---
kind: "range"
citation: "42 U.S.C. §§ 7401–7671q"
title: "42"
from: "7401"
to: "7671q"
count: 184
release: "119-102"
url: "https://uscodex.org/usc/42/7401..7671q"
---
# §7401. Congressional findings and declaration of purpose
- (a) **Findings—** The Congress finds—
- (1) that the predominant part of the Nation’s population is located in its rapidly expanding metropolitan and other urban areas, which generally cross the boundary lines of local jurisdictions and often extend into two or more [States](/usc/42/7602.md?p=d);
- (2) that the growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of [motor vehicles](/usc/42/13211.md?p=13), has resulted in mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and the deterioration of property, and [hazards](/usc/42/5165f.md?p=a-3) to air and ground transportation;
- (3) that air pollution prevention (that is, the reduction or elimination, through any measures, of the amount of [pollutants](/usc/42/1397h.md?p=c-4) produced or created at the source) and air pollution control at its source is the primary responsibility of [States](/usc/42/7602.md?p=d) and [local governments](/usc/42/8401a.md); and
- (4) that Federal financial assistance and leadership is essential for the development of cooperative Federal, [State](/usc/42/7602.md?p=d), regional, and local [programs](/usc/42/274l–1.md?p=4) to prevent and control air pollution.
- (b) **Declaration—** The purposes of this subchapter are—
- (1) to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population;
- (2) to initiate and accelerate a national research and development [program](/usc/42/274l–1.md?p=4) to achieve the prevention and control of air pollution;
- (3) to provide technical and financial assistance to [State](/usc/42/7602.md?p=d) and [local governments](/usc/42/8401a.md) in connection with the development and execution of their air pollution prevention and control [programs](/usc/42/274l–1.md?p=4); and
- (4) to encourage and assist the development and operation of regional air pollution prevention and control [programs](/usc/42/274l–1.md?p=4).
- (c) **Pollution prevention—** A primary goal of this chapter is to encourage or otherwise promote reasonable Federal, [State](/usc/42/7602.md?p=d), and local governmental actions, consistent with the provisions of this chapter, for pollution prevention.
# §7402. Cooperative activities
- (a) **Interstate cooperation; uniform State laws; State compacts—** The [Administrator](/usc/42/7602.md?p=a) shall encourage cooperative activities by the [States](/usc/42/7602.md?p=d) and [local governments](/usc/42/8401a.md) for the prevention and control of air pollution; encourage the enactment of improved and, so far as practicable in the light of varying conditions and needs, uniform [State](/usc/42/7602.md?p=d) and local laws relating to the prevention and control of air pollution; and encourage the making of [agreements](/usc/42/1320b–8.md?p=a-3-A) and [compacts](/usc/42/2021b.md?p=4) between [States](/usc/42/7602.md?p=d) for the prevention and control of air pollution.
- (b) **Federal cooperation—** The [Administrator](/usc/42/7602.md?p=a) shall cooperate with and encourage cooperative activities by all Federal departments and agencies having functions relating to the prevention and control of air pollution, so as to assure the utilization in the Federal air pollution control [program](/usc/42/274l–1.md?p=4) of all appropriate and available [facilities](/usc/42/11049.md?p=4) and resources within the Federal Government.
- (c) **Consent of Congress to compacts—** The consent of the Congress is hereby given to two or more [States](/usc/42/7602.md?p=d) to negotiate and enter into [agreements](/usc/42/1320b–8.md?p=a-3-A) or [compacts](/usc/42/2021b.md?p=4), not in conflict with any law or treaty of the [United States](/usc/42/403.md?p=k), for (1) cooperative effort and mutual assistance for the prevention and control of air pollution and the enforcement of their respective laws relating thereto, and (2) the establishment of such agencies, joint or otherwise, as they may deem desirable for making effective such [agreements](/usc/42/1320b–8.md?p=a-3-A) or [compacts](/usc/42/2021b.md?p=4). No such [agreement](/usc/42/1320b–8.md?p=a-3-A) or [compact](/usc/42/2021b.md?p=4) shall be binding or obligatory upon any [State](/usc/42/7602.md?p=d) a party thereto unless and until it has been approved by Congress. It is the intent of Congress that no [agreement](/usc/42/1320b–8.md?p=a-3-A) or [compact](/usc/42/2021b.md?p=4) entered into between [States](/usc/42/7602.md?p=d) after November 21, 1967, which relates to the control and abatement of air pollution in an air quality control region, shall provide for participation by a [State](/usc/42/7602.md?p=d) which is not included (in whole or in part) in such air quality control region.
# §7403. Research, investigation, training, and other activities
- (a) **Research and development program for prevention and control of air pollution—** The [Administrator](/usc/42/7602.md?p=a) shall establish a national research and development [program](/usc/42/274l–1.md?p=4) for the prevention and control of air pollution and as part of such [program](/usc/42/274l–1.md?p=4) shall—
- (1) conduct, and promote the coordination and acceleration of, research, investigations, experiments, demonstrations, surveys, and studies relating to the [causes](/usc/42/9908.md?p=c-2), effects (including health and welfare effects), extent, prevention, and control of air pollution;
- (2) encourage, cooperate with, and render technical services and provide financial assistance to [air pollution control agencies](/usc/42/7602.md?p=b) and other appropriate public or private agencies, institutions, and organizations, and individuals in the conduct of such activities;
- (3) conduct investigations and research and make surveys concerning any specific problem of air pollution in cooperation with any [air pollution control agency](/usc/42/7602.md?p=b) with a view to recommending a solution of such problem, if he is requested to do so by such agency or if, in his judgment, such problem may affect any community or communities in a [State](/usc/42/7602.md?p=d) other than that in which the source of the matter causing or contributing to the pollution is located;
- (4) establish [technical advisory committees](/usc/42/16121.md?p=5) composed of recognized experts in various aspects of air pollution to assist in the examination and evaluation of research progress and proposals and to avoid duplication of research; and
- (5) conduct and promote coordination and acceleration of [training](/usc/42/285e–2.md?p=b-2) for individuals relating to the [causes](/usc/42/9908.md?p=c-2), effects, extent, prevention, and control of air pollution.
- (b) **Authorized activities of Administrator in establishing research and development program—** In carrying out the provisions of the preceding subsection the [Administrator](/usc/42/7602.md?p=a) is authorized to—
- (1) collect and make available, through publications and other appropriate means, the results of and other information, including appropriate recommendations by him in connection therewith, pertaining to such research and other activities;
- (2) cooperate with other Federal departments and agencies, with [air pollution control agencies](/usc/42/7602.md?p=b), with other public and private agencies, institutions, and organizations, and with any industries involved, in the preparation and conduct of such research and other activities;
- (3) make grants to [air pollution control agencies](/usc/42/7602.md?p=b), to other public or nonprofit private agencies, institutions, and organizations, and to individuals, for purposes stated in [subsection (a)(1)](#a-1) of this section;
- (4) contract with public or private agencies, institutions, and organizations, and with individuals, without regard to section [3324(a)](/usc/31/3324.md?p=a) and [(b)](/usc/31/3324.md?p=b) of title 31 and [section 6101 of title 41](/usc/41/6101.md);
- (5) establish and maintain research [fellowships](/usc/42/1862n–1.md?p=i-3), in the Environmental Protection Agency and at public or nonprofit private educational institutions or research organizations;
- (6) collect and disseminate, in cooperation with other Federal departments and agencies, and with other public or private agencies, institutions, and organizations having related responsibilities, basic data on chemical, physical, and biological effects of varying air quality and other information pertaining to air pollution and the prevention and control thereof;
- (7) develop effective and practical processes, methods, and prototype devices for the prevention or control of air pollution; and
- (8) construct [facilities](/usc/42/11049.md?p=4), provide equipment, and employ staff as necessary to carry out this chapter.
In carrying out the provisions of [subsection (a)](#a), the [Administrator](/usc/42/7602.md?p=a) shall provide [training](/usc/42/285e–2.md?p=b-2) for, and make [training](/usc/42/285e–2.md?p=b-2) grants to, personnel of [air pollution control agencies](/usc/42/7602.md?p=b) and other [persons](/usc/42/7602.md?p=e) with suitable qualifications and make grants to such agencies, to other public or nonprofit private agencies, institutions, and organizations for the purposes stated in [subsection (a)(5)](#a-5). Reasonable fees may be charged for such [training](/usc/42/285e–2.md?p=b-2) provided to [persons](/usc/42/7602.md?p=e) other than personnel of [air pollution control agencies](/usc/42/7602.md?p=b) but such [training](/usc/42/285e–2.md?p=b-2) shall be provided to such personnel of [air pollution control agencies](/usc/42/7602.md?p=b) without charge.
- (c) **Air pollutant monitoring, analysis, modeling, and inventory research—** In carrying out [subsection (a)](#a), the [Administrator](/usc/42/7602.md?p=a) shall conduct a [program](/usc/42/274l–1.md?p=4) of research, testing, and development of methods for sampling, measurement, monitoring, analysis, and modeling of [air pollutants](/usc/42/7602.md?p=g). Such [program](/usc/42/274l–1.md?p=4) shall include the following elements:
- (1) Consideration of individual, as well as complex mixtures of, [air pollutants](/usc/42/7602.md?p=g) and their chemical transformations in the atmosphere.
- (2) Establishment of a national network to monitor, collect, and compile data with quantification of certainty in the status and trends of air emissions, deposition, air quality, surface water quality, forest condition, and visibility impairment, and to ensure the comparability of air quality data collected in different [States](/usc/42/7602.md?p=d) and obtained from different nations.
- (3) Development of improved methods and technologies for sampling, measurement, monitoring, analysis, and modeling to increase understanding of the sources of ozone precursors, ozone formation, ozone transport, regional influences on urban ozone, regional ozone trends, and interactions of ozone with other [pollutants](/usc/42/1397h.md?p=c-4). Emphasis shall be placed on those techniques which—
- (A) improve the ability to [inventory](/usc/42/4370m.md?p=14) emissions of volatile organic compounds and nitrogen oxides that contribute to urban air pollution, including anthropogenic and natural sources;
- (B) improve the understanding of the mechanism through which anthropogenic and biogenic volatile organic compounds react to form ozone and other oxidants; and
- (C) improve the ability to identify and evaluate region-specific prevention and control options for ozone pollution.
- (4) Submission of periodic reports to the Congress, not less than once every 5 years, which evaluate and assess the effectiveness of air pollution control regulations and [programs](/usc/42/274l–1.md?p=4) using monitoring and modeling data obtained pursuant to this subsection.
- (d) **Environmental health effects research—**
- (1) The [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of Health and Human Services, shall conduct a research [program](/usc/42/274l–1.md?p=4) on the short-term and long-term effects of [air pollutants](/usc/42/7602.md?p=g), including wood smoke, on human health. In conducting such research [program](/usc/42/274l–1.md?p=4) the [Administrator](/usc/42/7602.md?p=a)—
- (A) shall conduct studies, including epidemiological, clinical, and [laboratory](/usc/42/300jj.md?p=10) and field studies, as necessary to identify and evaluate exposure to and effects of [air pollutants](/usc/42/7602.md?p=g) on human health;
- (B) may utilize, on a reimbursable basis, the [facilities](/usc/42/11049.md?p=4) of existing Federal scientific [laboratories](/usc/42/300jj.md?p=10) and research centers; and
- (C) shall consult with other Federal agencies to ensure that similar research being conducted in other agencies is coordinated to avoid duplication.
- (2) In conducting the research [program](/usc/42/274l–1.md?p=4) under this subsection, the [Administrator](/usc/42/7602.md?p=a) shall develop methods and techniques necessary to identify and assess the risks to human health from both routine and accidental exposures to individual [air pollutants](/usc/42/7602.md?p=g) and combinations thereof. Such research [program](/usc/42/274l–1.md?p=4) shall include the following elements:
- (A) The creation of an Interagency [Task Force](/usc/42/242q–4.md?p=3) to coordinate such [program](/usc/42/274l–1.md?p=4). The [Task Force](/usc/42/242q–4.md?p=3) shall include [representatives](/usc/42/3058f.md?p=5) of the National Institute for Environmental Health Sciences, the Environmental Protection Agency, the Agency for Toxic Substances and Disease [Registry](/usc/42/6341.md?p=6), the National Toxicology [Program](/usc/42/274l–1.md?p=4), the National Institute of [Standards](/usc/42/1320d.md?p=7) and Technology, the National Science [Foundation](/usc/42/17351.md?p=3), the Surgeon General, and the Department of [Energy](/usc/42/6311.md?p=7). This Interagency [Task Force](/usc/42/242q–4.md?p=3) shall be chaired by a [representative](/usc/42/3058f.md?p=5) of the Environmental Protection Agency and shall convene its first meeting within 60 days after November 15, 1990.
- (B) An evaluation, within 12 months after November 15, 1990, of each of the hazardous [air pollutants](/usc/42/7602.md?p=g) listed under [section 7412(b) of this title](/usc/42/7412.md?p=b), to decide, on the basis of available information, their relative priority for preparation of environmental health assessments pursuant to [subparagraph (C)](#d-2-C). The evaluation shall be based on reasonably anticipated toxicity to humans and exposure factors such as frequency of occurrence as an [air pollutant](/usc/42/7602.md?p=g) and volume of emissions in populated areas. Such evaluation shall be reviewed by the Interagency [Task Force](/usc/42/242q–4.md?p=3) established pursuant to [subparagraph (A)](#d-2-A).
- (C) Preparation of environmental health assessments for each of the hazardous [air pollutants](/usc/42/7602.md?p=g) referred to in [subparagraph (B)](#d-2-B), beginning 6 months after the first meeting of the Interagency [Task Force](/usc/42/242q–4.md?p=3) and to be completed within 96 months thereafter. No fewer than 24 assessments shall be completed and published annually. The assessments shall be prepared in accordance with guidelines developed by the [Administrator](/usc/42/7602.md?p=a) in consultation with the Interagency [Task Force](/usc/42/242q–4.md?p=3) and the Science Advisory [Board](/usc/42/10261.md?p=2) of the Environmental Protection Agency. Each such assessment shall include—
- (i) an examination, summary, and evaluation of available toxicological and epidemiological information for the [pollutant](/usc/42/1397h.md?p=c-4) to ascertain the levels of human exposure which pose a significant threat to human health and the associated acute, subacute, and chronic adverse health effects;
- (ii) a determination of gaps in available information related to human health effects and exposure levels; and
- (iii) where appropriate, an identification of additional activities, including toxicological and inhalation testing, needed to identify the types or levels of exposure which may present significant risk of adverse health effects in humans.
- (e) **Ecosystem research—** In carrying out [subsection (a)](#a), the [Administrator](/usc/42/7602.md?p=a), in cooperation, where appropriate, with the Under [Secretary](/usc/42/242q–4.md?p=2) of [Commerce](/usc/42/6311.md?p=7) for Oceans and Atmosphere, the [Director](/usc/42/5061.md?p=1) of the Fish and Wildlife Service, and the [Secretary](/usc/42/242q–4.md?p=2) of Agriculture, shall conduct a research [program](/usc/42/274l–1.md?p=4) to improve understanding of the short-term and long-term [causes](/usc/42/9908.md?p=c-2), effects, and trends of ecosystems damage from [air pollutants](/usc/42/7602.md?p=g) on ecosystems. Such [program](/usc/42/274l–1.md?p=4) shall include the following elements:
- (1) Identification of regionally [representative](/usc/42/3058f.md?p=5) and critical ecosystems for research.
- (2) Evaluation of risks to ecosystems exposed to [air pollutants](/usc/42/7602.md?p=g), including characterization of the [causes](/usc/42/9908.md?p=c-2) and effects of chronic and episodic exposures to [air pollutants](/usc/42/7602.md?p=g) and determination of the reversibility of those effects.
- (3) Development of improved atmospheric dispersion models and monitoring systems and networks for evaluating and quantifying exposure to and effects of multiple environmental stresses associated with air pollution.
- (4) Evaluation of the effects of air pollution on water quality, including assessments of the short-term and long-term ecological effects of acid deposition and other atmospherically derived [pollutants](/usc/42/1397h.md?p=c-4) on surface water (including wetlands and estuaries) and groundwater.
- (5) Evaluation of the effects of air pollution on forests, materials, crops, biological diversity, soils, and other terrestrial and aquatic systems exposed to [air pollutants](/usc/42/7602.md?p=g).
- (6) Estimation of the associated economic costs of ecological damage which have occurred as a result of exposure to [air pollutants](/usc/42/7602.md?p=g).
