202 
(1) IN GENERAL.—Except as provided in paragraph (2), any records, 
reports or information obtained under subsection (a) shall be available 
to the public. 
(2) TRADE SECRETS.—On a showing satisfactory to the Adminis-
trator by any person that records, reports, or information, or any par-
ticular part thereof (other than emission data), to which the Adminis-
trator has access under this section, if made public, would divulge 
methods or processes entitled to protection as trade secrets of the per-
son, the Administrator shall consider the record, report, or information 
or particular part thereof confidential in accordance with section 1905 
of title 18, except that the record, report, or information may be dis-
closed to other officers, employees, or authorized representatives of the 
United States concerned with carrying out this division or when rel-
evant in any proceeding under this division. 
(d) NOTICE OF PROPOSED ENTRY, INSPECTION, OR MONITORING.— 
(1) IN GENERAL.—In the case of any emission standard or limitation 
or other requirement that is adopted by a State as part of an applica-
ble implementation plan, before carrying out an entry, inspection, or 
monitoring under subsection (a)(2)(B) with respect to the emission 
standard, limitation, or other requirement, the Administrator (or the 
Administrator’s representative) shall provide the State air pollution 
control agency with reasonable prior notice of that action, indicating 
the purpose of the action. 
(2) PROHIBITION OF USE OF INFORMATION TO INFORM AFFECTED 
PERSON.—No State air pollution control agency that receives notice 
under paragraph (1) of an action proposed to be taken may use the 
information contained in the notice to inform the person whose prop-
erty is proposed to be affected of the proposed action. If the Adminis-
trator has a reasonable basis for believing that a State air pollution 
control agency is so using or will so use such information, notice to 
the State air pollution control agency under paragraph (1) is not re-
quired until such time as the Administrator determines that the State 
air pollution control agency will no longer so use information contained 
in a notice under paragraph (1). 
(3) EFFECT OF SECTION.—Nothing in this section shall be construed 
to require notification to any State air pollution control agency of any 
action taken by the Administrator with respect to any standard, limita-
tion, or other requirement that is not part of an applicable implementa-
tion plan or that was promulgated by the Administrator under section 
211110(c) of this title. 
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(4) EFFECT OF SUBSECTION.—Nothing in this subsection shall be 
construed to provide that any failure of the Administrator to comply 
with the requirements of this subsection shall be a defense in any en-
forcement action brought by the Administrator or shall make inadmis-
sible as evidence in any such action any information or material ob-
tained notwithstanding the failure to comply with those requirements. 
§ 211115. International air pollution 
(a) ENDANGERMENT OF PUBLIC HEALTH OR WELFARE IN FOREIGN 
COUNTRIES FROM POLLUTION EMITTED IN UNITED STATES.—Whenever 
the Administrator, on receipt of reports, surveys, or studies from any duly 
constituted international agency, has reason to believe that any air pollutant 
or pollutants emitted in the United States cause or contribute to air pollu-
tion that may reasonably be anticipated to endanger public health or welfare 
in a foreign country or whenever the Secretary of State requests the Admin-
istrator to do so with respect to such pollution that 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 the emissions originate. 
(b) PREVENTION OR ELIMINATION OF ENDANGERMENT.—The notice of 
the Administrator shall be deemed to be a finding under section 
211110(a)(3)(H)(ii) of this title that requires a plan revision with respect 
to so much of the applicable implementation plan as is inadequate to pre-
vent or eliminate the endangerment described in subsection (a). Any foreign 
country so affected by the emission of the 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 that 
the Administrator determines has given the United States essentially the 
same rights with respect to the prevention or control of air pollution occur-
ring in that country as is given that country by this section. 
(d) RECOMMENDATIONS.—Recommendations issued following any abate-
ment conference conducted prior to August 7, 1977, shall remain in effect 
with respect to any pollutant for which no NAAQS has been established 
under section 211109 of this title unless the Administrator, after consulta-
tion with all agencies that were party to the conference, rescinds any such 
recommendation on grounds of obsolescence. 
§ 211116. Retention of State authority 
(a) IN GENERAL.—Except as otherwise provided in subsections (c), (e), 
and (f) of section 119 of the Clean Air Act (42 U.S.C. 1857c–10) (as in 
effect before August 7, 1977) and in sections 221109, 221111(d)(4), and 
223104 of this title, and subject to subsection (b), nothing in this division 
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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. 
(b) STRINGENCY.—If an emission standard or limitation is in effect under 
an applicable implementation plan or under section 211111 or 211112 of 
this title, a State or political subdivision may not adopt or enforce any emis-
sion standard or limitation that is less stringent than the standard or limi-
tation under the plan or section. 
§ 211117. Advisory committees 
(a) ESTABLISHMENT.—The Administrator shall from time to time estab-
lish advisory committees— 
(1) to obtain assistance in the development and implementation of 
this division, including air quality criteria, recommended control tech-
niques, standards, research and development; and 
(2) to encourage 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. 
(b) MEMBERSHIP.—Committee members shall include persons who are 
knowledgeable concerning air quality from the standpoint of health, welfare, 
economics, or technology. 
(c) COMPENSATION.—The members of any advisory committee appointed 
pursuant to this division 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 Gov-
ernment service employed intermittently. 
(d) CONSULTATION.—The Administrator shall, to the maximum extent 
practicable within the time provided, consult with appropriate advisory com-
mittees, independence experts, and Federal departments and agencies be-
fore— 
(1) issuing criteria for an air pollutant under section 211108(a)(2) 
of this title; 
(2) publishing any list under section 211111(b)(1) or 211112(b)(1) 
of this title; 
(3) publishing any standard under section 211111 or 211112 of this 
title; or 
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(4) publishing any regulation under section 221102(a) of this title. 
§ 211118. Control of pollution from Federal facilities 
(a) GENERAL COMPLIANCE.— 
(1) IN GENERAL.—Each department, agency, and instrumentality of 
the executive, legislative, and judicial branches of the Federal Govern-
ment— 
(A) having jurisdiction over any property or facility; or 
(B) 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, ad-
ministrative 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. 
(2) APPLICABILITY.—Paragraph (1) shall apply— 
(A) to any requirement whether substantive or procedural (in-
cluding any recordkeeping or reporting requirement, any require-
ment respecting permits, and any other requirement); 
(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 regu-
latory 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. 
(3) IMMUNITY.—This subsection shall apply notwithstanding any im-
munity of agencies, officers, agents, or employees described in para-
graph (1) under any law or rule of law. 
(4) PERSONAL LIABILITY.—No officer, agent, or employee of the 
United States shall be personally liable for any civil penalty for which 
he or she is not otherwise liable. 
(b) EXEMPTIONS.— 
(1) EXEMPTION OF PARTICULAR EMISSION SOURCES.— 
(A) IN GENERAL.—The President may exempt any emission 
source of any department, agency, or instrumentality in the execu-
tive branch from compliance with a requirement described in sub-
section (a) if the President determines it to be in the paramount 
interest of the United States to do so, except that— 
(i) no exemption may be granted from section 211111 of 
this title; and 
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(ii) an exemption from section 211112 of this title may be 
granted only in accordance with subsection (i)(4) of that sec-
tion. 
(B) LACK OF APPROPRIATION.—No exemption under subpara-
graph (A) shall be granted due to lack of appropriation unless the 
President specifically requests such an appropriation as a part of 
the budgetary process and Congress fails to make available the re-
quested appropriation. 
(C) EXEMPTION PERIOD.—Any exemption under subparagraph 
(A) shall be for a period of not more than 1 year, but additional 
exemptions may be granted for periods of not more than 1 year 
on the President’s making a new determination. 
(2) EXEMPTION OF WEAPONRY, EQUIPMENT, AIRCRAFT, VEHICLES, 
OR OTHER CLASSES OR CATEGORIES OF PROPERTY.— 
(A) IN GENERAL.—The President may, if the President deter-
mines it to be in the paramount interest of the United States to 
do so, issue regulations exempting from compliance with the re-
quirements of this section any weaponry, equipment, aircraft, vehi-
cles, or other classes or categories of property that 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 that are 
uniquely military in nature. 
(B) RECONSIDERATION.—The President shall reconsider the 
need for such regulations at 3-year intervals. 
(3) REPORTS.—The President shall report each January to Congress 
all exemptions from the requirements of this section granted during the 
preceding calendar year, together with the President’s reason for grant-
ing each such exemption. 
(c) GOVERNMENT VEHICLES.—Each department, agency, and instrumen-
tality of the executive, legislative, and judicial branches of the Federal Gov-
ernment shall comply with all applicable provisions of a valid inspection and 
maintenance program established under subchapter II or III of chapter 215 
except for such vehicles as are considered military tactical vehicles. 
(d) VEHICLES OPERATED ON FEDERAL INSTALLATIONS.— 
(1) IN GENERAL.—Each department, agency, and instrumentality of 
the executive, legislative, and judicial branches of the Federal Govern-
ment having jurisdiction over any property or facility shall require all 
employees that operate a motor vehicle on the property or facility to 
furnish proof of compliance with the applicable requirements of any ve-
hicle inspection and maintenance program established under subchapter 
II or III of chapter 215 for the State in which the property or facility 
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is located (without regard to whether the vehicle is registered in the 
State). 
(2) PROOF OF COMPLIANCE.—A department, agency, and instrumen-
tality shall use 1 of the following methods to establish proof of compli-
ance with paragraph (1): 
(A) Presentation by the vehicle owner of a valid certificate of 
compliance from the vehicle inspection and maintenance program. 
(B) Presentation by the vehicle owner of proof of vehicle reg-
istration within the geographic area covered by the vehicle inspec-
tion and maintenance program (except for any program whose en-
forcement mechanism is not through the denial of vehicle registra-
tion). 
(C) Another method approved by the vehicle inspection and 
maintenance program administrator. 
§ 211119. Noncompliance penalty 
(a) DEFINITION OF OPERATOR.—In this section: 
(1) IN GENERAL.—The term ‘‘operator’’ includes any person who is 
a part of senior management personnel or is a corporate officer. 
(2) EXCLUSIONS.—Except in the case of a knowing and willful viola-
tion, the term ‘‘operator’’ does not include any person who is a sta-
tionary engineer or technician responsible for the operation, mainte-
nance, repair, or monitoring of equipment and facilities and who often 
has supervisory and training duties but who is not a part of senior 
management personnel and not a corporate officer. 
(b) ASSESSMENT AND COLLECTION.— 
(1) IN GENERAL.— 
(A) REGULATIONS.—After notice and opportunity for a public 
hearing, the Administrator shall promulgate regulations requiring 
the assessment and collection of a noncompliance penalty against 
a person described in paragraph (2)(A). 
(B) DELEGATION OF AUTHORITY TO A STATE.— 
(i) IN GENERAL.—A State may develop and submit to the 
Administrator a plan for carrying out this section in the 
State. If the Administrator finds that the State plan meets 
the requirements of this section, the Administrator may dele-
gate to the State any authority that the Administrator has 
to carry out this section. 
(ii) 
AUTHORITY
OF
THE
ADMINISTRATOR.—Notwith-
standing a delegation to a State under clause (i), the Admin-
istrator may carry out this section in the State under the cir-
cumstances described in subsection (c)(2)(B). 
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(2) AUTHORITY.— 
(A) ASSESSMENT AND COLLECTION.— 
(i) IN GENERAL.—Except as provided in subparagraph (B) 
or (C), a State to which authority has been delegated under 
paragraph (1) or the Administrator shall assess and collect a 
noncompliance penalty against every person that owns or op-
erates— 
(I) a major stationary source (other than a primary 
nonferrous smelter that received a primary nonferrous 
smelter order under section 119 of the Clean Air Act (42 
U.S.C. 7419) (as in effect before the repeal of that sec-
tion)) that is not in compliance with any emission limita-
tion, emission standard, or compliance schedule under 
any applicable implementation plan (whether or not the 
source is subject to a Federal or State consent decree); 
(II) a stationary source that is not in compliance with 
an emission limitation, emission standard, standard of 
performance, or other requirement established under sec-
tion 203103, 211111, 211112, or 213109 of this title; 
(III) a stationary source that is not in compliance with 
any requirement of subdivision 5, 6, or 7; or 
(IV) any source described in subclause (I), (II), or 
(III) (for which an extension, order, or suspension de-
scribed in subparagraph (B) or a Federal or State con-
sent decree is in effect) or a primary nonferrous smelter 
that received a primary nonferrous smelter order under 
section 119 of the Clean Air Act (42 U.S.C. 7419) (as 
in effect before the repeal of that section) that is not in 
compliance with any interim emission control require-
ment or schedule of compliance under the extension, 
order, suspension, or consent decree. 
(ii) COSTS.—For purposes of subsection (g)(1), in the case 
of a penalty assessed with respect to a source described in 
clause (i)(III), the costs described in subsection (g)(1) shall 
be the economic value of noncompliance with the interim 
emission control requirement or the remaining steps in the 
schedule of compliance described in clause (i)(III). 
(B) EXEMPTIONS IF FAILURE TO COMPLY IS DUE TO CERTAIN 
EXTENSIONS, ORDERS, OR SUSPENSIONS.— 
(i) IN
GENERAL.—Notwithstanding the requirements of 
subclauses (I) and (II) of subparagraph (A)(i), the owner or 
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operator of any source shall be exempted from the duty to 
pay a noncompliance penalty under those requirements with 
respect to that source if, in accordance with the procedures 
in subsection (c)(5), the owner or operator demonstrates that 
the failure of the source to comply with any such requirement 
is due solely to— 
(I) a conversion by the source from the burning of pe-
troleum products or natural gas, or both, as the perma-
nent primary energy source to the burning of coal pursu-
ant to an order under section 113(d)(5) of the Clean Air 
Act (42 U.S.C. 7413(d)(5)) (as in effect before Novem-
ber 15, 1990) or section 119 of the Clean Air Act (42 
U.S.C. 7419) (as in effect before August 7, 1977); 
(II) in the case of a coal-burning source granted an 
extension under the 2d sentence of section 119(c)(1) of 
the Clean Air Act (42 U.S.C. 1857c–10(c)(1)) (as in ef-
fect before August 7, 1977), a prohibition from using pe-
troleum products or natural gas or both, by reason of an 
order under subsections (a) and (b) of section 2 of the 
Energy Supply and Environmental Coordination Act of 
1974 (15 U.S.C. 792) or under any legislation that su-
persedes those subsections; 
(III) the use of innovative technology sanctioned by an 
enforcement order under section 113(d)(4) of the Clean 
Air Act (42 U.S.C. 7413(d)(4)) (as in effect before No-
vember 15, 1990); 
(IV) an inability to comply with any such requirement, 
for which inability the source received an order under 
section 113(d) of the Clean Air Act (42 U.S.C. 7413(d)) 
(as in effect before November 15, 1990) or an order 
under section 113 of the Clean Air Act (42 U.S.C. 7413) 
(as in effect before August 7, 1977) that has the effect 
of permitting a delay or violation of any requirement of 
this division (including a requirement of an applicable 
implementation plan), which inability results from rea-
sons entirely beyond the control of the owner or operator 
of the source or of any entity controlling, controlled by, 
or under common control with the owner or operator of 
the source; or 
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(V) the conditions by reason of which a temporary 
emergency suspension is authorized under subsection (d) 
or (e) of section 211110 of this title. 
(ii) CESSATION OF EFFECTIVENESS.—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) EXEMPTION IF FAILURE TO COMPLY IS DE MINIMIS IN NA-
TURE AND IN DURATION.—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 the Administrator finds that the instance of 
noncompliance is de minimis in nature and in duration. 
(c) CONTENTS
OF REGULATIONS.—Regulations under subsection (b) 
shall— 
(1) permit the assessment and collection of a penalty by a State if 
the State has a delegation of authority in effect under subsection 
(b)(1)(B)(i); 
(2) provide for the assessment and collection of a penalty by the Ad-
ministrator, if— 
(A) a State does not have a delegation of authority in effect 
under subsection (b)(1)(B)(i); or 
(B) a 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 a State, or if a State fails to do so, the Administrator, 
to give a brief but reasonably specific notice of noncompliance under 
this section to each person described in subsection (b)(2)(A)(i) with re-
spect to each source owned or operated by the person that is not in 
compliance as provided in subsection (b) not later than 30 days after 
the discovery of the noncompliance; 
(4) require each person to which notice is given under paragraph (3) 
to— 
(A) calculate the amount of the penalty owed (determined in ac-
cordance with subsection (g)(1)) and the schedule of payments 
(determined in accordance with subsection (g)(2)) for each such 
source and, within 45 days after the issuance of the notice or after 
the denial of a petition under subparagraph (B), to submit that 
calculation and proposed schedule, together with the information 
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necessary for an independent verification of the calculation, to the 
State and to the Administrator; or 
(B) submit a petition, within 45 days after the issuance of the 
notice, challenging the notice or alleging entitlement to an exemp-
tion under subsection (b)(2)(B) 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 the petition (including findings of fact and conclu-
sions of law) not later than 90 days after the receipt of any petition 
under paragraph (4)(B), unless the State agrees to provide a hearing 
that is substantially similar to such a hearing on the record and to 
make a decision on the petition (including findings and conclusions) 
within the 90-day period; 
(6)(A) authorize the Administrator on the Administrator’s initiative 
to review the decision of the State under paragraph (5) and disapprove 
the decision if it is not in accordance with the requirements of this sec-
tion; and 
(B) on petition for such a review, require the Administrator to do 
so not later than 60 days after receipt of the petition, notice, and pub-
lic hearing and a showing by the petitioner that the State decision 
under paragraph (5) is not in accordance with the requirements of this 
section; 
(7) require payment, in accordance with subsections (f) and (g), of 
the penalty by each person to which notice of noncompliance is given 
under paragraph (3) with respect to each noncomplying source for 
which the notice is given unless there has been a final determination 
granting a petition under paragraph (4)(B) with respect to the source; 
(8) authorize a 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 an owner or operator under para-
graph (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 
a source comes into compliance in accordance with subsection (g)(3). 
(d) NONCOMPLIANCE PENALTY ESTABLISHED BY A STATE.— 
(1) NOTICE.—In any case in which a State establishes a noncompli-
ance penalty under this section, the State shall provide notice of the 
noncompliance penalty to the Administrator. 
