section. Each such explanation 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 respect to any standard or regulation shall contain an analysis of—

(1) the costs of compliance with any such

standard or regulation, including extent to

which the costs of compliance will vary depending on (A) the effective date of the standard or regulation, and (B) the development of

less expensive, more efficient means or methods of compliance with the standard or regulation;

(2) the potential inflationary or recessionary

effects of the standard or regulation;

(3) the effects on competition of the standard or regulation with respect to small business;

(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 judgment of the Administrator taking into account

the time and resources available to the Environmental 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 carrying out his responsibility under this chapter

to protect public health and welfare; or

(3) to authorize or require any judicial review of any such standard or regulation, or

any stay or injunction of the proposal, promulgation, 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 Administrator under this section shall be treated as nondiscretionary duties for purposes of section

7604(a)(2) of this title, relating to citizen suits.

The sole method for enforcement of the Administrator’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 Administrator 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 treated for purposes of judicial review of any such

provision as conclusive with respect to compliance 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

1So in original. Probably should be ‘‘of’’.

2So in original. Probably should be followed by ‘‘in’’.

REFERENCES IN TEXT

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.

CODIFICATION

Another section 317 of act July 14, 1955, is set out as

a Short Title note under section 7401 of this title.

AMENDMENTS

1978—Subsec. (a)(1). Pub. L. 95–623 substituted ‘‘section 7411’’ for ‘‘section 7411(b)’’.

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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 interest.

§ 7619. Air quality monitoring

(a) In general

After notice and opportunity for public hearing, the Administrator shall promulgate regulations establishing an air quality monitoring system 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 stations in major urban areas and other appropriate areas throughout the United States to

provide monitoring such as will supplement

(but not duplicate) air quality monitoring carried out by the States required under any applicable 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 entities of the Federal Government (including the

National Weather Service) as the President may

deem appropriate. Any air quality monitoring

system required under any applicable implementation plan under section 7410 of this title shall,

as soon as practicable following promulgation of

regulations under this section, utilize the standard criteria and methodology, and measure air

quality according to the standard index, established under such regulations.

(b) Air quality monitoring data influenced by exceptional 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 preventable;

(iii) is an event caused by human activity 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 regulations 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 meteorological inversions;

(ii) a meteorological event involving

high temperatures or lack of precipitation;

or

(iii) air pollution relating to source noncompliance.

(2) Regulations

(A) Proposed regulations

Not later than March 1, 2006, after consultation with Federal land managers and

State air pollution control agencies, the Administrator shall publish in the Federal Register proposed regulations governing the review 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 promulgate 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 quality database that is accessible to the public;

(iv) the principle that each State must

take necessary measures to safeguard public 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 section shall, at a minimum, provide that—
§ 7620 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6440

1So 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 national 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 determining whether an event is exceptional;

and

(iv) there are criteria and procedures for

the Governor of a State to petition the Administrator to exclude air quality monitoring data that is directly due to exceptional 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 promulgated 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.)

AMENDMENTS

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 opportunity for public hearing’’, and added subsec. (b).

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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 conference, special attention shall be given to appropriate 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 appropriate Federal agencies, including the National Science Foundation; 1 the National Oceanic and Atmospheric Administration, and the

National Institute of Standards and Technology.

(c) Comments; transcripts

Interested persons shall be permitted to submit written comments and a verbatim transcript of the conference proceedings shall be

maintained.

(d) Promulgation and revision of regulations relating 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 quality 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.)

AMENDMENTS

1988—Subsec. (b). Pub. L. 100–418 substituted ‘‘National Institute of Standards and Technology’’ for ‘‘National Bureau of Standards’’.

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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 employment 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 allegedly 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, threatened with discharge or layoff, or whose employment is otherwise adversely affected or threatened to be adversely affected because of the alleged results of any requirement imposed or proposed to be imposed under this chapter, including any requirement applicable to Federal facilities 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 particularity the grounds for the request, and shall be

signed by the employee, or representative of

such employee, making the request. The Administrator shall thereupon investigate the matter

and, at the request of any party, shall hold public 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

1So in original. Probably should be ‘‘subsection,’’

quire the parties, including the employer involved, to present information relating to the

actual or potential effect of such requirements

on employment and the detailed reasons or justification therefor. If the Administrator determines 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 hearing, the hearing shall be on the record. Upon receiving the report of such investigation, the Administrator shall make findings of fact as to the

effect of such requirements on employment and

on the alleged actual or potential discharge, layoff, or other adverse effect on employment, and

shall make such recommendations as he deems

appropriate. Such report, findings, and recommendations shall be available to the public.

(c) Subpenas; confidential information; witnesses; 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 orders), 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 secret

processes of such owner, or operator, the Administrator 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 disclosed to other officers, employees, or authorized representatives of the United States concerned 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 contumacy or refusal to obey a subpena served upon

any person under this subparagraph,1 the district 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 requiring such person to appear and give testimony

before the Administrator, to appear and produce

papers, books, and documents before the Administrator, 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 modify 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.)

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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.

STUDY OF POTENTIAL DISLOCATION OF EMPLOYEES

Section 403(e) of Pub. L. 95–95 provided that the Secretary of Labor, in consultation with the Administrator, conduct a study of potential dislocation of employees 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, conditions, or privileges of employment because the

employee (or any person acting pursuant to a request of the employee)—

(1) commenced, caused to be commenced, or

is about to commence or cause to be commenced a proceeding under this chapter or a

proceeding for the administration or enforcement of any requirement imposed under this

chapter or under any applicable implementation plan,

(2) testified or is about to testify in any such

proceeding, or

(3) assisted or participated or is about to assist 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 Secretary 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 investigation of the violation alleged in the complaint. Within thirty days of the receipt of such

complaint, the Secretary shall complete such investigation and shall notify in writing the complainant (and any person acting in his behalf)

and the person alleged to have committed such

violation of the results of the investigation conducted 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 Secretary and the person alleged to have committed

such violation, issue an order either providing

the relief prescribed by subparagraph (B) or de-
§ 7623 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6442

1So in original.

nying the complaint. An order of the Secretary

shall be made on the record after notice and opportunity for public hearing. The Secretary may

not enter into a settlement terminating a proceeding on a complaint without the participation 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 occurred, 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 employment, and the Secretary may order such person

to provide compensatory damages to the complainant. If an order is issued under this paragraph, the Secretary, at the request of the complainant, shall assess against the person against

whom the order is issued a sum equal to the aggregate amount of all costs and expenses (including attorneys’ and expert witness fees) reasonably incurred, as determined by the Secretary, 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 petition for review must be filed within sixty days

from the issuance of the Secretary’s order. Review shall conform to chapter 7 of title 5. The

commencement of proceedings under this subparagraph1 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 review 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 enforce such order. In actions brought under this

subsection, the district courts shall have jurisdiction to grant all appropriate relief including,

but not limited to, injunctive relief, compensatory, and exemplary damages.

(e) Enforcement of order by person on whose behalf 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 issued 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 witness fees) to any party whenever the court determines such award is appropriate.

(f) Mandamus

Any nondiscretionary duty imposed by this

section shall be enforceable in a mandamus proceeding 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 without direction from his employer (or the employer’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.)

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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, established a National Commission on Air Quality, prescribed numerous subjects for study and report to Congress, enumerated specific questions for study and investigation, 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 Commission, appointment and compensation of staff, and

public participation.

EFFECTIVE DATE OF REPEAL

Section 1(c) of Pub. L. 96–300 provided that this section 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 containing results of all Commission studies and investigations and that Commission cease to exist on Mar. 1,

1981, if report is not submitted on Mar. 1, 1981, or Commission would cease to exist on such date, but not later

than May 1, 1981, as determined and ordered by Commission if report is submitted on Mar. 1, 1981.

NATIONAL COMMISSION ON AIR QUALITY; EXTENSION

PROHIBITION

Section 1(d) of Pub. L. 96–300 provided that nothing in

any other authority of law shall be construed to authorize or permit the extension of the National Commission 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 regulations). Except as provided in subsection (b) of
Page 6443 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7625

1See References in Text note below.

2So 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 product 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 installation of vapor recovery equipment over a

reasonable period (as determined in accordance

with such regulations), if the owner of such outlet does not sell, trade in, or otherwise dispense

any product at wholesale or retail at such outlet.

(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.)

PRIOR PROVISIONS

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.

AMENDMENTS

1980—Pub. L. 96–300, §1(b), which directed that last

sentence of this section be struck out was probably intended 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 necessary.’’ after ‘‘(j)’’ was not executed to this section because it did not contain a subsec. (j). See 1980 Amendment note above.

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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 marketers 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 business 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 provide, with respect to independent small business

marketers of gasoline, for a three-year phase-in

period for the installation of such vapor recovery 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 adopting 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 requirement which is adopted by a State and submitted to the Administrator as part of its implementation 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 installation of vapor recovery equipment under section

7624 1 of this title or under regulations of the Administrator, 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 affiliated (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, service 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 gasoline.

For the purpose of this section, the term ‘‘refiner’’ shall not include any refiner whose total

refinery capacity (including the refinery capacity 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 purposes 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.)

REFERENCES IN TEXT

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, respectively, by Pub. L. 96–300, §1(b), July 2, 1980, 94 Stat.

831, and are classified to sections 7624 and 7625, respectively, of this title.

PRIOR PROVISIONS

A prior section 324 of act July 14, 1955, was renumbered section 323 by Pub. L. 96–300 and is classified to

section 7624 of this title.
§ 7625–1 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6444

1So in original. Probably should be capitalized.

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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 Islands, the Administrator is authorized to exempt 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 national primary ambient air quality standard.

Such exemption may be granted if the Administrator finds that compliance with such requirement is not feasible or is unreasonable due to

unique geographical, meteorological, or economic factors of such territory, or such other

local factors as the Administrator deems significant. 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 Representatives and the Committees on Environment and

Public Works and on Energy and Natural Resources of the Senate upon receipt of any petition 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 December 8, 1983, is hereby exempted from:

(1) any requirement of the new source performance 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: Provided, That such exemption shall expire eighteen 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.)

PRIOR PROVISIONS

A prior section 325 of act July 14, 1955, was renumbered 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 renumbered section 324 by Pub. L. 96–300 and is classified

to section 7625 of this title.

AMENDMENTS

1994—Subsec. (a)(2). Pub. L. 103–437 substituted ‘‘Natural Resources’’ for ‘‘Interior and Insular Affairs’’ before ‘‘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 insertion in subsec. (a)(1) of this section to reflect the probable intent of Congress.

CHANGE OF NAME

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 Energy and Commerce of House of Representatives, and

jurisdiction over matters relating to securities and exchanges and insurance generally transferred to Committee on Financial Services of House of Representatives by House Resolution No. 5, One Hundred Seventh

Congress, Jan. 3, 2001.

§ 7625a. Statutory construction

The parenthetical cross references in any provision 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.)

PRIOR PROVISIONS

A prior section 326 of act July 14, 1955, was renumbered 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 necessary 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 revisions 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 amended 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

PRIOR PROVISIONS

Provisions similar to those in this section were contained in section 1857l 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.

AMENDMENTS

1990—Pub. L. 101–549 amended section generally, substituting present provisions for provisions authorizing

specific appropriations for certain programs and periods 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 ‘‘section 7403(a)(5)’’ for ‘‘section 7403(b)(5)’’.

EFFECTIVE DATE

Section effective Aug. 7, 1977, except as otherwise expressly 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 Secretary of the Interior and the Commandant of

the United States Coast Guard, the Administrator, 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 eastward of longitude 87 degrees and 30 minutes

(‘‘OCS sources’’) to attain and maintain Federal 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 boundary 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 controls, emission limitations, offsets, permitting, monitoring, testing, and reporting. New

OCS sources shall comply with such requirements on the date of promulgation and existing OCS sources shall comply on the date 24

months thereafter. The Administrator shall

update such requirements as necessary to

maintain consistency with onshore regulations 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 modify any other Federal, State, or local authorities with respect to air quality. Each requirement 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 unreasonable threat to health and safety. The Administrator shall make written findings explaining 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 possible. 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 onshore 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 included under this subsection may promulgate

and submit to the Administrator regulations

for implementing and enforcing the requirements 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 requirements. 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 Administrator determines that another area

with more stringent requirements with respect to the control and abatement of air

pollution may reasonably be expected to be

affected by such emissions. Such determination 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.
§ 7628 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6446

1So 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, construction, development, production, processing, and transportation. For purposes of this

subsection, emissions from any vessel servicing or associated with an OCS source, including 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 Continental 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 Borough of the State of Alaska, the Secretary shall

consult with the Administrator to assure coordination of air pollution control regulation for

Outer Continental Shelf emissions and emissions in adjacent onshore areas. Concurrently

with this obligation, the Secretary shall complete within 3 years of November 15, 1990, a research study examining the impacts of emissions from Outer Continental Shelf activities in

such areas that fail to meet the national ambient air quality standards for either ozone or nitrogen dioxide. Based on the results of this

study, the Secretary shall consult with the Administrator and determine if any additional actions 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 subsection (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.)

REFERENCES IN TEXT

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 subchapter III (§1331 et seq.) of chapter 29 of Title 43, Public Lands. For complete classification of this Act to the

Code, see Short Title note set out under section 1331 of

Title 43 and Tables.

AMENDMENTS

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 located 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 adjacent to the North Slope Borough of the State of Alaska’’ after ‘‘Alabama’’.

TRANSFER OF FUNCTIONS

For transfer of authorities, functions, personnel, and

assets of the Coast Guard, including the authorities

and functions of the Secretary of Transportation relating 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 Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set

out as a note under section 542 of Title 6.

CONGRESSIONAL STATEMENT OF PURPOSE

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 expeditious and orderly development of domestic energy resources in a manner that protects human health and

the environment.’’