Consistent with the purpose of this [program](/usc/42/274l–1.md?p=4), the [Administrator](/usc/42/7602.md?p=a) may use the estuarine research reserves established pursuant to [section 1461 of title 16](/usc/16/1461.md) to carry out this research.
- (f) **Liquefied Gaseous Fuels Spill Test Facility—**
- (1) The [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7) and the Federal Coordinating [Council](/usc/42/300f.md?p=9) for Science, Engineering, and Technology, shall oversee an experimental and analytical research effort, with the experimental research to be carried out at the Liquefied Gaseous Fuels Spill Test [Facility](/usc/42/11049.md?p=4). In consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), the [Administrator](/usc/42/7602.md?p=a) shall develop a list of chemicals and a schedule for field testing at the [Facility](/usc/42/11049.md?p=4). Analysis of a minimum of 10 chemicals per year shall be carried out, with the selection of a minimum of 2 chemicals for field testing each year. Highest priority shall be given to those chemicals that would present the greatest potential risk to human health as a result of an accidental [release](/usc/42/9601.md?p=22)—
- (A) from a fixed site; or
- (B) related to the transport of such chemicals.
- (2) The purpose of such research shall be to—
- (A) develop improved predictive models for atmospheric dispersion which at a minimum—
- (i) describe dense gas [releases](/usc/42/9601.md?p=22) in complex terrain including man-made structures or obstacles with variable winds;
- (ii) improve understanding of the effects of turbulence on dispersion patterns; and
- (iii) consider realistic behavior of aerosols by including physicochemical reactions with water vapor, ground deposition, and [removal](/usc/42/9601.md?p=23) by water spray;
- (B) evaluate existing and future atmospheric dispersion models by—
- (i) the development of a rigorous, standardized methodology for dense gas models; and
- (ii) the application of such methodology to current dense gas dispersion models using data generated from field experiments; and
- (C) evaluate the effectiveness of [hazard](/usc/42/5165f.md?p=a-3) mitigation and emergency response technology for fixed site and transportation related accidental [releases](/usc/42/9601.md?p=22) of [toxic chemicals](/usc/42/11049.md?p=10).
Models pertaining to accidental [release](/usc/42/9601.md?p=22) shall be evaluated and improved periodically for their utility in planning and implementing evacuation procedures and other mitigative strategies designed to minimize human exposure to hazardous [air pollutants](/usc/42/7602.md?p=g) released accidentally.
- (3) The [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7) shall make available to interested [persons](/usc/42/7602.md?p=e) (including other Federal agencies and businesses) the use of the Liquefied Gaseous Fuels Spill Test [Facility](/usc/42/11049.md?p=4) to conduct research and other activities in connection with the activities described in this subsection.
- (g) **Pollution prevention and emissions control—**
- (1) **In general—** In carrying out [subsection (a)](#a), the [Administrator](/usc/42/7602.md?p=a) shall conduct a basic engineering research and technology [program](/usc/42/274l–1.md?p=4) to develop, evaluate, and demonstrate nonregulatory strategies and technologies for air pollution prevention.
- (2) **Participation requirement—** Such strategies and technologies described in [paragraph (1)](#g-1) shall be developed with priority on those [pollutants](/usc/42/1397h.md?p=c-4) which pose a significant risk to human health and the environment, and with opportunities for participation by industry, public interest groups, scientists, [States](/usc/42/7602.md?p=d), institutions of higher education, and other interested [persons](/usc/42/7602.md?p=e) in the development of such strategies and technologies.
- (3) **Program inclusions—** The [program](/usc/42/274l–1.md?p=4) under this subsection shall include the following elements:
- (A) Improvements in nonregulatory strategies and technologies for preventing or reducing multiple [air pollutants](/usc/42/7602.md?p=g), including sulfur oxides, nitrogen oxides, heavy metals, [PM–10](/usc/42/7602.md?p=t) (particulate matter), carbon monoxide, and carbon dioxide, from [stationary sources](/usc/42/7411.md?p=a-3), including fossil fuel power plants. Such strategies and technologies shall include improvements in the relative cost effectiveness and long-range implications of various [air pollutant](/usc/42/7602.md?p=g) reduction and nonregulatory control strategies such as [energy](/usc/42/6311.md?p=7) conservation, including end-use efficiency, and fuel-switching to cleaner fuels. Such strategies and technologies shall be considered for existing and new [facilities](/usc/42/11049.md?p=4).
- (B) Improvements in nonregulatory strategies and technologies for reducing air emissions from area sources.
- (C) Improvements in nonregulatory strategies and technologies for preventing, detecting, and correcting accidental [releases](/usc/42/9601.md?p=22) of hazardous [air pollutants](/usc/42/7602.md?p=g).
- (D) Improvements in nonregulatory strategies and technologies that dispose of tires in ways that avoid adverse air quality impacts.
- (4) **Effect of subsection—** Nothing in this subsection shall be construed to authorize the imposition on any [person](/usc/42/7602.md?p=e) of air pollution control requirements.
- (5) **Coordination and avoidance of duplication—** The [Administrator](/usc/42/7602.md?p=a) shall consult with other appropriate Federal agencies to ensure coordination and to avoid duplication of activities authorized under this subsection.
- (6) **Certain carbon dioxide activities—**
- (A) **In general—** In carrying out [paragraph (3)(A)](#g-3-A) with respect to carbon dioxide, the [Administrator](/usc/42/7602.md?p=a)—
- (i) is authorized to carry out the activities described in [subparagraph (B)](#g-6-B); and
- (ii) shall carry out the activities described in [subparagraph (C)](#g-6-C).
- (B) **Direct air capture research—**
- (i) **Definitions—** In this subparagraph:
- (I) **Board—** The term “Board” means the [Direct Air Capture](#g-6-B-i-III-aa) Technology Advisory Board established by [clause (iii)(I)](#g-6-B-iii-I).
- (II) **Dilute—** The term “dilute” means a concentration of less than 1 percent by volume.
- (III) **Direct air capture—**
- (aa) **In general—** The term “direct air capture”, with respect to a [facility](/usc/42/11049.md?p=4), technology, or system, means that the [facility](/usc/42/11049.md?p=4), technology, or system uses carbon capture equipment to capture carbon dioxide directly from the air.
- (bb) **Exclusion—** The term “[direct air capture](#g-6-B-i-III-aa)” does not include any [facility](/usc/42/11049.md?p=4), technology, or system that captures carbon dioxide—
- (AA) that is deliberately released from a naturally occurring subsurface spring; or
- (BB) using natural photosynthesis.
- (IV) **Intellectual property—** The term “intellectual property” means—
- (aa) an invention that is patentable under [title 35](/usc/35.md); and
- (bb) any patent on an invention described in [item (aa)](#g-6-B-i-IV-aa).
- (ii) **Technology prizes—**
- (I) **In general—** Not later than 1 year after December 27, 2020, the [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), is authorized to establish a [program](/usc/42/274l–1.md?p=4) to provide financial awards on a competitive basis for [direct air capture](#g-6-B-i-III-aa) from media in which the concentration of carbon dioxide is [dilute](#g-6-B-i-II).
- (II) **Duties—** In carrying out this clause, the [Administrator](/usc/42/7602.md?p=a) shall—
- (aa) subject to [subclause (III)](#g-6-B-ii-III), develop specific requirements for—
- (AA) the competition process; and
- (BB) the demonstration of performance of approved [projects](/usc/42/11360.md?p=20);
- (bb) offer financial awards for a [project](/usc/42/11360.md?p=20) designed—
- (AA) to the maximum extent practicable, to capture more than 10,000 tons of carbon dioxide per year;
- (BB) to operate in a manner that would be commercially viable in the foreseeable future (as determined by the [Board](#g-6-B-i-I)); and
- (CC) to improve the technologies or information systems that enable monitoring and verification methods for [direct air capture](#g-6-B-i-III-aa) [projects](/usc/42/11360.md?p=20); and
- (cc) to the maximum extent practicable, make financial awards to geographically diverse [projects](/usc/42/11360.md?p=20), including at least—
- (AA) 1 [project](/usc/42/11360.md?p=20) in a coastal [State](/usc/42/7602.md?p=d); and
- (BB) 1 [project](/usc/42/11360.md?p=20) in a rural [State](/usc/42/7602.md?p=d).
- (III) **Public participation—** In carrying out [subclause (II)(aa)](#g-6-B-ii-II-aa), the [Administrator](/usc/42/7602.md?p=a) shall—
- (aa) provide notice of and, for a period of not less than 60 days, an opportunity for public comment on, any draft or proposed version of the requirements described in [subclause (II)(aa)](#g-6-B-ii-II-aa); and
- (bb) take into account public comments received in developing the final version of those requirements.
- (iii) **Direct Air Capture Technology Advisory Board—**
- (I) **Establishment—** The [Administrator](/usc/42/7602.md?p=a) may establish an advisory [board](#g-6-B-i-I) to be known as the “[Direct Air Capture](#g-6-B-i-III-aa) Technology Advisory [Board](#g-6-B-i-I)”.
- (II) **Composition—** The [Board](#g-6-B-i-I), on the establishment of the [Board](#g-6-B-i-I), shall be composed of 9 members appointed by the [Administrator](/usc/42/7602.md?p=a), who shall provide expertise in—
- (aa) climate science;
- (bb) physics;
- (cc) chemistry;
- (dd) biology;
- (ee) engineering;
- (ff) economics;
- (gg) business management; and
- (hh) such other disciplines as the [Administrator](/usc/42/7602.md?p=a) determines to be necessary to achieve the purposes of this subparagraph.
- (III) **Term; vacancies—**
- (aa) **Term—** A member of the [Board](#g-6-B-i-I) shall serve for a term of 6 years.
- (bb) **Vacancies—** A vacancy on the [Board](#g-6-B-i-I)—
- (AA) shall not affect the powers of the [Board](#g-6-B-i-I); and
- (BB) shall be filled in the same manner as the original appointment was made.
- (IV) **Initial meeting—** Not later than 30 days after the date on which all members of the [Board](#g-6-B-i-I) have been appointed, the [Board](#g-6-B-i-I) shall hold the initial meeting of the [Board](#g-6-B-i-I).
- (V) **Meetings—** The [Board](#g-6-B-i-I) shall meet at the call of the Chairperson or on the request of the [Administrator](/usc/42/7602.md?p=a).
- (VI) **Quorum—** A majority of the members of the [Board](#g-6-B-i-I) shall constitute a quorum, but a lesser number of members may hold hearings.
- (VII) **Chairperson and Vice Chairperson—** The [Board](#g-6-B-i-I) shall select a Chairperson and Vice Chairperson from among the members of the [Board](#g-6-B-i-I).
- (VIII) **Compensation—** Each member of the [Board](#g-6-B-i-I) may be compensated at not to exceed the daily equivalent of the annual rate of basic pay in effect for a position at level V of the Executive Schedule under [section 5316 of title 5](/usc/5/5316.md) for each day during which the member is engaged in the actual performance of the duties of the [Board](#g-6-B-i-I).
- (IX) **Duties—** The [Board](#g-6-B-i-I) shall—
- (aa) advise the [Administrator](/usc/42/7602.md?p=a) on carrying out the duties of the [Administrator](/usc/42/7602.md?p=a) under this subparagraph; and
- (bb) provide other assistance and advice as requested by the [Administrator](/usc/42/7602.md?p=a).
- (iv) **Intellectual property—**
- (I) **In general—** As a condition of receiving a financial award under this subparagraph, an applicant shall agree to vest the [intellectual property](#g-6-B-i-IV) of the applicant derived from the technology in 1 or more entities that are incorporated in the [United States](/usc/42/403.md?p=k).
- (II) **Reservation of license—** The [United States](/usc/42/403.md?p=k)—
- (aa) may reserve a nonexclusive, nontransferable, irrevocable, paid-up license, to have practiced for or on behalf of the [United States](/usc/42/403.md?p=k), in connection with any [intellectual property](#g-6-B-i-IV) described in [subclause (I)](#g-6-B-iv-I); but
- (bb) shall not, in the exercise of a license reserved under [item (aa)](#g-6-B-iv-II-aa), publicly disclose proprietary information relating to the license.
- (III) **Transfer of title—** Title to any [intellectual property](#g-6-B-i-IV) described in [subclause (I)](#g-6-B-iv-I) shall not be transferred or passed, except to an entity that is incorporated in the [United States](/usc/42/403.md?p=k), until the expiration of the first patent obtained in connection with the [intellectual property](#g-6-B-i-IV).
- (v) **Authorization of appropriations—** There is authorized to be appropriated to carry out this subparagraph $35,000,000, to remain available until expended.
- (vi) **Termination of authority—** Notwithstanding section 14 of the Federal Advisory Committee Act (5 U.S.C. App.),[^1] the [Board](#g-6-B-i-I) and all authority provided under this subparagraph shall terminate not later than 12 years after December 27, 2020.
- (C) **Deep saline formation report—**
- (i) **Definition of deep saline formation—**
- (I) **In general—** In this subparagraph, the term “deep saline formation” means a formation of subsurface geographically extensive sedimentary rock layers saturated with waters or brines that have a high total dissolved solids content and that are below the depth where carbon dioxide can exist in the formation as a supercritical fluid.
- (II) **Clarification—** In this subparagraph, the term “[deep saline formation](#g-6-C-i-I)” does not include oil and gas reservoirs.
- (ii) **Report—** In consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), and, as appropriate, with the head of any other relevant Federal agency and relevant stakeholders, not later than 1 year after December 27, 2020, the [Administrator](/usc/42/7602.md?p=a) shall prepare, submit to Congress, and make publicly available a report that includes—
- (I) a comprehensive identification of potential risks and benefits to [project](/usc/42/11360.md?p=20) developers associated with increased storage of carbon dioxide captured from [stationary sources](/usc/42/7411.md?p=a-3) in [deep saline formations](#g-6-C-i-I), using existing research;
- (II) recommendations for managing the potential risks identified under [subclause (I)](#g-6-C-ii-I), including potential risks unique to public land; and
- (III) recommendations for Federal legislation or other policy changes to mitigate any potential risks identified under [subclause (I)](#g-6-C-ii-I).
- (D) **GAO report—** Not later than 5 years after December 27, 2020, the Comptroller General of the [United States](/usc/42/403.md?p=k) shall submit to Congress a report that—
- (i) identifies all Federal grant [programs](/usc/42/274l–1.md?p=4) in which a purpose of a grant under the [program](/usc/42/274l–1.md?p=4) is to perform research on carbon capture and utilization technologies, including direct air capture technologies; and
- (ii) examines the extent to which the Federal grant [programs](/usc/42/274l–1.md?p=4) identified pursuant to [clause (i)](#g-6-D-i) overlap or are duplicative.
- (h) **NIEHS studies—**
- (1) The [Director](/usc/42/5061.md?p=1) of the National Institute of Environmental Health Sciences may conduct a [program](/usc/42/274l–1.md?p=4) of basic research to identify, characterize, and quantify risks to human health from [air pollutants](/usc/42/7602.md?p=g). Such research shall be conducted primarily through a combination of university and medical [school](/usc/42/6372.md?p=1)-based grants, as well as through intramural studies and contracts.
- (2) The [Director](/usc/42/5061.md?p=1) of the National Institute of Environmental Health Sciences shall conduct a [program](/usc/42/274l–1.md?p=4) for the education and [training](/usc/42/285e–2.md?p=b-2) of [physicians](/usc/42/1395cc–4.md?p=a-2-E) in environmental health.
- (3) The [Director](/usc/42/5061.md?p=1) shall assure that such [programs](/usc/42/274l–1.md?p=4) shall not conflict with research undertaken by the [Administrator](/usc/42/7602.md?p=a).
- (4) There are authorized to be appropriated to the National Institute of Environmental Health Sciences such sums as may be necessary to carry out the purposes of this subsection.
- (i) **Coordination of research—** The [Administrator](/usc/42/7602.md?p=a) shall develop and implement a plan for identifying areas in which activities authorized under this section can be carried out in conjunction with other Federal ecological and air pollution research efforts. The plan, which shall be submitted to Congress within 6 months after November 15, 1990, shall include—
- (1) an assessment of ambient monitoring stations and networks to determine cost effective ways to expand monitoring capabilities in both urban and rural environments;
- (2) a consideration of the extent of the feasibility and scientific value of conducting the research [program](/usc/42/274l–1.md?p=4) under [subsection (e)](#e) to include consideration of the effects of atmospheric processes and air pollution effects; and
- (3) a methodology for evaluating and ranking pollution prevention technologies, such as those developed under [subsection (g)](#g), in terms of their ability to reduce cost effectively the emissions of [air pollutants](/usc/42/7602.md?p=g) and other airborne chemicals of concern.