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(2) APPLICABILITY.—A noncompliance penalty established by a 
State under this section shall apply unless the Administrator, within 
90 days after the date of receipt of notice of the State penalty assess-
ment under this section, objects in writing to the amount of the penalty 
as less than would be required to comply with guidelines established 
by the Administrator. 
(3) OBJECTION.—If the Administrator objects, the Administrator 
shall immediately establish a substitute noncompliance penalty applica-
ble to the source. 
(e) CONTRACT TO ASSIST IN DETERMINING AMOUNT OF PENALTY AS-
SESSMENT OR PAYMENT SCHEDULE.— 
(1) IN GENERAL.—If the owner or operator of any stationary source 
to which a notice is issued under subsection (c)(3)— 
(A)(i) does not submit a timely petition under subsection 
(c)(4)(B); or 
(ii) submits a petition under subsection (c)(4)(B) that is denied; 
and 
(B) fails to submit a calculation of the penalty assessment, a 
schedule for payment, and the information necessary for inde-
pendent verification of the calculation; 
the State (or the Administrator, as the case may be) may enter into 
a contract with any person that has no financial interest in the owner 
or operator of the source (or in any person controlling, controlled by, 
or under common control with the source) to assist in determining the 
amount of the penalty assessment or payment schedule with respect to 
the source. 
(2) COST.—The cost of carrying out a contract under paragraph (1) 
may be added to the penalty to be assessed against the owner or oper-
ator of the source. 
(f) PAYMENT.—All penalties assessed by the Administrator under this 
section shall be paid to the Treasury. All penalties assessed by a State 
under this section shall be paid to the State. 
(g) AMOUNT OF PENALTY.— 
(1) AMOUNT.— 
(A) IN GENERAL.—The amount of the penalty that shall be as-
sessed and collected with respect to any source under this section 
shall be equal to— 
(i) the amount determined in accordance with regulations 
promulgated by the Administrator under subsection (b), 
which is not less than the economic value that a delay in com-
pliance may have for the owner of the source, including— 
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(I) the quarterly equivalent of the capital costs of com-
pliance and debt service over a normal amortization pe-
riod, not to exceed 10 years; 
(II) operation and maintenance costs forgone as a re-
sult of noncompliance; and 
(III) any additional economic value that such a delay 
may have for the owner or operator of the source; minus 
(ii) the amount of any expenditure made by the owner or 
operator of the source during any such quarter for the pur-
pose of bringing the source into, and maintaining compliance 
with, the requirement, to the extent that the expenditure is 
not taken into account in the calculation of the penalty under 
clause (i). 
(B) SUBTRACTION OF EXPENDITURE.—To the extent that any 
expenditure under subparagraph (A)(ii) made during any quarter 
is not subtracted for that quarter from the costs under subpara-
graph (A)(i), the expenditure may be subtracted for any subse-
quent quarter from those costs. 
(C) MINIMUM AMOUNT.—In no event shall the amount paid be 
less than the quarterly payment minus the amount attributed to 
actual cost of construction. 
(2) PAYMENT IN INSTALLMENTS.— 
(A) DEFINITION OF PERIOD OF COVERED NONCOMPLIANCE.— 
In this paragraph, the term ‘‘period of covered noncompliance’’ 
means the period that begins on the date of issuance of a notice 
of noncompliance under subsection (c)(3) and ending on the date 
on which the source comes into (or for the purpose of establishing 
the schedule of payments, is estimated to come into) compliance 
with the requirement. 
(B) IN GENERAL.—The assessed penalty required under this 
section shall be paid in quarterly installments for the period of 
covered noncompliance. All quarterly payments (determined with-
out regard to any adjustment or any subtraction under paragraph 
(1)(A)(ii)) after the 1st payment shall be equal. 
(C) 1ST PAYMENT.—The 1st payment shall be due on the date 
that is 6 months after the date of issuance of the notice of non-
compliance under subsection (b)(3) with respect to any source. 
The 1st payment shall be in the amount of the quarterly install-
ment for the upcoming quarter, plus the amount owed for any pre-
ceding period within the period of covered noncompliance for the 
source. 
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(3) REVIEW OF ACTUAL EXPENDITURES.—On making a determina-
tion 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, a State (or the Administrator as the case may 
be) shall— 
(A) review the actual expenditures made by the owner or oper-
ator of the source for the purpose of attaining and maintaining 
compliance; and 
(B) within 180 days after the source comes into compliance— 
(i) 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 the owner or oper-
ator; or 
(ii) assess and collect an additional payment with interest 
at appropriate prevailing rates (as determined by the Sec-
retary of the Treasury) for any underpayment by the owner 
or operator. 
(4) QUARTERLY
NONPAYMENT
PENALTY.—An owner or operator 
that 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 the fail-
ure to pay persists. The nonpayment penalty shall be in an amount 
equal to 20 percent of the aggregate amount of the owner or operator’s 
penalties and nonpayment penalties with respect to the source that are 
unpaid as of the beginning of the quarter. 
(h) JUDICIAL REVIEW.—Any action pursuant to this section, including 
any objection of the Administrator under subsection (d)(3), shall be consid-
ered a final action for purposes of judicial review of any penalty under sec-
tion 211113 of this title. 
(i) 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 division and shall in no way affect any 
civil or criminal enforcement proceedings brought under any provision of 
this division or State or local law. 
(j) MORE STRINGENT EMISSION LIMITATIONS
OR OTHER REQUIRE-
MENTS.—In the case of any emission limitation or other requirement ap-
proved or promulgated by the Administrator under this division after Au-
gust 7, 1977, that is more stringent than the emission limitation or require-
ment for the source in effect prior to such approval or promulgation, if any, 
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or where there was no emission limitation or requirement approved or pro-
mulgated before August 7, 1977, the date for imposition of the noncompli-
ance penalty under this section shall be the date on which the source is re-
quired to be in full compliance with the emission limitation or requirement, 
but in no event later than 3 years after the approval or promulgation of 
the emission limitation or requirement. 
(k) DETERMINATION OF NUMBER OF DAYS.—For purposes of deter-
mining the number of days of violation for which an assessment may be 
made under this section, 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 the notice and each 
day thereafter until the violator establishes that continuous compliance has 
been achieved, except to the extent that the violator can prove by a prepon-
derance of the evidence that there were intervening days during which no 
violation occurred or that the violation was not continuing in nature. 
§ 211120. Consultation 
(a) PROCESS.—In carrying out the requirements of this division requiring 
applicable implementation plans to contain— 
(1) any transportation controls, air quality maintenance plan re-
quirements, or preconstruction review of direct sources of air pollution; 
or 
(2) any measure described in chapter 213 or 215; 
a State shall provide a satisfactory process of consultation with general pur-
pose 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, as part of the plan. 
(b) REGULATIONS.—The process provided under subsection (a) shall be 
in accordance with regulations promulgated by the Administrator to ensure 
adequate consultation. 
(c) JUDICIAL REVIEW.—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 described in subsection 
(a) may petition for judicial review of an action described in subsection (a) 
on the basis of a violation of the requirements of this section. 
§ 211121. Listing of certain unregulated pollutants 
(a) RADIOACTIVE POLLUTANTS, CADMIUM, ARSENIC, AND POLYCYCLIC 
ORGANIC MATTER.— 
(1) REVIEW AND DETERMINATION.—After notice and opportunity for 
public hearing, the Administrator shall review all available relevant in-
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formation and determine whether emissions of radioactive pollutants 
(including source material, special nuclear material, and byproduct ma-
terial), cadmium, arsenic, and polycyclic organic matter into the ambi-
ent air will cause, or contribute to, air pollution that may reasonably 
be anticipated to endanger public health. 
(2) AFFIRMATIVE DETERMINATION.—If the Administrator makes an 
affirmative determination with respect to a substance described in 
paragraph (1), the Administrator, simultaneously with the determina-
tion, shall— 
(A) include the substance in the list published under section 
211108(a)(1) or 211112(b)(1) of this title (in the case of a sub-
stance that, in the judgment of the Administrator, causes, or con-
tributes to, air pollution that may reasonably be anticipated to re-
sult in an increase in mortality or an increase in serious irrevers-
ible, or incapacitating reversible, illness); 
(B) include each category of stationary sources emitting the 
substance in significant amounts in the list published under sec-
tion 211111(b)(1) of this title, or take any combination of such 
actions; or 
(C) take both such actions. 
(b) REVISION AUTHORITY.—Nothing in subsection (a) shall be construed 
to affect the authority of the Administrator to revise any list described in 
subsection (a) with respect to any substance (whether or not enumerated 
in subsection (a)). 
(c) SOURCE MATERIAL, SPECIAL NUCLEAR MATERIAL, AND BYPRODUCT 
MATERIAL.— 
(1) CONSULTATION.—Before listing any source material, special nu-
clear material, or byproduct material (or component or derivative there-
of) as provided in subsection (a), the Administrator shall consult with 
the Nuclear Regulatory Commission. 
(2) INTERAGENCY AGREEMENT.—Not later than 6 months after list-
ing any source material, special nuclear material, or byproduct material 
(or component or derivative thereof), the Administrator and the Nu-
clear Regulatory Commission shall enter into an interagency agreement 
with respect to sources and facilities that are under the jurisdiction of 
the Nuclear Regulatory Commission. The agreement shall, to the max-
imum extent practicable consistent with this division, minimize duplica-
tion of effort and conserve administrative resources in the establish-
ment, implementation, and enforcement of emission limitations, stand-
ards of performance, and other requirements and authorities (sub-
stantive and procedural) under this division respecting the emission of 
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source material, special nuclear material, or byproduct material (and 
components and derivatives thereof) from those sources or facilities. 
(3) PUBLIC HEALTH AND SAFETY.—In case of any standard or emis-
sion limitation promulgated by the Administrator, under this division 
or by any State (or the Administrator) under any applicable implemen-
tation plan under this division, if the Nuclear Regulatory Commission 
determines, after notice and opportunity for public hearing that the ap-
plication of the standard or limitation to a source or facility under the 
jurisdiction of the Nuclear Regulatory Commission would endanger 
public health or safety, the standard or limitation shall not apply to 
those facilities or sources unless the President determines otherwise 
within 90 days after the date of the determination. 
§ 211122. Stack heights 
(a) DEFINITIONS.—In this section: 
(1) DISPERSION TECHNIQUE.—The term ‘‘dispersion technique’’ in-
cludes any intermittent or supplemental control of an air pollutant 
varying with atmospheric conditions. 
(2) GOOD ENGINEERING PRACTICE.— 
(A) IN GENERAL.—The term ‘‘good engineering practice’’, with 
respect to the height of a stack at a source, means the height nec-
essary to ensure that emissions from the stack do not result in ex-
cessive concentrations of any air pollutant in the immediate vicin-
ity of the source as a result of atmospheric downwash, eddies, and 
wakes that may be created by the source itself, nearby structures, 
or nearby terrain obstacles (as determined by the Administrator). 
(B) LIMITATION.—For purposes of subparagraph (A), stack 
height consistent with good engineering practice shall not exceed 
21⁄2 times the height of a 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 subparagraph (A). 
(b) HEIGHTS IN EXCESS OF GOOD ENGINEERING PRACTICE; OTHER DIS-
PERSION TECHNIQUES.— 
(1) IN GENERAL.—The degree of emission limitation required for 
control of any air pollutant under an applicable implementation plan 
under this subdivision shall not be affected in any manner by— 
(A) so much of the stack height of any source as exceeds good 
engineering practice (as determined under regulations promulgated 
by the Administrator); or 
(B) any other dispersion technique. 
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(2) APPLICABILITY.—Paragraph (1) shall not apply with respect to 
stack heights in existence before December 31, 1970, or dispersion 
techniques implemented before that date. 
(3) EMISSION LIMITATION FOR CERTAIN COAL-FIRED STEAM ELEC-
TRIC GENERATING UNITS.—In establishing an emission limitation for 
coal-fired steam electric generating units are subject to section 211118 
of this title and that commenced operation before July 1, 1957, the ef-
fect of the entire stack height of stacks for which a construction con-
tract was awarded before February 8, 1974, may be taken into ac-
count. 
(c) LIMITATION.—In no event may the Administrator prohibit any in-
crease in any stack height or restrict in any manner the stack height of any 
source. 
(d) REGULATIONS.—After notice and opportunity for public hearing, the 
Administrator shall promulgate regulations to carry out this section. 
§ 211123. Assurance of adequacy of State plans 
(a) STATE REVIEW
OF IMPLEMENTATION PLANS THAT RELATE
TO 
MAJOR FUEL BURNING SOURCES.—Each State shall review the provisions 
of its implementation plan that relate to major fuel burning sources and 
shall determine— 
(1) the extent to which compliance with requirements of the imple-
mentation plan is dependent on the use by major fuel burning sta-
tionary sources of petroleum products or natural gas; 
(2) the extent to which the implementation plan may reasonably be 
anticipated to be inadequate to meet the requirements of this division 
in the State on a reliable and long-term basis by reason of its depend-
ence on the use of petroleum products or natural gas; and 
(3) the extent to which compliance with the requirements of the im-
plementation plan is dependent on use of coal or coal derivatives that 
is not locally or regionally available. 
(b) SUBMISSION TO ADMINISTRATOR.—Each State shall submit the re-
sults of its review and its determination under subsection (a) to the Admin-
istrator promptly on completion of the review. 
(c) PLAN REVISION.— 
(1) REVISION.—The Administrator shall review the submissions of 
the States under subsection (b) and shall require a State to revise its 
implementation plan if, in the judgment of the Administrator, revision 
is necessary to ensure that the implementation plan will be adequate 
to ensure compliance with the requirements of this division in the State 
on a reliable and long-term basis, taking into account the actual or po-
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tential prohibitions on use of petroleum products or natural gas, or 
both, under any other authority of law. 
(2) CONSIDERATIONS; CONSULTATION.—Before requiring an imple-
mentation plan revision under this subsection with respect to any 
State, the Administrator shall— 
(A) take into account the report of the review conducted by the 
State under paragraph (1); and 
(B) consult with the Governor of the State respecting the re-
quired revision. 
§ 211124. Measures to prevent economic disruption or unem-
ployment 
(a) DEFINITION
OF LOCALLY
OR REGIONALLY AVAILABLE COAL
OR 
COAL DERIVATIVES.—In this section, the term ‘‘locally or regionally avail-
able coal or coal derivative’’ means coal or a coal derivative that is, or in 
the judgment of a State or the Administrator can feasibly be, mined or pro-
duced in the local or regional area (as determined by the Administrator) in 
which a major fuel burning stationary source is located. 
(b) DETERMINATION THAT ACTION IS NECESSARY.—After notice and op-
portunity for a public hearing, the Governor of any State in which a major 
fuel burning stationary source described in this subsection (or class or cat-
egory thereof) is located, the Administrator or the President (or a designee 
of the President) may determine that action under subsection (c) is nec-
essary to prevent or minimize significant local or regional economic disrup-
tion or unemployment that would otherwise result from use by the source 
(or class or category) of— 
(1) coal or coal derivatives other than locally or regionally available 
coal; 
(2) petroleum products; 
(3) natural gas; or 
(4) any combination of fuels described in paragraphs (1) through 
(3); 
to comply with the requirements of a State implementation plan. 
(c) USE OF LOCALLY OR REGIONALLY AVAILABLE COAL OR COAL DE-
RIVATIVES TO COMPLY WITH IMPLEMENTATION PLAN REQUIREMENTS.— 
(1) IN GENERAL.—On a determination under subsection (b)— 
(A) the Governor, with the written consent of the President or 
a designee of the President; 
(B) a designee of the President, with the written consent of the 
Governor; or 
(C) the President; 
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may by regulation or order prohibit any such major fuel burning sta-
tionary 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. 
(2) CONSIDERATION OF FINAL COST.—In taking any action under 
this subsection, the Governor, the President, or the President’s des-
ignee, as the case may be, shall take into account the final cost to the 
consumer of such an action. 
(d) CONTRACTS; SCHEDULES.— 
(1) IN GENERAL.—The Governor, in the case of an action under sub-
section (c)(1)(A), or the Administrator, in the case of an action under 
subparagraph (B) or (C) of subsection (c)(1), shall, by regulation or 
order, require each source to which the action applies to— 
(A) enter into long-term contracts of at least 10 years in dura-
tion (except as the President or the President’s designee may oth-
erwise permit or require by regulation or order for good cause) for 
supplies of regionally available coal or coal derivatives; 
(B) enter into contracts to acquire any additional means of 
emission limitation that the Administrator or the State determines 
may be necessary to comply with the requirements of this division 
while using such coal or coal derivatives as fuel; and 
(C) comply with such schedules (including increments of 
progress), timetables, and other requirements as may be necessary 
to ensure compliance with the requirements of this division. 
(2) TIMING.—Requirements under this subsection shall be estab-
lished simultaneously with, and as a condition of, any action under sub-
section (c). 
(e) EXISTING OR NEW MAJOR FUEL BURNING STATIONARY SOURCES.— 
This section applies only to existing or new major fuel burning stationary 
sources that— 
(1) have the design capacity to produce 250,000,000 British thermal 
units per hour (or the equivalent), as determined by the Administrator; 
and 
(2) are not in compliance with the requirements of an applicable im-
plementation plan or are prohibited from burning oil or natural gas, 
or both, under any other authority of law. 
(f) ACTIONS NOT TO BE DEEMED MODIFICATIONS OF MAJOR FUEL 
BURNING STATIONARY SOURCES.—Except as may otherwise be provided by 
regulation by a State or the Administrator for good cause, any action re-
quired to be taken by a major fuel burning stationary source under this sec-
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tion shall not be deemed to constitute a modification for purposes of para-
graphs (2) and (3) of section 211111(a) of this title. 
(g) TREATMENT OF PROHIBITIONS, REGULATIONS, OR ORDERS AS RE-
QUIREMENTS OR PARTS OF PLANS UNDER OTHER PROVISIONS.—For pur-
poses of sections 211113 and 211119 of this title, a prohibition under sub-
section (c), and a corresponding regulation or order under subsection (d), 
shall be treated as a requirement of section 211113 of this title. For pur-
poses of any plan (or portion thereof) promulgated under section 211110(c) 
of this title, any regulation or order under subsection (d) corresponding to 
a prohibition under subsection (c) shall be treated as a part of the plan. 