EFFECT OF TRANSFER OF AIR QUALITY PERMITTING

AUTHORITY

Pub. L. 112–74, div. E, title IV, §432(d), Dec. 23, 2011,

125 Stat. 1049, provided that: ‘‘The transfer of air quality 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 demonstration program under which the Administrator shall provide competitive grants to assist local governments (such as municipalities

and counties), with respect to local government buildings—

(A) to deploy cost-effective technologies

and practices; and

(B) to achieve operational cost savings,

through the application of cost-effective
Page 6447 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7641

1So 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 activity 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 Administrator determine that the community is economically distressed, pursuant to objective

economic criteria established by the Administrator 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 establish—

(A) standards for monitoring and verification 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 government that receives a grant under this section shall achieve facility-wide cost savings,

through renovation of existing local government buildings using cost-effective technologies 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 supersedes 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 fiscal years 2007 through 2012.

(e) Reports

(1) In general

The Administrator shall provide annual reports 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 action.

(f) Termination

The program under this section shall terminate on September 30, 2012.

(g) Definitions

In this section, the terms ‘‘cost-effective technologies and practices’’ and ‘‘operating 1 cost

savings’’ shall have the meanings defined in section 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.)

EFFECTIVE DATE

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

CODIFICATION

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 investigation 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 effect on humans;

(D) effects of sporadic extreme noise (such as

jet noise near airports) as compared with constant noise;

(E) effect on wildlife and property (including

values);

(F) effect of sonic booms on property (including values); and

(G) such other matters as may be of interest

in the public welfare.

(b) Investigation techniques; report and recommendations

In conducting such investigation, the Administrator shall hold public hearings, conduct research, experiments, demonstrations, and studies. The Administrator shall report the results

of such investigation and study, together with

his recommendations for legislation or other action, 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-
§ 7642 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6448

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.)

CODIFICATION

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 necessary 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.)

CODIFICATION

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

CODIFICATION

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 chapter.

§ 7651. Findings and purposes

(a) Findings

The Congress finds that—

(1) the presence of acidic compounds and

their precursors in the atmosphere and in deposition from the atmosphere represents a

threat to natural resources, ecosystems, materials, visibility, and public health;

(2) the principal sources of the acidic compounds 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 national and international significance;

(4) strategies and technologies for the control 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 Americans will be adversely affected by delaying

measures to remedy the problem;

(6) reduction of total atmospheric loading of

sulfur dioxide and nitrogen oxides will enhance protection of the public health and welfare 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 reductions in annual emissions of sulfur dioxide of ten

million tons from 1980 emission levels, and, in

combination with other provisions of this chapter, of nitrogen oxides emissions of approximately two million tons from 1980 emission levels, in the forty-eight contiguous States and the

District of Columbia. It is the intent of this subchapter to effectuate such reductions by requiring compliance by affected sources with prescribed emission limitations by specified deadlines, which limitations may be met through alternative 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 prevention as a long-range strategy, consistent with

the provisions of this subchapter, for reducing

air pollution and other adverse impacts of energy 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.)

CODIFICATION

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.

ACID DEPOSITION STANDARDS

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 report on the feasibility and effectiveness of an acid deposition standard or standards to protect sensitive and

critically sensitive aquatic and terrestrial resources.

INDUSTRIAL SO2 EMISSIONS

Section 406 of Pub. L. 101–549 provided that:

‘‘(a) REPORT.—Not later than January 1, 1995 and

every 5 years thereafter, the Administrator of the Environmental 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 emission reduction in each year resulting from promulgation of the diesel fuel desulfurization regulations under

section 214 [42 U.S.C. 7548].

‘‘(b) 5.60 MILLION TON CAP.—Whenever the inventory

required by this section indicates that sulfur dioxide

emissions from industrial sources, including units subject 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 Administrator 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 revised standards of performance for new sources, including 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 performance for existing sources, including units subject

to section 405(g)(5) of the Clean Air Act, under authority of this section. For an existing source regulated

under this section, ‘standard of performance’ means a

standard which the Administrator determines is applicable to that source and which reflects the degree of

emission reduction achievable through the application

of the best system of continuous emission reduction
Page 6449 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651a

1So in original. The reference to ‘‘paragraph (3)’’ probably

should be to ‘‘subparagraph (C)’’.

2So 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) ELECTION.—Regulations promulgated under section 405(b) of the Clean Air Act [42 U.S.C. 7651d(b)] shall

not prohibit a source from electing to become an affected 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 Document No. 103–7.]

SENSE OF CONGRESS ON EMISSION REDUCTIONS COSTS

Section 407 of Pub. L. 101–549 provided that: ‘‘It is the

sense of the Congress that the Clean Air Act Amendments of 1990 [Pub. L. 101–549, see Tables for classification], 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.’’

MONITORING OF ACID RAIN PROGRAM IN CANADA

Section 408 of Pub. L. 101–549 provided that:

‘‘(a) REPORTS TO CONGRESS.—The Administrator of

the Environmental Protection Agency, in consultation

with the Secretary of State, the Secretary of Energy,

and other persons the Administrator deems appropriate, shall prepare and submit a report to Congress

on January 1, 1994, January 1, 1999, and January 1, 2005.

‘‘(b) CONTENTS.—The report to Congress shall analyze

the current emission levels of sulfur dioxide and nitrogen 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 nitrogen 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) COMPLIANCE.—Beginning on January 1, 1999, the

reports shall also assess the degree to which each province 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 requirements or limitations under this subchapter.

(3) The term ‘‘allowance’’ means an authorization, 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 commercial operation prior to January 1, 1985,

the baseline shall be the annual average

quantity of mmBtu’s consumed in fuel during calendar years 1985, 1986, and 1987, as recorded by the Department of Energy pursuant 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 Assessment Program (NAPAP) Emissions Inventory, 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 Administrator’s sole discretion, may exclude periods during which a unit is shutdown for a

continuous period of four calendar months

or longer, and make appropriate adjustments under this paragraph. Upon petition

of the owner or operator of any unit, the Administrator may make appropriate baseline

adjustments for accidents that caused prolonged outages.

(B) For any other nonutility unit that is

not included in the NAPAP Emissions Inventory, 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 consumed in fuel by that unit, as calculated

pursuant to a method which the administrator shall prescribe by regulation to be

promulgated not later than eighteen months

after November 15, 1990.

(C) The Administrator shall, upon application or on his own motion, by December 31,

1991, supplement data needed in support of

this subchapter and correct any factual errors 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 correct 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 subchapter, either—

(A) a statement that the source will comply with all applicable requirements under

this subchapter, or

(B) where applicable, a schedule and description of the method or methods for compliance and certification by the owner or operator that the source is in compliance with

the requirements of this subchapter.

(7) The term ‘‘continuous emission monitoring 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 emissions and flow (expressed in pounds per million

British thermal units (lbs/mmBtu), pounds per

hour (lbs/hr) or such other form as the Administrator may prescribe by regulations under

section 7651k of this title).
§ 7651a TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6450

3See References in Text note below. 4So 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 commenced commercial operation before November 15, 1990, which is modified, reconstructed,

or repowered after November 15, 1990, shall

continue to be an existing unit for the purposes of this subchapter. For the purposes of

this subchapter, existing units shall not include simple combustion turbines, or units

which serve a generator with a nameplate capacity of 25MWe or less.

(9) The term ‘‘generator’’ means a device

that produces electricity and which is reported as a generating unit pursuant to Department 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 replacement of an existing coal-fired boiler with one

of the following clean coal technologies: atmospheric or pressurized fluidized bed combustion, integrated gasification combined cycle,

magnetohydrodynamics, direct and indirect

coal-fired turbines, integrated gasification

fuel cells, or as determined by the Administrator, in consultation with the Secretary of

Energy, a derivative of one or more of these

technologies, and any other technology capable of controlling multiple combustion emissions simultaneously with improved boiler or

generation efficiency and with significantly

greater waste reduction relative to the performance of technology in widespread commercial use as of November 15, 1990. Notwithstanding 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 awarded clean coal technology demonstration funding 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 Columbia.

(15) The term ‘‘unit’’ means a fossil fuelfired combustion device.

(16) The term ‘‘actual 1985 emission rate’’,

for electric utility units means the annual sulfur dioxide or nitrogen oxides emission rate in

pounds per million Btu as reported in the

NAPAP Emissions Inventory, Version 2, National 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 generator 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 electricity 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 supplies, 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 nitrogen, applicable to the unit in 1985 or the limitation 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 million Btu, or the averaging period of that emissions 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 allowable 1985 emissions rate.

(19) The term ‘‘qualifying phase I technology’’ means a technological system of continuous emission reduction which achieves a

90 percent reduction in emissions of sulfur dioxide from the emissions that would have resulted from the use of fuels which were not

subject to treatment prior to combustion.

(20) The term ‘‘alternative method of compliance’’ means a method of compliance in accordance with one or more of the following authorities:

(A) a substitution plan submitted and approved 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 technology 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 undertaken a continuous program of construction or

that an owner or operator has entered into a

contractual obligation to undertake and complete, within a reasonable time, a continuous

program of construction.

(22) The term ‘‘commenced commercial operation’’ means to have begun to generate electricity for sale.
Page 6451 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651b

5So in original. Probably should be section ‘‘7651i(d)’’. 1So in original. No pars. (2) and (3) have been enacted.

(23) The term ‘‘construction’’ means fabrication, erection, or installation of an affected

unit.

(24) The term ‘‘industrial source’’ means a

unit that does not serve a generator that produces electricity, a ‘‘nonutility unit’’ as defined in this section, or a process source as defined 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 authorized by the owner or operator of a unit to represent the owner or operator in matters pertaining to the holding, transfer, or disposition

of allowances allocated to a unit, and the submission of and compliance with permits, permit applications, and compliance plans for the

unit.

(27) The term ‘‘life-of-the-unit, firm power

contractual arrangement’’ means a unit participation power sales agreement under which

a utility or industrial customer reserves, or is

entitled to receive, a specified amount or percentage of capacity and associated energy generated by a specified generating unit (or units)

and pays its proportional amount of such

unit’s total costs, pursuant to a contract either—

(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 purchase or re-lease some portion of the capacity and associated energy generated by the

unit (or units) at the end of the period.

(28) The term ‘‘basic Phase II allowance allocations’’ 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 allocations’’ 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, subsections (a)(2), (b)(2), (c)(4), (d)(3) (except as

otherwise provided therein), and (h)(2) of section 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.)

REFERENCES IN TEXT

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.

CODIFICATION

Another section 402 of act July 14, 1955, as added by

Pub. L. 91–604, §14, Dec. 31, 1970, 84 Stat. 1709, is classified to section 7641 of this title.

§ 7651b. Sulfur dioxide allowance program for existing 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 representative of the owner or operator of each affected

unit at an affected source in accordance with

this subchapter, in an amount equal to the annual tonnage emission limitation calculated

under section 7651c, 7651d, 7651e, 7651h, or 7651i of

this title except as otherwise specifically provided 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 allowances to emit sulfur dioxide pursuant to section 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 million 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 allowances, following the year for which they were allocated. If necessary to meeting the restrictions

imposed in the preceding sentence, the Administrator 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 7651o of this

title, the Administrator shall allocate allowances 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 terminate or otherwise affect the allocation of allowances pursuant to section 7651c or 7651d of

this title to which the unit is entitled. Allowances shall be allocated by the Administrator

without cost to the recipient, except for allowances sold by the Administrator pursuant to section 7651o of this title. Not later than December

31, 1991, the Administrator shall publish a proposed list of the basic Phase II allowance allocations, the Phase II bonus allowance allocations

and, if applicable, allocations pursuant to section 7651d(a)(3) of this title for each unit subject

to the emissions limitation requirements of section 7651d of this title for the year 2000 and the
§ 7651b TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6452

year 2010. After notice and opportunity for public 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 operator of an existing unit subject to the requirements 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 Administrator no later than March 31, 1991. Such

notification shall be used as the basis for estimating the basic Phase II allowances under this

subsection. Prior to June 1, 1998, the Administrator 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 extensions granted pursuant to section 7651h of this

title on such allocations. Any person who may

make an election concerning the amount of allowances to be allocated to a unit or units shall

make such election and so inform the Administrator 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 Administrator, 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 representatives of the owners or operators of affected

sources under this subchapter and any other person who holds such allowances, as provided by

the allowance system regulations to be promulgated by the Administrator not later than eighteen months after November 15, 1990. Such regulations shall establish the allowance system prescribed under this section, including, but not

limited to, requirements for the allocation,

transfer, and use of allowances under this subchapter. 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 allowances, and for such unused allowances to be

carried forward and added to allowances allocated in subsequent years, including allowances

allocated to units subject to Phase I requirements (as described in section 7651c of this title)

which are applied to emissions limitations requirements 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 issuance of such allowances. Recorded pre-allocation transfers shall be deducted by the Administrator 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 affect 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 Administrator shall furnish to the Congress a study

evaluating the environmental and economic

consequences of amending this subchapter to

permit trading sulfur dioxide allowances for nitrogen 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 allowances, which shall specify all necessary procedures and requirements for an orderly and

competitive functioning of the allowance system. All allowance allocations and transfers

shall, upon recordation by the Administrator, be

deemed a part of each unit’s permit requirements 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 temporary increases and decreases in emissions

within utility systems, power pools, or utilities

entering into allowance pool agreements, that

result from their operations, including emergencies and central dispatch, and such temporary 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 designated representative. Notwithstanding the

preceding sentence, the total tonnage of emissions 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 allowances 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 section, 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 subchapter. The owner or operator of any new utility 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 dioxide
Page 6453 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651c

2See References in Text note below.

in accordance with the provisions of this subchapter. 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 terminate or limit such authorization. Nothing in

this section relating to allowances shall be construed as affecting the application of, or compliance with, any other provision of this chapter to

an affected unit or source, including the provisions 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 (including 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 program 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 temporarily or permanently transferred in accordance 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 respect 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 affected unit shall provide that the affected unit

may not emit an annual tonnage of sulfur dioxide 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 regulations promulgated by the Administrator. It

shall be unlawful for any affected unit to emit

sulfur dioxide in excess of the number of allowances held for that unit for that year by the

owner or operator of the unit. Upon the allocation 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 section or in the allowance system regulations

shall relieve the Administrator of the Administrator’s permitting, monitoring and enforcement obligations under this chapter, nor relieve

affected sources of their requirements and liabilities 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 Regulatory 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 issuance of securities or the undertaking of any

other financing transaction in connection with

such allowances shall not be subject to the provisions 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.)