Not later than 2 years after November 15, 1990, and every 4 years thereafter, the [Administrator](/usc/42/7602.md?p=a) shall report to Congress on the progress made in implementing the plan developed under this subsection, and shall include in such report any revisions of the plan.
- (j) **Continuation of national acid precipitation assessment program—**
- (1) The acid precipitation research [program](/usc/42/274l–1.md?p=4) set forth in the Acid Precipitation Act of 1980 [[42 U.S.C. 8901](/usc/42/8901.md) et seq.] shall be continued with [modifications](/usc/42/7501.md?p=4) pursuant to this subsection.
- (2) The Acid Precipitation [Task Force](/usc/42/242q–4.md?p=3) shall consist of the [Administrator](/usc/42/7602.md?p=a) of the Environmental Protection Agency, the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), the [Secretary](/usc/42/242q–4.md?p=2) of the Interior, the [Secretary](/usc/42/242q–4.md?p=2) of Agriculture, the [Administrator](/usc/42/7602.md?p=a) of the National Oceanic and Atmospheric Administration, the [Administrator](/usc/42/7602.md?p=a) of the National Aeronautics and Space Administration, and such additional members as the President may select. The President shall appoint a chairman for the [Task Force](/usc/42/242q–4.md?p=3) from among its members within 30 days after November 15, 1990.
- (3) The responsibilities of the [Task Force](/usc/42/242q–4.md?p=3) shall include the following:
- (A) Review of the status of research activities conducted to date under the comprehensive research plan developed pursuant to the Acid Precipitation Act of 1980 [[42 U.S.C. 8901](/usc/42/8901.md) et seq.], and development of a revised plan that identifies significant research gaps and establishes a coordinated [program](/usc/42/274l–1.md?p=4) to address current and future research priorities. A draft of the revised plan shall be submitted by the [Task Force](/usc/42/242q–4.md?p=3) to Congress within 6 months after November 15, 1990. The plan shall be available for public comment during the 60 day period after its submission, and a final plan shall be submitted by the President to the Congress within 45 days after the close of the comment period.
- (B) Coordination with participating Federal agencies, augmenting the agencies’ research and monitoring efforts and sponsoring additional research in the scientific community as necessary to ensure the availability and quality of data and methodologies needed to evaluate the status and effectiveness of the acid deposition control [program](/usc/42/274l–1.md?p=4). Such research and monitoring efforts shall include, but not be limited to—
- (i) continuous monitoring of emissions of precursors of acid deposition;
- (ii) maintenance, upgrading, and application of models, such as the Regional Acid Deposition Model, that describe the interactions of emissions with the atmosphere, and models that describe the response of ecosystems to acid deposition; and
- (iii) analysis of the costs, benefits, and effectiveness of the acid deposition control [program](/usc/42/274l–1.md?p=4).
- (C) Publication and maintenance of a National Acid Lakes [Registry](/usc/42/6341.md?p=6) that tracks the condition and change over time of a statistically [representative](/usc/42/3058f.md?p=5) sample of lakes in regions that are known to be sensitive to surface water acidification.
- (D) Submission every two years of a unified budget recommendation to the President for activities of the Federal Government in connection with the research [program](/usc/42/274l–1.md?p=4) described in this subsection.
- (E) Beginning in 1992 and biennially thereafter, submission of a report to Congress describing the results of its investigations and analyses. The reporting of technical information about acid deposition shall be provided in a format that facilitates communication with policymakers and the public. The report shall include—
- (i) actual and projected emissions and acid deposition trends;
- (ii) average ambient concentrations of acid deposition percursors[^2] and their transformation products;
- (iii) the status of ecosystems (including forests and surface waters), materials, and visibility affected by acid deposition;
- (iv) the [causes](/usc/42/9908.md?p=c-2) and effects of such deposition, including changes in surface water quality and forest and soil conditions;
- (v) the occurrence and effects of episodic acidification, particularly with respect to high elevation watersheds; and
- (vi) the confidence level associated with each conclusion to aid policymakers in use of the information.
- (F) Beginning in 1996, and every 4 years thereafter, the report under [subparagraph (E)](#j-3-E) shall include—
- (i) the reduction in deposition rates that must be achieved in order to prevent adverse ecological effects; and
- (ii) the costs and benefits of the acid deposition control [program](/usc/42/274l–1.md?p=4) created by subchapter IV–A of this chapter.
- (k) **Air pollution conferences—** If, in the judgment of the [Administrator](/usc/42/7602.md?p=a), an air pollution problem of substantial significance may result from discharge or discharges into the atmosphere, the [Administrator](/usc/42/7602.md?p=a) may call a conference concerning this potential air pollution problem to be held in or near one or more of the places where such discharge or discharges are occurring or will occur. All interested [persons](/usc/42/7602.md?p=e) shall be given an opportunity to be heard at such conference, either orally or in writing, and shall be permitted to appear in [person](/usc/42/7602.md?p=e) or by [representative](/usc/42/3058f.md?p=5) in accordance with procedures prescribed by the [Administrator](/usc/42/7602.md?p=a). If the [Administrator](/usc/42/7602.md?p=a) finds, on the basis of the evidence presented at such conference, that the discharge or discharges if permitted to take place or continue are likely to [cause](/usc/42/9908.md?p=c-2) or contribute to air pollution subject to abatement under this part, the [Administrator](/usc/42/7602.md?p=a) shall send such findings, together with recommendations concerning the measures which the [Administrator](/usc/42/7602.md?p=a) finds reasonable and suitable to prevent such pollution, to the [person](/usc/42/7602.md?p=e) or [persons](/usc/42/7602.md?p=e) whose actions will result in the discharge or discharges involved; to air pollution agencies of the [State](/usc/42/7602.md?p=d) or [States](/usc/42/7602.md?p=d) and of the [municipality](/usc/42/7602.md?p=f) or [municipalities](/usc/42/7602.md?p=f) where such discharge or discharges will originate; and to the [interstate air pollution control agency](/usc/42/7602.md?p=c), if any, in the jurisdictional area of which any such [municipality](/usc/42/7602.md?p=f) is located. Such findings and recommendations shall be advisory only, but shall be admitted together with the record of the conference, as part of the proceedings under subsections (b), (c), (d), (e), and (f) of [section 7408 of this title](/usc/42/7408.md).
# §7404. Research relating to fuels and vehicles
- (a) **Research programs; grants; contracts; pilot and demonstration plants; byproducts research—** The [Administrator](/usc/42/7602.md?p=a) shall give special emphasis to research and development into new and improved methods, having industry-wide application, for the prevention and control of air pollution resulting from the combustion of fuels. In furtherance of such research and development he shall—
- (1) conduct and accelerate research [programs](/usc/42/274l–1.md?p=4) directed toward development of improved, [cost-effective](/usc/42/1396e.md?p=e-2) techniques for—
- (A) control of combustion byproducts of fuels,
- (B) [removal](/usc/42/9601.md?p=23) of potential [air pollutants](/usc/42/7602.md?p=g) from fuels prior to combustion,
- (C) control of emissions from the evaporation of fuels,
- (D) improving the efficiency of fuels combustion so as to decrease atmospheric emissions, and
- (E) producing synthetic or new fuels which, when used, result in decreased atmospheric emissions.[^1]
- (2) provide for Federal grants to public or nonprofit agencies, institutions, and organizations and to individuals, and contracts with public or private agencies, institutions, or [persons](/usc/42/7602.md?p=e), for payment of (A) part of the cost of acquiring, constructing, or otherwise securing for research and development purposes, new or improved devices or methods having industrywide application of preventing or controlling discharges into the air of various types of [pollutants](/usc/42/1397h.md?p=c-4); (B) part of the cost of [programs](/usc/42/274l–1.md?p=4) to develop low emission alternatives to the present internal combustion engine; (C) the cost to purchase vehicles and vehicle engines, or portions thereof, for research, development, and testing purposes; and (D) carrying out the other provisions of this section, without regard to section [3324(a)](/usc/31/3324.md?p=a) and [(b)](/usc/31/3324.md?p=b) of title 31 and [section 6101 of title 41](/usc/41/6101.md): Provided, That research or demonstration contracts awarded pursuant to this subsection (including contracts for [construction](/usc/42/7479.md?p=2-C)) may be made in accordance with, and subject to the limitations provided with respect to research contracts of the military departments in, section 2353[^2] of [title 10](/usc/10.md), except that the determination, approval, and certification required thereby shall be made by the [Administrator](/usc/42/7602.md?p=a); Provided further, That no grant may be made under this paragraph in excess of $1,500,000;
- (3) determine, by [laboratory](/usc/42/300jj.md?p=10) and pilot plant testing, the results of air pollution research and studies in order to develop new or improved processes and plant designs to the point where they can be demonstrated on a large and practical scale;
- (4) construct, operate, and maintain, or assist in meeting the cost of the [construction](/usc/42/7479.md?p=2-C), operation, and maintenance of new or improved demonstration plants or processes which have promise of accomplishing the purposes of this chapter;[^3]
- (5) study new or improved methods for the recovery and marketing of commercially valuable byproducts resulting from the [removal](/usc/42/9601.md?p=23) of [pollutants](/usc/42/1397h.md?p=c-4).
- (b) **Powers of Administrator in establishing research and development programs—** In carrying out the provisions of this section, the [Administrator](/usc/42/7602.md?p=a) may—
- (1) conduct and accelerate research and development of [cost-effective](/usc/42/1396e.md?p=e-2) instrumentation techniques to facilitate determination of quantity and quality of [air pollutant](/usc/42/7602.md?p=g) emissions, including, but not limited to, automotive emissions;
- (2) utilize, on a reimbursable basis, the [facilities](/usc/42/11049.md?p=4) of existing Federal scientific [laboratories](/usc/42/300jj.md?p=10);
- (3) establish and operate necessary [facilities](/usc/42/11049.md?p=4) and test sites at which to carry on the research, testing, development, and programming necessary to effectuate the purposes of this section;
- (4) acquire secret processes, technical data, inventions, patent applications, patents, licenses, and an interest in lands, plants, and [facilities](/usc/42/11049.md?p=4), and other property or rights by purchase, license, lease, or donation; and
- (5) [cause](/usc/42/9908.md?p=c-2) on-site [inspections](/usc/42/4851b.md?p=12) to be made of promising domestic and foreign [projects](/usc/42/11360.md?p=20), and cooperate and participate in their development in instances in which the purposes of the chapter will be served thereby.
- (c) **Clean alternative fuels—** The [Administrator](/usc/42/7602.md?p=a) shall conduct a research [program](/usc/42/274l–1.md?p=4) to identify, characterize, and predict air emissions related to the production, distribution, storage, and use of clean alternative fuels to determine the risks and benefits to human health and the environment relative to those from using conventional gasoline and diesel fuels. The [Administrator](/usc/42/7602.md?p=a) shall consult with other Federal agencies to ensure coordination and to avoid duplication of activities authorized under this subsection.
# §7405. Grants for support of air pollution planning and control programs
- (a) **Amounts; limitations; assurances of plan development capability—**
- (1)
- (A) The [Administrator](/usc/42/7602.md?p=a) may make grants to [air pollution control agencies](/usc/42/7602.md?p=b), within the meaning of paragraph (1), (2), (3), (4), or (5) of [section 7602 of this title](/usc/42/7602.md), in an amount up to three-fifths of the cost of implementing [programs](/usc/42/274l–1.md?p=4) for the prevention and control of air pollution or implementation of national primary and secondary ambient air quality [standards](/usc/42/1320d.md?p=7). For the purpose of this section, “implementing” means any activity related to the planning, developing, establishing, carrying-out, improving, or maintaining of such [programs](/usc/42/274l–1.md?p=4).
- (B) Subject to subsections [(b)](#b) and [(c)](#c) of this section, an [air pollution control agency](/usc/42/7602.md?p=b) which receives a grant under [subparagraph (A)](#a-1-A) and which contributes less than the required two-fifths minimum shall have 3 years following November 15, 1990, in which to contribute such amount. If such an agency fails to meet and maintain this required level, the [Administrator](/usc/42/7602.md?p=a) shall reduce the amount of the Federal contribution accordingly.
- (C) With respect to any air quality control region or portion thereof for which there is an [applicable implementation plan](/usc/42/7602.md?p=q) under [section 7410 of this title](/usc/42/7410.md), grants under [subparagraph (A)](#a-1-A) may be made only to [air pollution control agencies](/usc/42/7602.md?p=b) which have substantial responsibilities for carrying out such [applicable implementation plan](/usc/42/7602.md?p=q).
- (2) Before approving any grant under this subsection to any [air pollution control agency](/usc/42/7602.md?p=b) within the meaning of sections [7602(b)(2)](/usc/42/7602.md?p=b-2) and [7602(b)(4)](/usc/42/7602.md?p=b-4) of this title, the [Administrator](/usc/42/7602.md?p=a) shall receive assurances that such agency provides for adequate representation of appropriate [State](/usc/42/7602.md?p=d), interstate, local, and (when appropriate) international, interests in the air quality control region.
- (3) Before approving any planning grant under this subsection to any [air pollution control agency](/usc/42/7602.md?p=b) within the meaning of sections [7602(b)(2)](/usc/42/7602.md?p=b-2) and [7602(b)(4)](/usc/42/7602.md?p=b-4) of this title, the [Administrator](/usc/42/7602.md?p=a) shall receive assurances that such agency has the capability of developing a comprehensive air quality plan for the air quality control region, which plan shall include (when appropriate) a recommended system of alerts to avert and reduce the risk of situations in which there may be imminent and serious danger to the public health or welfare from [air pollutants](/usc/42/7602.md?p=g) and the various aspects relevant to the establishment of air quality [standards](/usc/42/1320d.md?p=7) for such air quality control region, including the concentration of industries, other commercial establishments, population and naturally occurring factors which shall affect such [standards](/usc/42/1320d.md?p=7).
- (b) **Terms and conditions; regulations; factors for consideration; State expenditure limitations—**
- (1) From the sums available for the purposes of [subsection (a)](#a) of this section for any fiscal year, the [Administrator](/usc/42/7602.md?p=a) shall from time to time make grants to [air pollution control agencies](/usc/42/7602.md?p=b) upon such terms and conditions as the [Administrator](/usc/42/7602.md?p=a) may find necessary to carry out the purpose of this section. In establishing regulations for the granting of such [funds](/usc/42/12854.md?p=3) the [Administrator](/usc/42/7602.md?p=a) shall, so far as practicable, give due consideration to (A) the population, (B) the extent of the actual or potential air pollution problem, and (C) the financial need of the respective agencies.
- (2) Not more than 10 per centum of the total of [funds](/usc/42/12854.md?p=3) appropriated or allocated for the purposes of [subsection (a)](#a) of this section shall be granted for air pollution control [programs](/usc/42/274l–1.md?p=4) in any one [State](/usc/42/7602.md?p=d). In the case of a grant for a [program](/usc/42/274l–1.md?p=4) in an area crossing [State](/usc/42/7602.md?p=d) boundaries, the [Administrator](/usc/42/7602.md?p=a) shall determine the portion of such grant that is chargeable to the percentage limitation under this subsection for each [State](/usc/42/7602.md?p=d) into which such area extends. Subject to the provisions of paragraph (1) of this subsection, no [State](/usc/42/7602.md?p=d) shall have made available to it for application less than one-half of 1 per centum of the annual appropriation for grants under this section for grants to agencies within such [State](/usc/42/7602.md?p=d).
- (c) **Maintenance of effort—**
- (1) No agency shall receive any grant under this section during any fiscal year when its expenditures of non-Federal [funds](/usc/42/12854.md?p=3) for recurrent expenditures for air pollution control [programs](/usc/42/274l–1.md?p=4) will be less than its expenditures were for such [programs](/usc/42/274l–1.md?p=4) during the preceding fiscal year. In order for the [Administrator](/usc/42/7602.md?p=a) to award grants under this section in a timely manner each fiscal year, the [Administrator](/usc/42/7602.md?p=a) shall compare an agency’s prospective expenditure level to that of its second preceding fiscal year. The [Administrator](/usc/42/7602.md?p=a) shall revise the current regulations which define applicable nonrecurrent and recurrent expenditures, and in so doing, give due consideration to exempting an agency from the limitations of this paragraph and [subsection (a)](#a) due to periodic increases experienced by that agency from time to time in its annual expenditures for purposes acceptable to the [Administrator](/usc/42/7602.md?p=a) for that fiscal year.