For purposes of section 211113 of this title, a prohibition under subsection 
(c), applicable to any source, and a corresponding regulation or order under 
subsection (d), shall be treated as part of the applicable implementation 
plan for the State in which the subject source is located. 
(h) DELEGATION OF PRESIDENTIAL AUTHORITY.—The President may 
delegate the President’s authority under this section to an officer or em-
ployee of the United States designated by the President on a case-by-case 
basis or in any other manner that the President considers suitable. 
§ 211125. Interstate pollution abatement 
(a) WRITTEN NOTICE TO ALL NEARBY STATES.—Each applicable imple-
mentation plan shall require each major proposed new (or modified) 
source— 
(1) that is subject to chapter 213; or 
(2) that may significantly contribute to levels of air pollution in ex-
cess of the NAAQSes in any air quality control region outside the State 
in which the source intends to locate (or make the modification); 
to provide written notice to all nearby States the air pollution levels of 
which may be affected by the source at least 60 days prior to the date on 
which commencement of construction is to be permitted by the State pro-
viding notice. 
(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 
section 211110(a)(3)(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.— 
(1) IN GENERAL.—Notwithstanding any permit granted by a State 
in which a source is located (or intends to locate), it shall be a violation 
of this section and the applicable implementation plan in that State— 
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(A) for any major proposed new (or modified) source with re-
spect to which a finding has been made under subsection (b) to 
be 
constructed 
or 
to 
operate 
in 
violation 
of 
section 
211110(a)(3)(D)(ii) of this title or this section; or 
(B) for any major existing source to operate more than 3 
months after such a finding has been made with respect to it. 
(2) CONTINUED OPERATION.—The Administrator may permit the 
continued operation of a source described in paragraph (1)(B) beyond 
the expiration of the 3-month period if the source complies with such 
emission limitations and compliance schedules (containing increments 
of progress) as the Administrator may provide to bring about compli-
ance with the requirements contained in section 211110(a)(3)(D)(ii) of 
this title or this section as expeditiously as practicable, but in no case 
later than 3 years after the date of the finding. 
§ 211126. Public notification 
(a) IN GENERAL.—A State implementation plan shall contain measures 
that will be effective to notify the public during any calendar year on a reg-
ular basis of instances or areas in which any primary NAAQS is exceeded 
or was exceeded during any portion of the preceding calendar year to— 
(1) advise the public of the health hazards associated with such pol-
lution; and 
(2) enhance public awareness of— 
(A) the measures that can be taken to prevent those standards 
from being exceeded; and 
(B) the ways in which the public can participate in regulatory 
efforts and other efforts to improve air quality. 
(b) MEASURES.—Measures under subsection (a) may include— 
(1) the posting of warning signs on interstate highway access points 
to metropolitan areas; or 
(2) television, radio, or press notices or information. 
(c) GRANTS.—The Administrator may make grants to States to assist in 
carrying out this section. 
§ 211127. State boards 
(a) IN GENERAL.—An applicable implementation plan shall contain re-
quirements that— 
(1) any board or body that approves permits or enforcement orders 
under this division 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 division; and 
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(2) any potential conflicts of interest by members of such a board 
or body or the head of an executive agency with similar powers be ade-
quately disclosed. 
(b) REQUIREMENTS RESPECTING CONFLICTS OF INTEREST.—A State 
may adopt any requirements respecting conflicts of interest for boards or 
bodies or heads of executive agencies described in subsection (a), or any 
other entities, that are more stringent than the requirements of paragraphs 
(1) and (2) of subsection (a), and the Administrator shall approve any such 
more stringent requirements submitted as part of an implementation plan. 
§ 211128. Solid waste combustion 
(a) DEFINITIONS.—In this section: 
(1) EXISTING SOLID WASTE INCINERATION UNIT.—The term ‘‘exist-
ing solid waste incineration unit’’ means a solid waste unit that is not 
a new solid waste incineration unit or modified solid waste incineration 
unit. 
(2) EXISTING UNIT.—The term ‘‘existing unit’’ means an existing 
solid waste incineration unit. 
(3) MEDICAL WASTE.—The term ‘‘medical waste’’ has the meaning 
established by the Administrator pursuant to the Solid Waste Disposal 
Act (42 U.S.C. 6901 et seq.). 
(4) MODIFIED SOLID WASTE INCINERATION UNIT.—The term ‘‘modi-
fied solid waste incineration unit’’ means a solid waste incineration unit 
at which modifications have occurred after the effective date of a stand-
ard under subsection (b) if— 
(A) the cumulative cost of the modifications, over the life of the 
unit, exceed 50 percent of the original cost of construction and in-
stallation of the unit (not including the cost of any land purchased 
in connection with the construction or installation) updated to cur-
rent costs; or 
(B) the modification is a physical change in or change in the 
method of operation of the unit that increases the amount of any 
air pollutant emitted by the unit for which standards have been 
established under this section or section 211111 of this title. 
(5) MUNICIPAL WASTE.— 
(A) IN GENERAL.—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 waste, food waste, plastic, leather, 
rubber, and other combustible material and noncombustible mate-
rial such as metal, glass, and rock. 
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(B) EXCLUSIONS.—The term ‘‘municipal waste’’ does not in-
clude industrial process waste or medical waste that is segregated 
from other waste described in subparagraph (A). 
(C) INCINERATION UNITS.—An incineration unit shall not be 
considered to be combusting municipal waste for purposes of this 
section if the incineration unit combusts a fuel feed stream 30 per-
cent or less of the weight of which is comprised, in aggregate, of 
municipal waste. 
(6) NEW SOLID WASTE INCINERATION UNIT.—The term ‘‘new solid 
waste incineration unit’’, with respect to any requirement that the Ad-
ministrator proposes under this section establishing an emission stand-
ard or other requirement that would be applicable to the unit or a 
modified solid waste incineration unit, means a solid waste incineration 
unit the construction of which is commenced after the date on which 
the Administrator proposes the requirement. 
(7) NEW UNIT.—The term ‘‘new unit’’ means a new solid waste in-
cineration unit. 
(8) SOLID WASTE.—The term ‘‘solid waste’’ has the meaning estab-
lished by the Administrator pursuant to the Solid Waste Disposal Act 
(42 U.S.C. 6901 et seq.). 
(9) SOLID WASTE INCINERATION UNIT.— 
(A) IN GENERAL.—The term ‘‘solid waste incineration unit’’ 
means a distinct operating unit of any facility that combusts any 
solid waste material from commercial or industrial establishments 
or the general public (including single and multiple residences, ho-
tels, and motels). 
(B) EXCLUSIONS.—The term ‘‘solid waste incineration unit’’ 
does not include— 
(i) an incinerator or other unit required to have a permit 
under section 3005 of the Solid Waste Disposal Act (42 
U.S.C. 6925); 
(ii) a materials recovery facility (including a primary or 
secondary smelter) that combusts waste for the primary pur-
pose of recovering metal; 
(iii) a qualifying small power production facility (as defined 
in section 3(17)(C) of the Federal Power Act (16 U.S.C. 
796(17)(C)) or qualifying cogeneration facility (as defined in 
section 3(18)(B) of the Federal Power Act (16 U.S.C. 
796(18)(B)) that burns homogeneous waste (such as a unit 
that burns tires or used oil, but not including refuse-derived 
fuel) for the production of electric energy or in the case of 
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a qualifying cogeneration facility that burns homogeneous 
waste for the production of electric energy and steam or 
forms of useful energy (such as heat) that are used for indus-
trial, commercial, heating or cooling purposes; or 
(iv) an air curtain incinerator, if the air curtain incinerator 
burns only wood waste, yard waste, and clean lumber and 
complies with opacity limitations established by the Adminis-
trator by regulation. 
(10) UNIT.—The term ‘‘unit’’ means a solid waste incineration unit. 
(b) NEW SOURCE PERFORMANCE STANDARDS.— 
(1) IN GENERAL.—The Administrator shall establish performance 
standards and other requirements pursuant to this section and section 
211111 of this title for each category of solid waste incineration units. 
The standards shall include emission limitations and other require-
ments applicable to new units and guidelines (under section 211111(d) 
of this title and this section) and other requirements applicable to ex-
isting units. 
(2) EMISSION STANDARD.— 
(A) MAXIMUM DEGREE OF REDUCTION IN EMISSIONS.—Stand-
ards applicable to solid waste incineration units promulgated 
under this section and section 211111 of this title shall reflect the 
maximum degree of reduction in emissions of air pollutants listed 
under paragraph (4) that the Administrator, taking into consider-
ation the cost of achieving such emission reduction, and any non- 
air-quality health and environmental impacts and energy require-
ments, determines is achievable for new units or existing units in 
each category. 
(B) CLASSES, TYPES, AND SIZES OF UNITS.—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 the standards. 
(C) STRINGENCY.—The degree of reduction in emissions that is 
considered achievable for new units in a category shall not be less 
stringent than the emission control that is achieved in practice by 
the best controlled similar unit, as determined by the Adminis-
trator. Emission 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 emission limitation 
achieved by the best performing 12 percent of units in the cat-
egory (excluding units that first met lowest achievable emission 
rates 18 months before the date on which the emission standards 
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are proposed or 30 months before the date on which the emission 
standards are promulgated, whichever is later). 
(3) CONTROL METHODS AND TECHNOLOGIES.—Standards under this 
section and section 211111 of this title applicable to solid waste incin-
eration units shall— 
(A) be based on methods and technologies for removal or de-
struction of pollutants before, during, or after combustion; and 
(B) incorporate for new units siting requirements that minimize, 
on a site-specific basis, to the maximum extent practicable, poten-
tial risks to public health or the environment. 
(4) NUMERICAL EMISSION LIMITATIONS.— 
(A) IN
GENERAL.—The performance standards promulgated 
under this section and section 211111 of this title and applicable 
to solid waste incineration units shall specify numerical emission 
limitations for the following: 
(i) particulate matter (total and fine); 
(ii) opacity (as appropriate); 
(iii) sulfur dioxide; 
(iv) hydrogen chloride; 
(v) nitrogen oxides; 
(vi) carbon monoxide; 
(vii) lead; 
(viii) cadmium; 
(ix) mercury; and 
(x) dioxins and dibenzofurans. 
(B) SURROGATE SUBSTANCES.—The Administrator may pro-
mulgate numerical emission limitations or provide for the moni-
toring of postcombustion concentrations of surrogate substances, 
parameters, or periods of residence time in excess of stated tem-
peratures with respect to pollutants other than those listed in this 
paragraph. 
(5) REVIEW AND REVISION.—Not later than 5 years after the initial 
promulgation of any performance standards and other requirements 
under this section and section 211111 of this title applicable to a cat-
egory of units, and at 5 year intervals thereafter, the Administrator 
shall review, and in accordance with this section and section 211111 
of this title, revise the standards and requirements. 
(c) EXISTING UNITS.— 
(1) GUIDELINES.—Performance standards under this section and 
section 211111 of this title for units shall include guidelines promul-
gated pursuant to this section and section 211111(d) of this title appli-
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cable to existing units. The guidelines shall include, as provided in this 
section, each of the elements required by subsections (b) (notwith-
standing any restriction in section 211111(d) of this title regarding 
issuance of such limitations), (d), (e), (f), and (h)(3). 
(2) STATE PLANS.—Not later than 1 year after the Administrator 
promulgates guidelines for a category of units, a 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 that category 
of units. The State plan shall be at least as protective as the guidelines 
promulgated by the Administrator and shall provide that each unit sub-
ject 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 are 
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. A 
State may modify and resubmit a plan that has been disapproved by 
the Administrator. 
(3) FEDERAL PLAN.—The Administrator shall develop, implement, 
and enforce a plan for existing units within any category located in any 
State that has not submitted an approvable plan under this subsection 
with respect to units in that category within 2 years after the date on 
which the Administrator promulgated the relevant guidelines. The plan 
shall ensure that each unit subject to the plan is in compliance with 
all provisions of the guidelines not later than 5 years after the date 
on which the relevant guidelines are promulgated. 
(d) MONITORING.— 
(1) IN GENERAL.—The Administrator shall, as part of each perform-
ance standard promulgated pursuant to subsection (b) and section 
211111 of this title, promulgate regulations requiring the owner or op-
erator of each solid waste incineration unit— 
(A) to monitor emissions from the unit at the point at which 
the emissions are emitted into the ambient air (or within the 
stack, combustion chamber, or pollution control equipment, as ap-
propriate) and at such other points as are necessary to protect 
public health and the environment; 
(B) to monitor such other parameters relating to the operation 
of the unit and its pollution control technology as the Adminis-
trator determines are appropriate; and 
(C) to report the results of the monitoring. 
(2) CONTENTS.—The regulations shall— 
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(A) 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; 
(B) require that any monitoring reports or test results indi-
cating an exceedance of any standard under this section be re-
ported separately and in a manner that facilitates review for pur-
poses of enforcement actions; and 
(C) require that copies of the results of the monitoring be main-
tained on file at the facility concerned and that copies be made 
available for inspection and copying by members of the public dur-
ing business hours. 
(e) OPERATOR TRAINING.—The Administrator shall develop and promote 
a model State program for the training and certification of 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 unit 
operators and high-capacity fossil fuel-fired plant operators if the State 
adopts a program that is at least as effective as the model program devel-
oped by the Administrator. Beginning on the date 36 months after the date 
on which performance standards and guidelines are promulgated under sub-
section (b) and section 211111 of this title for any category of units, it shall 
be unlawful to operate any unit in the category unless each person with con-
trol over processes affecting emissions from the unit has satisfactorily com-
pleted a training program meeting the requirements established by the Ad-
ministrator under this subsection. 
(f) PERMITS.— 
(1) IN GENERAL.—Beginning on the later of— 
(A) the date that is 36 months after the promulgation of a per-
formance standard under subsection (b) and section 211111 of 
this title applicable to a category of units; or 
(B) the effective date of a permit program under subdivision 6 
in the State in which the unit is located; 
each unit in the category shall operate pursuant to a permit issued 
under this subsection and subdivision 6. 
(2) RENEWAL.—A permit required by this subsection may be re-
newed under subdivision 6. 
(3) DURATION.—Notwithstanding any other provision of this divi-
sion, a permit for a unit combusting municipal waste issued under this 
division shall be issued for a period of up to 12 years and shall be re-
viewed every 5 years after date of issuance or reissuance. A permit 
shall continue in effect after the date of issuance until the date of ter-
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mination, unless the Administrator or State determines that the unit 
is not in compliance with all standards and conditions contained in the 
permit. Such a determination shall be made at regular intervals of not 
more than 5 years during the term of the permit, after public comment 
and public hearing. 
(4) LIMITATION.—No permit for a unit may be issued under this di-
vision by an agency, instrumentality, or person that is also responsible, 
in whole or part, for the design and construction or operation of the 
unit. 
(5) COMPLIANCE WITH EMISSION LIMITATIONS OR IMPLEMENTATION 
OF OTHER MEASURES.— 
(A) IN GENERAL.—Notwithstanding any other provision of this 
subsection, the Administrator or the State shall require the owner 
or operator of any unit to comply with emission limitations or im-
plement any other measures, if the Administrator or the State de-
termines that emissions in the absence of such limitations or 
measures may reasonably be anticipated to endanger public health 
or the environment. 
(B) DISCRETIONARY
DECISION.—The Administrator’s deter-
mination under subparagraph (A) is a discretionary decision. 
(g) EFFECTIVE DATE AND ENFORCEMENT.— 
(1) NEW UNITS.—Performance standards and other requirements 
promulgated pursuant to this section and section 211111 of this title 
and applicable to new solid waste incineration units shall be effective 
as of the date that is 6 months after the date of promulgation. 
(2) EXISTING UNITS.—Performance standards and other require-
ments promulgated pursuant to this section and section 211111 of this 
title and applicable to existing units shall be effective as expeditiously 
as practicable after approval of a State plan under subsection (c)(2) 
(or promulgation of a plan by the Administrator under subsection 
(c)(3)) but in no event later than 3 years after the State plan is ap-
proved or 5 years after the date on which the standards or require-
ments are promulgated, whichever is earlier. 
(3) PROHIBITION.—It shall be unlawful for any owner or operator 
of any solid waste incineration unit to which a performance standard, 
emission limitation, or other requirement promulgated pursuant to this 
section and section 211111 of this title applies to operate the unit in 
violation of the performance standard, emission limitation, or require-
ment or for any other person to violate an applicable requirement of 
this section. 
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(4) COORDINATION WITH OTHER AUTHORITIES.—For purposes of 
sections 203102, 203103, 203104, 211111(j), 211113, 211114, 
211116, and 211119 of this title and other provisions for the enforce-
ment of this division, each performance standard, emission limitation, 
or other requirement established pursuant to this section by the Ad-
ministrator or a State or local government shall be treated in the same 
manner as a standard of performance under section 211111 of this 
title that is an emission limitation. 
(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 division. 
(2) OTHER AUTHORITY UNDER THIS DIVISION.—Nothing in this sec-
tion shall diminish the authority of the Administrator or a State to es-
tablish any other requirements applicable to solid waste incineration 
units under any other authority of law, including the authority to es-
tablish for any air pollutant a NAAQS, except that no solid waste in-
cineration unit subject to performance standards under this section and 
section 211111 of this title shall be subject to standards under section 
211112(d) of this title. 
(3) RESIDUAL RISK.— 
(A) IN GENERAL.—The Administrator shall promulgate stand-
ards under section 211112(f) of this title for a category of solid 
waste incineration units, if promulgation of such standards is re-
quired under section 211112(f) of this title. 
(B) STANDARDS.—For purposes of subparagraph (A) only— 
(i) the performance standards under subsection (b) and 
section 211111 of this title applicable to a category of units 
shall be deemed to be standards under section 211112(d)(2) 
of this title; and 
(ii) the Administrator shall consider and regulate, if re-
quired, the pollutants listed under subsection (b)(4) and no 
others. 
(4) ACID RAIN.—A solid waste incineration unit shall not be a utility 
unit as defined in subdivision 5 if more than 80 percent of its annual 
average fuel consumption measured on a British thermal unit basis, 
during a period or periods to be determined by the Administrator, is 
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from a fuel (including any waste burned as a fuel) other than a fossil 
fuel. 
(5) REQUIREMENTS OF CHAPTERS 213 AND 215.—No requirement of 
an 
applicable 
implementation 
plan 
under 
section 
213107 
or 
215102(c)(5) of this title may be used to weaken the standards in ef-
fect under this section. 