REFERENCES IN TEXT

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 classification of this Act to the Code, see section 791a of Title 16

and Tables.

The Public Utility Holding Company Act of 1935, referred to in subsec. (j), is title I of act Aug. 26, 1935, ch.

687, 49 Stat. 803, as amended, which was classified generally 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 classification of this Act to the Code, see Tables.

CODIFICATION

Another section 403 of act July 14, 1955, as added by

Pub. L. 91–604, §14, Dec. 31, 1970, 84 Stat. 1710, is classified to section 7642 of this title.

FOSSIL FUEL USE

Section 402 of title IV of Pub. L. 101–549 provided

that:

‘‘(a) CONTRACTS FOR HYDROELECTRIC ENERGY.—Any

person who, after the date of the enactment of the

Clean Air Act Amendments of 1990 [Nov. 15, 1990], enters into a contract under which such person receives

hydroelectric energy in return for the provision of electric energy by such person shall use allowances held by

such person as necessary to satisfy such person’s obligations under such contract.

‘‘(b) FEDERAL POWER MARKETING ADMINISTRATION.—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 hydroelectric facilities and marketed by such Power Marketing Administration. Any person who sells or provides

electric energy to a Federal Power Marketing Administration shall comply with the provisions and requirements of this title.’’

§ 7651c. Phase I sulfur dioxide requirements

(a) Emission limitations

(1) After January 1, 1995, each source that includes 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-
§ 7651c TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6454

1So 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 limitation stated as a total number of allowances in

table A for phase I, unless (A) the emissions reduction 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 limitations established in this section shall be superseded 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, liability for fulfilling the obligations specified in

section 7651j of this title.

(2) Not later than December 31, 1991, the Administrator 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 section, and shall establish a reserve of allowances

equal in amount to the number of tons determined thereby not to exceed a total of 3.50 million tons. In making such a determination, the

Administrator shall compute for each unit subject 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 emissions rate and its actual 1985 emissions rate,

divided by 2,000, and

(B) the product of each unit’s baseline multiplied 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 imposition of such requirements. Pursuant to subsection (d) of this section, the Administrator

shall allocate allowances from the reserve established hereinunder until the earlier of such time

as all such allowances in the reserve are allocated or December 31, 1999.

(3) In addition to allowances allocated pursuant to paragraph (1), in each calendar year beginning 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), allowances 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 paragraph (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 application 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 obligations 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 allowance allocation stated in table A;

(3) calculation of the annual average tonnage for calendar years 1985, 1986, and 1987,

emitted by the substitute unit or units, based

on the baseline for each unit, as defined in section 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 limitations that would be applicable to the original

and substitute affected units under the substitution 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 substitution; and

(6) such other information as the Administrator may require.

(c) Administrator’s action on substitution proposals

(1) The Administrator shall take final action

on such substitution proposal in accordance

with section 7651g(c) of this title if the substitution 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 subchapter. If a proposal does not meet the requirements of subsection (b) of this section, the Administrator shall disapprove it. The owner or

operator of a unit listed in table A shall not substitute 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 subchapter, and the Administrator shall issue a permit 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 accordance with the approved substitution proposal 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 substitution permit and plan unless the owner or operator of each unit governed by the permit and ap-
Page 6455 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651c

2So in original. Probably should be ‘‘unit’s’’. 3So in original. Probably should be ‘‘this’’.

proved substitution plan holds allowances to

emit not less than the units 2 total annual emissions. The owner or operator of any original or

substitute affected unit operated in violation of

this subsection shall be fully liable for such violation, including liability for fulfilling the obligations specified in section 7651j of this title. If

a substitution proposal is disapproved, the Administrator 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 Administrator in its permit application under section

7651g of this title for an extension of 2 years of

the deadline for meeting such requirement, provided 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 obligation to a unit employing a qualifying phase I

technology. Such transfer shall be accomplished

in accordance with a compliance plan, submitted 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 pursuant 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 Administrator approving the proposal, for the design

engineering, and construction of the qualifying 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, actual 1985 emissions rate, allowable 1985 emissions rate, and projected utilization for calendar 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 number 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 designate the unit or units as an eligible phase I extension unit. The Administrator may approve an

extension proposal in whole or in part, and with

such modifications or conditions as may be necessary, consistent with the orderly functioning

of the allowance system, and to ensure the emissions reductions contemplated by the 3 subchapter.

(4) In order to determine the number of proposals 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 remaining available in the reserve by the number

of allowances calculated according to subparagraphs (A), (B) and (C) until either no allowances 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 proposals have been acted upon by the Administrator, any pending proposals shall be disapproved. The Administrator shall calculate allowances equal to—

(A) the difference between the lesser of the

average annual emissions in calendar years

1988 and 1989 or the projected emissions tonnage 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 tonnage 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, exceeds (ii) the tonnage level specified under

subparagraph (E) of paragraph (2) of this subsection 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 calendar year 1995, the Administrator shall allocate

to each eligible Phase I extension unit, from the

allowance reserve created pursuant to subsection (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 eligible unit, from the allowance reserve created pursuant to subsection (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 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 approved extension plan, unless the owner or oper-
§ 7651c TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6456

4So in original. Probably should be ‘‘paragraph (1)’’.

5So in original. Probably should be ‘‘subsection’’.

6So in original. Probably should be ‘‘majeure’’.

7So in original. Probably should be ‘‘impracticability’’.

ator of each unit governed by the permit and approved plan holds allowances to emit not less

than the unit’s total annual emissions.

(6) In addition to allowances specified in paragraph (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 section, following the reduction in the reserve provided for in paragraph (4), not to exceed the

amount by which (A) the product of each eligible unit’s baseline times an emission rate of 1.20

lbs/mmBtu, divided by 2,000, exceeds (B) the tonnage level specified under subparagraph (E) of

paragraph (2) of this subsection.

(7) After January 1, 1997, in addition to any liability under this chapter, including under section 7651j of this title, if any eligible phase I extension unit employing qualifying phase I technology or any transfer unit under this subsection emits sulfur dioxide in excess of the annual tonnage limitation specified in the extension plan, as approved in paragraph (3) of this

subsection, the Administrator shall, in the calendar year following such excess, deduct allowances 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 authorization 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 generation 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 December 31, 1987, was below 50 percent, the Administrator shall allocate allowances under this paragraph for the unit pursuant to this subsection.

The Administrator shall allocate allowances for

a unit that is an affected unit pursuant to section 7651d of this title (but is not also an affected unit under this section) and part of a utility 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 requirements 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 allowances allocated under this subsection for

early reductions in any prior year may not exceed the amount which (A) the product of the

unit’s baseline multiplied by the unit’s 1985 actual sulfur dioxide emission rate (in lbs. per

mmBtu), divided by 2,000, exceeds (B) the allowances 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 allowances awarded under this subsection for

early reductions in any prior year may not exceed 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 lesser 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 concerned. Allowances allocated under this subsection for units referred to in subparagraph

(A) 4 may be allocated only for emission reductions 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

paragraph5 be interpreted as an event of force

majeur 6 or a commercial impractibility7 or in

any other way as a basis for excused nonperformance by a utility system under a coal

sales contract in effect before November 15, 1990.

TABLE A.—AFFECTED SOURCES AND UNITS IN PHASE I

AND THEIR SULFUR DIOXIDE ALLOWANCES (TONS)

State Plant Name Generator

Phase I

Allowances

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

35,670
Page 6457 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651c

TABLE A.—AFFECTED SOURCES AND UNITS IN PHASE I

AND THEIR SULFUR DIOXIDE ALLOWANCES (TONS)—CONTINUED

State Plant Name Generator

Phase I

Allowances

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

TABLE A.—AFFECTED SOURCES AND UNITS IN PHASE I

AND THEIR SULFUR DIOXIDE ALLOWANCES (TONS)—CONTINUED

State Plant Name Generator

Phase I

Allowances

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

40,470
§ 7651c TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6458

TABLE A.—AFFECTED SOURCES AND UNITS IN PHASE I

AND THEIR SULFUR DIOXIDE ALLOWANCES (TONS)—CONTINUED

State Plant Name Generator

Phase I

Allowances

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

TABLE A.—AFFECTED SOURCES AND UNITS IN PHASE I

AND THEIR SULFUR DIOXIDE ALLOWANCES (TONS)—CONTINUED

State Plant Name Generator

Phase I

Allowances

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 consultation with the Secretary of Energy, that increases the efficiency of the use of electricity 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 Administrator in consultation with the Secretary of Energy.

(C) Electric utility

The term ‘‘electric utility’’ means any person, 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 electric utility, during the applicable period,

through the use of qualified energy conservation 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 Conservation and Renewable Energy Reserve established under subsection (g) of this section, up to a total of 300,000 allowances for

allocation from such Reserve.

(B) Requirements for issuance

The Administrator shall allocate allowances to an electric utility under this subsection only if all of the following requirements 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 energy conservation measures or qualified

renewable energy are quantified in accordance with regulations promulgated by the

Administrator under this subsection.
Page 6459 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651c

8So 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, including new power supplies, energy conservation, 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 jurisdiction of a State regulatory authority

must have such plan approved by such authority. 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 conservation measures undertaken by a State

regulated electric utility, the Secretary of

Energy certifies that the State regulatory

authority with jurisdiction over the electric rates of such electric utility has established rates and charges which ensure

that the net income of such electric utility

after implementation of specific cost effective energy conservation measures is at

least as high as such net income would

have been if the energy conservation measures had not been implemented. Upon the

date of any such certification by the Secretary of Energy, all allowances which, but

for this paragraph, would have been allocated under subparagraph (A) before such

date, shall be allocated to the electric utility. This clause is not a requirement for

qualified renewable energy.

(v) Such utility or any subsidiary of the

utility’s holding company owns or operates 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 operated by the electric utility to which the allowances are allocated becomes subject to

this subchapter (including those sources

that elect to become affected by this subchapter, 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 conservation measures implemented and the

qualified renewable energy sources used

for purposes of avoiding emissions,8

(II) calculates, in accordance with subparagraphs (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 requirements of subparagraph (B) have been

met.

Such application for allowances by a

State-regulated electric utility shall require approval by the State regulatory authority with jurisdiction over such electric

utility. The authority shall review the application for accuracy and compliance

with this subsection and the rules under

this subsection. Electric utilities whose retail rates are not subject to the jurisdiction 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 otherwise have been supplied by the utility during such year in the absence of such qualified energy conservation measures, by

(ii) 0.004,

and dividing by 2,000.

(F) Avoided emissions from the use of qualified renewable energy

The emissions tonnage deemed avoided by

reason of the use of qualified renewable energy 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 energy conservation measures or renewable energy 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 this
§ 7651d TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6460

9So 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 energy conservation measures and qualified renewable energy for purposes of this subsection. Allowances shall only be allocated if

all requirements of this subsection and the

rules promulgated to implement this subsection 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 accordance 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 Conservation and Renewable Energy Reserve under this

subsection. Beginning on January 1, 1995, the

Administrator may allocate from the Conservation and Renewable Energy Reserve an amount

equal to a total of 300,000 allowances for emissions of sulfur dioxide pursuant to section 7651b

of this title. In order to provide 300,000 allowances 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 allowances 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 emissions 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 systems

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 emissions 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 calculated (i) as provided under section 7651a(d) 9

of this title, or (ii) by utilizing the unit’s average 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 allowance allocation shall be in lieu of any allocation 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 limitations or requirements of this section. Each utility unit subject to an annual sulfur dioxide tonnage 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 chapter for fulfilling the obligations specified in section 7651j of this title.

(2) In addition to basic Phase II allowance allocations, in each year beginning in calendar

year 2000 and ending in calendar year 2009, inclusive, 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 Administrator shall calculate, for each unit granted an

extension pursuant to section 7651h of this title

the difference between (A) the number of allowances 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, beginning in calendar year 2000 and ending in calendar year 2009, inclusive, the Administrator

shall deduct from each unit’s basic Phase II allowance allocation its pro rata share of 10 percent of the sum calculated pursuant to the preceding sentence.

(3) In addition to basic Phase II allowance allocations and Phase II bonus allowance allocations, beginning January 1, 2000, the Administrator 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, Indiana, Ohio, Georgia, Alabama, Missouri, Pennsylvania, West Virginia, Kentucky, or Tennessee

allowances in an amount equal to 50,000 multiplied 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 limitation in section 7651b(a) of this title.
Page 6461 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651d

1So 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 exceed 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 pursuant to paragraph (1) and section 7651b(a)(1) of

this title as basic Phase II allowance allocations, 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 capacity 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 difference, on a Btu basis, between the unit’s baseline and the unit’s fuel consumption at a 60 percent 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 exceeded 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 sulfur dioxide tonnage 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,

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 paragraph (1), which is located in a State with an installed electrical generating capacity of more

than 30,000,000 kw in 1988 and for which was issued a prohibition order or a proposed prohibition order (from burning oil), which unit subsequently 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 conversion, divided by 2,000, and (B) the number of allowances allocated for the unit pursuant to

paragraph (1): Provided, That the number of allowances allocated pursuant to this paragraph

shall not exceed an annual total of five thousand. If necessary to meeting the restriction imposed in the preceding sentence the Administrator shall reduce, pro rata, the annual allowances allocated for each unit under this paragraph.