- (2) The [Administrator](/usc/42/7602.md?p=a) may still award a grant to an agency not meeting the requirements of paragraph (l)[^1] of this subsection if the [Administrator](/usc/42/7602.md?p=a), after notice and opportunity for public hearing, determines that a reduction in expenditures is attributable to a non-selective reduction in the expenditures in the [programs](/usc/42/274l–1.md?p=4) of all Executive branch agencies of the applicable [unit](/usc/42/1395w–114b.md?p=g-2) of Government. No agency shall receive any grant under this section with respect to the maintenance of a [program](/usc/42/274l–1.md?p=4) for the prevention and control of air pollution unless the [Administrator](/usc/42/7602.md?p=a) is satisfied that such a grant will be so used to supplement and, to the extent practicable, increase the level of [State](/usc/42/7602.md?p=d), local, or other non-Federal [funds](/usc/42/12854.md?p=3). No grants shall be made under this section until the [Administrator](/usc/42/7602.md?p=a) has consulted with the appropriate official as designated by the [Governor](/usc/42/6372.md?p=1) or [Governors](/usc/42/6372.md?p=1) of the [State](/usc/42/7602.md?p=d) or [States](/usc/42/7602.md?p=d) affected.
- (d) **Reduction of payments; availability of reduced amounts; reduced amount as deemed paid to agency for purpose of determining amount of grant—** The [Administrator](/usc/42/7602.md?p=a), with the concurrence of any [recipient](/usc/42/2996a.md?p=6) of a grant under this section, may reduce the payments to such [recipient](/usc/42/2996a.md?p=6) by the amount of the pay, allowances, traveling expenses, and any other costs in connection with the detail of any officer or [employee](/usc/42/1320a–7h.md?p=e-7) to the [recipient](/usc/42/2996a.md?p=6) under [section 7601 of this title](/usc/42/7601.md), when such detail is for the convenience of, and at the request of, such [recipient](/usc/42/2996a.md?p=6) and for the purpose of carrying out the provisions of this chapter. The amount by which such payments have been reduced shall be available for payment of such costs by the [Administrator](/usc/42/7602.md?p=a), but shall, for the purpose of determining the amount of any grant to a [recipient](/usc/42/2996a.md?p=6) under [subsection (a)](#a) of this section, be deemed to have been paid to such agency.
- (e) **Notice and opportunity for hearing when affected by adverse action—** No application by a [State](/usc/42/7602.md?p=d) for a grant under this section may be disapproved by the [Administrator](/usc/42/7602.md?p=a) without prior notice and opportunity for a public hearing in the affected [State](/usc/42/7602.md?p=d), and no commitment or obligation of any [funds](/usc/42/12854.md?p=3) under any such grant may be revoked or reduced without prior notice and opportunity for a public hearing in the affected [State](/usc/42/7602.md?p=d) (or in one of the affected [States](/usc/42/7602.md?p=d) if more than one [State](/usc/42/7602.md?p=d) is affected).
# §7406. Interstate air quality agencies; program cost limitations
For the purpose of developing implementation plans for any interstate air quality control region designated pursuant to [section 7407 of this title](/usc/42/7407.md) or of implementing [section 7506a of this title](/usc/42/7506a.md) (relating to control of interstate air pollution) or [section 7511c of this title](/usc/42/7511c.md) (relating to control of interstate ozone pollution), the [Administrator](/usc/42/7602.md?p=a) is authorized to pay, for two years, up to 100 per centum of the air quality planning [program](/usc/42/274l–1.md?p=4) costs of any [commission](/usc/42/2000ff.md?p=1) established under [section 7506a of this title](/usc/42/7506a.md) (relating to control of interstate air pollution) or [section 7511c of this title](/usc/42/7511c.md) (relating to control of interstate ozone pollution) or any agency designated by the [Governors](/usc/42/6372.md?p=1) of the affected [States](/usc/42/7602.md?p=d), which agency shall be capable of recommending to the [Governors](/usc/42/6372.md?p=1) plans for implementation of national primary and secondary ambient air quality [standards](/usc/42/1320d.md?p=7) and shall include representation from the [States](/usc/42/7602.md?p=d) and appropriate political subdivisions within the air quality control region. After the initial two-year period the [Administrator](/usc/42/7602.md?p=a) is authorized to make grants to such agency or such [commission](/usc/42/2000ff.md?p=1) in an amount up to three-fifths of the air quality implementation [program](/usc/42/274l–1.md?p=4) costs of such agency or [commission](/usc/42/2000ff.md?p=1).
# §7407. Air quality control regions
- (a) **Responsibility of each State for air quality; submission of implementation plan—** Each [State](/usc/42/7602.md?p=d) shall have the primary responsibility for assuring air quality within the entire [geographic area](/usc/42/11360.md?p=9) comprising such [State](/usc/42/7602.md?p=d) by submitting an implementation plan for such [State](/usc/42/7602.md?p=d) which will specify the manner in which national primary and secondary ambient air quality [standards](/usc/42/1320d.md?p=7) will be achieved and maintained within each air quality control region in such [State](/usc/42/7602.md?p=d).
- (b) **Designated regions—** For purposes of developing and carrying out implementation plans under [section 7410 of this title](/usc/42/7410.md)—
- (1) an air quality control region designated under this section before December 31, 1970, or a region designated after such date under [subsection (c)](#c), shall be an air quality control region; and
- (2) the portion of such [State](/usc/42/7602.md?p=d) which is not part of any such designated region shall be an air quality control region, but such portion may be subdivided by the [State](/usc/42/7602.md?p=d) into two or more air quality control regions with the approval of the [Administrator](/usc/42/7602.md?p=a).
- (c) **Authority of Administrator to designate regions; notification of Governors of affected States—** The [Administrator](/usc/42/7602.md?p=a) shall, within 90 days after December 31, 1970, after consultation with appropriate [State](/usc/42/7602.md?p=d) and local authorities, designate as an air quality control region any interstate area or major intrastate area which he deems necessary or appropriate for the attainment and maintenance of ambient air quality [standards](/usc/42/1320d.md?p=7). The [Administrator](/usc/42/7602.md?p=a) shall immediately notify the [Governors](/usc/42/6372.md?p=1) of the affected [States](/usc/42/7602.md?p=d) of any designation made under this subsection.
- (d) **Designations—**
- (1) **Designations generally—**
- (A) **Submission by Governors of initial designations following promulgation of new or revised standards—** By such date as the [Administrator](/usc/42/7602.md?p=a) may reasonably require, but not later than 1 year after promulgation of a new or revised national ambient air quality [standard](/usc/42/1320d.md?p=7) for any [pollutant](/usc/42/1397h.md?p=c-4) under [section 7409 of this title](/usc/42/7409.md), the [Governor](/usc/42/6372.md?p=1) of each [State](/usc/42/7602.md?p=d) shall (and at any other time the [Governor](/usc/42/6372.md?p=1) of a [State](/usc/42/7602.md?p=d) deems appropriate the [Governor](/usc/42/6372.md?p=1) may) submit to the [Administrator](/usc/42/7602.md?p=a) a list of all areas (or portions thereof) in the [State](/usc/42/7602.md?p=d), designating as—
- (i) nonattainment, any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality [standard](/usc/42/1320d.md?p=7) for the [pollutant](/usc/42/1397h.md?p=c-4),
- (ii) attainment, any area (other than an area identified in [clause (i)](#d-1-A-i)) that meets the national primary or secondary ambient air quality [standard](/usc/42/1320d.md?p=7) for the [pollutant](/usc/42/1397h.md?p=c-4), or
- (iii) unclassifiable, any area that cannot be classified on the basis of available information as meeting or not meeting the national primary or secondary ambient air quality [standard](/usc/42/1320d.md?p=7) for the [pollutant](/usc/42/1397h.md?p=c-4).
The [Administrator](/usc/42/7602.md?p=a) may not require the [Governor](/usc/42/6372.md?p=1) to submit the required list sooner than 120 days after promulgating a new or revised national ambient air quality [standard](/usc/42/1320d.md?p=7).
- (B) **Promulgation by EPA of designations—**
- (i) Upon promulgation or revision of a national ambient air quality [standard](/usc/42/1320d.md?p=7), the [Administrator](/usc/42/7602.md?p=a) shall promulgate the designations of all areas (or portions thereof) submitted under [subparagraph (A)](#d-1-A) as expeditiously as practicable, but in no case later than 2 years from the date of promulgation of the new or revised national ambient air quality [standard](/usc/42/1320d.md?p=7). Such period may be extended for up to one year in the event the [Administrator](/usc/42/7602.md?p=a) has insufficient information to promulgate the designations.
- (ii) In making the promulgations required under [clause (i)](#d-1-B-i), the [Administrator](/usc/42/7602.md?p=a) may make such [modifications](/usc/42/7501.md?p=4) as the [Administrator](/usc/42/7602.md?p=a) deems necessary to the designations of the areas (or portions thereof) submitted under [subparagraph (A)](#d-1-A) (including to the boundaries of such areas or portions thereof). Whenever the [Administrator](/usc/42/7602.md?p=a) intends to make a [modification](/usc/42/7501.md?p=4), the [Administrator](/usc/42/7602.md?p=a) shall notify the [State](/usc/42/7602.md?p=d) and provide such [State](/usc/42/7602.md?p=d) with an opportunity to demonstrate why any proposed [modification](/usc/42/7501.md?p=4) is inappropriate. The [Administrator](/usc/42/7602.md?p=a) shall give such notification no later than 120 days before the date the [Administrator](/usc/42/7602.md?p=a) promulgates the designation, including any [modification](/usc/42/7501.md?p=4) thereto. If the [Governor](/usc/42/6372.md?p=1) fails to submit the list in whole or in part, as required under [subparagraph (A)](#d-1-A), the [Administrator](/usc/42/7602.md?p=a) shall promulgate the designation that the [Administrator](/usc/42/7602.md?p=a) deems appropriate for any area (or portion thereof) not designated by the [State](/usc/42/7602.md?p=d).
- (iii) If the [Governor](/usc/42/6372.md?p=1) of any [State](/usc/42/7602.md?p=d), on the [Governor](/usc/42/6372.md?p=1)’s own motion, under [subparagraph (A)](#d-1-A), submits a list of areas (or portions thereof) in the [State](/usc/42/7602.md?p=d) designated as nonattainment, attainment, or unclassifiable, the [Administrator](/usc/42/7602.md?p=a) shall act on such designations in accordance with the procedures under [paragraph (3)](#d-3) (relating to redesignation).
- (iv) A designation for an area (or portion thereof) made pursuant to this subsection shall remain in effect until the area (or portion thereof) is redesignated pursuant to paragraph [(3)](#d-3) or [(4)](#d-4).
- (C) **Designations by operation of law—**
- (i) Any area designated with respect to any [air pollutant](/usc/42/7602.md?p=g) under the provisions of paragraph (1)(A), (B), or (C) of this subsection (as in effect immediately before November 15, 1990) is designated, by operation of law, as a [nonattainment area](/usc/42/7501.md?p=2) for such [pollutant](/usc/42/1397h.md?p=c-4) within the meaning of [subparagraph (A)(i)](#d-1-A-i).
- (ii) Any area designated with respect to any [air pollutant](/usc/42/7602.md?p=g) under the provisions of paragraph (1)(E) (as in effect immediately before November 15, 1990) is designated by operation of law, as an attainment area for such [pollutant](/usc/42/1397h.md?p=c-4) within the meaning of [subparagraph (A)(ii)](#d-1-A-ii).
- (iii) Any area designated with respect to any [air pollutant](/usc/42/7602.md?p=g) under the provisions of paragraph (1)(D) (as in effect immediately before November 15, 1990) is designated, by operation of law, as an unclassifiable area for such [pollutant](/usc/42/1397h.md?p=c-4) within the meaning of [subparagraph (A)(iii)](#d-1-A-iii).
- (2) **Publication of designations and redesignations—**
- (A) The [Administrator](/usc/42/7602.md?p=a) shall publish a notice in the Federal Register promulgating any designation under paragraph [(1)](#d-1) or [(5)](#d-5), or announcing any designation under [paragraph (4)](#d-4), or promulgating any redesignation under [paragraph (3)](#d-3).
- (B) Promulgation or announcement of a designation under paragraph [(1)](#d-1), [(4)](#d-4) or [(5)](#d-5) shall not be subject to the provisions of [sections 553 through 557](/usc/5/553..557.md) of title 5 (relating to notice and comment), except nothing herein shall be construed as precluding such public notice and comment whenever possible.
- (3) **Redesignation—**
- (A) Subject to the requirements of [subparagraph (E)](#d-3-E), and on the basis of air quality data, planning and control considerations, or any other air quality-related considerations the [Administrator](/usc/42/7602.md?p=a) deems appropriate, the [Administrator](/usc/42/7602.md?p=a) may at any time notify the [Governor](/usc/42/6372.md?p=1) of any [State](/usc/42/7602.md?p=d) that available information indicates that the designation of any area or portion of an area within the [State](/usc/42/7602.md?p=d) or interstate area should be revised. In issuing such notification, which shall be public, to the [Governor](/usc/42/6372.md?p=1), the [Administrator](/usc/42/7602.md?p=a) shall provide such information as the [Administrator](/usc/42/7602.md?p=a) may have available explaining the basis for the notice.
- (B) No later than 120 days after receiving a notification under [subparagraph (A)](#d-3-A), the [Governor](/usc/42/6372.md?p=1) shall submit to the [Administrator](/usc/42/7602.md?p=a) such redesignation, if any, of the appropriate area (or areas) or portion thereof within the [State](/usc/42/7602.md?p=d) or interstate area, as the [Governor](/usc/42/6372.md?p=1) considers appropriate.
- (C) No later than 120 days after the date described in [subparagraph (B)](#d-3-B) (or [paragraph (1)(B)(iii)](#d-1-B-iii)), the [Administrator](/usc/42/7602.md?p=a) shall promulgate the redesignation, if any, of the area or portion thereof, submitted by the [Governor](/usc/42/6372.md?p=1) in accordance with [subparagraph (B)](#d-3-B), making such [modifications](/usc/42/7501.md?p=4) as the [Administrator](/usc/42/7602.md?p=a) may deem necessary, in the same manner and under the same procedure as is applicable under [clause (ii)](#d-1-B-ii) of paragraph (1)(B), except that the phrase “60 days” shall be substituted for the phrase “120 days” in that clause. If the [Governor](/usc/42/6372.md?p=1) does not submit, in accordance with [subparagraph (B)](#d-3-B), a redesignation for an area (or portion thereof) identified by the [Administrator](/usc/42/7602.md?p=a) under [subparagraph (A)](#d-3-A), the [Administrator](/usc/42/7602.md?p=a) shall promulgate such redesignation, if any, that the [Administrator](/usc/42/7602.md?p=a) deems appropriate.
- (D) The [Governor](/usc/42/6372.md?p=1) of any [State](/usc/42/7602.md?p=d) may, on the [Governor](/usc/42/6372.md?p=1)’s own motion, submit to the [Administrator](/usc/42/7602.md?p=a) a revised designation of any area or portion thereof within the [State](/usc/42/7602.md?p=d). Within 18 months of receipt of a complete [State](/usc/42/7602.md?p=d) redesignation submittal, the [Administrator](/usc/42/7602.md?p=a) shall approve or deny such redesignation. The submission of a redesignation by a [Governor](/usc/42/6372.md?p=1) shall not affect the effectiveness or enforceability of the [applicable implementation plan](/usc/42/7602.md?p=q) for the [State](/usc/42/7602.md?p=d).
- (E) The [Administrator](/usc/42/7602.md?p=a) may not promulgate a redesignation of a [nonattainment area](/usc/42/7501.md?p=2) (or portion thereof) to attainment unless—
- (i) the [Administrator](/usc/42/7602.md?p=a) determines that the area has attained the national ambient air quality [standard](/usc/42/1320d.md?p=7);
- (ii) the [Administrator](/usc/42/7602.md?p=a) has fully approved the [applicable implementation plan](/usc/42/7602.md?p=q) for the area under [section 7410(k) of this title](/usc/42/7410.md?p=k);
- (iii) the [Administrator](/usc/42/7602.md?p=a) determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the [applicable implementation plan](/usc/42/7602.md?p=q) and applicable Federal [air pollutant](/usc/42/7602.md?p=g) control regulations and other permanent and enforceable reductions;
- (iv) the [Administrator](/usc/42/7602.md?p=a) has fully approved a maintenance plan for the area as meeting the requirements of [section 7505a of this title](/usc/42/7505a.md); and
- (v) the [State](/usc/42/7602.md?p=d) containing such area has met all requirements applicable to the area under [section 7410 of this title](/usc/42/7410.md) and part D.