§ 211129. Emission factors 
(a) DEFINITION OF EMISSION FACTOR.—In this section, the term ‘‘emis-
sion factor’’ means a method by which to estimate the quantity of emissions 
of an air pollutant for purposes of this division. 
(b) REVIEW AND REVISION OF EMISSION FACTORS.—At least every 3 
years, the Administrator shall review and, if necessary, revise, the emission 
factors for carbon monoxide, volatile organic compounds, and nitrogen ox-
ides from sources of those air pollutants (including area sources and mobile 
sources). 
(c) ADDITIONAL EMISSION FACTORS.—The Administrator shall establish 
emission factors for sources for which no emission factors have previously 
been established by the Administrator. 
(d) EMISSIONS ESTIMATING TECHNIQUES.—The Administrator shall per-
mit any person to demonstrate improved emissions estimating techniques, 
and following approval of such techniques, the Administrator shall authorize 
the use of the techniques. Any such technique may be approved only after 
appropriate public participation. 
§ 211130. Land use authority 
Nothing in this division— 
(1) constitutes an infringement on the authority of counties and cit-
ies to plan or control land use; or 
(2) provides or transfers authority over land use. 
Chapter 213—Prevention of Significant 
Deterioration of Air Quality 
Subchapter I—General Provisions 
Sec. 
213101. Purposes. 
213102. Definitions. 
213103. Plan requirements. 
213104. Initial classifications. 
213105. Increments and ceilings. 
213106. Area redesignation. 
213107. Preconstruction requirements. 
213108. Other pollutants. 
213109. Enforcement. 
Subchapter II—Visibility Protection 
213201. Visibility protection for mandatory class I Federal areas. 
213202. Visibility. 
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Subchapter I—General Provisions 
§ 213101. Purposes 
The purposes of this chapter are— 
(1) to protect public health and welfare from any actual or potential 
adverse effect that in the Administrator’s judgment may reasonably be 
anticipated to occur from air pollution or from exposures to pollutants 
in other media, which pollutants originate as emissions to the ambient 
air, notwithstanding attainment and maintenance of all NAAQSes; 
(2) to preserve, protect, and enhance the air quality in national 
parks, national wilderness areas, national monuments, national sea-
shores, and other areas of special national or regional natural, rec-
reational, scenic, or historic value; 
(3) to ensure that economic growth will occur in a manner consistent 
with the preservation of existing clean air resources; 
(4) to ensure that emissions from any source in any State will not 
interfere with any portion of the applicable implementation plan to pre-
vent significant deterioration of air quality for any other State; and 
(5) to ensure that any decision to permit increased air pollution in 
any area to which this chapter applies is made only after careful eval-
uation of all the consequences of such a decision and after adequate 
procedural opportunities for informed public participation in the deci-
sionmaking process. 
§ 213102. Definitions 
In this chapter: 
(1) BASELINE CONCENTRATION.— 
(A) IN GENERAL.—The term ‘‘baseline concentration’’ means, 
with respect to a pollutant, the ambient concentration levels that 
exist at the time of the 1st application for a permit in an area 
subject to this chapter, based on air quality data available in EPA 
or a State air pollution control agency and on such monitoring 
data as the permit applicant is required to submit. 
(B) PROJECTED EMISSIONS TAKEN INTO ACCOUNT.—Ambient 
concentration levels described in subparagraph (A) shall take into 
account all projected emissions in, or that may affect, the area 
from any major emitting facility on which construction commenced 
prior to January 6, 1975, but that had not begun operation by 
the date of the baseline air quality concentration determination. 
(C) SULFUR OXIDES; PARTICULATE MATTER.—Emissions of sul-
fur oxides and particulate matter from any major emitting facility 
on which construction commences after January 6, 1975, shall not 
be included in the baseline and shall be counted against the max-
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imum allowable increases in pollutant concentrations established 
under this chapter. 
(2) BEST
AVAILABLE
CONTROL
TECHNOLOGY.—The term ‘‘best 
available control technology’’ means an emission limitation that— 
(A) is based on the maximum degree of reduction of each pollut-
ant subject to regulation under this division emitted from or that 
results from any major emitting facility, which the permitting au-
thority, on a case-by-case basis, taking into account energy, envi-
ronmental, and economic impacts and other costs, determines is 
achievable for the major emitting facility through application of 
production processes and available methods, systems, and tech-
niques, including fuel cleaning, clean fuels, or treatment or innova-
tive fuel combustion techniques for control of each such pollutant; 
(B) does not result in emissions of any pollutants that will ex-
ceed the emissions allowed by any applicable standard established 
pursuant to section 211111 or 211112 of this title; and 
(C) does not allow emissions from any source utilizing clean 
fuels, or any other means, to comply with this paragraph to in-
crease above levels that would have been required under section 
169(3) of the Clean Air Act (42 U.S.C. 7479(3)) as in effect be-
fore November 15, 1990. 
(3) COMMENCE.—The term ‘‘commence’’, as applied to construction 
of a major emitting facility, means to— 
(A) obtain all necessary preconstruction approvals or permits re-
quired by Federal, State, or local air pollution emissions and air 
quality laws (including regulations); and 
(B)(i) begin, or cause to begin, a continuous program of phys-
ical on-site construction of the major emitting facility; or 
(ii) enter into a binding agreement or contractual obligation, 
which cannot be canceled or modified without substantial loss to 
the owner or operator, to undertake a program of construction of 
the major emitting facility to be completed within a reasonable 
time. 
(4) CONSTRUCTION.—The term ‘‘construction’’, when used in con-
nection with any source or facility, includes the modification (as de-
fined in section 211111(a) of this title) of the source or facility. 
(5) MAJOR EMITTING FACILITY.— 
(A) IN GENERAL.—The term ‘‘major emitting facility’’ means— 
(i) any of the stationary sources of air pollutants identified 
in subparagraph (B) that emit, or have the potential to emit, 
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100 tons per year or more of any air pollutant from the types 
of stationary sources identified in subparagraph (B); and 
(ii) any other source with the potential to emit 250 tons 
per year or more of any air pollutant. 
(B) 
IDENTIFIED
STATIONARY
SOURCES.—The 
stationary 
sources referred to in subparagraph (A)(i) are— 
(i) fossil fuel-fired steam electric plants of more than 
250,000,000 British thermal units per hour heat input; 
(ii) coal cleaning plants (thermal dryers); 
(iii) kraft pulp mills; 
(iv) Portland cement plants; 
(v) primary zinc smelters; 
(vi) iron and steel mill plants; 
(vii) primary aluminum ore reduction plants; 
(viii) primary copper smelters; 
(ix) municipal incinerators capable of charging more than 
50 tons of refuse per day; 
(x) hydrofluoric, sulfuric, and nitric acid plants; 
(xi) petroleum refineries; 
(xii) lime plants; 
(xiii) phosphate rock processing plants; 
(xiv) coke oven batteries; 
(xv) sulfur recovery plants; 
(xvi) carbon black plants (furnace process); 
(xvii) primary lead smelters; 
(xviii) fuel conversion plants; 
(xix) sintering plants; 
(xx) secondary metal production facilities; 
(xxi) chemical process plants; 
(xxii) fossil-fuel boilers of more than 250,000,000 British 
thermal units per hour heat input; 
(xxiii) petroleum storage and transfer facilities with a ca-
pacity exceeding 300,000 barrels; 
(xxiv) taconite ore processing facilities; 
(xxv) glass fiber processing plants; and 
(xxvi) charcoal production facilities. 
(C) EXCLUSIONS.—The term ‘‘major emitting facility’’ does not 
include a new or modified facility that is a nonprofit health or 
education institution that has been exempted by a State. 
(6) NECESSARY PRECONSTRUCTION APPROVALS OR PERMITS.—The 
term ‘‘necessary preconstruction approvals or permits’’ means the per-
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mits or approvals required by a permitting authority as a precondition 
to undertaking any activity described in paragraph (3)(B). 
§ 213103. Plan requirements 
In accordance with the policy of section 211101(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 pro-
mulgated under this chapter, to prevent significant deterioration of air qual-
ity in each region (or portion thereof) designated pursuant to section 
211107 of this title as attainment or unclassifiable. 
§ 213104. Initial classifications 
(a) AREAS DESIGNATED AS CLASS I.— 
(1) AREAS THAT MAY NOT BE REDESIGNATED.—All— 
(A) international parks; 
(B) national wilderness areas that exceed 5,000 acres; 
(C) national memorial parks that exceed 5,000 acres; and 
(D) national parks that exceed 6,000 acres; 
that were in existence on August 7, 1977, shall be class I areas and 
may not be redesignated. 
(2) AREAS THAT MAY BE REDESIGNATED.—All areas that were re-
designated as class I under regulations promulgated before August 7, 
1977, shall be class I areas that may be redesignated as provided in 
this chapter. 
(3) BOUNDARY CHANGES.—The extent of the areas designated as 
class I under this section shall conform to any changes in the bound-
aries of those areas that occur. 
(b) AREAS DESIGNATED AS CLASS II.—All areas in a State designated 
pursuant to section 211107(d) of this title as attainment or unclassifiable 
that are not established as class I under subsection (a) shall be class II 
areas unless redesignated under section 213106 of this title. 
§ 213105. Increments and ceilings 
(a) PARTICULATE MATTER AND SULFUR OXIDE; REQUIREMENT THAT 
MAXIMUM ALLOWABLE INCREASES
AND MAXIMUM ALLOWABLE CON-
CENTRATIONS NOT BE EXCEEDED.—In the case of particulate matter and 
sulfur oxide, an applicable implementation plan shall contain measures en-
suring that maximum allowable increases over baseline concentrations of, 
and maximum allowable concentrations of, particulate matter and sulfur 
oxide shall not be exceeded. In the case of any maximum allowable increase 
(except 
an 
allowable 
increase 
specified 
under 
section 
213107(d)(2)(C)(iii)(II) of this title) for a pollutant based on concentrations 
permitted under NAAQSes for any period other than an annual period, reg-
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ulations shall permit such maximum allowable increase to be exceeded dur-
ing 1 such period per year. 
(b) MAXIMUM ALLOWABLE INCREASES IN CONCENTRATIONS OVER BASE-
LINE CONCENTRATIONS.— 
(1) CLASS I AREAS.—For any class I area, the maximum allowable 
increase in concentrations of particulate matter and sulfur oxide over 
the baseline concentration of those pollutants shall not exceed the fol-
lowing amounts: 
Pollutant 
Maximum al-
lowable increase 
(in micrograms 
per cubic meter) 
Particulate matter: 
Annual geometric mean ...........................................................
Twenty-four-hour maximum ....................................................
Sulfur dioxide: 
Annual arithmetic mean ..........................................................
Twenty-four-hour maximum ....................................................
Three-hour maximum ..............................................................
(2) CLASS II AREAS.—For any class II area, the maximum allowable 
increase in concentrations of particulate matter and sulfur oxide over 
the baseline concentration of those pollutants shall not exceed the fol-
lowing amounts: 
Pollutant 
Maximum al-
lowable increase 
(in micrograms 
per cubic meter) 
Particulate matter: 
Annual geometric mean ...........................................................
Twenty-four-hour maximum ....................................................
Sulfur dioxide:.
Annual arithmetic mean ..........................................................
Twenty-four-hour maximum ....................................................
Three-hour maximum ..............................................................
512 
(3) CLASS III AREAS.—For any class III area, the maximum allow-
able increase in concentrations of particulate matter and sulfur oxide 
over the baseline concentration of those pollutants shall not exceed the 
following amounts: 
Pollutant 
Maximum al-
lowable increase 
(in micrograms 
per cubic meter) 
Particulate matter: 
Annual geometric mean ...........................................................
Twenty-four-hour maximum ....................................................
Sulfur dioxide:.
Annual arithmetic mean ..........................................................
Twenty-four-hour maximum ....................................................
182 
Three-hour maximum ..............................................................
700 
(4) ANY AREA TO WHICH THIS CHAPTER APPLIES.—The maximum 
allowable concentration of any air pollutant in any area to which this 
chapter applies shall not exceed a concentration for that pollutant for 
each period of exposure equal to— 
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(A) the concentration permitted under the secondary NAAQS; 
or 
(B) the concentration permitted under the primary NAAQS; 
whichever concentration is lower for the pollutant for that period of ex-
posure. 
(c) ORDERS OR REGULATIONS FOR DETERMINING COMPLIANCE WITH 
MAXIMUM ALLOWABLE INCREASES IN AMBIENT CONCENTRATIONS OF AIR 
POLLUTANTS.— 
(1) CONCENTRATIONS OF CERTAIN POLLUTANTS NOT TAKEN INTO 
ACCOUNT.—In the case of any State that has a plan approved by the 
Administrator for purposes of carrying out this chapter, the Governor 
of the State may, after notice and opportunity for public hearing, issue 
orders or promulgate regulations providing that for purposes of deter-
mining compliance with the maximum allowable increases in ambient 
concentrations of an air pollutant, the following concentrations of the 
pollutant shall not be taken into account: 
(A) Concentrations of the pollutant attributable to the increase 
in emissions from stationary sources that have converted from the 
use of petroleum products, or natural gas, or both, by reason of 
an order that is in effect under subsections (a) and (b) of section 
2 of the Energy Supply and Environmental Coordination Act of 
1974 (15 U.S.C. 792) (or any subsequent legislation that super-
sedes those subsections) over the emissions from those stationary 
sources before the effective date of the order. 
(B) Concentrations of the pollutant attributable to the increase 
in emissions from stationary sources that 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 those 
stationary sources before the effective date of the plan. 
(C) Concentrations of particulate matter attributable to the in-
crease in emissions from construction or other temporary emis-
sion-related activities. 
(D) The increase in concentrations attributable to new sources 
outside the United States over the concentrations attributable to 
existing sources that are included in the baseline concentration. 
(2) TIME PERIOD.—No action taken with respect to a source under 
subparagraph (A) or (B) of paragraph (1) shall apply more than 5 
years after the effective date of an order described in paragraph (1)(A) 
or the plan described to in paragraph (1)(B), whichever is applicable. 
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If both such an order and such a plan are applicable, no such action 
shall apply more than 5 years after the later of the effective dates. 
(3) SUBMISSION TO THE ADMINISTRATOR.—No action under this 
subsection shall take effect unless the Governor submits the order or 
regulation providing for an exclusion to the Administrator and the Ad-
ministrator determines that the order or regulation is in compliance 
with this subsection. 
§ 213106. Area redesignation 
(a) AUTHORITY OF STATES TO REDESIGNATE AREAS.— 
(1) CLASS I.—Except as otherwise provided under subsection (c), a 
State may redesignate such areas as the State considers appropriate 
as class I areas. 
(2) CLASS I OR CLASS II.— 
(A) IN GENERAL.—The following areas may be redesignated 
only as class I or class II: 
(i) An area that exceeds 10,000 acres and is a national 
monument, national primitive area, national preserve, na-
tional recreation area, national wild and scenic river, national 
wildlife refuge, national lakeshore, or national seashore. 
(ii) A national park or national wilderness area established 
after August 7, 1977, that exceeds 10,000 acres. 
(B) EXTENT OF AREAS.—The extent of the areas described in 
clauses (i) and (ii) of subparagraph (A) shall conform to any 
changes in the boundaries of those areas that occur. 
(3) CLASS III.— 
(A) IN GENERAL.—Any area (other than an area described in 
clause (i) or (ii) of paragraph (2)(A) or an area established as 
class I under section 213104(a)(1) of this title) may be redesig-
nated by a State as class III if— 
(i)(I) the redesignation has been specifically approved by 
the Governor of the State, after consultation with the appro-
priate 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 specifi-
cally approved by State legislation); and 
(II) general purpose units of local government representing 
a majority of the residents of the area to be redesignated 
enact legislation (including for such units of local government 
resolutions where appropriate) concurring in the State’s re-
designation; 
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(ii) the redesignation will not cause, or contribute to, con-
centrations of any air pollutant that exceed any maximum al-
lowable increase or maximum allowable concentration per-
mitted under the classification of any other area; and 
(iii) the redesignation otherwise meets the requirements of 
this chapter. 
(B) INDIAN TRIBES.—Subparagraph (A)(i)(I) does not apply to 
area redesignations by an Indian tribe. 
(b) PROCEDURE.— 
(1) NOTICE AND HEARING; NOTICE TO FEDERAL LAND MANAGER; 
WRITTEN
COMMENTS
AND
RECOMMENDATIONS; REGULATIONS; DIS-
APPROVAL OF REDESIGNATION.— 
(A) NOTICE OF HEARING.—Prior to redesignation of any area 
under this chapter, notice shall be afforded and public hearings 
shall be conducted in areas proposed to be redesignated and in 
areas that 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 avail-
able for public inspection, and prior to any such redesignation, the 
description and analysis of those effects shall be reviewed and ex-
amined by the redesignating authorities. 
(B) FEDERAL LAND MANAGERS.—Prior to the issuance of no-
tice under subparagraph (A) respecting the redesignation of any 
area under this subsection, if the area includes any Federal land, 
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 rec-
ommendations with respect to the intended notice of redesignation. 
In redesignating any area under this section with respect to which 
a Federal land manager has submitted written comments and rec-
ommendations, the State shall publish a list of any inconsistency 
between the redesignation and the recommendations and an expla-
nation of the inconsistency (including the reasons for making the 
redesignation against the recommendation of the Federal land 
manager). 
(C) REGULATIONS.—The Administrator shall promulgate regu-
lations to ensure, 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 
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emitting facility that may be permitted to be constructed and op-
erated only if the area is designated or redesignated as class III. 
(2) DISAPPROVAL OF REDESIGNATION.—The Administrator may dis-
approve the redesignation of any area only if the Administrator finds, 
after notice and opportunity for public hearing, that the redesignation 
does not meet the procedural requirements of this section or is incon-
sistent with the requirements of section 213104(a) of this title or of 
subsection (a). If any such disapproval occurs, the classification of the 
area shall be that which was in effect prior to the redesignation that 
was disapproved. 
(c) INDIAN RESERVATIONS.—Land within the exterior boundaries of a 
reservation of a federally recognized Indian tribe may be redesignated only 
by the appropriate Indian governing body. 