(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 exceed an annual sulfur dioxide emissions 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) 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 limitation for sulfur dioxide equivalent to an annual rate of less than 1.20 lbs/mmBtu) and which

is a unit owned by a utility operating company

whose aggregate nameplate fossil fuel steamelectric capacity is, as of December 31, 1989, less

than 250 MWe, to exceed an annual sulfur dioxide tonnage emissions limitation equal to the

product of the unit’s baseline multiplied by the

lesser of its 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.

(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 emissions 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 capacity 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 limitation equal to the product of its baseline multiplied 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 requirements of this paragraph 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 operator holds allowances to emit

not less than the unit’s total annual emissions.

(4) In addition to allowances allocated pursuant to paragraph (1) and section 7651b(a)(1) of
§ 7651d TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6462

2So in original. This subsection does not contain a paragraph

(6).

this title as basic Phase II allowance allocations, 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 section in an amount equal to 1.20 lbs/mmBtu multiplied 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 factor.

(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 emissions rate equal to, or greater than, 1.20 lbs/

mmBtu which is part of an electric utility system which, as of November 15, 1990, (A) has at

least 20 percent of its fossil-fuel capacity controlled by flue gas desulfurization devices, (B)

has more than 10 percent of its fossil-fuel capacity 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, prepared for the United States Environmental Protection Agency on January 10, 1986) to exceed an

annual sulfur dioxide emissions tonnage limitation equal to the product of its baseline multiplied by an emissions rate of 2.5 lbs/mmBtu, divided 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 paragraph 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 operator 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 exceed 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 exceed an annual sulfur dioxide tonnage emissions

limitation equal to the product of the unit’s

baseline multiplied by (A) the lesser of its actual 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 operator of such unit holds allowances to emit not

less than the unit’s total annual emissions.

(3)(A) In addition to allowances allocated pursuant to paragraph (1) and section 7651b(a)(1) of

this title as basic Phase II allowance allocations, at the election of the designated representative of the operating company, 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 amount by which (i)

the product of the lesser of 0.60 lbs/mmBtu or

the unit’s allowable 1985 emissions rate multiplied by the unit’s baseline adjusted to reflect

operation at a 60 percent capacity factor, divided by 2,000, exceeds (ii) the number of allowances allocated for the unit pursuant to paragraph (1) and section 7651b(a)(1) of this title as

basic Phase II allowance allocations.

(B) In addition to allowances allocated pursuant to paragraph (2) and section 7651b(a)(1) of

this title as basic Phase II allowance allocations, at the election of the designated representative of the operating company, 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 (2) allowances from the reserve created 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 factor, 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 allowances as provided under subparagraphs (A) and

(B). Such election shall apply to the annual allowance allocation for each and every unit in

the operating company subject to the emissions

limitation requirements of this subsection. The

Administrator shall allocate allowances pursuant to subparagraphs (A) and (B) only in accordance with this subparagraph.

(4) Notwithstanding any other provision of

this section, at the election of the owner or operator, 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 requirements 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 percent
Page 6463 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651d

3So in original. The words ‘‘the Administrator shall,’’ probably

should not appear.

4So in original. Probably should not be capitalized.

5See References in Text note below.

capacity factor multiplied by the unit’s allowable 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 tonnage 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 average 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 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, 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) In addition to allowances allocated pursuant 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 utility 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 authority 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 commercial 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 consumption, on a Btu basis, at a 65 percent capacity factor 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 allowances to emit not less than the unit’s total annual 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 subsection, 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 Administrator shall allocate to the owner or operator of

any utility unit that commences commercial operation, or has commenced commercial operation, 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 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.

(4) Beginning January 1, 2000, the Administrator shall allocate to the owner or operator of

any utility unit that has commenced construction before December 31, 1990 and that commences commercial operation between January

1, 1993 and December 31, 1995, allowances in an

amount 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 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 existing operation to coal fired operation between

January 1, 1985 and December 31, 1987, for which

there has been allocated a proposed or final prohibition order pursuant to section 301(b) 5 of the

Powerplant and Industrial Fuel Use Act of 1978
§ 7651d TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6464

6So in original. Probably should be ‘‘seq.,’’.

7So in original. No subpar. (B) has been enacted.

8So in original. Probably should be preceded by a comma.

9So in original. Probably means clause ‘‘(C)’’.

(42 U.S.C. 8301 et seq,6 repealed 1987) to exceed an

annual sulfur dioxide tonnage emissions limitation 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 dioxide emissions rate, divided by 2,000, unless the

owner or operator of such unit has obtained allowances 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 defined in section 7651o of this title except 8 that

clause (iii) 9 of such definition in section 7651o 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 regulatory 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 previously offered or lower price and a power

sales agreement is executed within a reasonable period of time; or

(iv) the facility has been selected as a winning bidder in a utility competitive bid solicitation.

(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 average annual fuel consumption during the period

1980 through 1989 on a Btu basis exceeded 90 percent in the form of natural gas to exceed an annual 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 pursuant to paragraph (1) and section 7651b(a)(1) of

this title as basic Phase II allowance allocations, 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 pursuant to paragraph (1) and section 7651b(a)(1) of

this title, beginning January 1, 2010, the Administrator shall allocate annually for each unit

subject to the emissions limitation requirements 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 pursuant to this section and section 7651b(a)(1) of this

title as basic Phase II allowance allocations, beginning January 1, 2000, the Administrator shall

allocate annually allowances for each unit, subject 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 capacity 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 allocated for the unit pursuant to the emissions

limitation requirements of this section applicable to the unit adjusted to reflect the unit’s annual 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 allocated for the unit pursuant to the emissions

limitation requirements of this section: Provided, 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 allocated to each unit under this subsection.

(2) Beginning January 1, 2000, in addition to allowances 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 actual or allowable 1980 emissions rate has declined 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 whose

combined commercial and industrial kilowatthour sales have increased by more than 20 percent 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 allocated 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

1So in original. Probably should be ‘‘subsection’’. 1So in original. Probably should be followed by ‘‘or’’.

Provided, That the number of allowances allocated pursuant to this paragraph shall not exceed 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 additional allowances allocated to each unit pursuant to this paragraph.

(j) Certain municipally owned power plants

Beginning January 1, 2000, in addition to allowances 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 nameplate capacity equal to, or less than, 40 MWe,

the lesser of whose actual or allowable 1985 sulfur 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.)

REFERENCES IN TEXT

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 formerly classified to section 8341(b) of this title, was repealed 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 allocations, upon the election of the Governor of any

State, with a 1985 state-wide annual sulfur dioxide emissions rate equal to or less than, 0.80 lbs/

mmBtu, averaged over all fossil fuel-fired utility 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 allowance 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 paragraph1 (a) shall notify the

Administrator of such election. In the event

that the Governor of any such State fails to notify the Administrator of the Governor’s elections, the Administrator shall allocate allowances 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 provisions 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 program

(a) Applicability

On the date that a coal-fired utility unit becomes 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 SO2 reduction requirements, each such unit shall become an affected unit for purposes of this section and shall be subject to the emission limitations for nitrogen oxides set forth herein.

(b) Emission limitations

(1) Not later than eighteen months after November 15, 1990, the Administrator shall by regulation establish annual allowable emission limitations for nitrogen oxides for the types of utility 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 NOx 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 Administrator shall, by regulation, establish allowable

emission limitations on a lb/mmBtu, annual average 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 retrofit application of the best system of continuous emission reduction, taking into account

available technology, costs and energy and environmental impacts; and which is comparable to

the costs of nitrogen oxides controls set pursuant to subsection (b)(1) of this section. Not later

than January 1, 1997, the Administrator may revise the applicable emission limitations for tangentially fired and dry bottom, wall-fired boilers

(other than cell burners) to be more stringent if

the Administrator determines that more effective low NOx burner technology is available: Provided, That, no unit that is an affected unit pur-
§ 7651g TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6466

2So in original. No par. (2) has been enacted.

3See References in Text note below.

4So in original. Probably should be ‘‘subsections,’’.

5So 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 Administrator shall propose revised standards of performance to section 7411 of this title for nitrogen 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 improvements 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 established 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 NOx 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 determination upon a showing satisfactory to the

permitting authority, in accordance with regulations 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 period of time as the Administrator determines

through the regulations), and provides operating and monitoring data for such period demonstrating that the unit cannot meet the applicable 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 operating permit for the unit in question, in accordance with section 7651g of this title and part B 3

of title III—

(i) that permits the unit during the demonstration period referred to in subparagraph

(2) above, to emit at a rate in excess of the applicable 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 NOx

burners. Nothing in this section shall preclude

an owner or operator from installing and operating an alternative NOx control technology capable of achieving the applicable emission limitation. If the owner or operator of a unit subject

to the emissions limitation requirements of subsection (b)(1) of this section demonstrates to the

satisfaction of the Administrator that the technology necessary to meet such requirements is

not in adequate supply to enable its installation

and operation at the unit, consistent with system reliability, by January 1, 1995, then the Administrator shall extend the deadline for compliance for the unit by a period of 15 months.

Any owner or operator may petition the Administrator to make a determination under the previous sentence. The Administrator shall grant

or deny such petition within 3 months of submittal.

(e) Emissions averaging

In lieu of complying with the applicable emission 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 applicable emission limitations set pursuant to

these sections,4 may petition the permitting authority 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 averaged over the units in question is a rate that is

less than or equal to (2) the Btu-weighted average 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 accordance with regulations issued by the Administrator not later than eighteen months after

November 15, 1990; 5 that the conditions in the

paragraph above can be met, the permitting authority shall issue operating permits for such

units, in accordance with section 7651g of this

title and part B 3 of title III, that allow alternative contemporaneous annual emission limitations. Such emission limitations shall only remain in effect while both units continue operation under the conditions specified in their respective 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.)

REFERENCES IN TEXT

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 implemented, 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

1So in original. Probably should be followed by a comma.

2So in original. Section 7651a of this title does not contain subsections.

chapter (and enforced) in accordance with the

provisions of subchapter V of this chapter, as

modified by this subchapter. Any such permit issued by the Administrator, or by a State with

an approved permit program, shall prohibit—

(1) annual emissions of sulfur dioxide in excess of the number of allowances to emit sulfur dioxide the owner or operator, or the designated representative of the owners or operators, 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, notwithstanding subchapter V of this chapter. No permit 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 accompanied by a compliance plan for the source

to comply with its requirements under this subchapter. 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 considered a ‘‘facility’’. Nothing in this section regarding compliance plans or in subchapter V of this

chapter shall be construed as affecting allowances. Except as provided under subsection

(c)(1)(B) of this section, submission of a statement by the owner or operator, or the designated representative of the owners and operators, of a unit subject to the emissions limitation requirements of sections 7651c, 7651d, and

7651f of this title, that the unit will meet the applicable 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 approved compliance planning requirements of

this section and subchapter V of this chapter,

except that, for any unit that will meet the requirements of this subchapter by means of an alternative 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 Administrator, for each alternative method of compliance a comprehensive description of the schedule and means by which the unit will rely on one

or more alternative methods of compliance in

the manner and time authorized under this subchapter. Recordation by the Administrator of

transfers of allowances shall amend automatically all applicable proposed or approved permit

applications, compliance plans and permits. The

Administrator may also require—

(1) for a source, a demonstration of attainment of national ambient air quality standards, and

(2) from the owner or operator of two or

more affected sources, an integrated compliance plan providing an overall plan for achieving compliance at the affected sources.

(c) First phase permits

The Administrator shall issue permits to affected 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 operator, of each affected source under sections

7651c and 7651f of this title shall submit a permit 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 enforceable 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 section by reducing utilization of the unit as

compared with its baseline or by shutting

down the unit, the owner or operator shall include in the proposed compliance plan a specification of the unit or units that will provide

electrical generation to compensate for the reduced output at the affected source, or a demonstration 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 sections 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 proposed 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 prescribes as part of such disapproval.
§ 7651g TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6468

(3) Regulations; issuance of permits

Not later than 18 months after November 15,

1990, the Administrator shall promulgate regulations, in accordance with subchapter V of

this chapter, to implement a Federal permit

program to issue permits for affected sources

under this subchapter. Following promulgation, 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 operator of each affected source under section

7651c of this title. Such a permit shall supersede 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 section 7661a(b)(3) of this title or under section

7410(a)(2)(L) of this title with respect to emissions 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 nitrogen oxide emission reductions under section

7651f of this title, each State in which one or

more such units or sources are located shall submit in accordance with subchapter V of this

chapter, a permit program for approval as provided by that subchapter. Upon approval of such

program, for the units or sources subject to such

approved program the Administrator shall suspend the issuance of permits as provided in subchapter V of this chapter.

(2) The owner or operator or the designated

representative of each affected source under section 7651d of this title shall submit a permit application and compliance plan for that source to

the permitting authority, not later than January 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 operators, 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 application and compliance plan pursuant to paragraph (2). In the case of a State without an approved permit program by July 1, 1996, the Administrator 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 thereto, 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 (relating 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 dioxide in excess of the number of allowances to

emit sulfur dioxide the owner or operator or designated representative hold for the unit.

(e) New units

The owner or operator of each source that includes a new electric utility steam generating

unit shall submit a permit application and compliance plan to the permitting authority not

later than 24 months before the later of (1) January 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 subchapter V of this chapter and this subchapter.