- (F) The [Administrator](/usc/42/7602.md?p=a) shall not promulgate any redesignation of any area (or portion thereof) from nonattainment to unclassifiable.
- (4) **Nonattainment designations for ozone, carbon monoxide and particulate matter (PM–10)—**
- (A) **Ozone and carbon monoxide—**
- (i) Within 120 days after November 15, 1990, each [Governor](/usc/42/6372.md?p=1) of each [State](/usc/42/7602.md?p=d) shall submit to the [Administrator](/usc/42/7602.md?p=a) a list that designates, affirms or reaffirms the designation of, or redesignates (as the case may be), all areas (or portions thereof) of the [Governor](/usc/42/6372.md?p=1)’s [State](/usc/42/7602.md?p=d) as attainment, nonattainment, or unclassifiable with respect to the national ambient air quality [standards](/usc/42/1320d.md?p=7) for ozone and carbon monoxide.
- (ii) No later than 120 days after the date the [Governor](/usc/42/6372.md?p=1) is required to submit the list of areas (or portions thereof) required under clause (i) of this subparagraph, the [Administrator](/usc/42/7602.md?p=a) shall promulgate such designations, making such [modifications](/usc/42/7501.md?p=4) as the [Administrator](/usc/42/7602.md?p=a) may deem necessary, in the same manner, and under the same procedure, as is applicable under [clause (ii)](#d-1-B-ii) of paragraph (1)(B), except that the phrase “60 days” shall be substituted for the phrase “120 days” in that clause. If the [Governor](/usc/42/6372.md?p=1) does not submit, in accordance with clause (i) of this subparagraph, a designation for an area (or portion thereof), the [Administrator](/usc/42/7602.md?p=a) shall promulgate the designation that the [Administrator](/usc/42/7602.md?p=a) deems appropriate.
- (iii) No [nonattainment area](/usc/42/7501.md?p=2) may be redesignated as an attainment area under this subparagraph.
- (iv) Notwithstanding paragraph (1)(C)(ii) of this subsection, if an ozone or carbon monoxide [nonattainment area](/usc/42/7501.md?p=2) located within a metropolitan statistical area or consolidated metropolitan statistical area (as established by the Bureau of the Census) is classified under part D of this subchapter as a Serious, Severe, or Extreme Area, the boundaries of such area are hereby revised (on the date 45 days after such classification) by operation of law to include the entire metropolitan statistical area or consolidated metropolitan statistical area, as the case may be, unless within such 45-day period the [Governor](/usc/42/6372.md?p=1) (in consultation with [State](/usc/42/7602.md?p=d) and local [air pollution control agencies](/usc/42/7602.md?p=b)) notifies the [Administrator](/usc/42/7602.md?p=a) that additional time is necessary to evaluate the application of [clause (v)](#d-4-A-v). Whenever a [Governor](/usc/42/6372.md?p=1) has submitted such a notice to the [Administrator](/usc/42/7602.md?p=a), such boundary revision shall occur on the later of the date 8 months after such classification or 14 months after November 15, 1990, unless the [Governor](/usc/42/6372.md?p=1) makes the finding referred to in [clause (v)](#d-4-A-v), and the [Administrator](/usc/42/7602.md?p=a) concurs in such finding, within such period. Except as otherwise provided in this paragraph, a boundary revision under this clause or [clause (v)](#d-4-A-v) shall apply for purposes of any [State](/usc/42/7602.md?p=d) implementation plan revision required to be submitted after November 15, 1990.
- (v) Whenever the [Governor](/usc/42/6372.md?p=1) of a [State](/usc/42/7602.md?p=d) has submitted a notice under [clause (iv)](#d-4-A-iv), the [Governor](/usc/42/6372.md?p=1), in consultation with [State](/usc/42/7602.md?p=d) and local [air pollution control agencies](/usc/42/7602.md?p=b), shall undertake a study to evaluate whether the entire metropolitan statistical area or consolidated metropolitan statistical area should be included within the [nonattainment area](/usc/42/7501.md?p=2). Whenever a [Governor](/usc/42/6372.md?p=1) finds and demonstrates to the satisfaction of the [Administrator](/usc/42/7602.md?p=a), and the [Administrator](/usc/42/7602.md?p=a) concurs in such finding, that with respect to a portion of a metropolitan statistical area or consolidated metropolitan statistical area, sources in the portion do not contribute significantly to [violation](/usc/42/2000e–16a.md?p=c) of the national ambient air quality [standard](/usc/42/1320d.md?p=7), the [Administrator](/usc/42/7602.md?p=a) shall approve the [Governor](/usc/42/6372.md?p=1)’s request to exclude such portion from the [nonattainment area](/usc/42/7501.md?p=2). In making such finding, the [Governor](/usc/42/6372.md?p=1) and the [Administrator](/usc/42/7602.md?p=a) shall consider factors such as population density, traffic congestion, commercial development, industrial development, meteorological conditions, and pollution transport.
- (B) **PM–10 designations—** By operation of law, until redesignation by the [Administrator](/usc/42/7602.md?p=a) pursuant to [paragraph (3)](#d-3)—
- (i) each area identified in 52 Federal Register 29383 (Aug. 7, 1987) as a Group I area (except to the extent that such identification was [modified](/usc/42/7501.md?p=4) by the [Administrator](/usc/42/7602.md?p=a) before November 15, 1990) is designated nonattainment for [PM–10](/usc/42/7602.md?p=t);
- (ii) any area containing a site for which air quality monitoring data show a [violation](/usc/42/2000e–16a.md?p=c) of the national ambient air quality [standard](/usc/42/1320d.md?p=7) for [PM–10](/usc/42/7602.md?p=t) before January 1, 1989 (as determined under part 50, appendix K of [title 40 of the Code of Federal Regulations](/cfr/40.md)) is hereby designated nonattainment for [PM–10](/usc/42/7602.md?p=t); and
- (iii) each area not described in clause [(i)](#d-4-B-i) or [(ii)](#d-4-B-ii) is hereby designated unclassifiable for [PM–10](/usc/42/7602.md?p=t).
Any designation for particulate matter (measured in terms of total suspended particulates) that the [Administrator](/usc/42/7602.md?p=a) promulgated pursuant to this subsection (as in effect immediately before November 15, 1990) shall remain in effect for purposes of implementing the maximum allowable increases in concentrations of particulate matter (measured in terms of total suspended particulates) pursuant to [section 7473(b) of this title](/usc/42/7473.md?p=b), until the [Administrator](/usc/42/7602.md?p=a) determines that such designation is no longer necessary for that purpose.
- (5) **Designations for lead—** The [Administrator](/usc/42/7602.md?p=a) may, in the [Administrator](/usc/42/7602.md?p=a)’s discretion at any time the [Administrator](/usc/42/7602.md?p=a) deems appropriate, require a [State](/usc/42/7602.md?p=d) to designate areas (or portions thereof) with respect to the national ambient air quality [standard](/usc/42/1320d.md?p=7) for lead in effect as of November 15, 1990, in accordance with the procedures under subparagraphs [(A)](#d-1-A) and [(B)](#d-1-B) of paragraph (1), except that in applying [subparagraph (B)(i)](#d-1-B-i) of paragraph (1) the phrase “2 years from the date of promulgation of the new or revised national ambient air quality [standard](/usc/42/1320d.md?p=7)” shall be replaced by the phrase “1 year from the date the [Administrator](/usc/42/7602.md?p=a) notifies the [State](/usc/42/7602.md?p=d) of the requirement to designate areas with respect to the [standard](/usc/42/1320d.md?p=7) for lead”.
- (6) **Designations—**
- (A) **Submission—** Notwithstanding any other provision of law, not later than February 15, 2004, the [Governor](/usc/42/6372.md?p=1) of each [State](/usc/42/7602.md?p=d) shall submit designations referred to in [paragraph (1)](#d-1) for the July 1997 PM2.5 national ambient air quality [standards](/usc/42/1320d.md?p=7) for each area within the [State](/usc/42/7602.md?p=d), based on air quality monitoring data collected in accordance with any applicable Federal reference methods for the relevant areas.
- (B) **Promulgation—** Notwithstanding any other provision of law, not later than December 31, 2004, the [Administrator](/usc/42/7602.md?p=a) shall, consistent with [paragraph (1)](#d-1), promulgate the designations referred to in [subparagraph (A)](#d-6-A) for each area of each [State](/usc/42/7602.md?p=d) for the July 1997 PM2.5 national ambient air quality [standards](/usc/42/1320d.md?p=7).
- (7) **Implementation plan for regional haze—**
- (A) **In general—** Notwithstanding any other provision of law, not later than 3 years after the date on which the [Administrator](/usc/42/7602.md?p=a) promulgates the designations referred to in [paragraph (6)(B)](#d-6-B) for a [State](/usc/42/7602.md?p=d), the [State](/usc/42/7602.md?p=d) shall submit, for the entire [State](/usc/42/7602.md?p=d), the [State](/usc/42/7602.md?p=d) implementation plan revisions to meet the requirements promulgated by the [Administrator](/usc/42/7602.md?p=a) under [section 7492(e)(1) of this title](/usc/42/7492.md?p=e-1) (referred to in this paragraph as “regional haze requirements”).
- (B) **No preclusion of other provisions—** Nothing in this paragraph precludes the implementation of the [agreements](/usc/42/1320b–8.md?p=a-3-A) and recommendations stemming from the Grand Canyon Visibility Transport [Commission](/usc/42/2000ff.md?p=1) Report dated June 1996, including the submission of [State](/usc/42/7602.md?p=d) implementation plan revisions by the [States](/usc/42/7602.md?p=d) of Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Utah, or Wyoming by December 31, 2003, for implementation of regional haze requirements applicable to those [States](/usc/42/7602.md?p=d).
- (e) **Redesignation of air quality control regions—**
- (1) Except as otherwise provided in [paragraph (2)](#e-2), the [Governor](/usc/42/6372.md?p=1) of each [State](/usc/42/7602.md?p=d) is authorized, with the approval of the [Administrator](/usc/42/7602.md?p=a), to redesignate from time to time the air quality control regions within such [State](/usc/42/7602.md?p=d) for purposes of efficient and effective air quality management. Upon such redesignation, the list under [subsection (d)](#d) shall be [modified](/usc/42/7501.md?p=4) accordingly.
- (2) In the case of an air quality control region in a [State](/usc/42/7602.md?p=d), or part of such region, which the [Administrator](/usc/42/7602.md?p=a) finds may significantly affect air pollution concentrations in another [State](/usc/42/7602.md?p=d), the [Governor](/usc/42/6372.md?p=1) of the [State](/usc/42/7602.md?p=d) in which such region, or part of a region, is located may redesignate from time to time the boundaries of so much of such air quality control region as is located within such [State](/usc/42/7602.md?p=d) only with the approval of the [Administrator](/usc/42/7602.md?p=a) and with the consent of all [Governors](/usc/42/6372.md?p=1) of all [States](/usc/42/7602.md?p=d) which the [Administrator](/usc/42/7602.md?p=a) determines may be significantly affected.
- (3) No compliance date extension granted under [section 7413(d)(5)](/usc/42/7413.md?p=d-5)[^1] of this title (relating to coal conversion) shall cease to be effective by reason of the regional limitation provided in [section 7413(d)(5)](/usc/42/7413.md?p=d-5)[^1] of this title if the [violation](/usc/42/2000e–16a.md?p=c) of such limitation is due solely to a redesignation of a region under this subsection.
# §7408. Air quality criteria and control techniques
- (a) **Air pollutant list; publication and revision by Administrator; issuance of air quality criteria for air pollutants—**
- (1) For the purpose of establishing national primary and secondary ambient air quality [standards](/usc/42/1320d.md?p=7), the [Administrator](/usc/42/7602.md?p=a) shall within 30 days after December 31, 1970, publish, and shall from time to time thereafter revise, a list which includes each [air pollutant](/usc/42/7602.md?p=g)—
- (A) emissions of which, in his judgment, [cause](/usc/42/9908.md?p=c-2) or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare;
- (B) the presence of which in the ambient air results from numerous or diverse mobile or [stationary sources](/usc/42/7411.md?p=a-3); and
- (C) for which air quality criteria had not been issued before December 31, 1970 but for which he plans to issue air quality criteria under this section.
- (2) The [Administrator](/usc/42/7602.md?p=a) shall issue air quality criteria for an [air pollutant](/usc/42/7602.md?p=g) within 12 months after he has included such [pollutant](/usc/42/1397h.md?p=c-4) in a list under [paragraph (1)](#a-1). Air quality criteria for an [air pollutant](/usc/42/7602.md?p=g) shall accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such [pollutant](/usc/42/1397h.md?p=c-4) in the ambient air, in varying quantities. The criteria for an [air pollutant](/usc/42/7602.md?p=g), to the extent practicable, shall include information on—
- (A) those variable factors (including atmospheric conditions) which of themselves or in combination with other factors may alter the effects on public health or welfare of such [air pollutant](/usc/42/7602.md?p=g);
- (B) the types of [air pollutants](/usc/42/7602.md?p=g) which, when present in the atmosphere, may interact with such [pollutant](/usc/42/1397h.md?p=c-4) to produce an adverse effect on public health or welfare; and
- (C) any known or anticipated adverse effects on welfare.
- (b) **Issuance by Administrator of information on air pollution control techniques; standing consulting committees for air pollutants; establishment; membership—**
- (1) Simultaneously with the issuance of criteria under [subsection (a)](#a), the [Administrator](/usc/42/7602.md?p=a) shall, after consultation with appropriate [advisory committees](/usc/42/7703.md?p=9) and Federal departments and agencies, issue to the [States](/usc/42/7602.md?p=d) and appropriate [air pollution control agencies](/usc/42/7602.md?p=b) information on air pollution control techniques, which information shall include data relating to the cost of installation and operation, [energy](/usc/42/6311.md?p=7) requirements, emission reduction benefits, and environmental impact of the emission control technology. Such information shall include such data as are available on available technology and alternative methods of prevention and control of air pollution. Such information shall also include data on alternative fuels, processes, and operating methods which will result in elimination or significant reduction of emissions.
- (2) In order to assist in the development of information on pollution control techniques, the [Administrator](/usc/42/7602.md?p=a) may establish a standing consulting committee for each [air pollutant](/usc/42/7602.md?p=g) included in a list published pursuant to [subsection (a)(1)](#a-1), which shall be comprised of technically [qualified individuals](/usc/42/18032.md?p=f-1-A) [representative](/usc/42/3058f.md?p=5) of [State](/usc/42/7602.md?p=d) and [local governments](/usc/42/8401a.md), industry, and the academic community. Each such committee shall submit, as appropriate, to the [Administrator](/usc/42/7602.md?p=a) information related to that required by [paragraph (1)](#b-1).
- (c) **Review, modification, and reissuance of criteria or information—** The [Administrator](/usc/42/7602.md?p=a) shall from time to time review, and, as appropriate, modify, and reissue any criteria or information on control techniques issued pursuant to this section. Not later than six months after August 7, 1977, the [Administrator](/usc/42/7602.md?p=a) shall revise and reissue criteria relating to concentrations of NO2 over such period (not more than three hours) as he deems appropriate. Such criteria shall include a discussion of nitric and nitrous acids, nitrites, nitrates, nitrosamines, and other carcinogenic and potentially carcinogenic derivatives of oxides of nitrogen.
- (d) **Publication in Federal Register; availability of copies for general public—** The issuance of air quality criteria and information on air pollution control techniques shall be announced in the Federal Register and copies shall be made available to the general public.
- (e) **Transportation planning and guidelines—** The [Administrator](/usc/42/7602.md?p=a) shall, after consultation with the [Secretary](/usc/42/242q–4.md?p=2) of Transportation, and after providing public notice and opportunity for comment, and with [State](/usc/42/7602.md?p=d) and local officials, within nine months after November 15, 1990,[^1] and periodically thereafter as necessary to maintain a continuous transportation-air quality planning process, update the June 1978 Transportation-Air Quality Planning Guidelines and publish guidance on the development and implementation of transportation and other measures necessary to demonstrate and maintain attainment of national ambient air quality [standards](/usc/42/1320d.md?p=7). Such guidelines shall include information on—
- (1) methods to identify and evaluate alternative planning and control activities;
- (2) methods of reviewing plans on a regular basis as conditions change or new information is presented;
- (3) identification of [funds](/usc/42/12854.md?p=3) and other resources necessary to implement the plan, including interagency [agreements](/usc/42/1320b–8.md?p=a-3-A) on providing such [funds](/usc/42/12854.md?p=3) and resources;
- (4) methods to assure participation by the public in all phases of the planning process; and
- (5) such other methods as the [Administrator](/usc/42/7602.md?p=a) determines necessary to carry out a continuous planning process.