(d) RESOLUTION
OF
DISPUTES
BETWEEN
STATES
AND
INDIAN 
TRIBES.— 
(1) NEGOTIATIONS.—If any State affected by the redesignation of an 
area by an Indian tribe or any Indian tribe affected by the redesigna-
tion of an area by a State disagrees with the redesignation of any area, 
or if a permit is proposed to be issued for any new major emitting fa-
cility proposed for construction in any State that 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 subchapter within the affected State or tribal 
reservation, the Governor or Indian governing body may request the 
Administrator to enter into negotiations with the parties involved to re-
solve the dispute. 
(2) RECOMMENDATIONS.—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 land involved. 
(3) FAILURE TO REACH AGREEMENT.—If the parties involved do not 
reach agreement, the Administrator shall resolve the dispute and the 
Administrator’s determination, or the results of agreements reached 
through other means, shall become part of the applicable plan and shall 
be enforceable as part of the plan. In resolving such disputes relating 
to area redesignation, the Administrator shall consider the extent to 
which the land involved is of sufficient size to allow effective air quality 
management or have air quality-related values of such an area. 
§ 213107. Preconstruction requirements 
(a) MAJOR EMITTING FACILITIES ON WHICH CONSTRUCTION IS COM-
MENCED.—No major emitting facility may be constructed in any area to 
which this chapter applies unless— 
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(1) a permit is issued for the proposed major emitting facility in ac-
cordance with this chapter setting forth emission limitations for the 
major emitting facility that conform to the requirements of this chap-
ter; 
(2)(A) the proposed permit is subjected to a review in accordance 
with this section; 
(B) the required analysis is conducted in accordance with regulations 
promulgated by the Administrator; and 
(C) a public hearing is held with opportunity for interested persons 
including representatives of the Administrator to appear and submit 
written or oral presentations on— 
(i) the air quality impact of the source; 
(ii) alternatives thereto; 
(iii) control technology requirements; and 
(iv) other appropriate considerations; 
(3) the owner or operator of the major emitting facility dem-
onstrates, as required pursuant to section 211110(h) of this title, that 
emissions from construction or operation of the major emitting facility 
will not cause, or contribute to, air pollution in excess of— 
(A) any maximum allowable increase or maximum allowable 
concentration for any pollutant in any area to which this chapter 
applies more than 1 time per year; 
(B) any NAAQS in any air quality control region; or 
(C) any other applicable emission standard or standard of per-
formance under this division; 
(4) the proposed major emitting facility is subject to the best avail-
able control technology for each pollutant subject to regulation under 
this division emitted from, or that results from, the major emitting fa-
cility; 
(5) the provisions of subsection (d) with respect to protection of class 
I areas are complied with for the major emitting facility; 
(6) there is an analysis of any air quality impacts projected for the 
area as a result of growth associated with the major emitting facility; 
(7) the person that owns or operates, or proposes to own or operate, 
a major emitting facility for which a permit is required under this 
chapter agrees to conduct such monitoring as may be necessary to de-
termine the effect that emissions from any such major emitting facility 
may have, or is having, on air quality in any area that may be affected 
by emissions from the source; and 
(8) in the case of a source that proposes to construct in a class III 
area, emissions from which would cause or contribute to exceeding the 
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maximum allowable increments applicable in a class II area and where 
no standard under section 211111 of this title has been promulgated 
subsequent to August 7, 1977, for that source category, the Adminis-
trator 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) shall not apply to maximum al-
lowable increases for class II areas in the case of an expansion or modifica-
tion of a major emitting facility that was in existence on August 7, 1977, 
whose allowable emissions of air pollutants, after compliance with subsection 
(a)(4), will be less than 50 tons per year and for which the owner or oper-
ator of the major emitting facility demonstrates that emissions of particu-
late matter and sulfur oxides will not cause or contribute to ambient air 
quality levels in excess of the secondary NAAQS for particulate matter or 
sulfur oxides. 
(c) PERMIT APPLICATIONS.—Any completed permit application under sec-
tion 211110 of this title for a major emitting facility in any area to which 
this chapter applies shall be granted or denied not later than 1 year after 
the date of filing of the completed application. 
(d) ACTION TAKEN ON PERMIT APPLICATIONS; NOTICE; ADVERSE IM-
PACT ON AIR QUALITY RELATED VALUES; VARIANCE; EMISSION LIMITA-
TIONS.— 
(1) TRANSMITTAL OF COPY OF PERMIT APPLICATION TO ADMINIS-
TRATOR; NOTICE OF ACTION.—Each State shall— 
(A) transmit to the Administrator a copy of each permit appli-
cation relating to a major emitting facility received by the State; 
and 
(B) provide notice to the Administrator of every action related 
to the consideration of the permit. 
(2) FEDERAL LAND MANAGER; FEDERAL OFFICIAL CHARGED WITH 
RESPONSIBILITY.— 
(A) NOTICE.—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 
land within a class I area that may be affected by emissions from 
the proposed major emitting facility. 
(B) RESPONSIBILITY.—The Federal land manager and the Fed-
eral official charged with direct responsibility for management of 
land within a class I area that may be affected by emissions from 
the proposed major emitting facility shall have an affirmative re-
sponsibility to protect the air quality-related values (including visi-
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bility) of any such land 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 those values. 
(C) CHANGE IN AIR QUALITY; ADVERSE IMPACT ON AIR QUAL-
ITY-RELATED VALUES; NO ADVERSE IMPACT.— 
(i) CHANGE IN AIR QUALITY.—In any case where the Fed-
eral official charged with direct responsibility for management 
of any land within a class I area or the Federal land manager 
of the land, the Administrator, or the Governor of an adja-
cent State containing 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 the area and 
identifying the potential adverse impact of the change, a per-
mit shall not be issued unless the owner or operator of the 
major emitting facility demonstrates that emissions of partic-
ulate matter and sulfur dioxide will not cause or contribute 
to concentrations that exceed the maximum allowable in-
creases for a class I area. 
(ii) ADVERSE IMPACT ON THE AIR QUALITY-RELATED VAL-
UES.—In any case where the Federal land manager dem-
onstrates to the satisfaction of the State that the emissions 
from the major emitting facility will have an adverse impact 
on the air quality-related values (including visibility) of the 
land, notwithstanding the fact that the change in air quality 
resulting from emissions from the major emitting facility will 
not cause or contribute to concentrations that exceed the 
maximum allowable increases for a class I area, a permit 
shall not be issued. 
(iii) NO ADVERSE IMPACT ON AIR QUALITY-RELATED VAL-
UES.— 
(I) IN GENERAL.—In any case where the owner or op-
erator of the major emitting facility demonstrates to the 
satisfaction of the Federal land manager, and the Fed-
eral land manager so certifies, that the emissions from 
the major emitting facility will have no adverse impact 
on the air quality-related values of the land (including 
visibility), notwithstanding the fact that the change in 
air quality resulting from emissions from the major emit-
ting facility will cause or contribute to concentrations 
that exceed the maximum allowable increases for class I 
areas, the State may issue a permit. 
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(II) COMPLIANCE WITH EMISSION LIMITATIONS.—In 
the case of a permit issued pursuant to subclause (I), the 
major emitting facility shall comply with such emission 
limitations under the permit as may be necessary to en-
sure that emissions of particulate matter and sulfur ox-
ides from the major emitting facility will not cause or 
contribute to concentrations of particulate matter or sul-
fur oxides that exceed the following maximum allowable 
increases over the baseline concentration for particulate 
matter and sulfur oxides: 
Maximum al-
lowable increase 
(in micrograms 
per cubic meter) 
Particulate matter: 
Annual geometric mean ...........................................................
Twenty-four-hour maximum ....................................................
Sulfur dioxide: 
Annual arithmetic mean ..........................................................
Twenty-four-hour maximum ....................................................
Three-hour maximum ..............................................................
325 
(D) VARIANCE.— 
(i) IN GENERAL.—In any case where the owner or operator 
of a proposed major emitting facility that has been denied a 
permit under subparagraph (C)(iii)(I) demonstrates to the 
satisfaction of the Governor, after notice and public hearing, 
and the Governor finds, that the facility cannot be con-
structed by reason of any maximum allowable increase for 
sulfur dioxide for periods of 24 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 af-
fect the air quality related values of the area (including visi-
bility), the Governor, after consideration of the Federal land 
manager’s recommendation (if any) and subject to the con-
currence of the Federal land manager, may grant a variance 
from the maximum allowable increase. If a variance is grant-
ed, a permit may be issued to the source pursuant to the re-
quirements of this subparagraph. 
(ii) NO CONCURRENCE.—In any case in which a 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 trans-
mitted to the President. The President may approve the Gov-
ernor’s recommendation if the President finds that the vari-
ance is in the national interest. No Presidential finding shall 
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be reviewable in any court. The variance shall take effect if 
the President approves the Governor’s recommendations. The 
President shall approve or disapprove the recommendation 
within 90 days after receipt by the President of the rec-
ommendations of the Governor and the Federal land man-
ager. 
(iii) COMPLIANCE WITH EMISSION LIMITATIONS.— 
(I) DEFINITIONS.— 
(aa) HIGH TERRAIN AREA.—In this clause, the 
term ‘‘high terrain area’’, with respect to any major 
emitting facility, means any area having an ele-
vation of 900 feet or more above the base of the 
stack of the major emitting facility. 
(bb) LOW TERRAIN AREA.—The term ‘‘low ter-
rain area’’ means any area other than a high ter-
rain area. 
(II) COMPLIANCE.—In the case of a permit issued 
pursuant to this subparagraph, the major emitting facil-
ity shall comply with such emission limitations under the 
permit as may be necessary to ensure that emissions of 
sulfur oxides from the major emitting facility will not 
(during any day on which the otherwise applicable max-
imum allowable increases are exceeded) cause or con-
tribute to concentrations that exceed the following max-
imum allowable increases for such areas over the base-
line concentration for sulfur oxides and to ensure that 
the emissions will not cause or contribute to concentra-
tions that exceed the otherwise applicable maximum al-
lowable 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 ..............................................................................
3-hr maximum ................................................................................
130 
221 
(e) ANALYSIS.— 
(1) IN GENERAL.—The review provided for in subsection (a) shall be 
preceded by an analysis of the ambient air quality at the proposed site 
and in areas that may be affected by emissions from the major emit-
ting facility for each pollutant subject to regulation under this division 
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that will be emitted from the major emitting facility. The review shall 
be conducted in accordance with regulations of the Administrator, pro-
mulgated under this subsection, and may be conducted by the State, 
any general purpose unit of local government, or the major emitting 
facility applying for a permit. 
(2) CONTINUOUS AIR QUALITY MONITORING.—The analysis required 
by this subsection shall include continuous air quality monitoring data 
gathered for purposes of determining whether emissions from the major 
emitting facility will exceed the maximum allowable increases or the 
maximum allowable concentration permitted under this chapter. The 
data shall be gathered over a period of 1 calendar year preceding the 
date of application for a permit under this chapter unless the State, 
in accordance with regulations promulgated by the Administrator, de-
termines that a complete and adequate analysis for such purposes may 
be accomplished in a shorter period. The results of the analysis shall 
be available at the time of the public hearing on the application for the 
permit. 
(3) REGULATIONS.— 
(A) IN GENERAL.—The Administrator shall promulgate regula-
tions respecting the analysis required under this subsection. 
(B) CONTENTS.—The regulations— 
(i) shall not require the use of any automatic or uniform 
buffer zone or zones; 
(ii) shall require an analysis of— 
(I) 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 po-
tentially affected by the emissions from the major emit-
ting facility for each pollutant regulated under this divi-
sion that will be emitted from, or that results from the 
construction or operation of, the major emitting facility; 
(II) the size and nature of the proposed major emit-
ting facility; 
(III) the degree of continuous emission reduction that 
could be achieved by the major emitting facility; and 
(IV) such other factors as may be relevant in deter-
mining the effect of emissions from a proposed major 
emitting facility on any air quality control region; 
(iii) shall require that the results of the analysis be avail-
able at the time of the public hearing on the application for 
the permit; and 
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(iv) shall specify with reasonable particularity each air 
quality model to be used under specified sets of conditions for 
purposes of this chapter. 
(4) ADJUSTMENT OF MODELS.—Any model or models designated 
under the regulations may be adjusted based on a determination, after 
notice and opportunity for public hearing, by the Administrator that 
an adjustment is necessary to take into account unique terrain or mete-
orological characteristics of an area potentially affected by emissions 
from a source applying for a permit required under this chapter. 
§ 213108. Other pollutants 
(a) HYDROCARBONS, CARBON MONOXIDE, PETROCHEMICAL OXIDANTS, 
AND NITROGEN OXIDES.—In the case of the pollutants hydrocarbons, car-
bon monoxide, photochemical oxidants, and nitrogen oxides, the Adminis-
trator shall conduct a study and promulgate regulations to prevent the sig-
nificant deterioration of air quality that would result from the emissions of 
those pollutants. In the case of pollutants for which NAAQSes are promul-
gated after August 7, 1977, the Administrator shall promulgate such regu-
lations not more than 2 years after the date of promulgation of the 
NAAQSes. 
(b) EFFECTIVE DATE OF REGULATIONS.—Regulations under subsection 
(a) shall become effective 1 year after the date of promulgation. 
(c) STATE IMPLEMENTATION PLAN PROVISIONS.—A State implementa-
tion plan shall contain provisions to conform the regulations under sub-
section (a), which provisions shall be submitted to the Administrator, who 
shall approve or disapprove the provisions within 25 months after the date 
of promulgation of the regulations in the same manner as is required under 
section 211110 of this title. 
(d) CONTENTS OF REGULATIONS.—The regulations shall— 
(1) provide— 
(A) specific numerical measures against which permit applica-
tions may be evaluated; 
(B) a framework for stimulating improved control technology; 
and 
(C) protection of air quality values; and 
(2) fulfill the goals and purposes set forth in sections 211101 and 
213101 of this title. 
(e) SPECIFIC MEASURES TO FULFILL GOALS AND PURPOSES.—The reg-
ulations— 
(1) shall provide specific measures at least as effective as the incre-
ments established in section 213105 of this title to fulfill the goals and 
purposes set forth in sections 211101 and 213101 of this title; and 
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(2) may contain air quality increments, emission density require-
ments, or other measures. 
(f) AREA CLASSIFICATION PLAN NOT REQUIRED.— 
(1) IN GENERAL.—With respect to any air pollutant (other than a 
sulfur oxide or particulate matter) for which a NAAQS is established, 
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 211110(c) of this title contains other provisions that, when con-
sidered as a whole, the Administrator finds will carry out the purposes 
of section 213101 of this title at least as effectively as an area classi-
fication plan for that pollutant. 
(2) MAXIMUM ALLOWABLE INCREASES.—The other provisions de-
scribed in paragraph (1) need not require the establishment of max-
imum allowable increases with respect to a pollutant for any area to 
which this section applies. 
(g) PM–10 INCREMENTS.— 
(1) IN GENERAL.—The Administrator may substitute, for the max-
imum allowable increases in particulate matter specified in sections 
213105(b) and 213107(d)(2)(C)(iii)(II) of this title, maximum allow-
able increases in particulate matter with an aerodynamic diameter 
smaller than or equal to 10 micrometers. 
(2) STRINGENCY.—Such substituted maximum allowable increases 
shall be of equal stringency in effect as those specified in the provisions 
for which they are substituted. 
§ 213109. Enforcement 
The Administrator shall, and a State may, take such measures, including 
issuance of an order or seeking injunctive relief, as are necessary to prevent 
the construction or modification of a major emitting facility that— 
(1) does not conform to the requirements of this chapter; or 
(2)(A) is proposed to be constructed in any area designated pursuant 
to section 211107(d) of this title as attainment or unclassifiable; and 
(B) is not subject to an implementation plan that meets the require-
ments of this chapter. 
Subchapter II—Visibility Protection 
§ 213201. Visibility protection for mandatory class I Federal 
areas 
(a) DEFINITIONS.—In this section: 
(1) AS EXPEDITIOUSLY AS PRACTICABLE.—The term ‘‘as expedi-
tiously as practicable’’ means as expeditiously as practicable but in no 
event later than 5 years after the date of approval of a plan revision 
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under this section (or the date of promulgation of such a plan revision 
in the case of action by the Administrator under section 211110(c) of 
this title for purposes of this section). 
(2) BEST
AVAILABLE
RETROFIT
TECHNOLOGY.—The term ‘‘best 
available retrofit technology’’, with respect to a source, means retrofit 
technology that a State (or the Administrator in determining emission 
limitations that reflect such technology) determines is the best available 
after taking into consideration— 
(A) the costs of compliance; 
(B) the energy and non-air-quality environmental impacts of 
compliance; 
(C) any existing pollution control technology in use at the 
source; 
(D) the remaining useful life of the source; and 
(E) the degree of improvement in visibility that may reasonably 
be anticipated to result from the use of the technology. 
(3) IMPAIRMENT OF VISIBILITY.—The term ‘‘impairment of visi-
bility’’ includes reduction in visual range and atmospheric discoloration. 
(4) MAJOR
STATIONARY
SOURCE.—The term ‘‘major stationary 
source’’ means the following types of stationary sources with the poten-
tial to emit 250 tons or more of any pollutant: 
(A) Fossil fuel-fired steam electric plants of more than 
250,000,000 British thermal units per hour heat input. 
(B) Coal cleaning plants (thermal dryers). 
(C) Kraft pulp mills. 
(D) Portland cement plants. 
(E) Primary zinc smelters. 
(F) Iron and steel mill plants. 
(G) Primary aluminum ore reduction plants. 
(H) Primary copper smelters. 
(I) Municipal incinerators capable of charging more than 250 
tons of refuse per day. 
(J) Hydrofluoric, sulfuric, and nitric acid plants. 
(K) Petroleum refineries. 
(L) Lime plants. 
(M) Phosphate rock processing plants. 
(N) Coke oven batteries. 
(O) Sulfur recovery plants. 
(P) Carbon black plants (furnace process). 
(Q) Primary lead smelters. 
(R) Fuel conversion plants. 
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(S) Sintering plants. 
(T) Secondary metal production facilities. 
(U) Chemical process plants. 
(V) Fossil-fuel boilers of more than 250,000,000 British ther-
mal units per hour heat input. 
(W) Petroleum storage and transfer facilities with a capacity ex-
ceeding 300,000 barrels. 
(X) Taconite ore processing facilities. 
(Y) Glass fiber processing plants. 