(f) Units subject to certain other limits

The owner or operator, or designated representative 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 requirements of subchapter V of this chapter and this

subchapter, including any appropriate monitoring and reporting requirements.

(g) Amendment of application and compliance

plan

At any time after the submission of an application and compliance plan under this section,

the applicant may submit a revised application

and compliance plan, in accordance with the requirements 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 operator, or designated representative, required to

submit a permit application or compliance plan

under this subchapter to fail to submit such application or plan in accordance with the deadlines specified in this section or to otherwise fail

to comply with regulations implementing this

section.

(2) It shall be unlawful for any person to operate any source subject to this subchapter except

in compliance with the terms and requirements

of a permit application and compliance plan (including amendments thereto) or permit issued

by the Administrator or a State with an approved 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

1So 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 approved 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 representative of the owners or operators has filed a certificate 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 purchases

power from an affected unit (or units) under lifeof-the-unit, firm power contractual arrangements, the certificate shall state (1) that allowances and the proceeds of transactions involving

allowances will be deemed to be held or distributed in proportion to each holder’s legal, equitable, 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 accordance 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, equitable, 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 expressly 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 received 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 emissions limitation requirements of section 7651d(b)

and (c) of this title may demonstrate to the permitting authority that one or more units will be

repowered with a qualifying clean coal technology to comply with the requirements under

section 7651d of this title. The owner or operator

shall, as part of any such demonstration, provide, not later than January 1, 2000, satisfactory

documentation of a preliminary design and engineering effort for such repowering and an executed and binding contract for the majority of

the equipment to repower such unit and such

other information as the Administrator may require by regulation. The replacement of an existing 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 different 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 operation.

(b) Extension

(1) An owner or operator satisfying the requirements of subsection (a) of this section shall

be granted an extension of the emission limitation 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 section shall not be eligible for a waiver under section 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 paragraph (1) in order to repower such unit with a

clean coal unit, and (B) such owner or operator

demonstrates to the satisfaction of the Administrator that the repowering technology to be utilized 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 technologically infeasible, such existing unit may be

retrofitted or repowered with equipment or facilities 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 affected unit’s baseline multiplied by the lesser of

the unit’s federally approved State Implementation Plan emissions limitation or its actual

emission rate for 1995 in lieu of any other allocation. Such allowances may not be transferred or

used by any other source to meet emission requirements under this subchapter. The source

owner or operator shall notify the Administrator sixty days in advance of the date on

which the affected unit for which the extension

has been granted is to be removed from operation 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 1.20
§ 7651i TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6470

2So in original. Probably should be ‘‘this’’.

lbs/mmBtu, divided by 2,000, and prorated accordingly, 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 replacement unit which replaces an existing unit

(as provided in the last sentence of subsection

(a) of this section) in lieu of any further allocations 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 period as holding allowances allocated under paragraph (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 standard of performance under section 7411 of this

title. Notwithstanding the provisions of this

subsection, no new unit (1) designated as a replacement for an existing unit, (2) qualifying for

the extension under subsection (b) of this section, 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 applicable, the Administrator, are encouraged to give

expedited consideration to permit applications

under parts C and D of subchapter I of this chapter 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 section, 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 section, that emits sulfur dioxide, may elect to designate that unit or source to become an affected

unit and to receive allowances under this subchapter. An election shall be submitted to the

Administrator for approval, along with a permit

application and proposed compliance plan in accordance with section 7651g of this title. The Administrator shall approve a designation that

meets the requirements of this section, and such

designated unit, or source, shall be allocated allowances, 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 Administrator 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 dioxide 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 program 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 accordance 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, 7651l, 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 carried 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 allowances 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 compliance
Page 6471 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651j

1So in original. Probably should be ‘‘section’’.

1So in original. Probably should be ‘‘section’’.

2See References in Text note below.

3So in original. Probably should be ‘‘occurred,’’.

4So 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 subsection1 7545(i)

of this title.

(1) Allowance period

Allowances may be allocated under this subsection only for the period from October 1,

1993, through December 31, 1999.

(2) Allowance determination

The number of allowances allocated pursuant to this paragraph shall equal the annual

number of pounds of sulfur dioxide reduction

attributable to desulfurization by a small refinery divided by 2,000. For the purposes of this

calculation, the concentration of sulfur removed from diesel fuel shall be the difference

between 0.274 percent (by weight) and 0.050 percent (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 reported 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 allowances allocated pursuant to this subsection

shall not exceed thirty-five thousand.

(6) Required certification

The Administrator shall not allocate any allowances pursuant to this subsection unless

the owner or operator of a small diesel refinery 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 subsection1

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 oxides 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 calendar 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 calculated on the basis of the number of tons emitted 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 regulations 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 Miscellaneous 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 offset the excess emissions by an equal tonnage

amount in the following calendar year, or such

longer period as the Administrator may prescribe. 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 proposed 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 deduct allowances equal to the excess tonnage

from those allocated for the source for the calendar 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.
§ 7651k TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6472

(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 provide, and thereafter comply with, a compliance

plan as required by subsection (b) of this section, 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.)

REFERENCES IN TEXT

The Miscellaneous Receipts Act, referred to in subsec. (a), is not a recognized popular name for an act.

For provisions relating to deposit of monies, see section 3302 of Title 31, Money and Finance.

§ 7651k. Monitoring, reporting, and recordkeeping 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 requirements for CEMS, for any alternative monitoring system that is demonstrated as providing information with the same precision, reliability, accessibility, and timeliness as that provided by CEMS, and for recordkeeping and reporting 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 contemplated 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 November 15, 1990, the owner or operator of each affected unit under section 7651c of this title, including, but not limited to, units that become

affected units pursuant to subsections (b) and (c)

and eligible units under subsection (d), shall install 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 previously 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 commercial operation of each new utility unit, the unit

shall comply with the requirements of subsection (a).

(d) Unavailability of emissions data

If CEMS data or data from an alternative

monitoring system approved by the Administrator under subsection (a) is not available for

any affected unit during any period of a calendar year in which such data is required under

this subchapter, and the owner or operator cannot provide information, satisfactory to the Administrator, on emissions during that period,

the Administrator shall deem the unit to be operating in an uncontrolled manner during the

entire period for which the data was not available and shall, by regulation which shall be issued not later than eighteen months after November 15, 1990, prescribe means to calculate

emissions for that period. The owner or operator

shall be liable for excess emissions fees and offsets under section 7651j of this title in accordance 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 section of this chapter.

(e) Prohibition

It shall be unlawful for the owner or operator

of any source subject to this subchapter to operate a source without complying with the requirements 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.)

INFORMATION GATHERING ON GREENHOUSE GASES

CONTRIBUTING TO GLOBAL CLIMATE CHANGE

Section 821 of Pub. L. 101–549 provided that:

‘‘(a) MONITORING.—The Administrator of the Environmental Protection Agency shall promulgate regulations within 18 months after the enactment of the

Clean Air Act Amendments of 1990 [Nov. 15, 1990] to require 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 carbon 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 Administrator. 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 section 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) PUBLIC AVAILABILITY OF CARBON DIOXIDE INFORMATION.—For each unit required to monitor and provide

carbon dioxide data under subsection (a), the Administrator 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

1So in original.

1So in original. Probably should be section ‘‘7651a(12)’’.

2See References in Text note below.

3So in original. Probably should be ‘‘with’’.

§ 7651l. General compliance with other provisions

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 compliance 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, requirement of, or regulation promulgated pursuant to this subchapter shall be a violation of

this chapter.1 In addition to the other requirements and prohibitions provided for in this subchapter, 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 incentives

(a) ‘‘Clean coal technology’’ defined

For purposes of this section, ‘‘clean coal technology’’ means any technology, including technologies applied at the precombustion, combustion, or post combustion stage, at a new or existing facility which will achieve significant reductions in air emissions of sulfur dioxide or oxides 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 operational changes to existing facilities for the

sole purpose of installation, operation, cessation, or removal of a temporary or permanent 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 Environmental Protection Agency. The Federal

contribution for a qualifying project shall be

at least 20 percent of the total cost of the demonstration project.

(2) Temporary projects

Installation, operation, cessation, or removal 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 maintain the national ambient air quality standards during and after the project is terminated, shall not subject such facility to the requirements 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 demonstration 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 requirements 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 regulations or interpretive rulings to revise requirements under section 7411 of this title and

parts C and D,2 as appropriate, to facilitate

projects consistent in3 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 revisions 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 [November 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 dioxide of no less than 85 percent and a removal

efficiency for particulates of no less than 98 percent, (3) is equipped with low-NOx burners prior

to the time of commencement, and (4) is otherwise 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.)

REFERENCES IN TEXT

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.
§ 7651o TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6474

1See References in Text note below.

§ 7651o. Contingency guarantee, auctions, reserve

(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 production 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 Energy 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 obtain allowances from the affiliate; and

(D) is a new unit required to hold allowances 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 establishing a Special Allowance Reserve containing 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 allowance allocation of allowances for each year beginning 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 allowance sales under this subsection. The allowances so withheld shall be deposited in the Reserve 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 Allowance Reserve established under this section.

The Direct Sale Subaccount shall contain allowances 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 offered 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 purchase allowances from the Direct Sale Subaccount established under paragraph (1) shall

be approved in the order of receipt until no allowances remain in such subaccount, except

that an opportunity to purchase such allowances 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 approval of the request to purchase. The remainder shall be paid on or before the transfer of

the allowances.

TABLE 1—NUMBER OF ALLOWANCES AVAILABLE FOR SALE

AT $1,500 PER TON

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 allowances 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 submits an application to the Administrator establishing that such independent power producer—

(A) proposes to construct a new independent power production facility for which allowances are required under this subchapter;

(B) will apply for financing to construct

such facility after January 1, 1990, and before the date of the first auction under this

section;

(C) has submitted to each owner or operator 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 subparagraph (C)) an acceptance of the offer to purchase the required allowances,

shall, within 30 days after submission of such

application, be entitled to receive the Administrator’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 calendar year 1990.

(4) Eligibility requirements

The guarantee issued by the Administrator

under paragraph (3) shall be subject to a demonstration by the independent power producer,

satisfactory to the Administrator, that—
Page 6475 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651o

(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 allowances will be allocated, including efforts 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 unsuccessful in obtaining the required allowances;

and

(B) the independent power producer will

continue to make good faith efforts to purchase the required allowances from the owners or operators of affected units and from

industrial sources.

(5) Issuance of guaranteed allowances from Direct Sale Subaccount under this section

From the allowances available in the Direct

Sale Subaccount established under this subsection, upon payment of the guaranteed

price, the Administrator shall issue to any

person exercising the right to purchase allowances pursuant to a guarantee under this subsection the allowances covered by such guarantee. Persons to which guarantees under this

subsection have been issued shall have the opportunity 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 affected 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 established 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 Administrator.

(7) Termination of subaccount

If the Administrator determines that, during

any period of 2 consecutive calendar years,

less than 20 percent of the allowances available in the subaccount for direct sales established under this subsection have been purchased under this paragraph, the Administrator shall terminate the subaccount and

transfer such allowances to the Auction Subaccount under subsection (d) of this section.

(d) Auction sales

(1) Subaccount for auctions

The Administrator shall establish an Auction Subaccount in the Special Reserve established under this section. The Auction Subaccount 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 thereafter, the Administrator shall conduct auctions at which the allowances referred to in

paragraph (1) shall be offered for sale in accordance with regulations promulgated by the

Administrator, in consultation with the Secretary 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 purchase specified numbers of allowances at specified prices. Such regulations shall specify

that the auctioned allowances shall be allocated and sold on the basis of bid price, starting 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.

TABLE 2—NUMBER OF ALLOWANCES AVAILABLE FOR

AUCTION

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 allowances 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 subsection (b) of this section. No funds transferred from a purchaser to a seller of allowances 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 rata
§ 7661 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6476

1So 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 Administrator 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 allowances for sale. The holder of allowances offered for sale under this paragraph may specify a minimum sale price. Any person may purchase allowances offered for auction under

this paragraph. Such allowances shall be allocated and sold to purchasers on the basis of

bid price after the auction under paragraph (2)

is complete. No funds transferred from a purchaser to a seller of allowances 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.

(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 auction 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 Administrator 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 number of allowances withheld and sold under this

section.

(f) Termination of auctions

The Administrator may terminate the withholding of allowances and the auction sales

under this section if the Administrator determines that, during any period of 3 consecutive

calendar years after 2002, less than 20 percent of

the allowances available in the auction subaccount have been purchased. Pursuant to regulations under this section, the Administrator

may by delegation or contract provide for the

conduct of sales or auctions under the Administrator’s supervision by other departments or

agencies of the United States Government or by

nongovernmental agencies, groups, or organizations.

(July 14, 1955, ch. 360, title IV, §416, as added

Pub. L. 101–549, title IV, §401, Nov. 15, 1990, 104

Stat. 2626.)

REFERENCES IN TEXT

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 stationary 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 subchapter 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 implementation plan, emission standard, emission 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 subchapter.

(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 comment) which shall include a finding setting forth

the basis for such designation, except in compliance with a permit issued by a permitting authority under this subchapter. (Nothing in this

subsection shall be construed to alter the applicable requirements of this chapter that a permit

be obtained before construction or modification.) The Administrator may, in the Administrator’s discretion and consistent with the applicable provisions of this chapter, promulgate

regulations to exempt one or more source categories (in whole or in part) from the requirements of this subsection if the Administrator
Page 6477 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7661a

2So in original. Probably should be ‘‘clauses’’.

finds that compliance with such requirements is

impracticable, infeasible, or unnecessarily burdensome on such categories, except that the Administrator may not exempt any major source

from such requirements.