- (f) **Information regarding processes, procedures, and methods to reduce or control pollutants in transportation; reduction of mobile source related pollutants; reduction of impact on public health—**
- (1) The [Administrator](/usc/42/7602.md?p=a) shall publish and make available to appropriate Federal, [State](/usc/42/7602.md?p=d), and local environmental and transportation agencies not later than one year after November 15, 1990, and from time to time thereafter—
- (A) information prepared, as appropriate, in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of Transportation, and after providing public notice and opportunity for comment, regarding the formulation and emission reduction potential of transportation control measures related to criteria [pollutants](/usc/42/1397h.md?p=c-4) and their precursors, including, but not limited to—
- (i) [programs](/usc/42/274l–1.md?p=4) for improved public transit;
- (ii) restriction of certain roads or lanes to, or [construction](/usc/42/7479.md?p=2-C) of such roads or lanes for use by, passenger buses or high occupancy vehicles;
- (iii) employer-based transportation management plans, including incentives;
- (iv) trip-reduction ordinances;
- (v) traffic flow improvement [programs](/usc/42/274l–1.md?p=4) that achieve emission reductions;
- (vi) fringe and transportation corridor parking [facilities](/usc/42/11049.md?p=4) serving multiple occupancy vehicle [programs](/usc/42/274l–1.md?p=4) or transit service;
- (vii) [programs](/usc/42/274l–1.md?p=4) to limit or restrict vehicle use in downtown areas or other areas of emission concentration particularly during periods of peak use;
- (viii) [programs](/usc/42/274l–1.md?p=4) for the provision of all forms of high-occupancy, shared-ride services;
- (ix) [programs](/usc/42/274l–1.md?p=4) to limit portions of road surfaces or certain sections of the metropolitan area to the use of non-motorized vehicles or pedestrian use, both as to time and place;
- (x) [programs](/usc/42/274l–1.md?p=4) for secure bicycle storage [facilities](/usc/42/11049.md?p=4) and other [facilities](/usc/42/11049.md?p=4), including bicycle lanes, for the convenience and protection of bicyclists, in both public and private areas;
- (xi) [programs](/usc/42/274l–1.md?p=4) to control extended idling of vehicles;
- (xii) [programs](/usc/42/274l–1.md?p=4) to reduce [motor vehicle](/usc/42/13211.md?p=13) emissions, consistent with subchapter II, which are caused by extreme cold start conditions;
- (xiii) employer-sponsored [programs](/usc/42/274l–1.md?p=4) to permit flexible work schedules;
- (xiv) [programs](/usc/42/274l–1.md?p=4) and ordinances to facilitate non-automobile travel, provision and utilization of mass transit, and to generally reduce the need for [single](/usc/42/2304.md?p=m)-occupant vehicle travel, as part of transportation planning and development efforts of a locality, including [programs](/usc/42/274l–1.md?p=4) and ordinances applicable to new shopping centers, special events, and other centers of vehicle activity;
- (xv) [programs](/usc/42/274l–1.md?p=4) for new [construction](/usc/42/7479.md?p=2-C) and major reconstructions of paths, tracks or areas solely for the use by pedestrian or other non-motorized means of transportation when economically feasible and in the public interest. For purposes of this clause, the [Administrator](/usc/42/7602.md?p=a) shall also consult with the [Secretary](/usc/42/242q–4.md?p=2) of the Interior; and
- (xvi) [program](/usc/42/274l–1.md?p=4) to encourage the voluntary [removal](/usc/42/9601.md?p=23) from use and the marketplace of pre-1980 model year light duty vehicles and pre-1980 model light duty trucks.[^2]
- (B) information on additional methods or strategies that will contribute to the reduction of mobile source related [pollutants](/usc/42/1397h.md?p=c-4) during periods in which any primary ambient air quality [standard](/usc/42/1320d.md?p=7) will be exceeded and during episodes for which an air pollution alert, warning, or emergency has been declared;
- (C) information on other measures which may be employed to reduce the impact on public health or protect the health of sensitive or susceptible individuals or groups; and
- (D) information on the extent to which any process, procedure, or method to reduce or control such [air pollutant](/usc/42/7602.md?p=g) may [cause](/usc/42/9908.md?p=c-2) an increase in the emissions or formation of any other [pollutant](/usc/42/1397h.md?p=c-4).
- (2) In publishing such information the [Administrator](/usc/42/7602.md?p=a) shall also include an assessment of—
- (A) the relative effectiveness of such processes, procedures, and methods;
- (B) the potential effect of such processes, procedures, and methods on transportation systems and the provision of transportation services; and
- (C) the environmental, [energy](/usc/42/6311.md?p=7), and economic impact of such processes, procedures, and methods.
- (g) **Assessment of risks to ecosystems—** The [Administrator](/usc/42/7602.md?p=a) may assess the risks to ecosystems from exposure to criteria [air pollutants](/usc/42/7602.md?p=g) (as identified by the [Administrator](/usc/42/7602.md?p=a) in the [Administrator](/usc/42/7602.md?p=a)’s sole discretion).
- (h) **RACT/BACT/LAER clearinghouse—** The [Administrator](/usc/42/7602.md?p=a) shall make information regarding emission control technology available to the [States](/usc/42/7602.md?p=d) and to the general public through a central database. Such information shall include all control technology information received pursuant to [State](/usc/42/7602.md?p=d) plan provisions requiring permits for sources, including operating permits for existing sources.
# §7409. National primary and secondary ambient air quality standards
- (a) **Promulgation—**
- (1) The [Administrator](/usc/42/7602.md?p=a)—
- (A) within 30 days after December 31, 1970, shall publish proposed regulations prescribing a national primary ambient air quality [standard](/usc/42/1320d.md?p=7) and a national secondary ambient air quality [standard](/usc/42/1320d.md?p=7) for each [air pollutant](/usc/42/7602.md?p=g) for which air quality criteria have been issued prior to such date; and
- (B) after a reasonable time for interested [persons](/usc/42/7602.md?p=e) to submit written comments thereon (but no later than 90 days after the initial publication of such proposed [standards](/usc/42/1320d.md?p=7)) shall by regulation promulgate such proposed national primary and secondary ambient air quality [standards](/usc/42/1320d.md?p=7) with such [modifications](/usc/42/7501.md?p=4) as he deems appropriate.
- (2) With respect to any [air pollutant](/usc/42/7602.md?p=g) for which air quality criteria are issued after December 31, 1970, the [Administrator](/usc/42/7602.md?p=a) shall publish, simultaneously with the issuance of such criteria and information, proposed national primary and secondary ambient air quality [standards](/usc/42/1320d.md?p=7) for any such [pollutant](/usc/42/1397h.md?p=c-4). The procedure provided for in paragraph (1)(B) of this subsection shall apply to the promulgation of such [standards](/usc/42/1320d.md?p=7).
- (b) **Protection of public health and welfare—**
- (1) National primary ambient air quality [standards](/usc/42/1320d.md?p=7), prescribed under [subsection (a)](#a) shall be ambient air quality [standards](/usc/42/1320d.md?p=7) the attainment and maintenance of which in the judgment of the [Administrator](/usc/42/7602.md?p=a), based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health. Such primary [standards](/usc/42/1320d.md?p=7) may be revised in the same manner as promulgated.
- (2) Any national secondary ambient air quality [standard](/usc/42/1320d.md?p=7) prescribed under [subsection (a)](#a) shall specify a level of air quality the attainment and maintenance of which in the judgment of the [Administrator](/usc/42/7602.md?p=a), based on such criteria, is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such [air pollutant](/usc/42/7602.md?p=g) in the ambient air. Such secondary [standards](/usc/42/1320d.md?p=7) may be revised in the same manner as promulgated.
- (c) **National primary ambient air quality standard for nitrogen dioxide—** The [Administrator](/usc/42/7602.md?p=a) shall, not later than one year after August 7, 1977, promulgate a national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for NO2 concentrations over a period of not more than 3 hours unless, based on the criteria issued under [section 7408(c) of this title](/usc/42/7408.md?p=c), he finds that there is no significant evidence that such a [standard](/usc/42/1320d.md?p=7) for such a period is requisite to protect public health.
- (d) **Review and revision of criteria and standards; independent scientific review committee; appointment; advisory functions—**
- (1) Not later than December 31, 1980, and at five-year intervals thereafter, the [Administrator](/usc/42/7602.md?p=a) shall complete a thorough review of the criteria published under [section 7408 of this title](/usc/42/7408.md) and the national ambient air quality [standards](/usc/42/1320d.md?p=7) promulgated under this section and shall make such revisions in such criteria and [standards](/usc/42/1320d.md?p=7) and promulgate such new [standards](/usc/42/1320d.md?p=7) as may be appropriate in accordance with [section 7408 of this title](/usc/42/7408.md) and [subsection (b)](#b) of this section. The [Administrator](/usc/42/7602.md?p=a) may review and revise criteria or promulgate new [standards](/usc/42/1320d.md?p=7) earlier or more frequently than required under this paragraph.
- (2)
- (A) The [Administrator](/usc/42/7602.md?p=a) shall appoint an independent scientific review committee composed of seven members including at least one member of the National Academy of Sciences, one [physician](/usc/42/1320a–7h.md?p=e-11), and one [person](/usc/42/7602.md?p=e) representing [State](/usc/42/7602.md?p=d) [air pollution control agencies](/usc/42/7602.md?p=b).
- (B) Not later than January 1, 1980, and at five-year intervals thereafter, the committee referred to in [subparagraph (A)](#d-2-A) shall complete a review of the criteria published under [section 7408 of this title](/usc/42/7408.md) and the national primary and secondary ambient air quality [standards](/usc/42/1320d.md?p=7) promulgated under this section and shall recommend to the [Administrator](/usc/42/7602.md?p=a) any new national ambient air quality [standards](/usc/42/1320d.md?p=7) and revisions of existing criteria and [standards](/usc/42/1320d.md?p=7) as may be appropriate under [section 7408 of this title](/usc/42/7408.md) and [subsection (b)](#b) of this section.
- (C) Such committee shall also (i) advise the [Administrator](/usc/42/7602.md?p=a) of areas in which additional knowledge is required to appraise the adequacy and basis of existing, new, or revised national ambient air quality [standards](/usc/42/1320d.md?p=7), (ii) describe the research efforts necessary to provide the required information, (iii) advise the [Administrator](/usc/42/7602.md?p=a) on the relative contribution to air pollution concentrations of natural as well as anthropogenic activity, and (iv) advise the [Administrator](/usc/42/7602.md?p=a) of any adverse public health, welfare, social, economic, or [energy](/usc/42/6311.md?p=7) effects which may result from various strategies for attainment and maintenance of such national ambient air quality [standards](/usc/42/1320d.md?p=7).
# §7410. State implementation plans for national primary and secondary ambient air quality standards
- (a) **Adoption of plan by State; submission to Administrator; content of plan; revision; new sources; indirect source review program; supplemental or intermittent control systems—**
- (1) Each [State](/usc/42/7602.md?p=d) shall, after reasonable notice and public hearings, adopt and submit to the [Administrator](/usc/42/7602.md?p=a), within 3 years (or such shorter period as the [Administrator](/usc/42/7602.md?p=a) may prescribe) after the promulgation of a national primary ambient air quality [standard](/usc/42/1320d.md?p=7) (or any revision thereof) under [section 7409 of this title](/usc/42/7409.md) for any [air pollutant](/usc/42/7602.md?p=g), a plan which provides for implementation, maintenance, and enforcement of such primary [standard](/usc/42/1320d.md?p=7) in each air quality control region (or portion thereof) within such [State](/usc/42/7602.md?p=d). In addition, such [State](/usc/42/7602.md?p=d) shall adopt and submit to the [Administrator](/usc/42/7602.md?p=a) (either as a part of a plan submitted under the preceding sentence or separately) within 3 years (or such shorter period as the [Administrator](/usc/42/7602.md?p=a) may prescribe) after the promulgation of a national ambient air quality secondary [standard](/usc/42/1320d.md?p=7) (or revision thereof), a plan which provides for implementation, maintenance, and enforcement of such secondary [standard](/usc/42/1320d.md?p=7) in each air quality control region (or portion thereof) within such [State](/usc/42/7602.md?p=d). Unless a separate public hearing is provided, each [State](/usc/42/7602.md?p=d) shall consider its plan implementing such secondary [standard](/usc/42/1320d.md?p=7) at the hearing required by the first sentence of this paragraph.
- (2) Each implementation plan submitted by a [State](/usc/42/7602.md?p=d) under this chapter shall be adopted by the [State](/usc/42/7602.md?p=d) after reasonable notice and public hearing. Each such plan shall—
- (A) include enforceable [emission limitations](/usc/42/7602.md?p=k) and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of this chapter;
- (B) provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to—
- (i) monitor, compile, and analyze data on ambient air quality, and
- (ii) upon request, make such data available to the [Administrator](/usc/42/7602.md?p=a);
- (C) include a [program](/usc/42/274l–1.md?p=4) to provide for the enforcement of the measures described in [subparagraph (A)](#a-2-A), and regulation of the [modification](/usc/42/7501.md?p=4) and [construction](/usc/42/7479.md?p=2-C) of any [stationary source](/usc/42/7411.md?p=a-3) within the areas covered by the plan as necessary to assure that national ambient air quality [standards](/usc/42/1320d.md?p=7) are achieved, including a permit [program](/usc/42/274l–1.md?p=4) as required in parts C and D;
- (D) contain adequate provisions—
- (i) prohibiting, consistent with the provisions of this subchapter, any source or other type of emissions activity within the [State](/usc/42/7602.md?p=d) from emitting any [air pollutant](/usc/42/7602.md?p=g) in amounts which will—
- (I) contribute significantly to nonattainment in, or interfere with maintenance by, any other [State](/usc/42/7602.md?p=d) with respect to any such national primary or secondary ambient air quality [standard](/usc/42/1320d.md?p=7), or
- (II) interfere with measures required to be included in the [applicable implementation plan](/usc/42/7602.md?p=q) for any other [State](/usc/42/7602.md?p=d) under part C to prevent significant deterioration of air quality or to protect visibility,
- (ii) insuring compliance with the applicable requirements of sections [7426](/usc/42/7426.md) and [7415](/usc/42/7415.md) of this title (relating to interstate and international pollution abatement);
- (E) provide (i) necessary assurances that the [State](/usc/42/7602.md?p=d) (or, except where the [Administrator](/usc/42/7602.md?p=a) deems inappropriate, the general purpose [local government](/usc/42/8401a.md) or governments, or a regional agency designated by the [State](/usc/42/7602.md?p=d) or general purpose [local governments](/usc/42/8401a.md) for such purpose) will have adequate personnel, funding, and authority under [State](/usc/42/7602.md?p=d) (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of Federal or [State](/usc/42/7602.md?p=d) law from carrying out such implementation plan or portion thereof), (ii) requirements that the [State](/usc/42/7602.md?p=d) comply with the requirements respecting [State](/usc/42/7602.md?p=d) [boards](/usc/42/10261.md?p=2) under [section 7428 of this title](/usc/42/7428.md), and (iii) necessary assurances that, where the [State](/usc/42/7602.md?p=d) has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the [State](/usc/42/7602.md?p=d) has responsibility for ensuring adequate implementation of such plan provision;
- (F) require, as may be prescribed by the [Administrator](/usc/42/7602.md?p=a)—
- (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by [owners](/usc/42/13641.md?p=4) or operators of [stationary sources](/usc/42/7411.md?p=a-3) to monitor emissions from such sources,
- (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and
- (iii) correlation of such reports by the [State agency](/usc/42/1396r–8.md?p=k-9) with any [emission limitations](/usc/42/7602.md?p=k) or [standards](/usc/42/1320d.md?p=7) established pursuant to this chapter, which reports shall be available at reasonable times for public [inspection](/usc/42/4851b.md?p=12);
- (G) provide for authority comparable to that in [section 7603 of this title](/usc/42/7603.md) and adequate contingency plans to implement such authority;
- (H) provide for revision of such plan—
- (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality [standard](/usc/42/1320d.md?p=7) or the availability of improved or more expeditious methods of attaining such [standard](/usc/42/1320d.md?p=7), and
- (ii) except as provided in [paragraph (3)(C)](#a-3-C), whenever the [Administrator](/usc/42/7602.md?p=a) finds on the basis of information available to the [Administrator](/usc/42/7602.md?p=a) that the plan is substantially inadequate to attain the national ambient air quality [standard](/usc/42/1320d.md?p=7) which it implements or to otherwise comply with any additional requirements established under this chapter;
- (I) in the case of a plan or plan revision for an area designated as a [nonattainment area](/usc/42/7501.md?p=2), meet the applicable requirements of part D (relating to [nonattainment areas](/usc/42/7501.md?p=2));
- (J) meet the applicable requirements of [section 7421 of this title](/usc/42/7421.md) (relating to consultation), [section 7427 of this title](/usc/42/7427.md) (relating to public notification), and part C (relating to prevention of significant deterioration of air quality and visibility protection);
- (K) provide for—
- (i) the performance of such air quality modeling as the [Administrator](/usc/42/7602.md?p=a) may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any [air pollutant](/usc/42/7602.md?p=g) for which the [Administrator](/usc/42/7602.md?p=a) has established a national ambient air quality [standard](/usc/42/1320d.md?p=7), and
- (ii) the submission, upon request, of data related to such air quality modeling to the [Administrator](/usc/42/7602.md?p=a);
- (L) require the [owner or operator](/usc/42/9601.md?p=20-B) of each [major stationary source](/usc/42/7602.md?p=j) to pay to the permitting authority, as a condition of any permit required under this chapter, a fee sufficient to cover—
- (i) the reasonable costs of reviewing and acting upon any application for such a permit, and
- (ii) if the [owner or operator](/usc/42/9601.md?p=20-B) receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i)),
until such fee requirement is superseded with respect to such sources by the [Administrator](/usc/42/7602.md?p=a)’s approval of a fee [program](/usc/42/274l–1.md?p=4) under subchapter V; and
- (M) provide for consultation and participation by local political subdivisions affected by the plan.