(Z) Charcoal production facilities. 
(5) MANDATORY CLASS I FEDERAL AREA.—The term ‘‘mandatory 
class I Federal area’’ means a Federal area that may not be designated 
as other than class I under this chapter. 
(6) MANMADE AIR POLLUTION.—The term ‘‘manmade air pollution’’ 
means air pollution that results directly or indirectly from human activ-
ity. 
(7) REASONABLE PROGRESS.—The term ‘‘reasonable progress’’, with 
respect to a source, means progress that is determined to be reasonable 
after taking into consideration— 
(A) the costs of compliance; 
(B) the time necessary for compliance; 
(C) the energy and non-air-quality environmental impacts of 
compliance; and 
(D) the remaining useful life of the source. 
(b) PREVENTION OF FUTURE AND REMEDYING OF EXISTING IMPAIR-
MENT OF VISIBILITY.— 
(1) NATIONAL GOAL.—Congress declares as a national goal the pre-
vention of any future impairment of visibility, and the remedying of 
any existing impairment of visibility, in mandatory class I Federal 
areas that results from manmade air pollution. 
(2) IDENTIFICATION OF AREAS WHERE VISIBILITY IS AN IMPORTANT 
VALUE.—The Secretary of the Interior, in consultation with other Fed-
eral 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 the identi-
fications. The Administrator shall, after consultation with the Secretary 
of the Interior, promulgate a list of mandatory class I Federal areas 
in which the Secretary of the Interior determines that visibility is an 
important value. 
(3) REPORT.— 
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(A) IN GENERAL.—The Administrator shall complete a study 
and report to Congress on available methods for implementing the 
national goal set forth in paragraph (1). 
(B) CONTENTS OF REPORT.—The report shall— 
(i) include recommendations for— 
(I) methods for identifying, characterizing, deter-
mining, quantifying, and measuring impairment of visi-
bility in mandatory class I Federal areas; 
(II) modeling techniques (or other methods) for deter-
mining the extent to which manmade air pollution may 
reasonably be anticipated to cause or contribute to im-
pairment of visibility; and 
(III) methods for preventing and remedying such man-
made air pollution and resulting impairment of visibility; 
and 
(ii) identify the classes or categories of sources and the 
types of air pollutants that, alone or in conjunction with other 
sources or pollutants, may reasonably be anticipated to cause 
or contribute significantly to impairment of visibility. 
(c) REGULATIONS.— 
(1) IN GENERAL.—After notice and public hearing, the Adminis-
trator shall promulgate regulations to ensure— 
(A) reasonable progress toward meeting the national goal speci-
fied in subsection (b)(1); and 
(B) compliance with the requirements of this section. 
(2) CONTENTS.—Regulations under paragraph (1) shall— 
(A) provide guidelines to the States, taking into account the rec-
ommendations under subsection (b)(3) on appropriate techniques 
and methods for implementing this section (as provided in sub-
clauses (I) through (III) of subsection (b)(3)(B)(i)); and 
(B) require each applicable implementation plan for a State in 
which any area listed by the Administrator under subsection (b)(2) 
is located (or for a State the emissions from which may reasonably 
be anticipated to cause or contribute to any impairment of visi-
bility in any mandatory class I Federal area) to contain such emis-
sion limitations, schedules of compliance, and other measures as 
may be necessary to make reasonable progress toward meeting the 
national goal specified in subsection (b)(1), including— 
(i) except as otherwise provided pursuant to subsection (d), 
a requirement that each major stationary source that was in 
existence on August 7, 1977, but which had not been in oper-
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ation for more than 15 years as of that date, and which, as 
determined by the State (or the Administrator in the case of 
a plan promulgated under section 211110(c) of this title) 
emits any air pollutant that may reasonably be anticipated to 
cause or contribute to any impairment of visibility in any 
mandatory class I Federal area, shall procure, install, and op-
erate, as expeditiously as practicable (and maintain there-
after) the best available retrofit technology, as determined by 
the State (or the Administrator in the case of a plan promul-
gated under section 211110(c) of this title) for controlling 
emissions from the source for the purpose of eliminating or 
reducing any impairment of visibility; and 
(ii) a long-term (10- to 15-year) strategy for making rea-
sonable progress toward meeting the national goal specified in 
subsection (b)(1). 
(3) CERTAIN FOSSIL FUEL-FIRED GENERATING POWERPLANTS.—In 
the case of a fossil fuel-fired generating powerplant having a total gen-
erating capacity in excess of 750 megawatts, the emission limitations 
required under this subsection shall be determined pursuant to guide-
lines promulgated by the Administrator under paragraph (2)(A). 
(d) EXEMPTIONS.— 
(1) IN GENERAL.—The Administrator may, by regulation, after no-
tice and opportunity for public hearing, exempt any major stationary 
source from the requirement of subsection (c)(2)(B)(i), on a determina-
tion by the Administrator that the source does not or will not, by itself 
or in combination with other sources, emit any air pollutant that may 
reasonably be anticipated to cause or contribute to a significant impair-
ment of visibility in any mandatory class I Federal area. 
(2) CERTAIN FOSSIL FUEL-FIRED POWERPLANTS.—Paragraph (1) 
does not apply to any fossil fuel-fired powerplant with total design ca-
pacity of 750 megawatts or more unless the owner or operator of the 
powerplant demonstrates to the satisfaction of the Administrator that 
the powerplant is located at such a distance from all mandatory class 
I Federal areas listed by the Administrator under subsection (b)(2) 
that the powerplant does not or will not, by itself or in combination 
with other sources, emit any air pollutant that may reasonably be an-
ticipated to cause or contribute to significant impairment of visibility 
in any mandatory class I Federal area. 
(3) CONCURRENCE.—An exemption under this subsection shall be ef-
fective only on concurrence by the appropriate Federal land manager 
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or Federal land managers with the Administrator’s determination 
under this subsection. 
(e) CONSULTATION WITH APPROPRIATE FEDERAL LAND MANAGERS.— 
Before holding a 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 
211110(c) of this title) shall— 
(1) consult in person with the appropriate Federal land manager or 
Federal land managers; and 
(2) include a summary of the conclusions and recommendations of 
the Federal land managers in the notice to the public. 
(f) BUFFER ZONES.—In promulgating regulations under this section, the 
Administrator shall not require the use of any automatic or uniform buffer 
zone or zones. 
(g) NONDISCRETIONARY DUTY.—For purposes of section 203104(b)(2) of 
this title, the meeting of the national goal specified in subsection (b)(1) by 
any specific date or dates shall not be considered to be a nondiscretionary 
duty of the Administrator. 
§ 213202. Visibility 
(a) STUDIES.— 
(1) RESEARCH.— 
(A) IN GENERAL.—The Administrator, in conjunction with the 
National Park Service and other appropriate Federal agencies, 
shall conduct research to identify and evaluate— 
(i) sources and source regions of visibility impairment in 
class I areas; and 
(ii) regions that provide predominantly clean air in class I 
areas. 
(B) INCLUSIONS.—The research shall include— 
(i) expansion of current visibility-related monitoring in 
class I areas; 
(ii) assessment of current sources of visibility-impairing 
pollution and clean air corridors; 
(iii) adaptation of regional air quality models for the as-
sessment of visibility; and 
(iv) studies of atmospheric chemistry and physics of visi-
bility. 
(2) ASSESSMENT AND EVALUATION.—Based on the findings available 
from the research required in paragraph (1), other available scientific 
and technical data, studies, and other available information pertaining 
to visibility source-receptor relationships, the Administrator shall con-
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duct an assessment and evaluation that identifies, to the extent pos-
sible, sources and source regions of visibility impairment including nat-
ural sources and source regions of clear air for class I areas. 
(b) IMPACTS OF OTHER PROVISIONS.—Every 5 years, 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 the reports to the appropriate committees 
of Congress. 
(c) VISIBILITY TRANSPORT COMMISSIONS.— 
(1) VISIBILITY TRANSPORT REGIONS.— 
(A) ESTABLISHMENT.—When, on the Administrator’s motion or 
by petition from the Governors of at least 2 affected States, the 
Administrator has reason to believe that the current or projected 
interstate transport of air pollutants from 1 or more States con-
tributes significantly to visibility impairment in class I areas lo-
cated in the affected States, the Administrator may establish a 
visibility transport region for such pollutants that includes those 
States. 
(B) ADDITION AND REMOVAL OF STATES.—The Administrator, 
on the Administrator’s own motion, on petition from the Governor 
of any affected State, or on the recommendations of a visibility 
transport commission established under paragraph (2), may— 
(i) add any State or portion of a State to a visibility trans-
port region when the Administrator determines that the inter-
state transport of air pollutants from that State significantly 
contributes to visibility impairment in a class I area located 
within the visibility transport region; or 
(ii) remove any State or portion of a State from a visibility 
transport region when 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 visibility transport region. 
(2) VISIBILITY TRANSPORT COMMISSIONS.— 
(A) ESTABLISHMENT.—When the Administrator establishes a 
visibility transport region under paragraph (1), the Administrator 
shall establish a visibility transport commission comprised of (as 
a minimum) each of the following members: 
(i) The Governor of each State in the visibility transport 
region, or the Governor’s designee. 
(ii) The Administrator, or the Administrator’s designee. 
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(iii) A representative of each Federal agency charged with 
the direct management of each class I area within the visi-
bility transport region. 
(B) VOTING.—Decisions of, and recommendations and requests 
to the Administrator, by a visibility transport commission may be 
made only by a majority vote of all members other than the Ad-
ministrator and the Federal agency representatives (or designees). 
(C) FEDERAL ADVISORY COMMITTEE ACT.—A visibility trans-
port commission shall not be subject to the Federal Advisory Com-
mittee Act (5 U.S.C. App.). 
(d) DUTIES.— 
(1) IN GENERAL.—A visibility transport commission— 
(A) shall assess the scientific and technical data, studies, and 
other currently available information, including studies conducted 
pursuant to subsection (a)(1), pertaining to adverse impacts on 
visibility from potential or projected growth in emissions from 
sources located in the visibility transport region; and 
(B) shall, within 4 years after establishment of the visibility 
transport commission, issue a report to the Administrator recom-
mending what measures, if any, should be taken under this divi-
sion to remedy the adverse impacts. 
(2) MEASURES
TO
BE
ADDRESSED.—A report under paragraph 
(1)(B) 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 pro-
tect visibility in affected class I areas. 
(B) The imposition of the requirements of chapter 215 affecting 
the construction of new major stationary sources or major modi-
fications to existing sources in such clean air corridors specifically 
including the alternative siting analysis provisions of section 
215103(a)(1)(E) of this title. 
(C) The promulgation of regulations under section 213201 of 
this title to address long range strategies for addressing regional 
haze that impairs visibility in affected class I areas. 
(e) DUTIES OF ADMINISTRATOR.— 
(1) IN GENERAL.—The Administrator shall, taking into account the 
studies pursuant to subsection (a)(1) and the reports pursuant to sub-
section (d) and any other relevant information, within 18 months after 
receipt of the report described in subsection (d), carry out the Adminis-
trator’s regulatory responsibilities under section 213201 of this title, 
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including criteria for measuring reasonable progress toward the na-
tional goal. 
(2) REGULATIONS.—Any regulations promulgated under section 
213201 of this title pursuant to this subsection shall require affected 
States to revise within 12 months their implementation plans under 
section 211110 of this title to contain such emission limitations, sched-
ules 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 Adminis-
trator pursuant to subsection (c) shall establish a visibility transport com-
mission for the region affecting visibility in Grand Canyon National Park. 
Chapter 215—Plan Requirements for 
Nonattainment Areas 
Subchapter I—Nonattainment Areas In General 
Sec. 
215101. Definitions. 
215102. Nonattainment plan provisions in general. 
215103. Permit requirements. 
215104. Planning procedures. 
215105. EPA grants. 
215106. Maintenance plans. 
215107. Limitations on certain Federal assistance. 
215108. Interstate transport commissions. 
215109. New motor vehicle emission standards in nonattainment areas. 
215110. Guidance documents respecting the lowest achievable emission rate. 
215111. Sanctions and consequences of failure to attain. 
215112. International border areas. 
Subchapter II—Additional Provisions for Ozone Nonattainment Areas 
215201. Definitions. 
215202. Classifications and attainment dates. 
215203. Plan provisions. 
215204. Federal ozone measures. 
215205. Control of interstate ozone air pollution. 
215206. Enforcement for severe areas and extreme areas for failure to attain. 
215207. Nitrogen oxide and volatile organic compound study. 
Subchapter III—Additional Provisions for Carbon Monoxide Nonattain-
ment Areas 
215301. Definitions. 
215302. Classification and attainment dates. 
215303. Plan submissions and requirements. 
Subchapter IV—Additional Provisions for Particulate Matter Nonattain-
ment Areas 
215401. Definitions. 
215402. Classifications and attainment dates. 
215403. Plan provisions and schedules for plan submissions. 
215404. Issuance of RACM and BACM guidance. 
Subchapter V—Additional Provisions for Areas Designated Nonattainment 
for Sulfur Dioxides, Nitrogen Oxide, or Lead 
215501. Plan submission deadlines. 
215502. Attainment dates. 
Subchapter VI—Savings Provisions 
215601. General savings clause. 
Subchapter I—Nonattainment Areas In 
General 
§ 215101. Definitions 
In this chapter: 
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(1) LOWEST ACHIEVABLE EMISSION RATE.— 
(A) IN GENERAL.—The term ‘‘lowest achievable emission rate’’, 
with respect to a source, means the rate of emissions that reflects 
the more stringent of— 
(i) the most stringent emission limitation that is contained 
in the implementation plan of any State for that class or cat-
egory of source, unless the owner or operator of the proposed 
source demonstrates that such an emission limitation is not 
achievable; or 
(ii) the most stringent emission limitation that is achieved 
in practice by that class or category of source. 
(B) EFFECT OF APPLICATION OF TERM.—In no event shall the 
application of the term ‘‘lowest achievable emission rate’’ permit 
a proposed new or modified source to emit any pollutant in excess 
of the amount allowable under applicable new source standards of 
performance. 
(2) MODIFY.— 
(A) IN GENERAL.—The term ‘‘modify’’, with respect to a sta-
tionary source, means to make or undergo any physical change in, 
or change in the method of operation of, the stationary source 
that— 
(i) increases the amount of any air pollutant emitted by the 
stationary source; or 
(ii) results in the emission of any air pollutant not pre-
viously emitted. 
(B) CONVERSION TO COAL.—A conversion to coal by reason of 
an order under section 2(a) of the Energy Supply and Environ-
mental Coordination Act of 1974 (15 U.S.C. 792(a)) or any enact-
ment that supersedes that Act shall not be considered to be a 
modification for purposes of subparagraph (A). 
(3) NONATTAINMENT
AREA.—The term ‘‘nonattainment area’’ 
means, for any air pollutant, an area that is designated nonattainment 
with respect to that air pollutant within the meaning of section 
211107(d) of this title. 
(4) REASONABLE FURTHER PROGRESS.—The term ‘‘reasonable fur-
ther progress’’ means such annual incremental reductions in emissions 
of an air pollutant as are required by this chapter or may reasonably 
be required by the Administrator for the purpose of ensuring attain-
ment of the applicable NAAQS by the applicable date. 
§ 215102. Nonattainment plan provisions in general 
(a) CLASSIFICATIONS AND ATTAINMENT DATES.— 
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(1) CLASSIFICATIONS.— 
(A) IN GENERAL.—On or after the date on which the Adminis-
trator promulgates the designation of an area as a nonattainment 
area pursuant to section 211107(d) of this title with respect to 
any NAAQS (or any revised standard), 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 non-
attainment in the area and the availability and feasibility of the 
pollution control measures that the Administrator believes may be 
necessary to provide for attainment of the standard in that area. 
(B) PROCEDURE.—The Administrator shall publish a notice in 
the Federal Register announcing each classification under sub-
paragraph (A), except that the Administrator shall provide an op-
portunity for at least 30 days for written comment. A classifica-
tion shall not be subject to sections 553 to 557 of title 5 and shall 
not be subject to judicial review until the Administrator takes final 
action under subsection (i) or (j) of section 211110 or section 
215111 of this title with respect to any plan submissions required 
by virtue of the classification. 
(C) NONAPPLICABILITY.—This paragraph shall not apply with 
respect to nonattainment areas for which classifications are spe-
cifically provided under other provisions of this chapter. 
(2) ATTAINMENT DATES FOR NONATTAINMENT AREAS.— 
(A) PRIMARY NAAQSES.—The attainment date for an area des-
ignated nonattainment with respect to a primary NAAQS shall be 
the date by which attainment can be achieved as expeditiously as 
practicable, but not later than 5 years after the date on which the 
area was designated nonattainment under section 211107(d) of 
this title, except that the Administrator may extend the attain-
ment date to the extent that the Administrator determines to be 
appropriate, for a period not longer than 10 years after the date 
of designation as nonattainment, considering the severity of non-
attainment and the availability and feasibility of pollution control 
measures. 
(B) SECONDARY NAAQSES.—The attainment date for an area 
designated nonattainment with respect to a secondary NAAQS 
shall be the date by which attainment can be achieved as expedi-
tiously as practicable after the date on which the area was des-
ignated nonattainment under section 211107(d) of this title. 
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(C) EXTENSION.— 
(i) IN GENERAL.—On application by any State, the Admin-
istrator may extend for 1 additional year (referred to in this 
subparagraph 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 im-
plementation plan; and 
(II) in accordance with guidance published by the Ad-
ministrator, not more than a minimal number of 
exceedances of the relevant NAAQS has occurred in the 
area in the year preceding the extension year. 
(ii) LIMITATION.—Not more than 2 one-year extensions 
may be issued under this subparagraph for a single non-
attainment area. 
(D) NONAPPLICABILITY.—This paragraph shall not apply with 
respect to nonattainment areas for which attainment dates are 
specifically provided under other provisions of this chapter. 
(b) SCHEDULE FOR PLAN SUBMISSIONS.—At the time at which the Ad-
ministrator promulgates the designation of an area as nonattainment with 
respect to a NAAQS under section 211107(d) of this title, the Adminis-
trator shall establish a schedule according to which the State containing the 
area shall submit a plan or plan provision (including plan items) meeting 
the applicable requirements of subsection (c) and section 211110(a)(3) of 
this title. The schedule shall, at a minimum, include a date or dates, extend-
ing not later than 3 years after the date of the nonattainment designation, 
for the submission of a plan or plan provision (including plan items) meet-
ing the applicable requirements of subsection (c) and section 211110(a)(3) 
of this title. 