(b) Regulations

The Administrator shall promulgate within 12

months after November 15, 1990, regulations establishing 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, including a standard application form and criteria 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 requirement 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 requirements of this subchapter, including section

7661f of this title, including the reasonable

costs of—

(i) reviewing and acting upon any application for such a permit,

(ii) if the owner or operator receives a permit for such source, whether before or after

November 15, 1990, implementing and enforcing 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 regulations, or guidance,

(v) modeling, analyses, and demonstrations, and

(vi) preparing inventories and tracking

emissions.

(B) The total amount of fees collected by the

permitting authority shall conform to the following 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 subparagraphs 2 (ii) through (v) of this subparagraph, the program will result in the collection, in the aggregate, from all sources subject to subparagraph (A), of an amount not

less than $25 per ton of each regulated pollutant, or such other amount as the Administrator 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 volatile organic compound; (II) each pollutant

regulated under section 7411 or 7412 of this

title; and (III) each pollutant for which a national primary ambient air quality standard

has been promulgated (except that carbon

monoxide shall be excluded from this reference).

(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 pollutant.

(iv) The requirements of clause (i) shall

not apply if the permitting authority demonstrates 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 Consumer Price Index for the calendar year 1989.

For purposes of this clause—

(I) the Consumer Price Index for any calendar year is the average of the Consumer

Price Index for all-urban consumers published 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 provisions of the operating permit program do

not meet the requirements of this paragraph,

or if the Administrator makes a determination, under subsection (i) of this section, that

the permitting authority is not adequately administering or enforcing an approved fee program, 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 subparagraph 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 collected under this subparagraph 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,

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.
§ 7661a TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6478

3So in original. A closing parenthesis probably should precede

the colon.

(5) A requirement that the permitting authority have adequate authority to:

(A) issue permits and assure compliance by

all sources required to have a permit under

this subchapter with each applicable standard, 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 implementation plan;

(D) terminate, modify, or revoke and reissue permits for cause;

(E) enforce permits, permit fee requirements, and the requirement to obtain a permit, 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 offering 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 judicial review in State court of the final permit

action by the applicant, any person who participated in the public comment process, and

any other person who could obtain judicial review 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 purposes of obtaining judicial review in State

court of an action brought by any person referred to in paragraph (6) to require that action be taken by the permitting authority on

such application without additional delay.

(8) Authority, and reasonable procedures

consistent with the need for expeditious action by the permitting authority on permit applications and related matters, to make available 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 authority, in the case of permits with a term of

3 or more years for major sources, shall require revisions to the permit to incorporate

applicable standards and regulations promulgated under this chapter after the issuance of

such permit. Such revisions shall occur as expeditiously as practicable and consistent with

the procedures established under paragraph (6)

but not later than 18 months after the promulgation 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 renewal 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 requiring a permit revision, if the changes are

not modifications under any provision of subchapter 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 Provided, That the facility provides the Administrator and the permitting authority with written 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 emergencies.

(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 program under State or local law or under an interstate compact meeting the requirements of this

subchapter. In addition, the Governor shall submit 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, locality, or the interstate compact provide adequate authority to carry out the program. Not

later than 1 year after receiving a program, and

after notice and opportunity for public comment, the Administrator shall approve or disapprove 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 program is disapproved, in whole or in part, the Administrator shall notify the Governor of any revisions or modifications necessary to obtain approval. 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 program 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 expiration of the 18-month period referred to in

subparagraph (B), in the Administrator’s discretion, apply any of the sanctions specified in section 7509(b) of this title.

(B) If the Governor does not submit a program

as required under paragraph (1), or if the Administrator disapproves any such program submitted 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 Administrator shall apply sanctions under section

7509(b) of this title in the same manner and subject 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 paragraph 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, administer, and enforce a program under this subchapter 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 section, but may, in such notice, retain jurisdiction

over permits that have been federally issued,

but for which the administrative or judicial review process is not complete. The Administrator

shall continue to administer and enforce federally issued permits under this subchapter until

they are replaced by a permit issued by a permitting 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 subchapter IV–A of this chapter applicable to ‘‘affected sources’’.

(2) All requirements established under section 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 permit 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 sanctions under this chapter for failure to submit an

approvable permit program.

(g) Interim approval

If a program (including a partial permit program) submitted under this subchapter substantially meets the requirements of this subchapter, but is not fully approvable, the Administrator 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 Administrator not later than 2 years after such approval, and may not be renewed. For the period

of any such interim approval, the provisions of

subsection (d)(2) of this section, and the obligation of the Administrator to promulgate a program under this subchapter for the State pursuant to subsection (d)(3) of this section, shall be

suspended. Such provisions and such obligation

of the Administrator shall apply after the expiration of such interim approval.

(h) Effective date

The effective date of a permit program, or partial or interim program, approved under this

subchapter, shall be the effective date of approval 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 determination that a permitting authority is not

adequately administering and enforcing a program, or portion thereof, in accordance with the

requirements of this subchapter, the Administrator shall provide notice to the State and

may, prior to the expiration of the 18-month period referred to in paragraph (2), in the Administrator’s discretion, apply any of the sanctions

specified in section 7509(b) of this title.

(2) Whenever the Administrator makes a determination that a permitting authority is not

adequately administering and enforcing a program, 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 conditions as are applicable in the case of a determination, 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 subsection in any area unless the failure to adequately enforce and administer the program relates 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 deficiency within 18 months after the date of such

finding, the Administrator shall, 2 years after

the date of such finding, promulgate, administer, and enforce a program under this subchapter for that State. Nothing in this paragraph 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 Administrator 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—
§ 7661c TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6480

(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 reports to the permitting authority no less frequently 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 deviations from permit requirements to the permitting 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 authority a compliance plan and an application for a

permit signed by a responsible official, who shall

certify the accuracy of the information submitted. The permitting authority shall approve or

disapprove a completed application (consistent

with the procedures established under this subchapter 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 applications submitted within the first full year after

the effective date of a permit program (or a partial or interim program). Any such schedule

shall assure that at least one-third of such permits 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 approval or disapproval actions in the case of applications for construction or modification

under the applicable requirements of this chapter.

(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 applicant has submitted a timely and complete application for a permit required by this subchapter (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 applicant 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 required to submit an application under subsection (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, certification, 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 disclosure under section 7414(c) of this title, the applicant 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 protection 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 requirement that the permittee submit to the permitting authority, no less often than every 6

months, the results of any required monitoring,

and such other conditions as are necessary to assure 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 procedures and methods for determining compliance and for monitoring and analysis of pollutants regulated under this chapter, but continuous emissions monitoring need not be required if

alternative methods are available that provide

sufficiently reliable and timely information for

determining compliance. Nothing in this subsection shall be construed to affect any continuous emissions monitoring requirement of subchapter 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 requirements to assure compliance with the permit

terms and conditions. Such monitoring and reporting requirements shall conform to any applicable regulation under subsection (b) of this

section. Any report required to be submitted by

a permit issued to a corporation under this subchapter shall be signed by a responsible corporate official, who shall certify its accuracy.

(d) General permits

The permitting authority may, after notice

and opportunity for public hearing, issue a general permit covering numerous similar sources.

Any general permit shall comply with all requirements applicable to permits under this subchapter. 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 operations at multiple temporary locations. No such

permit shall be issued unless it includes conditions 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 permit shall in addition require the owner or operator to notify the permitting authority in advance of each change in location. The permitting authority may require a separate permit

fee for operations at each location.

(f) Permit shield

Compliance with a permit issued in accordance with this subchapter shall be deemed compliance with section 7661a of this title. Except as

otherwise provided by the Administrator by

rule, the permit may also provide that compliance with the permit shall be deemed compliance with other applicable provisions of this

chapter that relate to the permittee if—

(1) the permit includes the applicable requirements of such provisions, or

(2) the permitting authority in acting on the

permit application makes a determination relating to the permittee that such other provisions (which shall be referred to in such determination) are not applicable and the permit

includes the determination or a concise summary 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 contiguous States

(a) Transmission and notice

(1) Each permitting authority—

(A) shall transmit to the Administrator a

copy of each permit application (and any application for a permit modification or renewal) or such portion thereof, including any

compliance plan, as the Administrator may require to effectively review the application and

otherwise to carry out the Administrator’s responsibilities 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 section, and shall provide an opportunity for such

States to submit written recommendations respecting the issuance of the permit and its

terms and conditions. If any part of those recommendations are not accepted by the permitting 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 therefor.

(b) Objection by EPA

(1) If any permit contains provisions that are

determined by the Administrator as not in compliance with the applicable requirements of this

chapter, including the requirements of an applicable 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 proposed permit under subsection (a)(1) of this section, or (B) within 45 days after receiving notification under subsection (a)(2) of this section, objects in writing to its issuance as not in compliance with such requirements. With the objection, the Administrator shall provide a statement 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 Administrator within 60 days after the expiration

of the 45-day review period specified in paragraph (1) to take such action. A copy of such petition shall be provided to the permitting authority and the applicant by the petitioner. The

petition shall be based only on objections to the

permit that were raised with reasonable specificity during the public comment period provided by the permitting agency (unless the petitioner demonstrates in the petition to the Administrator that it was impracticable to raise

such objections within such period or unless the

grounds for such objection arose after such period). The petition shall identify all such objections. If the permit has been issued by the permitting agency, such petition shall not postpone

the effectiveness of the permit. The Administrator shall grant or deny such petition within

60 days after the petition is filed. The Administrator shall issue an objection within such period if the petitioner demonstrates to the Administrator that the permit is not in compliance

with the requirements of this chapter, including

the requirements of the applicable implementation 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 paragraph.

(3) Upon receipt of an objection by the Administrator 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 objection by the Administrator under paragraph (2) of

this subsection, the Administrator shall modify,

terminate, or revoke such permit and the permitting authority may thereafter only issue a
§ 7661e TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6482

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 subsection (b) of this section, to submit a permit revised to meet the objection, the Administrator

shall issue or deny the permit in accordance

with the requirements of this subchapter. No objection 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 requirements of subsections (a) and (b) of this section

at the time of approval of a permit program

under this subchapter for any category (including any class, type, or size within such category)

of sources covered by the program other than

major sources.

(2) The Administrator may, by regulation, establish 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 permit under this subchapter, the Administrator

shall notify the permitting authority and the

source of the Administrator’s finding. The permitting authority shall, within 90 days after receipt of such notification, forward to the Administrator under this section a proposed determination of termination, modification, or revocation and reissuance, as appropriate. The Administrator may extend such 90 day period for

an additional 90 days if the Administrator finds

that a new or revised permit application is necessary, or that the permitting authority must

require the permittee to submit additional information. The Administrator may review such

proposed determination under the provisions of

subsections (a) and (b) of this section. If the permitting authority fails to submit the required

proposed determination, or if the Administrator

objects and the permitting authority fails to resolve the objection within 90 days, the Administrator may, after notice and in accordance with

fair and reasonable procedures, terminate, modify, 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 applications, 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 technical and environmental compliance assistance 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 Administrator 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 submission shall be made within 24 months after November 15, 1990. The Administrator shall approve

such program if it includes each of the following:

(1) Adequate mechanisms for developing, collecting, and coordinating information concerning compliance methods and technologies

for small business stationary sources, and programs to encourage lawful cooperation among

such sources and other persons to further compliance with this chapter.

(2) Adequate mechanisms for assisting small

business stationary sources with pollution prevention 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 relevant State agency to serve as ombudsman for

small business stationary sources in connection with the implementation of this chapter.

(4) A compliance assistance program for

small business stationary sources which assists small business stationary sources in determining applicable requirements and in receiving permits under this chapter in a timely

and efficient manner.

(5) Adequate mechanisms to assure that

small business stationary sources receive notice of their rights under this chapter in such

manner and form as to assure reasonably adequate time for such sources to evaluate compliance methods and any relevant or applicable proposed or final regulation or standard issued under this chapter.

(6) Adequate mechanisms for informing

small business stationary sources of their obligations under this chapter, including mechanisms for referring such sources to qualified

auditors or, at the option of the State, for providing 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

1So in original. Probably should be ‘‘subparagraph’’. 2See References in Text note below.

(A) any work practice or technological

method of compliance, or

(B) the schedule of milestones for implementing such work practice or method of

compliance preceding any applicable compliance date,

based on the technological and financial capability 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 requirements of the applicable implementation

plan. Where such applicable requirements are

set forth in Federal regulations, only modifications 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 includes alternative control technologies and

pollution prevention methods applicable to

small business stationary sources; and

(3) provide for implementation of the program 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 comment, include as a small business stationary

source for purposes of this section any stationary 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 Administration and after providing notice and opportunity 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 capabilities to meet the requirements of this chapter

without the application of this subsection.

(B) The State, in consultation with the Administrator and the Administrator of the Small

Business Administration and after providing notice and opportunity for public hearing, may exclude from the small business stationary source

definition under this section any category or

subcategory of sources that the State determines to have sufficient technical and financial

capabilities to meet the requirements of this

chapter without the application of this subsection.

(d) Monitoring

The Administrator shall direct the Agency’s

Office of Small and Disadvantaged Business Utilization through the Small Business Ombudsman (hereinafter in this section referred to as

the ‘‘Ombudsman’’) to monitor the small business stationary source technical and environmental compliance assistance program under

this section. In carrying out such monitoring activities, the Ombudsman shall—

(1) render advisory opinions on the overall

effectiveness of the Small Business Stationary

Source Technical and Environmental Compliance Assistance Program, difficulties encountered, and degree and severity of enforcement;

(2) make periodic reports to the Congress on

the compliance of the Small Business Stationary Source Technical and Environmental

Compliance Assistance Program with the requirements 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 understandable by the layperson; and

(4) have the Small Business Stationary

Source Technical and Environmental Compliance Assistance Program serve as the secretariat for the development and dissemination of such reports and advisory opinions.