- (3)
- (A) Repealed. Pub. L. 101–549, title I, § 101(d)(1), Nov. 15, 1990, 104 Stat. 2409.
- (B) As soon as practicable, the [Administrator](/usc/42/7602.md?p=a) shall, consistent with the purposes of this chapter and the [Energy](/usc/42/6311.md?p=7) Supply and Environmental Coordination Act of 1974 [[15 U.S.C. 791](/usc/15/791.md) et seq.], review each [State](/usc/42/7602.md?p=d)’s [applicable implementation plans](/usc/42/7602.md?p=q) and report to the [State](/usc/42/7602.md?p=d) on whether such plans can be revised in relation to fuel burning [stationary sources](/usc/42/7411.md?p=a-3) (or [persons](/usc/42/7602.md?p=e) supplying fuel to such sources) without interfering with the attainment and maintenance of any national ambient air quality [standard](/usc/42/1320d.md?p=7) within the period permitted in this section. If the [Administrator](/usc/42/7602.md?p=a) determines that any such plan can be revised, he shall notify the [State](/usc/42/7602.md?p=d) that a plan revision may be submitted by the [State](/usc/42/7602.md?p=d). Any plan revision which is submitted by the [State](/usc/42/7602.md?p=d) shall, after public notice and opportunity for public hearing, be approved by the [Administrator](/usc/42/7602.md?p=a) if the revision relates only to fuel burning [stationary sources](/usc/42/7411.md?p=a-3) (or [persons](/usc/42/7602.md?p=e) supplying fuel to such sources), and the plan as revised complies with paragraph (2) of this subsection. The [Administrator](/usc/42/7602.md?p=a) shall approve or disapprove any revision no later than three months after its submission.
- (C) Neither the [State](/usc/42/7602.md?p=d), in the case of a plan (or portion thereof) approved under this subsection, nor the [Administrator](/usc/42/7602.md?p=a), in the case of a plan (or portion thereof) promulgated under [subsection (c)](#c), shall be required to revise an [applicable implementation plan](/usc/42/7602.md?p=q) because one or more exemptions under [section 7418 of this title](/usc/42/7418.md) (relating to [Federal facilities](/usc/42/17061.md?p=8)), enforcement orders under [section 7413(d)](/usc/42/7413.md?p=d)[^1] of this title, suspensions under subsection [(f)](#f) or [(g)](#g) (relating to temporary [energy](/usc/42/6311.md?p=7) or economic authority), orders under [section 7419 of this title](/usc/42/7419.md) (relating to primary nonferrous smelters), or extensions of compliance in decrees entered under [section 7413(e)](/usc/42/7413.md?p=e)[^1] of this title (relating to iron- and steel-producing operations) have been granted, if such plan would have met the requirements of this section if no such exemptions, orders, or extensions had been granted.
- (4) Repealed. Pub. L. 101–549, title I, § 101(d)(2), Nov. 15, 1990, 104 Stat. 2409.
- (5)
- (A)
- (i) Any [State](/usc/42/7602.md?p=d) may include in a [State](/usc/42/7602.md?p=d) implementation plan, but the [Administrator](/usc/42/7602.md?p=a) may not require as a condition of approval of such plan under this section, any [indirect source review program](#a-5-D). The [Administrator](/usc/42/7602.md?p=a) may approve and enforce, as part of an [applicable implementation plan](/usc/42/7602.md?p=q), an [indirect source review program](#a-5-D) which the [State](/usc/42/7602.md?p=d) chooses to adopt and submit as part of its plan.
- (ii) Except as provided in [subparagraph (B)](#a-5-B), no plan promulgated by the [Administrator](/usc/42/7602.md?p=a) shall include any [indirect source review program](#a-5-D) for any air quality control region, or portion thereof.
- (iii) Any [State](/usc/42/7602.md?p=d) may revise an [applicable implementation plan](/usc/42/7602.md?p=q) approved under this subsection to suspend or revoke any such [program](/usc/42/274l–1.md?p=4) included in such plan, provided that such plan meets the requirements of this section.
- (B) The [Administrator](/usc/42/7602.md?p=a) shall have the authority to promulgate, implement and enforce regulations under [subsection (c)](#c) respecting [indirect source review programs](#a-5-D) which apply only to federally assisted highways, airports, and other major federally assisted [indirect sources](#a-5-C) and federally owned or operated [indirect sources](#a-5-C).
- (C) For purposes of this paragraph, the term “indirect source” means a [facility](/usc/42/11049.md?p=4), [building](/usc/42/6881.md?p=i-3), structure, installation, real property, road, or highway which attracts, or may attract, mobile sources of pollution. Such term includes parking lots, parking garages, and other [facilities](/usc/42/11049.md?p=4) subject to any measure for management of parking supply (within the meaning of [subsection (c)(2)(D)(ii)](#c-2-D-ii)), including regulation of existing off-street parking but such term does not include new or existing on-street parking. Direct emissions sources or [facilities](/usc/42/11049.md?p=4) at, within, or associated with, any indirect source shall not be deemed indirect sources for the purpose of this paragraph.
- (D) For purposes of this paragraph the term “indirect source review program” means the [facility](/usc/42/11049.md?p=4)-by-[facility](/usc/42/11049.md?p=4) review of [indirect sources](#a-5-C) of air pollution, including such measures as are necessary to assure, or assist in assuring, that a new or [modified](/usc/42/7501.md?p=4) [indirect source](#a-5-C) will not attract mobile sources of air pollution, the emissions from which would [cause](/usc/42/9908.md?p=c-2) or contribute to air pollution concentrations—
- (i) exceeding any national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for a mobile source-related [air pollutant](/usc/42/7602.md?p=g) after the [primary standard attainment date](/usc/42/7602.md?p=n), or
- (ii) preventing maintenance of any such [standard](/usc/42/1320d.md?p=7) after such date.
- (E) For purposes of this paragraph and [paragraph (2)(B)](#a-2-B), the term “transportation control measure” does not include any measure which is an “[indirect source review program](#a-5-D)”.
- (6) No [State](/usc/42/7602.md?p=d) plan shall be treated as meeting the requirements of this section unless such plan provides that in the case of any source which uses a supplemental, or intermittent control system for purposes of meeting the requirements of an order under [section 7413(d)](/usc/42/7413.md?p=d)[^1] of this title or [section 7419 of this title](/usc/42/7419.md) (relating to primary nonferrous smelter orders), the [owner or operator](/usc/42/9601.md?p=20-B) of such source may not temporarily reduce the pay of any [employee](/usc/42/1320a–7h.md?p=e-7) by reason of the use of such supplemental or intermittent or other dispersion dependent control system.
- (b) **Extension of period for submission of plans—** The [Administrator](/usc/42/7602.md?p=a) may, wherever he determines necessary, extend the period for submission of any plan or portion thereof which implements a national secondary ambient air quality [standard](/usc/42/1320d.md?p=7) for a period not to exceed 18 months from the date otherwise required for submission of such plan.
- (c) **Preparation and publication by Administrator of proposed regulations setting forth implementation plan; transportation regulations study and report; parking surcharge; suspension authority; plan implementation—**
- (1) The [Administrator](/usc/42/7602.md?p=a) shall promulgate a [Federal implementation plan](/usc/42/7602.md?p=y) at any time within 2 years after the [Administrator](/usc/42/7602.md?p=a)—
- (A) finds that a [State](/usc/42/7602.md?p=d) has failed to make a required submission or finds that the plan or plan revision submitted by the [State](/usc/42/7602.md?p=d) does not satisfy the minimum criteria established under [subsection (k)(1)(A)](#k-1-A), or
- (B) disapproves a [State](/usc/42/7602.md?p=d) implementation plan submission in whole or in part,
unless the [State](/usc/42/7602.md?p=d) corrects the deficiency, and the [Administrator](/usc/42/7602.md?p=a) approves the plan or plan revision, before the [Administrator](/usc/42/7602.md?p=a) promulgates such [Federal implementation plan](/usc/42/7602.md?p=y).
- (2)
- (A) Repealed. Pub. L. 101–549, title I, § 101(d)(3)(A), Nov. 15, 1990, 104 Stat. 2409.
- (B) No [parking surcharge regulation](#c-2-D-i) may be required by the [Administrator](/usc/42/7602.md?p=a) under paragraph (1) of this subsection as a part of an [applicable implementation plan](/usc/42/7602.md?p=q). All [parking surcharge regulations](#c-2-D-i) previously required by the [Administrator](/usc/42/7602.md?p=a) shall be void upon June 22, 1974. This subparagraph shall not prevent the [Administrator](/usc/42/7602.md?p=a) from approving parking surcharges if they are adopted and submitted by a [State](/usc/42/7602.md?p=d) as part of an [applicable implementation plan](/usc/42/7602.md?p=q). The [Administrator](/usc/42/7602.md?p=a) may not condition approval of any implementation plan submitted by a [State](/usc/42/7602.md?p=d) on such plan’s including a [parking surcharge regulation](#c-2-D-i).
- (C) Repealed. Pub. L. 101–549, title I, § 101(d)(3)(B), Nov. 15, 1990, 104 Stat. 2409.
- (D) For purposes of this paragraph—
- (i) The term “parking surcharge regulation” means a regulation imposing or requiring the imposition of any tax, surcharge, fee, or other charge on parking spaces, or any other area used for the temporary storage of [motor vehicles](/usc/42/13211.md?p=13).
- (ii) The term “management of parking supply” shall include any requirement providing that any new [facility](/usc/42/11049.md?p=4) containing a given number of parking spaces shall receive a permit or other prior approval, issuance of which is to be conditioned on air quality considerations.
- (iii) The term “preferential bus/carpool lane” shall include any requirement for the setting aside of one or more lanes of a street or highway on a permanent or temporary basis for the exclusive use of buses or carpools, or both.
- (E) No [standard](/usc/42/1320d.md?p=7), plan, or requirement, relating to [management of parking supply](#c-2-D-ii) or [preferential bus/carpool lanes](#c-2-D-iii) shall be promulgated after June 22, 1974, by the [Administrator](/usc/42/7602.md?p=a) pursuant to this section, unless such promulgation has been subjected to at least one public hearing which has been held in the area affected and for which reasonable notice has been given in such area. If substantial changes are made following public hearings, one or more additional hearings shall be held in such area after such notice.
- (3) Upon application of the [chief executive officer](/usc/42/12511.md?p=9) of any general purpose [unit of local government](/usc/42/6372.md?p=2), if the [Administrator](/usc/42/7602.md?p=a) determines that such [unit](/usc/42/1395w–114b.md?p=g-2) has adequate authority under [State](/usc/42/7602.md?p=d) or local law, the [Administrator](/usc/42/7602.md?p=a) may delegate to such [unit](/usc/42/1395w–114b.md?p=g-2) the authority to implement and enforce within the jurisdiction of such [unit](/usc/42/1395w–114b.md?p=g-2) any part of a plan promulgated under this subsection. Nothing in this paragraph shall prevent the [Administrator](/usc/42/7602.md?p=a) from implementing or enforcing any applicable provision of a plan promulgated under this subsection.
- (4) Repealed. Pub. L. 101–549, title I, § 101(d)(3)(C), Nov. 15, 1990, 104 Stat. 2409.
- (5)
- (A) Any measure in an [applicable implementation plan](/usc/42/7602.md?p=q) which requires a toll or other charge for the use of a bridge located entirely within one [city](/usc/42/12902.md?p=11) shall be eliminated from such plan by the [Administrator](/usc/42/7602.md?p=a) upon application by the [Governor](/usc/42/6372.md?p=1) of the [State](/usc/42/7602.md?p=d), which application shall include a certification by the [Governor](/usc/42/6372.md?p=1) that he will revise such plan in accordance with [subparagraph (B)](#c-5-B).
- (B) In the case of any [applicable implementation plan](/usc/42/7602.md?p=q) with respect to which a measure has been eliminated under [subparagraph (A)](#c-5-A), such plan shall, not later than one year after August 7, 1977, be revised to include comprehensive measures to:
- (i) establish, expand, or improve public transportation measures to meet basic transportation needs, as expeditiously as is practicable; and
- (ii) implement transportation control measures necessary to attain and maintain national ambient air quality [standards](/usc/42/1320d.md?p=7),
and such revised plan shall, for the purpose of implementing such comprehensive public transportation measures, include requirements to use (insofar as is necessary) Federal grants, [State](/usc/42/7602.md?p=d) or local [funds](/usc/42/12854.md?p=3), or any combination of such grants and [funds](/usc/42/12854.md?p=3) as may be consistent with the terms of the legislation providing such grants and [funds](/usc/42/12854.md?p=3). Such measures shall, as a substitute for the tolls or charges eliminated under [subparagraph (A)](#c-5-A), provide for [emissions reductions](/usc/42/17114.md?p=a-3) equivalent to the reductions which may reasonably be expected to be achieved through the use of the tolls or charges eliminated.
- (C) Any revision of an implementation plan for purposes of meeting the requirements of [subparagraph (B)](#c-5-B) shall be submitted in coordination with any plan revision required under part D.
- (d) **, (e) Repealed. Pub. L. 101–549, title I, § 101(d)(4), (5), Nov. 15, 1990, 104 Stat. 2409—**
- (f) **National or regional energy emergencies; determination by President—**
- (1) Upon application by the [owner or operator](/usc/42/9601.md?p=20-B) of a fuel burning [stationary source](/usc/42/7411.md?p=a-3), and after notice and opportunity for public hearing, the [Governor](/usc/42/6372.md?p=1) of the [State](/usc/42/7602.md?p=d) in which such source is located may petition the President to determine that a national or regional [energy](/usc/42/6311.md?p=7) emergency exists of such severity that—
- (A) a temporary suspension of any part of the [applicable implementation plan](/usc/42/7602.md?p=q) or of any requirement under [section 7651j of this title](/usc/42/7651j.md) (concerning excess emissions penalties or offsets) may be necessary, and
- (B) other means of responding to the [energy](/usc/42/6311.md?p=7) emergency may be inadequate.
Such determination shall not be delegable by the President to any other [person](/usc/42/7602.md?p=e). If the President determines that a national or regional [energy](/usc/42/6311.md?p=7) emergency of such severity exists, a temporary emergency suspension of any part of an [applicable implementation plan](/usc/42/7602.md?p=q) or of any requirement under [section 7651j of this title](/usc/42/7651j.md) (concerning excess emissions penalties or offsets) adopted by the [State](/usc/42/7602.md?p=d) may be issued by the [Governor](/usc/42/6372.md?p=1) of any [State](/usc/42/7602.md?p=d) covered by the President’s determination under the condition specified in [paragraph (2)](#f-2) and may take effect immediately.