(c) NONATTAINMENT PLAN PROVISIONS.— 
(1) IN GENERAL.—The plan provisions (including plan items) shall 
provide for— 
(A) implementation of all reasonably available control measures 
as expeditiously as practicable (including such reductions in emis-
sions from existing sources in the area as may be obtained 
through the adoption, at a minimum, of reasonably available con-
trol technology); and 
(B) attainment of the primary NAAQSes. 
(2) REASONABLE FURTHER PROGRESS.—The plan provisions (in-
cluding plan items) shall require reasonable further progress. 
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(3) INVENTORY.—The plan provisions (including plan items) shall 
include a comprehensive, accurate, current inventory of actual emis-
sions from all sources of the relevant pollutant or pollutants in the 
area, including such periodic revisions as the Administrator may deter-
mine to be necessary to ensure that the requirements of this chapter 
are met. 
(4) IDENTIFICATION
AND
QUANTIFICATION.—The plan provisions 
(including plan items) shall expressly identify and quantify the emis-
sions, if any, of any such pollutant or pollutants that will be allowed, 
in accordance with section 215103(a)(1)(A)(ii) 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 NAAQS by the applica-
ble attainment date. 
(5) PERMITS
FOR
NEW
AND
MODIFIED
MAJOR
STATIONARY 
SOURCES.—The plan provisions (including plan items) shall require 
permits for the construction and operation of new or modified major 
stationary sources anywhere in the nonattainment area, in accordance 
with section 215103 of this title. 
(6) OTHER MEASURES.—The plan provisions (including plan items) 
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) and sched-
ules and timetables for compliance as may be necessary or appropriate 
to provide for attainment of the standard in the area by the applicable 
attainment date specified in this chapter. 
(7) COMPLIANCE WITH SECTION 211110(a)(3).—The plan provisions 
(including plan items) shall meet the applicable provisions of section 
211110(a)(3) of this title. 
(8) EQUIVALENT TECHNIQUES.—On application by any State, the 
Administrator may allow the use of equivalent modeling, emission in-
ventory, 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.—The plan (including plan items) 
shall provide for the implementation of specific measures to be under-
taken if the area fails to make reasonable further progress or to attain 
the primary NAAQS by the attainment date applicable under this 
chapter. The measures shall be included in the plan as contingency 
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measures to take effect in any such case without further action by the 
State or the Administrator. 
(d) PLAN PROVISIONS REQUIRED IN RESPONSE TO FINDING OF PLAN 
INADEQUACY.— 
(1) IN GENERAL.—Any plan provision for a nonattainment area that 
is required to be submitted in response to a finding by the Adminis-
trator pursuant to section 211110(i)(5) of this title shall— 
(A) correct the plan deficiency (or deficiencies) specified by the 
Administrator; and 
(B) meet all other applicable plan requirements of section 
211110 of this title and this chapter. 
(2) ADJUSTMENT OF DATES.—The Administrator may reasonably 
adjust the dates otherwise applicable under those requirements to the 
provision (except for attainment dates that have not yet elapsed) to the 
extent necessary to achieve a consistent application of the require-
ments. 
(3) GUIDELINES, INTERPRETATIONS, AND INFORMATION.— 
(A) IN GENERAL.—In order to facilitate submittal by the States 
of adequate and approvable plans consistent with the applicable 
requirements of this division, the Administrator shall, as appro-
priate and from time to time, issue written guidelines, interpreta-
tions, and information to the States, taking into consideration any 
such guidelines, interpretations, or information provided before 
November 15, 1990. 
(B) PUBLIC AVAILABILITY.—Guidelines, interpretations, and in-
formation issued under subparagraph (A) shall be available to the 
public. 
(e) FUTURE MODIFICATION OF STANDARD.—If the Administrator relaxes 
a primary NAAQS, the Administrator shall, within 12 months after the re-
laxation, promulgate requirements applicable to all areas that have not at-
tained that standard as of the date of the relaxation. The requirements shall 
provide for controls that are not less stringent than the controls applicable 
to areas designated nonattainment before the relaxation. 
§ 215103. Permit requirements 
(a) IN GENERAL.— 
(1) IN
GENERAL.—The permit program required by section 
215102(c)(5) of this title shall provide that permits to construct and 
operate may be issued if— 
(A) 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 
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plan approved under section 211110 of this title and this chapter, 
the permitting agency determines that— 
(i) by the time the source is to commence operation, suffi-
cient offsetting emissions reductions have been obtained, such 
that total allowable emissions from existing sources in the re-
gion, from new or modified sources that are not major emit-
ting facilities and from the proposed source, will be suffi-
ciently less than total emissions from existing sources (as de-
termined in accordance with the regulations under this sub-
paragraph) prior to the application for the permit to con-
struct or modify so as to represent (when considered together 
with the plan provisions required under section 215102 of 
this title) reasonable further progress; or 
(ii) in the case of a new or modified major stationary 
source that 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 emis-
sions of the pollutant resulting from the proposed new or 
modified major stationary source will not cause or contribute 
to emissions levels that exceed the allowance permitted for the 
pollutant for the area from new or modified major stationary 
sources under section 215102(c) of this title; 
(B) the proposed source is required to comply with the lowest 
achievable emission rate; 
(C) the owner or operator of the proposed new or modified 
source has demonstrated that all major stationary sources owned 
or operated by the owner or operator (or by any entity controlling, 
controlled by, or under common control with the owner or oper-
ator) in the 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 division; 
(D) 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 con-
structed or modified in accordance with the requirements of this 
chapter; and 
(E) an analysis of alternative sites, sizes, production processes, 
and environmental control techniques for the proposed source 
demonstrates that benefits of the proposed source significantly 
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outweigh the environmental and social costs imposed as a result 
of its location, construction, or modification. 
(2) FEDERALLY ENFORCEABLE EMISSION REDUCTIONS.—Any emis-
sion reductions required as a precondition of the issuance of a permit 
under paragraph (1)(A) shall be federally enforceable before a permit 
may be issued. 
(b) PROHIBITION OF USE OF OLD GROWTH ALLOWANCES.—Any growth 
allowance included in an applicable implementation plan to meet the re-
quirements of section 172(b)(5) of the Clean Air Act (42 U.S.C. 
7502(b)(5)) (as in effect on November 14, 1990) shall not be valid for use 
in any area that received a notice under section 110(a)(2)(H)(ii) of the 
Clean Air Act (42 U.S.C. 7410(a)(2)(H)(ii)) (as in effect on November 14, 
1990) or under section 211110(i)(1) of this title that its applicable imple-
mentation plan containing the allowance is substantially inadequate. 
(c) OFFSETS.— 
(1) IN GENERAL.—The owner or operator of a new or modified 
major stationary source may comply with any offset requirement in ef-
fect under this chapter for increased emissions of any air pollutant only 
by obtaining emission reductions of the 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 the 
emission reductions in another nonattainment area if— 
(A) the other area has a nonattainment classification that is 
equal to or higher than that of the area in which the source is 
located; and 
(B) emissions from the other area contribute to a violation of 
the NAAQS in the nonattainment area in which the source is lo-
cated. 
(2) EMISSION REDUCTION REQUIREMENTS.—Emission reductions re-
quired under paragraph (1)— 
(A) shall be, by the time a new or modified source commences 
operation, in effect and enforceable; and 
(B) shall ensure 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 emis-
sions of the air pollutant from the same or other sources in the 
area. 
(3) CREDITABILITY.—Emission reductions otherwise required by this 
division shall not be creditable as emissions reductions for purposes of 
any such offset requirement. Incidental emission reductions that are 
not otherwise required by this division shall be creditable as emission 
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reductions for such purposes if the emission reductions meet the re-
quirements of paragraph (1). 
(d) CONTROL TECHNOLOGY INFORMATION.—A 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.— 
(1) IN GENERAL.—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 fir-
ing, at an existing or modified major source that tests rocket engines 
or motors under the following conditions: 
(A) PURPOSE.—Any modification proposed is solely for the pur-
pose of expanding the testing of rocket engines or motors at an 
existing source that was permitted to test such engines on Novem-
ber 15, 1990. 
(B) OFFSETS.—The source demonstrates to the satisfaction of 
the permitting authority of the State that— 
(i) the source has used all reasonable means to obtain and 
utilize offsets, as determined on an annual basis, for the 
emissions increases beyond allowable levels; 
(ii) all available offsets are being used; and 
(iii) sufficient offsets are not available to the source. 
(C) NATIONAL SECURITY.—The source has obtained a written 
finding from the Department of Defense, Department of Trans-
portation, 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 na-
tional security. 
(D) ALTERNATIVE MEASURE.—The source will comply with an 
alternative measure, imposed by the permitting authority, designed 
to offset any emission increases beyond permitted levels not di-
rectly offset by the source. 
(2) EMISSION FEE.—In lieu of imposing any alternative offset meas-
ures, the permitting authority may impose an emission fee to be paid 
to the permitting authority, which shall be in an amount not greater 
than 1.5 times the average cost of stationary source control measures 
adopted in that area during the previous 3 years. The permitting au-
thority shall utilize the fees in a manner that maximizes emission re-
ductions in that area. 
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§ 215104. Planning procedures 
(a) IN GENERAL.— 
(1) UPDATED OR NEW PLANNING PROCEDURES.—For any ozone, 
carbon monoxide, or PM–10 nonattainment area, the State containing 
the area and elected officials of affected local governments shall, before 
the date required for submittal of the inventory described under section 
215203(a)(2) or 215303(a)(2) of this title, jointly review and update 
as necessary the planning procedures adopted pursuant to section 
174(a) of the Clean Air Act (42 U.S.C. 7504(a)) as in effect on No-
vember 14, 1990, or develop new planning procedures pursuant to this 
subsection, as appropriate. 
(2) DETERMINATION.—In preparing the procedures, the State and 
local elected officials shall determine which elements of a revised imple-
mentation plan will be developed, adopted, and implemented (through 
means including enforcement) by the State and which by local govern-
ments or regional agencies, or any combination of local governments, 
regional agencies, or the State. 
(3) PREPARATION.—The implementation plan required by this chap-
ter shall be prepared by an organization certified by the State, in con-
sultation with elected officials of local governments and in accordance 
with the determination under paragraph (2). 
(4) ORGANIZATION.—The organization shall include— 
(A) elected officials of local governments in the affected area; 
and 
(B) representatives of— 
(i) the State air quality planning agency; 
(ii) the State transportation planning agency; 
(iii) the metropolitan planning organization designated to 
conduct the continuing, cooperative, and comprehensive trans-
portation planning process for the area under section 134 of 
title 23; 
(iv) the organization responsible for the air quality mainte-
nance planning process under regulations implementing this 
division; and 
(v) any other organization with responsibilities for devel-
oping, submitting, or implementing the plan required by this 
chapter. 
(5) SAME ORGANIZATION.—The organization may be an organization 
that carried out the functions described in this subsection before No-
vember 15, 1990. 
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(b) COORDINATION.—The preparation of implementation plan provisions 
and subsequent plan revisions under the continuing transportation-air qual-
ity planning process described in section 211108(e) of this title shall be co-
ordinated with the continuing, cooperative, and comprehensive transpor-
tation planning process required under section 134 of title 23, and those 
planning processes shall take into account the requirements of this chapter. 
(c) JOINT PLANNING.—In the case of a nonattainment area that is in-
cluded within more than 1 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. 
§ 215105. EPA grants 
(a) PLAN PROVISION DEVELOPMENT COSTS.—The Administrator shall 
make grants to any organization of local elected officials with transportation 
or air quality maintenance planning responsibilities recognized by a State 
under section 215104(a) of this title for payment of the reasonable costs 
of developing a plan provision under this chapter. 
(b) GRANT FUNDS.—The amount granted to any organization under sub-
section (a) shall be 100 percent of any additional costs of developing a plan 
provision under this chapter for the 1st 2 fiscal years following receipt of 
the grant under this paragraph, and shall supplement any funds available 
under Federal law to the organization for transportation or air quality 
maintenance planning. Grants under this section shall not be used for con-
struction. 
§ 215106. Maintenance plans 
(a) PLAN PROVISION.—A State that submits a request under section 
211107(d) of this title for redesignation of a nonattainment area for any 
air pollutant as an area that has attained the primary NAAQS for that air 
pollutant shall submit an applicable State implementation plan provision 
that— 
(1) provides for the maintenance of the primary NAAQS for that air 
pollutant in the area for at least 10 years after the redesignation; and 
(2) contains such additional measures, if any, as may be necessary 
to ensure such maintenance. 
(b) SUBSEQUENT PLAN PROVISIONS.—Eight years after redesignation of 
any area as an attainment area under section 211107(d) of this title, the 
State shall submit to the Administrator an additional applicable State im-
plementation plan provision for maintaining the primary NAAQS for 10 
years after the expiration of the 10-year period described in subsection (a). 
(c) NONATTAINMENT REQUIREMENTS APPLICABLE PENDING PLAN AP-
PROVAL.—Until a plan provision under subsection (b) is approved and an 
area is redesignated as attainment for any area designated as a nonattain-
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ment area, the requirements of this chapter shall continue in effect with re-
spect to the area. 
(d) CONTINGENCY PROVISIONS.—A plan provision submitted under this 
section shall contain such contingency provisions as the Administrator con-
siders necessary to ensure that the State will promptly correct any violation 
of the standard that occurs after the redesignation of the area as an attain-
ment area. The contingency provisions shall include a requirement that the 
State will implement all measures with respect to the control of the air pol-
lutant concerned that 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 NAAQS 
concerned shall not result in a requirement that the State revise its State 
implementation plan unless the Administrator, in the Administrator’s discre-
tion, requires the State to submit a revised State implementation plan. 
§ 215107. Limitations on certain Federal assistance 
(a) ACTIVITIES NOT CONFORMING
TO APPROVED
OR PROMULGATED 
PLANS.— 
(1) LIMITATION.— 
(A) IN GENERAL.—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 that does not conform to an implementation plan after 
the implementation plan has been approved or promulgated under 
section 211110 of this title. No metropolitan planning organiza-
tion designated under section 134 of title 23, shall give its ap-
proval to any project, program, or plan that does not conform to 
an implementation plan approved or promulgated under section 
211110 of this title. The assurance of conformity to such an im-
plementation plan shall be an affirmative responsibility of the head 
of a department, agency, or instrumentality. 
(B) CONFORMITY.—An activity shall be considered to conform 
to an implementation plan if the activity— 
(i) conforms to an implementation plan’s purpose of elimi-
nating or reducing the severity and number of violations of 
the NAAQSes and achieving expeditious attainment of the 
NAAQSes; and 
(ii) will not— 
(I) cause or contribute to any new violation of any 
NAAQS in any area; 
(II) increase the frequency or severity of any existing 
violation of any NAAQS in any area; or 
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(III) delay timely attainment of any NAAQS or any 
required interim emission reductions or other milestones 
in any area. 
(C) BASIS
OF
DETERMINATION.—The determination of con-
formity shall be based on the most recent estimates of emissions, 
and those estimates shall be determined from the most recent pop-
ulation, employment, travel, and congestion estimates as deter-
mined by the metropolitan planning organization or other agency 
authorized to make such estimates. 
(2) TRANSPORTATION PLANS AND PROGRAMS.— 
(A) IN GENERAL.—Any transportation plan or program devel-
oped pursuant to title 23 or chapter 53 of title 49 shall implement 
the transportation provisions of any applicable implementation 
plan approved under this division applicable to all or part of the 
area covered by the transportation plan or program. No Federal 
agency may approve, accept, or fund any transportation plan, pro-
gram, or project unless the plan, program, or project has been 
found to conform to any applicable implementation plan in effect 
under this division. 
(B) PARTICULAR CASES.—In particular— 
(i) no transportation plan or transportation improvement 
program may be adopted by a metropolitan planning organi-
zation designated under title 23 or chapter 53 of title 49, or 
be found to be in conformity by a metropolitan planning orga-
nization, until a final determination has been made that— 
(I) emissions expected from implementation of the 
plans and programs are consistent with estimates of 
emissions from motor vehicles and necessary emissions 
reductions contained in the applicable implementation 
plan; and 
(II) the plan or program will conform to the require-
ments of paragraph (1)(B)(ii); 
(ii) no metropolitan planning organization or other recipi-
ent of funds under title 23 or chapter 53 of title 49 shall 
adopt or approve a transportation improvement program of 
projects until the recipient of funds determines that the pro-
gram provides for timely implementation of transportation 
control measures consistent with schedules included in the ap-
plicable implementation plan; and 
(iii) a transportation project may be adopted or approved 
by a metropolitan planning organization or any recipient of 
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funds designated 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— 
(I) the transportation project meets the requirements 
of subparagraph (C); or 
(II)(aa) the transportation project comes from a con-
forming plan and program; 
(bb) the design concept and scope of the transpor-
tation project have not changed significantly since the 
conformity finding regarding the plan and program from 
which the project derived; and 
(cc) the design concept and scope of the transportation 
project at the time of the conformity determination for 
the program was adequate to determine emissions. 
(C) TREATMENT OF CERTAIN PROJECTS AS CONFORMING.—Any 
project not described in subparagraph (B)(iii) shall be treated as 
conforming to the applicable implementation plan only if it is dem-
onstrated that the projected emissions from the project, when con-
sidered together with emissions projected for the conforming 
transportation plans and programs within the nonattainment area, 
do not cause those plans and programs to exceed the emission re-
duction projections and schedules assigned to the plans and pro-
grams in the applicable implementation plan. 
(D) REDETERMINATION
OF
CONFORMITY.—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) DEMONSTRATION OF CONFORMITY.— 
(A) IN GENERAL.—Until such time as the implementation plan 
provision described in paragraph (4)(E) is approved, conformity of 
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plans, programs, and projects described in this paragraph will be 
demonstrated if— 
(i) 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 imple-
mentation plan; and 
(III) with respect to ozone and carbon monoxide non-
attainment areas, contribute to annual emissions reduc-
tions 
consistent 
with 
sections 
215203(b)(2) 
and 
215303(a)(8) of this title; and 
(ii) the transportation projects— 
(I) come from a conforming transportation plan and 
program as defined in clause (i); and 
(II) in carbon monoxide nonattainment areas, elimi-
nate or reduce the severity and number of violations of 
the carbon monoxide standards in the area substantially 
affected by the project. 