(e) Compliance Advisory Panel

(1) There shall be created a Compliance Advisory Panel (hereinafter referred to as the

‘‘Panel’’) on the State level of not less than 7 individuals. This Panel shall—

(A) render advisory opinions concerning the

effectiveness of the small business stationary

source technical and environmental compliance assistance program, difficulties encountered, and degree and severity of enforcement;

(B) make periodic reports to the Administrator concerning the compliance of the State

Small Business Stationary Source Technical

and Environmental Compliance Assistance

Program with the requirements of the Paperwork Reduction Act,2 the Regulatory Flexibility Act [5 U.S.C. 601 et seq.], and the Equal Access 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 Compliance Assistance Program serve as the sec-
§ 7671 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6484

retariat for the development and dissemination of such reports and advisory opinions.

(2) The Panel shall consist of—

(A) 2 members, who are not owners, or representatives of owners, of small business stationary sources, selected by the Governor to

represent the general public;

(B) 2 members selected by the State legislature who are owners, or who represent owners,

of small business stationary sources (1 member each by the majority and minority leadership of the lower house, or in the case of a unicameral 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 legislature who are owners, or who represent owners,

of small business stationary sources (1 member each by the majority and minority leadership of the upper house, or the equivalent

State entity); and

(D) 1 member selected by the head of the department 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 business stationary sources.

(g) Continuous emission monitors

In developing regulations and CTGs under this

chapter that contain continuous emission monitoring requirements, the Administrator, consistent with the requirements of this chapter,

before applying such requirements to small business stationary sources, shall consider the necessity and appropriateness of such requirements for such sources. Nothing in this subsection shall affect the applicability of subchapter 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 business 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.)

REFERENCES IN TEXT

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 complete 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 Reduction 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 subsecs. (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 subsecs. (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 section 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, including 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 Commissioner of the Food and Drug Administration.

(6) Consumption

The term ‘‘consumption’’ means, with respect to any substance, the amount of that

substance produced in the United States, plus

the amount imported, minus the amount exported to Parties to the Montreal Protocol.

Such term shall be construed in a manner consistent 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 introduction constitutes an importation within

the meaning of the customs laws of the United

States.

(8) Medical device

The term ‘‘medical device’’ means any device (as defined in the Federal Food, Drug, and

Cosmetic Act (21 U.S.C. 321)), diagnostic product, 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 alternative has been developed, and where necessary, approved by the Commissioner; and

(B) if such device, product, drug, or drug

delivery system, has, after notice and opportunity for public comment, been approved

and determined to be essential by the Commissioner in consultation with the Administrator.

(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 adjustments 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 substance, on a mass per kilogram basis, as compared to chlorofluorocarbon-11 (CFC–11). Such

factor shall be based upon the substance’s atmospheric 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 accurate measure of relative ozone-depletion potential.

(11) Produce, produced, and production

The terms ‘‘produce’’, ‘‘produced’’, and ‘‘production’’, refer to the manufacture of a substance 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.)

REFERENCES IN TEXT

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 Administrator shall publish an initial list of class

I substances, which list shall contain the following 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 isomer of methyl chloroform). Pursuant to subsection (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 Administrator shall, pursuant to subsection (c) of

this section, add to such list all substances that

the Administrator determines have an ozone depletion 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 substances, which shall contain the following substances:

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)
§ 7671a TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6486

1So 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 Administrator finds is known or may reasonably be

anticipated to cause or contribute to harmful effects on the stratospheric ozone layer.

(c) Additions to the lists

(1) The Administrator may add, by rule, in accordance with the criteria set forth in subsection (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 Administrator 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 Administrator 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 denial. In any case where the Administrator proposes to add a substance to such list, the Administrator shall add, by rule, (or make a final determination 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 petition. If the Administrator determines that information 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 administered by the Administrator, to acquire such information.

(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, including 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 substance to a date more than 7 years after January

1 of the year after the year in which the substance 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 potential

Simultaneously with publication of the lists

under this section and simultaneously with any

addition to either of such lists, the Administrator shall assign to each listed substance a numerical value representing the substance’s

ozone-depletion potential. In addition, the Administrator shall publish the chlorine and bromine loading potential and the atmospheric lifetime of each listed substance. One year after November 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 initial lists of such substances), and after notice

and opportunity for public comment, the Administrator shall publish the global warming potential 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 specified 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:

TABLE 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 .................................... 1.1
Page 6487 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671b

TABLE 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 substance is specified in the Montreal Protocol, the

ozone-depletion potential specified for that substance 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 regarding monitoring and reporting of class I and class

II substances. Such amendments shall conform

to the requirements of this section. The amended 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 Administrator, 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 officer. No such report shall be required from a

person after April 1 of the calendar year after

such person permanently ceases production, importation, 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 section) 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 substance added to the list of class I substances

after publication of the initial list of such substances under this section, the regulations shall

require that each person who produced, imported, 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 substance 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 November 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 consumption, and an estimate of worldwide production,

use and consumption of such substances. Not

less frequently than every 6 years the Administrator shall report to Congress on the environmental and economic effects of any stratospheric ozone depletion.

(2) The Administrators of the National Aeronautics and Space Administration and the National Oceanic and Atmospheric Administration

shall monitor, and not less often than every 3

years following November 15, 1990, submit a report to Congress on the current average tropospheric concentration of chlorine and bromine

and on the level of stratospheric ozone depletion. Such reports shall include updated projections of—

(A) peak chlorine loading;

(B) the rate at which the atmospheric abundance of chlorine is projected to decrease after

the year 2000; and

(C) the date by which the atmospheric abundance 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 controls on substances covered by this subchapter

as well as on the basis of such controls supplemented 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 section;

(ii) reduce significantly the rate at which

the atmospheric abundance of chlorine is projected to decrease under the base case; or

(iii) delay the date by which the average atmospheric concentration of chlorine is projected 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 development of alternative systems or products necessary 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 development 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-
§ 7671b TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6488

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 Administration and the National Oceanic and Atmospheric

Administration, and after notice and opportunity for public comment, the Administrator

determines that the global production, consumption, and use of class II substances are projected to contribute to an atmospheric chlorine

loading in excess of the base case projections by

more than 5

⁄10ths parts per billion, the Administrator shall so inform the Congress immediately. The determination referred to in the

preceding sentence shall be based on the monitoring 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.)

TERMINATION OF REPORTING REQUIREMENTS

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.

METHANE STUDIES

Section 603 of Pub. L. 101–549 provided that:

‘‘(a) ECONOMICALLY JUSTIFIED ACTIONS.—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 technologically justified with and without consideration of

environmental benefit.

‘‘(b) DOMESTIC METHANE SOURCE INVENTORY AND CONTROL.—Not later than 2 years after the enactment of

this Act [Nov. 15, 1990], the Administrator, in consultation 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 methane 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 include an inventory of methane generation with such

activities.

‘‘(2) Methane emissions associated with coal extraction, 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 management of solid waste. Such report shall include an inventory of methane emissions associated with all

forms of waste management in the United States, including storage, treatment, and disposal.

‘‘(4) Methane emissions associated with agriculture.

Such report shall include an inventory of methane

emissions associated with rice and livestock production 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 inventory other domestic sources of methane emissions

that are deemed by the Administrator and other such

agencies to be significant.

‘‘(c) INTERNATIONAL STUDIES.—

‘‘(1) METHANE EMISSIONS.—Not later than 2 years

after the enactment of this Act [Nov. 15, 1990], the

Administrator shall prepare and submit to the Congress a report on methane emissions from countries

other than the United States. Such report shall include inventories of methane emissions associated

with the activities listed in subsection (b).

‘‘(2) PREVENTING INCREASES IN METHANE CONCENTRATIONS.—Not later than 2 years after the enactment of

this Act [Nov. 15, 1990], the Administrator shall prepare and submit to the Congress a report that analyzes the potential for preventing an increase in atmospheric concentrations of methane from activities

and sources in other countries. Such report shall

identify and evaluate the technical options for reducing methane emission from each of the activities listed in subsection (b), as well as other activities or

sources that are deemed by the Administrator in consultation 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 emissions reductions in lesser developed countries.

‘‘(d) NATURAL SOURCES.—Not later than 2 years after

the enactment of this Act [Nov. 15, 1990], the Administrator shall prepare and submit to the Congress a report 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 biogenic sources that may occur as a result of potential

increases in temperatures and atmospheric concentrations of carbon dioxide.

‘‘(e) STUDY OF MEASURES TO LIMIT GROWTH IN METHANE CONCENTRATIONS.—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 measures that could be implemented to stop or reduce the

growth in atmospheric concentrations of methane from

sources within the United States referred to in paragraphs (1) through (6) of subsection (b). This study shall

identify and evaluate the technical options for reducing methane emissions from each of the activities listed 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 international 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) INFORMATION GATHERING.—In carrying out the

studies under this section, the provisions and requirements 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) CONSULTATION AND COORDINATION.—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 and
Page 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 Secretary of Agriculture.’’

§ 7671c. Phase-out of production and consumption 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 quantity greater than the relevant percentage specified in Table 2. The percentages in Table 2 refer

to a maximum allowable production as a percentage of the quantity of the substance produced by the person concerned in the baseline

year.

TABLE 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 substances

Effective January 1, 2000 (January 1, 2002 in

the case of methyl chloroform), it shall be unlawful for any person to produce any amount of

a class I substance.

(c) Regulations regarding production and consumption of class I substances

The Administrator shall promulgate regulations within 10 months after November 15, 1990,

phasing out the production of class I substances

in accordance with this section and other applicable provisions of this subchapter. The Administrator shall also promulgate regulations to insure that the consumption of class I substances

in the United States is phased out and terminated in accordance with the same schedule

(subject to the same exceptions and other provisions) as is applicable to the phase-out and termination 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 production required by subsection (b) of this section,

during the period beginning on January 1, 2002,

and ending on January 1, 2005, the Administrator, after notice and opportunity for public

comment, may, to the extent such action is

consistent with the Montreal Protocol, authorize 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 airplane 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 production required by subsection (b) of this section,

the Administrator, after notice and opportunity for public comment, shall, to the extent such action is consistent with the Montreal Protocol, authorize the production of

limited quantities of class I substances solely

for 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.

(3) Aviation safety

(A) Notwithstanding the termination of production required by subsection (b) of this section, the Administrator, after notice and opportunity for public comment, may, to the extent such action is consistent with the Montreal Protocol, authorize the production of

limited quantities of halon-1211 (bromochlorodifluoromethane), halon-1301 (bromotrifluoromethane), and halon-2402 (dibromotetrafluoroethane) solely for purposes of aviation 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 Aviation Administration shall, in consultation

with the Administrator, examine whether safe

and effective substitutes for methyl chloroform or alternative techniques will be available for nondestructive testing for metal fatigue and corrosion of existing airplane engines 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 subsection (d) of this section be applied to authorize any person to produce a class I substance

in annual quantities greater than 10 percent of

that produced by such person during the baseline year.

(5) Sanitation and food protection

To the extent consistent with the Montreal

Protocol’s quarantine and preshipment provisions, the Administrator shall exempt the production, importation, and consumption of

methyl bromide to fumigate commodities entering or leaving the United States or any

State (or political subdivision thereof) for purposes of compliance with Animal and Plant

Health Inspection Service requirements or

with any international, Federal, State, or

local sanitation or food protection standard.
§ 7671c TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6490

(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 instrumentalities of the Federal Government

having regulatory authority related to methyl

bromide, including the Secretary of Agriculture, may exempt the production, importation, and consumption of methyl bromide for

critical uses.

(e) Developing countries

(1) Exception

Notwithstanding the phase-out and termination of production required under subsections (a) and (b) of this section, the Administrator, after notice and opportunity for public comment, may, consistent with the Montreal Protocol, authorize the production of

limited quantities of a class I substance in excess 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 purposes of satisfying the basic domestic needs of

such countries.

(2) Cap on exception

(A) Under no circumstances may the authority set forth in paragraph (1) be applied to authorize any person to produce a class I substance in any year for which a production percentage 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 authority set forth in paragraph (1) be applied to authorize any person to produce a class I substance in the applicable termination year referred to in subsection (b) of this section, or in

any year thereafter, in an annual quantity

greater than 15 percent of the baseline quantity of such substance produced by such person.

(C) An exception authorized under this subsection shall terminate no later than January

1, 2010 (2012 in the case of methyl chloroform).

(3) Methyl bromide

Notwithstanding the phaseout and termination of production of methyl bromide pursuant to subsection (h) of this section, the Administrator may, consistent with the Montreal Protocol, authorize the production of

limited quantities of methyl bromide, solely

for use in developing countries that are Parties 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 adequate substitutes are not available and that the

production and use of such substance are necessary to protect such national security interest. 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 paragraph 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 period which may not exceed one year. No exemption shall be granted under this paragraph 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.

(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, authorize 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 explosion prevention if the Administrator, in consultation 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 production under this paragraph for purposes of fire

safety or explosion prevention training or testing 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 monitor 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 permitting a level of production or consumption

that is necessary to satisfy such uses for which

no adequate alternatives are available after December 31, 1999. The Administrator shall report

to Congress the results of such assessment in

1994 and again in 1998.

(3) Notwithstanding the termination of production set forth in subsection (b) of this section, 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, authorize the production of limited quantities of

halon-1211, halon-1301, and halon-2402 in the period after December 31, 1999, and before December 31, 2004, solely for purposes of fire suppression 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 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 and

explosion prevention purposes. The Administrator shall not authorize production under the

paragraph for purposes of fire safety or explosion prevention training or testing of fire suppression 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 baseline 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 production, importation, and consumption of,

methyl bromide under a schedule that is in accordance 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.)

AMENDMENTS

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 consumption 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 commerce 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 applications in accordance with section 7671k(c) of

this title.

As used in this subsection, the term ‘‘refrigerant’’ 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 unlawful for any person to produce any class II substance 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 unlawful for any person to produce any class II substance.

(c) Regulations regarding production and consumption of class II substances

By December 31, 1999, the Administrator shall

promulgate regulations phasing out the production, and restricting the use, of class II substances in accordance with this section, subject

to any acceleration of the phase-out of production under section 7671e of this title. The Administrator shall also promulgate regulations to insure that the consumption of class II substances

in the United States is phased out and terminated in accordance with the same schedule

(subject to the same exceptions and other provisions) as is applicable to the phase-out and termination of production of class II substances

under this subchapter.

(d) Exceptions

(1) Medical devices

(A) In general

Notwithstanding the termination of production required under subsection (b)(2) of

this section and the restriction on use referred to in subsection (a) of this section,

the Administrator, after notice and opportunity for public comment, shall, to the extent such action is consistent with the Montreal Protocol, authorize the production and

use of limited quantities of class II substances 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 subsection (a) or (b) of this section, the Administrator, after notice and opportunity for

public comment, may authorize the production of limited quantities of a class II substance 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 production 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 authority set forth in subparagraph (A) be ap-
§ 7671e TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6492

plied to authorize any person to produce a

class II substance in any year following the

effective date of subsection (b)(1) of this section and before the year 2030 in annual quantities greater than 110 percent of the quantity of such substance produced by such person during the baseline year.

(ii) Under no circumstances may the authority set forth in subparagraph (A) be applied to authorize any person to produce a

class II substance in the year 2030, or any

year thereafter, in an annual quantity greater 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 January 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.)

AMENDMENTS

2011—Subsec. (a)(4). Pub. L. 112–81 added par. (4).

§ 7671e. Accelerated schedule

(a) In general

The Administrator shall promulgate regulations, 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 substances) 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 current scientific information (including any assessment under the Montreal Protocol) regarding harmful effects on the stratospheric ozone

layer associated with a class I or class II substance, the Administrator determines that

such more stringent schedule may be necessary to protect human health and the environment against such effects,

(2) based on the availability of substitutes

for listed substances, the Administrator determines that such more stringent schedule is

practicable, taking into account technological

achievability, safety, and other relevant factors, or

(3) the Montreal Protocol is modified to include a schedule to control or reduce production, 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 applicable 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 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, such final regulations 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 Administrator determines that information is not sufficient to make a determination under this subsection, the Administrator shall use any authority available to the Administrator, under any

law administered by the Administrator, to acquire 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 allowances for the production of class I and II substances 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 section 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 allowance 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 trading purposes and assign class II substances to

such groups. In the case of class II substances,

allowances may only be transferred for allowances 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 enforceable and quantifiable reduction in annual production which—

(1) exceeds the reduction otherwise applicable to the transferor under this subchapter,

(2) exceeds the production allowances transferred 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 subchapter 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 reduction program

(a) In general

(1) The Administrator shall, by not later than

January 1, 1992, promulgate regulations establishing 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 regarding use and disposal of class I and II substances

not covered by paragraph (1), including the use

and disposal of class II substances during service, repair, or disposal of appliances and industrial process refrigeration. Such standards and

requirements shall become effective not later

than 12 months after promulgation of the regulations.

(3) The regulations under this subsection shall

include requirements that—

(A) reduce the use and emission of such substances 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 requirements for the safe disposal of class I and II substances. Such regulations shall include each of

the following—

(1) Requirements that class I or class II substances contained in bulk in appliances, machines or other goods shall be removed from

each such appliance, machine or other good

prior to the disposal of such items or their delivery for recycling.

(2) Requirements that any appliance, machine or other good containing a class I or

class II substance in bulk shall not be manufactured, 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 design 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 practicable, 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 insignificant environmental benefits, the Administrator shall include in such regulations an exception 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 refrigerant 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 prohibition set forth in the preceding sentence.

(2) Effective 5 years after November 15, 1990,

paragraph (1) shall also apply to the venting, release, 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 refrigeration 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 conditioner, 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 conditioners

(a) Regulations

Within 1 year after November 15, 1990, the Administrator shall promulgate regulations in accordance with this section establishing standards 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 November 15, 1990, the term ‘‘refrigerant’’ shall also

include any substitute substance.

(2)(A) The term ‘‘approved refrigerant recycling equipment’’ means equipment certified

by the Administrator (or an independent

standards testing organization approved by

the Administrator) to meet the standards established by the Administrator and applicable

to equipment for the extraction and reclamation of refrigerant from motor vehicle air conditioners. 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

such equipment (SAE standard J–1990).

(B) Equipment purchased before the proposal

of regulations under this section shall be considered certified if it is substantially identical
§ 7671i TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6494

to equipment certified as provided in subparagraph (A).

(3) The term ‘‘properly using’’ means, with

respect to approved refrigerant recycling

equipment, using such equipment in conformity with standards established by the Administrator and applicable to the use of such equipment. 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 certified’’ 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 performance of service on motor vehicle air conditioners. Such standards shall, at a minimum, be at least as stringent as specified, as

of November 15, 1990, in SAE standard J–1989

under the certification program of the National Institute for Automotive Service Excellence (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 conditioners 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 conditioners involving refrigerant and that each

individual authorized by such person to perform such service is properly trained and certified; or

(B) that such person is performing such service 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 responsible 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 substances

Effective 2 years after November 15, 1990, it

shall be unlawful for any person to sell or distribute, or offer for sale or distribution, in interstate commerce to any person (other than a person performing service for consideration on

motor vehicle air-conditioning systems in compliance with this section) any class I or class II

substance that is suitable for use as a refrigerant 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 chlorofluorocarbons

(a) Regulations

The Administrator shall promulgate regulations to carry out the requirements of this section within 1 year after November 15, 1990.

(b) Nonessential products

The regulations under this section shall identify nonessential products that release class I

substances into the environment (including any

release occurring during manufacture, use, storage, or disposal) and prohibit any person from

selling or distributing any such product, or offering 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 photographic equipment, and

(3) other consumer products that are determined by the Administrator—

(A) to release class I substances into the

environment (including any release occurring during manufacture, use, storage, or

disposal), and

(B) to be nonessential.

In determining whether a product is nonessential, the Administrator shall consider the

purpose or intended use of the product, the technological 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 distribute, or offer for sale or distribution, in interstate commerce any nonessential product to

which regulations under subsection (a) of this

section implementing subsection (b) of this section are applicable.

(d) Other products

(1) Effective January 1, 1994, it shall be unlawful for any person to sell or distribute, or offer
Page 6495 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671j

1So in original. Probably should be followed by a period.

2So in original. Probably should be ‘‘paragraph’’.

for sale or distribution, in interstate commerce—

(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 subparagraph (A) of paragraph (1) where—

(A) the use of the aerosol product or pressurized dispenser is determined by the Administrator to be essential as a result of flammability 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 Vehicle Safety Standards where no adequate substitute 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 regulations 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 substances and products containing class I substances

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 containing 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 substance], 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 containing a class II substance shall be introduced into

interstate commerce unless it bears the label referred to in subsection (b) of this section if the

Administrator determines, after notice and opportunity 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 January 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 manufactured with a process that uses such class II substance, 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 manufactured with a process that uses such class I

substance unless the Administrator determines

that there are no substitute products or manufacturing processes that (A) do not rely on the

use of such class I substance, (B) reduce the

overall risk to human health and the environment, and (C) are currently or potentially available.

(e) Petitions

(1) Any person may, at any time after 18

months after November 15, 1990, petition the Administrator to apply the requirements of this

section to a product containing a class II substance or a product manufactured with a class I

or II substance which is not otherwise subject to

such requirements. Within 180 days after receiving such petition, the Administrator shall, pursuant to the criteria set forth in subsection (c)

of this section, either propose to apply the requirements of this section to such product or

publish an explanation of the petition denial. If

the Administrator proposes to apply such requirements to such product, the Administrator

shall, by rule, render a final determination pursuant to such criteria within 1 year after receiving such petition.

(2) Any petition under this paragaph2 shall include a showing by the petitioner that there are

data on the product adequate to support the petition.

(3) If the Administrator determines that information on the product is not sufficient to make

the required determination the Administrator

shall use any authority available to the Administrator under any law administered by the Administrator to acquire such information.

(4) In the case of a product determined by the

Administrator, upon petition or on the Administrator’s own motion, to be subject to the requirements of this section, the Administrator

shall establish an effective date for such require-
§ 7671k TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6496

3So in original. Probably should be ‘‘section’’.

ments. The effective date shall be 1 year after

such determination or 30 months after November 15, 1990, whichever is later.

(5) Effective January 1, 2015, the labeling requirements of this subsection3 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 labeling requirements of this section.

(2) No other approval of such label by the Administrator under any other law administered

by the Administrator shall be required with respect to the labeling requirements of this section.

(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 interested members of the public and the heads

of relevant Federal agencies and departments,

recommend Federal research programs and

other activities to assist in identifying alternatives to the use of class I and class II substances as refrigerants, solvents, fire

retardants, foam blowing agents, and other

commercial applications and in achieving a

transition to such alternatives, and, where appropriate, seek to maximize the use of Federal

research facilities and resources to assist

users of class I and class II substances in identifying 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 departments, including the General Services Administration, Federal procurement practices with

respect to class I and class II substances and

recommend measures to promote the transition by the Federal Government, as expeditiously as possible, to the use of safe substitutes;

(3) specify initiatives, including appropriate

intergovernmental, international, and commercial information and technology transfers,

to promote the development and use of safe

substitutes for class I and class II substances,

including alternative chemicals, product substitutes, and alternative manufacturing processes; and

(4) maintain a public clearinghouse of alternative chemicals, product substitutes, and alternative manufacturing processes that are

available for products and manufacturing

processes which use class I and class II substances.

(c) Alternatives for class I or II substances

Within 2 years after November 15, 1990, the Administrator shall promulgate rules under this

section providing that it shall be unlawful to replace 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 identified 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 either 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 Administrator shall publish such revised list within 6 months thereafter. Any petition under this

subsection shall include a showing by the petitioner that there are data on the substance adequate to support the petition. If the Administrator determines that information on the substance is not sufficient to make a determination

under this subsection, the Administrator shall

use any authority available to the Administrator, under any law administered by the Administrator, 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 introduced 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.)

§ 7671l. Federal procurement

Not later than 18 months after November 15,

1990, the Administrator, in consultation with

the Administrator of the General Services Administration and the Secretary of Defense, shall

promulgate regulations requiring each depart-
Page 6497 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671o

ment, agency, and instrumentality of the United

States to conform its procurement regulations

to the policies and requirements of this subchapter 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 procurement regulations and certify to the President 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.)

EXECUTIVE ORDER NO. 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-depleting 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, during 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 protecting the stratospheric ozone layer.

(b) Montreal Protocol

This subchapter as added by the Clean Air Act

Amendments of 1990 shall be construed, interpreted, and applied as a supplement to the terms

and conditions of the Montreal Protocol, as provided 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 provisions of the Montreal Protocol. In the case of

conflict between any provision of this subchapter and any provision of the Montreal Protocol, 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 implement 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 programs, 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.)

REFERENCES IN TEXT

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 substance, practice, process, or activity may reasonably be anticipated to affect the stratosphere, especially ozone in the stratosphere, and

such effect may reasonably be anticipated to endanger public health or welfare, the Administrator shall promptly promulgate regulations

respecting the control of such substance, practice, process, or activity, and shall submit notice 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.)

§ 7671o. 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 following conditions:

(1) The United States may transfer production allowances to another Party if, at the

time of such transfer, the Administrator establishes revised production limits for the

United States such that the aggregate national United States production permitted

under the revised production limits equals the

lesser of (A) the maximum production level

permitted for the substance or substances concerned 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 transferred, or (C) the average of the actual national 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 production 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 provided 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 acquired 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 implement this section.

(d) ‘‘Applicable domestic law’’ defined

In the case of the United States, the term ‘‘applicable domestic law’’ means this chapter.
§ 7671p TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 6498

(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 research authorized by this subchapter, and to develop standards and regulations which protect

the stratosphere consistent with regulations applicable within the United States. For these purposes 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 appropriate 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 participation in the Montreal Protocol by providing

technical and financial assistance to developing

countries that are Parties to the Montreal Protocol and operating under article 5 of the Protocol. 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 appropriated 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.)

AUTHORITY OF SECRETARY OF STATE

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 Intercourse, 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, requirements concerning the areas addressed by

this subchapter for the protection of the stratosphere against ozone layer depletion shall be

treated as requirements for the control and

abatement of air pollution. For purposes of section 7418 of this title, the requirements of this

subchapter and corresponding State, interstate,

and local requirements, administrative authority, 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 Program.

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 Simulation.

7709. Scientific Earthquake Studies Advisory Committee.

§ 7701. Congressional findings

The Congress finds and declares the following:

(1) All 50 States are vulnerable to the hazards 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 population of the United States lives in areas vulnerable to earthquake hazards.

(2) Earthquakes have caused, and can cause

in the future, enormous loss of life, injury, destruction of property, and economic and social

disruption. With respect to future earthquakes, such loss, destruction, and disruption

can be substantially reduced through the development and implementation of earthquake

hazards reduction measures, including (A) improved design and construction methods and

practices, (B) land-use controls and redevelopment, (C) prediction techniques and earlywarning systems, (D) coordinated emergency

preparedness plans, and (E) public education

and involvement programs.

(3) An expertly staffed and adequately financed earthquake hazards reduction program, based on Federal, State, local, and private 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 program 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 frequently 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 decision.