(B) DETERMINATION FOR TRANSPORTATION PROGRAM OR INDI-
VIDUAL PROJECT.—With regard to subparagraph (A)(ii)(II), the 
determination may be made as part of the conformity determina-
tion 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 pe-
riodically update, criteria and procedures for determining con-
formity (except in the case of transportation plans, programs, and 
projects) of, and for keeping the Administrator informed about, 
the activities described in paragraph (1). 
(B) TRANSPORTATION PLANS, PROGRAMS, AND PROJECTS.—The 
Administrator, with the concurrence of the Secretary of Transpor-
tation, shall promulgate, and periodically update, criteria and pro-
cedures for demonstrating and ensuring 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 203104 of this title to compel pro-
mulgation of criteria and procedures under subparagraphs (A) and 
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(B), and a United States district court shall have jurisdiction to 
order such promulgation. 
(D) REQUIREMENTS.—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 the organizations 
and the Secretary make conformity determinations; 
(ii) address the appropriate frequency for making con-
formity determinations, but the frequency for making con-
formity 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 fre-
quently; or 
(II) the metropolitan planning organization is required 
to determine conformity in accordance with paragraph 
(2)(D); and 
(iii) address how conformity determinations will be made 
with respect to maintenance plans. 
(E) INCLUSION OF CRITERIA AND PROCEDURES IN SIP.—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 Regu-
lations) in accordance with the Administrator’s criteria and proce-
dures for consultation, enforcement, and enforceability. 
(F) TRAFFIC SIGNAL SYNCHRONIZATION PROJECTS.—Compli-
ance with the regulations 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 sig-
nal synchronization projects prior to the funding, approval or im-
plementation 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 imple-
mented prior to the conformity determination. 
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(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 sec-
tion 215106 of this title with respect to the specific pollutant for 
which the area was designated nonattainment. 
(6) NONAPPLICABILITY.—Notwithstanding paragraph (5), this sub-
section shall not apply with respect to an area designated nonattain-
ment under section 211107(d)(1) of this title until 1 year after the 
area is first designated nonattainment for a specific NAAQS. This 
paragraph applies only with respect to the NAAQS for which an area 
is newly designated nonattainment and does not affect the area’s re-
quirements with respect to all other NAAQSes for which the area is 
designated nonattainment or has been redesignated from nonattain-
ment to attainment with a maintenance plan pursuant to section 
215106 of this title (including any pre-existing NAAQS for a pollutant 
for which a new or revised standard has been issued). 
(7) CONFORMITY HORIZON FOR TRANSPORTATION PLANS.— 
(A) DEFINITION OF AIR POLLUTION CONTROL AGENCY.—In this 
paragraph, the term ‘‘air pollution control agency’’ means an air 
pollution control agency (as defined in section 201101 of this title) 
that is responsible for developing plans or controlling air pollution 
within the area covered by a transportation plan. 
(B) 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 demonstra-
tion of conformity for— 
(i) the period ending on the final year of the transportation 
plan; or 
(ii) at the election of the metropolitan planning organiza-
tion, after consultation with the air pollution control agency 
and solicitation of public comments and consideration of the 
comments, the longest of the following periods: 
(I) The 1st 10-year period of the transportation plan. 
(II) The period ending on the latest year in the imple-
mentation plan applicable to the area that contains a 
motor vehicle emission budget. 
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(III) The period ending on the year after the comple-
tion 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. 
(C) REGIONAL
EMISSIONS
ANALYSIS.—The conformity deter-
mination 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 that year extends 
beyond the applicable period as determined under subparagraph 
(B). 
(D) EXCEPTION.—In any case in which an area has an imple-
mentation plan provision under section 215106(b) of this title and 
the Administrator finds 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 approves the provision, the demonstration 
of conformity, at the election of the metropolitan planning organi-
zation, after consultation with the air pollution control agency and 
solicitation of public comments and consideration of such com-
ments, shall be required to extend only through the last year of 
the implementation plan required under section 215106(b) of this 
title. 
(E) EFFECT OF ELECTION.—Any election by a metropolitan 
planning organization under this paragraph shall continue in ef-
fect until the metropolitan planning organization elects otherwise. 
(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 transpor-
tation control measures if— 
(i) 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) 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 
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(II) if the implementation plan date for implementa-
tion 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 implementa-
tion plan; 
(iii) the substitute and additional control measures are ac-
companied by evidence of adequate personnel and funding 
and authority under State or local law to implement, monitor, 
and enforce the control measures; 
(iv) the substitute and additional control measures are de-
veloped through a collaborative process that includes— 
(I) participation by representatives of all affected ju-
risdictions (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 com-
ment; and 
(v) the metropolitan planning organization, the State air 
pollution control agency, and the Administrator concur with 
the equivalency of the substitute or additional control meas-
ures. 
(B) ADOPTION.— 
(i) EFFECT OF CONCURRENCE.—Concurrence by the met-
ropolitan planning organization, the State air pollution con-
trol agency, and the Administrator as required by subpara-
graph (A)(v) shall constitute adoption of the substitute or ad-
ditional control measures so long as the requirements of 
clauses (i), (ii), (iii) and (iv) of subparagraph (A) are met. 
(ii) STATE IMPLEMENTATION PLAN; FEDERAL ENFORCE-
ABILITY.—Once adopted, the substitute or additional control 
measures become, by operation of law, part of the State im-
plementation plan and become federally enforceable. 
(iii) SUBMITTAL.—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. 
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(iv) NO ADDITIONAL PROCESS.—Notwithstanding any other 
provision of this division, no additional State process shall be 
necessary to support such an applicable plan provision. 
(C) NO REQUIREMENT FOR EXPRESS PERMISSION.—The substi-
tution or addition of a transportation control measure in accord-
ance 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 per-
mits such a substitution or addition. 
(D) NO
REQUIREMENT
FOR
NEW
CONFORMITY
DETERMINA-
TION.—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 sub-
stitute control measure is adopted by the State pursuant to sub-
paragraph (B). 
(F) EFFECT OF ADOPTION.—Adoption of a substitute control 
measure shall constitute rescission of the previously applicable 
control measure. 
(9) LAPSE OF CONFORMITY.— 
(A) IN GENERAL.—A transportation plan shall lapse if— 
(i) a conformity determination required under this sub-
section for a transportation plan under section 134(i) of title 
23 or section 5303(i) of title 49, or a transportation improve-
ment program under section 134(j) of title 23 or under sec-
tion 5303(j) of title 49 is not made by the applicable dead-
line; and 
(ii) the failure to make a conformity determination is not 
corrected by— 
(I) additional measures to reduce motor vehicle emis-
sions sufficient to demonstrate compliance with the re-
quirements of this subsection within 12 months after the 
deadline; or 
(II) other measures sufficient to correct the failures. 
(B) EFFECT OF LAPSE.—If a transportation plan lapses under 
subparagraph (A)— 
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(i) the conformity determination for the transportation plan 
or transportation improvement program expires; and 
(ii) there is no currently conforming transportation plan or 
transportation improvement program. 
(b) PRIORITY OF ACHIEVING AND MAINTAINING PRIMARY NAAQSES.— 
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 that au-
thority, consistent with statutory requirements for allocation among States 
or other jurisdictions, to the implementation of the portions of plans pre-
pared under this section to achieve and maintain the primary NAAQS. The 
authority to which this subsection extends includes authority exercised 
under chapter 53 of title 49, title 23, the Housing and Urban Development 
Act of 1965 (79 Stat. 451), the Housing and Urban Development Act of 
1968 (82 Stat. 476), the Housing and Urban Development Act of 1969 (83 
Stat. 379), and the Housing and Urban Development Act of 1970 (84 Stat. 
1770). 
§ 215108. Interstate transport commissions 
(a) INTERSTATE TRANSPORT REGIONS.— 
(1) ESTABLISHMENT.—When, on the Administrator’s own motion or 
by petition from the Governor of any State, the Administrator has rea-
son to believe that the interstate transport of air pollutants from 1 or 
more States contributes significantly to a violation of a NAAQS in 1 
or more other States, the Administrator may establish, by regulation, 
an interstate transport region for the pollutant that includes those 
States. 
(2) ADDITION AND REMOVAL OF STATES.—The Administrator, on 
the Administrator’s own motion, on petition from the Governor of any 
State, or on the recommendation of an interstate transport commission 
established under subsection (b), may— 
(A) add any State or portion of a State to an interstate trans-
port region established under this subsection when the Adminis-
trator has reason to believe that the interstate transport of air pol-
lutants from that State significantly contributes to a violation of 
the NAAQS in the interstate transport region; or 
(B) remove any State or portion of a State from an interstate 
transport region when the Administrator has reason to believe that 
the control of emissions in that State or portion of the State pur-
suant to this section will not significantly contribute to the attain-
ment of the NAAQS in any area in the interstate transport region. 
(3) PROCEDURE.— 
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(A) APPROVAL OR DISAPPROVAL.—The Administrator shall ap-
prove or disapprove a petition or recommendation under subpara-
graph (A) or (B) of paragraph (2) within 18 months after its re-
ceipt. 
(B) PUBLIC PARTICIPATION.—The Administrator shall establish 
appropriate proceedings for public participation regarding motions, 
petitions, and recommendations under subparagraphs (A) and (B) 
of paragraph (2), including notice and comment. 
(b) INTERSTATE TRANSPORT COMMISSIONS.— 
(1) ESTABLISHMENT.—When the Administrator establishes an inter-
state transport region under subsection (a), the Administrator shall es-
tablish a transport commission comprised of (at a minimum) each of 
the following members: 
(A) The Governor of each State in the interstate transport re-
gion or the Governor’s designee. 
(B) The Administrator, or the Administrator’s designee. 
(C) The Regional Administrator (or the Administrator’s des-
ignee) for each Regional Office for each EPA region affected by 
the interstate transport region. 
(D) An air pollution control official representing each State in 
the interstate transport region, appointed by the Governor. 
(2) VOTING.—Decisions of, and recommendations and requests to 
the Administrator, by an interstate transport commission may be made 
only by a majority vote of all members other than the Administrator 
and the Regional Administrators (or designees). 
(3) 
RECOMMENDATIONS.—An 
interstate 
transport 
commission 
shall— 
(A) assess the degree of interstate transport of the pollutant or 
precursors to the pollutant throughout the interstate transport re-
gion; 
(B) assess strategies for mitigating the interstate pollution; and 
(C) recommend to the Administrator such measures as the 
interstate transport commission determines to be necessary to en-
sure that the implementation plans for the States in the interstate 
transport 
region 
meet 
the 
requirements 
of 
section 
211110(a)(3)(D) of this title. 
(4) FEDERAL ADVISORY COMMITTEE ACT.—An interstate transport 
commission shall not be subject to the Federal Advisory Committee Act 
(5 U.S.C. App.). 
(c) COMMISSION REQUESTS.— 
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(1) REQUEST.—An interstate transport commission may request the 
Administrator to issue a finding under section 211110(i)(5) of this title 
that the implementation plan for 1 or more of the States in the inter-
state transport region is substantially inadequate to meet the require-
ments of section 211110(a)(3)(D) of this title. 
(2) PUBLIC PARTICIPATION; SPECIFIC RECOMMENDATIONS.—In act-
ing on a request under paragraph (1), the Administrator shall provide 
an opportunity for public participation and shall address each specific 
recommendation made by the commission. 
(3) APPROVAL OR DISAPPROVAL.—The Administrator shall approve, 
disapprove, or partially approve and partially disapprove a request 
under paragraph (1) within 18 months after its receipt and, to the ex-
tent that the Administrator approves the request, issue the finding 
under section 211110(i)(5) of this title at the time of approval. Ap-
proval or disapproval of a request shall constitute final agency action 
within the meaning of section 203102(b) of this title. 
§ 215109. New motor vehicle emission standards in non-
attainment areas 
(a) IN GENERAL.—Notwithstanding section 221109(a) of this title, any 
State that has implementation plan provisions approved under this chapter 
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 described in section 221109(a) of this title re-
specting such vehicles if— 
(1) the standards are identical to the California standards for which 
a waiver has been granted for that model year; and 
(2) California and that State adopt the standards at least 2 years 
before commencement of the model year (as determined by regulations 
of the Administrator). 
(b) EFFECT OF SECTION.—Nothing in this section or in subdivision 3 
shall be construed as authorizing any State described in subsection (a) to— 
(1) prohibit or limit, directly or indirectly, the manufacture or sale 
of a new motor vehicle or motor vehicle engine that is certified in Cali-
fornia as meeting California standards; or 
(2) take any action to create, or have the effect of creating, a motor 
vehicle or motor vehicle engine different from a motor vehicle or engine 
certified in California under California standards (referred to in this 
section as a ‘‘3d vehicle’’) or otherwise create a 3d vehicle. 
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§ 215110. Guidance documents respecting the lowest achiev-
able emission rate 
(a) IN GENERAL.—The Administrator shall issue guidance documents 
under section 211108 of this title for purposes of assisting States in imple-
menting requirements of this chapter respecting the lowest achievable emis-
sion rate. 
(b) REVISION.—The guidance documents shall be revised at least every 
2 years. 
§ 215111. Sanctions and consequences of failure to attain 
(a) STATE FAILURE.— 
(1) IN GENERAL.—Except as provided in paragraph (2), for any im-
plementation plan or plan revision required under this chapter (or re-
quired in response to a finding of substantial inadequacy as described 
in section 211110(i)(5) of this title), if the Administrator— 
(A) finds that a State has failed, for an area designated non-
attainment under section 211107(d) of this title, to submit a plan, 
or to submit 1 or more of the elements (as determined by the Ad-
ministrator) required by the provisions of this division 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 211110(i) of this title; 
(B) disapproves a submission under section 211110(i) of this 
title for an area designated nonattainment under section 211107 
of this title, based on the submission’s failure to meet 1 or more 
of the elements required by the provisions of this division applica-
ble to such an area; 
(C)(i) determines that a State has failed to make any submis-
sion as required under this division (other than a submission de-
scribed under subparagraph (A) or (B)), including an adequate 
maintenance plan that satisfies the minimum criteria established 
in relation to the submission under section 211110(i)(1)(A) of this 
title; or 
(ii) disapproves in whole or in part a submission under section 
211110(i)(1)(A) of this title; or 
(D) finds that any requirement of an approved plan (or ap-
proved part of a plan) is not being implemented; 
unless the deficiency is corrected within 18 months after the finding, 
disapproval, or determination under subparagraph (A), (B), (C), or 
(D), 1 of the sanctions described in subsection (b) shall apply, as se-
lected by the Administrator, until the Administrator determines that 
the State has come into compliance. 
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(2) LACK OF GOOD FAITH.—If the Administrator finds a lack of 
good faith, sanctions under both paragraphs (2) and (3) of subsection 
(b) shall apply until the Administrator determines that the State has 
come into compliance. 
(3) DEFICIENCY NOT CORRECTED WITHIN 6 MONTHS.—If the Ad-
ministrator has selected 1 of the sanctions under subsection (b) and 
the deficiency is not corrected within 6 months thereafter, sanctions 
under both paragraphs (2) and (3) of subsection (b) shall apply until 
the Administrator determines that the State has come into compliance. 
(4) WITHHOLDING OF GRANT.—In addition to any other sanction ap-
plicable as provided in this section, the Administrator may withhold all 
or part of a grant for support of air pollution planning and control pro-
grams that the Administrator may award under section 211105 of this 
title. 
(b) SANCTIONS.— 
(1) IN
GENERAL.—The sanctions available to the Administrator 
under subsection (a) are as provided in this subsection. 
(2) HIGHWAY SANCTIONS.— 
(A) IN GENERAL.—The Administrator may impose a prohibi-
tion, 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 a project or 
grant for— 
(i) safety, if the Secretary determines, based on accident or 
other appropriate data submitted by the State, that the prin-
cipal 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; 
(ii) capital programs for public transit; 
(iii) construction or restriction of certain roads or lanes 
solely for the use of passenger buses or high occupancy vehi-
cles; 
(iv) planning for requirements for employers to reduce em-
ployee work-trip-related vehicle emissions; 
(v) highway ramp metering, traffic signalization, and re-
lated programs that improve traffic flow and achieve a net 
emission reduction; 
(vi) fringe and transportation corridor parking facilities 
serving multiple occupancy vehicle programs or transit oper-
ations; 
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(vii) 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 re-
stricted zones or periods, or vehicle registration programs; 
(viii) programs for breakdown and accident scene manage-
ment, nonrecurring congestion, and vehicle information sys-
tems, to reduce congestion and emissions; and 
(ix) such other transportation-related programs as the Ad-
ministrator, in consultation with the Secretary of Transpor-
tation, finds would improve air quality and would not encour-
age single occupancy vehicle capacity. 
(B) CONSIDERATIONS.—In considering measures described in 
clauses (ii) through (ix) of subparagraph (A), a State should seek 
to ensure adequate access to downtown, other commercial, and 
residential areas and avoid increasing or relocating emissions and 
congestion. 
(C) EFFECTIVE DATE.—A prohibition under subparagraph (A) 
shall become effective on the selection by the Administrator of the 
sanction. 
(3) OFFSETS.—In applying the emissions offset requirements of sec-
tion 215103 of this title to new or modified sources or emissions units 
for which a permit is required under this chapter, the ratio of emission 
reductions to increased emissions shall be at least 2 to 1. 
(c) NOTICE OF FAILURE TO ATTAIN.— 
(1) DETERMINATION.—As expeditiously as practicable after the ap-
plicable attainment date for any nonattainment area, but not later than 
6 months after that date, the Administrator shall determine, based on 
the area’s air quality as of the attainment date, whether the area at-
tained the standard by that date. 
(2) NOTICE.—On making a determination under paragraph (1), the 
Administrator shall publish a notice in the Federal Register containing 
the determination and identifying each area that the Administrator de-
termined to have failed to attain. 
(3) REVISION OR SUPPLEMENTATION.—The Administrator may re-
vise or supplement a determination under paragraph (1) 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) REVISION OF IMPLEMENTATION PLAN.—Within 1 year after the 
Administrator publishes a notice under subsection (c)(2), each State 
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