- (2) A temporary emergency suspension under this subsection shall be issued to a source only if the [Governor](/usc/42/6372.md?p=1) of such [State](/usc/42/7602.md?p=d) finds that—
- (A) there exists in the vicinity of such source a temporary [energy](/usc/42/6311.md?p=7) emergency involving high levels of unemployment or loss of necessary [energy](/usc/42/6311.md?p=7) supplies for [residential dwellings](/usc/42/5502.md?p=3); and
- (B) such unemployment or loss can be totally or partially alleviated by such emergency suspension.
Not more than one such suspension may be issued for any source on the basis of the same set of circumstances or on the basis of the same emergency.
- (3) A temporary emergency suspension issued by a [Governor](/usc/42/6372.md?p=1) under this subsection shall remain in effect for a maximum of four months or such lesser period as may be specified in a disapproval order of the [Administrator](/usc/42/7602.md?p=a), if any. The [Administrator](/usc/42/7602.md?p=a) may disapprove such suspension if he determines that it does not meet the requirements of [paragraph (2)](#f-2).
- (4) This subsection shall not apply in the case of a plan provision or requirement promulgated by the [Administrator](/usc/42/7602.md?p=a) under [subsection (c)](#c) of this section, but in any such case the President may grant a temporary emergency suspension for a four month period of any such provision or requirement if he makes the determinations and findings specified in paragraphs [(1)](#f-1) and [(2)](#f-2).
- (5) The [Governor](/usc/42/6372.md?p=1) may include in any temporary emergency suspension issued under this subsection a provision delaying for a period identical to the period of such suspension any compliance schedule (or increment of progress) to which such source is subject under [section 1857c–10](/usc/42/1857c–10.md)[^1] of this title, as in effect before August 7, 1977, or [section 7413(d)](/usc/42/7413.md?p=d)[^1] of this title, upon a finding that such source is unable to comply with such schedule (or increment) solely because of the conditions on the basis of which a suspension was issued under this subsection.
- (g) **Governor’s authority to issue temporary emergency suspensions—**
- (1) In the case of any [State](/usc/42/7602.md?p=d) which has adopted and submitted to the [Administrator](/usc/42/7602.md?p=a) a proposed plan revision which the [State](/usc/42/7602.md?p=d) determines—
- (A) meets the requirements of this section, and
- (B) is necessary (i) to prevent the closing for one year or more of any source of air pollution, and (ii) to prevent substantial increases in unemployment which would result from such closing, and
which the [Administrator](/usc/42/7602.md?p=a) has not approved or disapproved under this section within 12 months of submission of the proposed plan revision, the [Governor](/usc/42/6372.md?p=1) may issue a temporary emergency suspension of the part of the [applicable implementation plan](/usc/42/7602.md?p=q) for such [State](/usc/42/7602.md?p=d) which is proposed to be revised with respect to such source. The determination under [subparagraph (B)](#g-1-B) may not be made with respect to a source which would close without regard to whether or not the proposed plan revision is approved.
- (2) A temporary emergency suspension issued by a [Governor](/usc/42/6372.md?p=1) under this subsection shall remain in effect for a maximum of four months or such lesser period as may be specified in a disapproval order of the [Administrator](/usc/42/7602.md?p=a). The [Administrator](/usc/42/7602.md?p=a) may disapprove such suspension if he determines that it does not meet the requirements of this subsection.
- (3) The [Governor](/usc/42/6372.md?p=1) may include in any temporary emergency suspension issued under this subsection a provision delaying for a period identical to the period of such suspension any compliance schedule (or increment of progress) to which such source is subject under [section 1857c–10](/usc/42/1857c–10.md)[^1] of this title as in effect before August 7, 1977, or under [section 7413(d)](/usc/42/7413.md?p=d)[^1] of this title upon a finding that such source is unable to comply with such schedule (or increment) solely because of the conditions on the basis of which a suspension was issued under this subsection.
- (h) **Publication of comprehensive document for each State setting forth requirements of applicable implementation plan—**
- (1) Not later than 5 years after November 15, 1990, and every 3 years thereafter, the [Administrator](/usc/42/7602.md?p=a) shall assemble and publish a comprehensive document for each [State](/usc/42/7602.md?p=d) setting forth all requirements of the [applicable implementation plan](/usc/42/7602.md?p=q) for such [State](/usc/42/7602.md?p=d) and shall publish notice in the Federal Register of the availability of such documents.
- (2) The [Administrator](/usc/42/7602.md?p=a) may promulgate such regulations as may be reasonably necessary to carry out the purpose of this subsection.
- (i) **Modification of requirements prohibited—** Except for a primary nonferrous smelter order under [section 7419 of this title](/usc/42/7419.md), a suspension under subsection [(f)](#f) or [(g)](#g) (relating to emergency suspensions), an exemption under [section 7418 of this title](/usc/42/7418.md) (relating to certain [Federal facilities](/usc/42/17061.md?p=8)), an order under [section 7413(d)](/usc/42/7413.md?p=d)[^1] of this title (relating to compliance orders), a plan promulgation under [subsection (c)](#c), or a plan revision under [subsection (a)(3)](#a-3); no order, suspension, plan revision, or other action modifying any requirement of an [applicable implementation plan](/usc/42/7602.md?p=q) may be taken with respect to any [stationary source](/usc/42/7411.md?p=a-3) by the [State](/usc/42/7602.md?p=d) or by the [Administrator](/usc/42/7602.md?p=a).
- (j) **Technological systems of continuous emission reduction on new or modified stationary sources; compliance with performance standards—** As a condition for issuance of any permit required under this subchapter, the [owner or operator](/usc/42/9601.md?p=20-B) of each new or [modified](/usc/42/7501.md?p=4) [stationary source](/usc/42/7411.md?p=a-3) which is required to obtain such a permit must show to the satisfaction of the permitting authority that the technological system of continuous emission reduction which is to be used at such source will enable it to comply with the [standards](/usc/42/1320d.md?p=7) of performance which are to apply to such source and that the [construction](/usc/42/7479.md?p=2-C) or [modification](/usc/42/7501.md?p=4) and operation of such source will be in compliance with all other requirements of this chapter.
- (k) **Environmental Protection Agency action on plan submissions—**
- (1) **Completeness of plan submissions—**
- (A) **Completeness criteria—** Within 9 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate minimum criteria that any plan submission must meet before the [Administrator](/usc/42/7602.md?p=a) is required to act on such submission under this subsection. The criteria shall be limited to the information necessary to enable the [Administrator](/usc/42/7602.md?p=a) to determine whether the plan submission complies with the provisions of this chapter.
- (B) **Completeness finding—** Within 60 days of the [Administrator](/usc/42/7602.md?p=a)’s receipt of a plan or plan revision, but no later than 6 months after the date, if any, by which a [State](/usc/42/7602.md?p=d) is required to submit the plan or revision, the [Administrator](/usc/42/7602.md?p=a) shall determine whether the minimum criteria established pursuant to [subparagraph (A)](#k-1-A) have been met. Any plan or plan revision that a [State](/usc/42/7602.md?p=d) submits to the [Administrator](/usc/42/7602.md?p=a), and that has not been determined by the [Administrator](/usc/42/7602.md?p=a) (by the date 6 months after receipt of the submission) to have failed to meet the minimum criteria established pursuant to [subparagraph (A)](#k-1-A), shall on that date be deemed by operation of law to meet such minimum criteria.
- (C) **Effect of finding of incompleteness—** Where the [Administrator](/usc/42/7602.md?p=a) determines that a plan submission (or part thereof) does not meet the minimum criteria established pursuant to [subparagraph (A)](#k-1-A), the [State](/usc/42/7602.md?p=d) shall be treated as not having made the submission (or, in the [Administrator](/usc/42/7602.md?p=a)’s discretion, part thereof).
- (2) **Deadline for action—** Within 12 months of a determination by the [Administrator](/usc/42/7602.md?p=a) (or a determination deemed by operation of law) under [paragraph (1)](#k-1) that a [State](/usc/42/7602.md?p=d) has submitted a plan or plan revision (or, in the [Administrator](/usc/42/7602.md?p=a)’s discretion, part thereof) that meets the minimum criteria established pursuant to [paragraph (1)](#k-1), if applicable (or, if those criteria are not applicable, within 12 months of submission of the plan or revision), the [Administrator](/usc/42/7602.md?p=a) shall act on the submission in accordance with [paragraph (3)](#k-3).
- (3) **Full and partial approval and disapproval—** In the case of any submittal on which the [Administrator](/usc/42/7602.md?p=a) is required to act under [paragraph (2)](#k-2), the [Administrator](/usc/42/7602.md?p=a) shall approve such submittal as a whole if it meets all of the applicable requirements of this chapter. If a portion of the plan revision meets all the applicable requirements of this chapter, the [Administrator](/usc/42/7602.md?p=a) may approve the plan revision in part and disapprove the plan revision in part. The plan revision shall not be treated as meeting the requirements of this chapter until the [Administrator](/usc/42/7602.md?p=a) approves the entire plan revision as complying with the applicable requirements of this chapter.
- (4) **Conditional approval—** The [Administrator](/usc/42/7602.md?p=a) may approve a plan revision based on a commitment of the [State](/usc/42/7602.md?p=d) to adopt specific enforceable measures by a date certain, but not later than 1 year after the date of approval of the plan revision. Any such conditional approval shall be treated as a disapproval if the [State](/usc/42/7602.md?p=d) fails to comply with such commitment.
- (5) **Calls for plan revisions—** Whenever the [Administrator](/usc/42/7602.md?p=a) finds that the [applicable implementation plan](/usc/42/7602.md?p=q) for any area is substantially inadequate to attain or maintain the relevant national ambient air quality [standard](/usc/42/1320d.md?p=7), to mitigate adequately the interstate [pollutant](/usc/42/1397h.md?p=c-4) transport described in [section 7506a of this title](/usc/42/7506a.md) or [section 7511c of this title](/usc/42/7511c.md), or to otherwise comply with any requirement of this chapter, the [Administrator](/usc/42/7602.md?p=a) shall require the [State](/usc/42/7602.md?p=d) to revise the plan as necessary to correct such inadequacies. The [Administrator](/usc/42/7602.md?p=a) shall notify the [State](/usc/42/7602.md?p=d) of the inadequacies, and may establish reasonable deadlines (not to exceed 18 months after the date of such notice) for the submission of such plan revisions. Such findings and notice shall be public. Any finding under this paragraph shall, to the extent the [Administrator](/usc/42/7602.md?p=a) deems appropriate, subject the [State](/usc/42/7602.md?p=d) to the requirements of this chapter to which the [State](/usc/42/7602.md?p=d) was subject when it developed and submitted the plan for which such finding was made, except that the [Administrator](/usc/42/7602.md?p=a) may adjust any dates applicable under such requirements as appropriate (except that the [Administrator](/usc/42/7602.md?p=a) may not adjust any attainment date prescribed under part D, unless such date has elapsed).
- (6) **Corrections—** Whenever the [Administrator](/usc/42/7602.md?p=a) determines that the [Administrator](/usc/42/7602.md?p=a)’s action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the [Administrator](/usc/42/7602.md?p=a) may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the [State](/usc/42/7602.md?p=d). Such determination and the basis thereof shall be provided to the [State](/usc/42/7602.md?p=d) and public.
- (l) **Plan revisions—** Each revision to an implementation plan submitted by a [State](/usc/42/7602.md?p=d) under this chapter shall be adopted by such [State](/usc/42/7602.md?p=d) after reasonable notice and public hearing. The [Administrator](/usc/42/7602.md?p=a) shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in [section 7501 of this title](/usc/42/7501.md)), or any other applicable requirement of this chapter.
- (m) **Sanctions—** The [Administrator](/usc/42/7602.md?p=a) may apply any of the sanctions listed in [section 7509(b) of this title](/usc/42/7509.md?p=b) at any time (or at any time after) the [Administrator](/usc/42/7602.md?p=a) makes a finding, disapproval, or determination under [paragraphs (1) through (4)](#m-1..m-4), respectively, of [section 7509(a) of this title](/usc/42/7509.md?p=a) in relation to any plan or plan item (as that term is defined by the [Administrator](/usc/42/7602.md?p=a)) required under this chapter, with respect to any portion of the [State](/usc/42/7602.md?p=d) the [Administrator](/usc/42/7602.md?p=a) determines reasonable and appropriate, for the purpose of ensuring that the requirements of this chapter relating to such plan or plan item are met. The [Administrator](/usc/42/7602.md?p=a) shall, by rule, establish criteria for exercising his authority under the previous sentence with respect to any deficiency referred to in [section 7509(a) of this title](/usc/42/7509.md?p=a) to ensure that, during the 24-month period following the finding, disapproval, or determination referred to in [section 7509(a) of this title](/usc/42/7509.md?p=a), such sanctions are not applied on a statewide basis where one or more political subdivisions covered by the [applicable implementation plan](/usc/42/7602.md?p=q) are principally responsible for such deficiency.
- (n) **Savings clauses—**
- (1) **Existing plan provisions—** Any provision of any [applicable implementation plan](/usc/42/7602.md?p=q) that was approved or promulgated by the [Administrator](/usc/42/7602.md?p=a) pursuant to this section as in effect before November 15, 1990, shall remain in effect as part of such [applicable implementation plan](/usc/42/7602.md?p=q), except to the extent that a revision to such provision is approved or promulgated by the [Administrator](/usc/42/7602.md?p=a) pursuant to this chapter.
- (2) **Attainment dates—** For any area not designated nonattainment, any plan or plan revision submitted or required to be submitted by a [State](/usc/42/7602.md?p=d)—
- (A) in response to the promulgation or revision of a national primary ambient air quality [standard](/usc/42/1320d.md?p=7) in effect on November 15, 1990, or
- (B) in response to a finding of substantial inadequacy under [subsection (a)(2)](#a-2) (as in effect immediately before November 15, 1990),
shall provide for attainment of the national primary ambient air quality [standards](/usc/42/1320d.md?p=7) within 3 years of November 15, 1990, or within 5 years of issuance of such finding of substantial inadequacy, whichever is later.
- (3) **Retention of construction moratorium in certain areas—** In the case of an area to which, immediately before November 15, 1990, the prohibition on [construction](/usc/42/7479.md?p=2-C) or [modification](/usc/42/7501.md?p=4) of [major stationary sources](/usc/42/7602.md?p=j) prescribed in [subsection (a)(2)(I)](#a-2-I) (as in effect immediately before November 15, 1990) applied by virtue of a finding of the [Administrator](/usc/42/7602.md?p=a) that the [State](/usc/42/7602.md?p=d) containing such area had not submitted an implementation plan meeting the requirements of [section 7502(b)(6) of this title](/usc/42/7502.md) (relating to establishment of a permit [program](/usc/42/274l–1.md?p=4)) (as in effect immediately before November 15, 1990) or [7502(a)(1)](/usc/42/7502.md?p=a-1) of this title (to the extent such requirements relate to provision for attainment of the primary national ambient air quality [standard](/usc/42/1320d.md?p=7) for sulfur oxides by December 31, 1982) as in effect immediately before November 15, 1990, no [major stationary source](/usc/42/7602.md?p=j) of the relevant [air pollutant](/usc/42/7602.md?p=g) or [pollutants](/usc/42/1397h.md?p=c-4) shall be constructed or [modified](/usc/42/7501.md?p=4) in such area until the [Administrator](/usc/42/7602.md?p=a) finds that the plan for such area meets the applicable requirements of [section 7502(c)(5) of this title](/usc/42/7502.md?p=c-5) (relating to permit [programs](/usc/42/274l–1.md?p=4)) or subpart 5 of part D (relating to attainment of the primary national ambient air quality [standard](/usc/42/1320d.md?p=7) for sulfur dioxide), respectively.
- (o) **Indian tribes—** If an [Indian tribe](/usc/42/7602.md?p=r) submits an implementation plan to the [Administrator](/usc/42/7602.md?p=a) pursuant to [section 7601(d) of this title](/usc/42/7601.md?p=d), the plan shall be reviewed in accordance with the provisions for review set forth in this section for [State](/usc/42/7602.md?p=d) plans, except as otherwise provided by regulation promulgated pursuant to [section 7601(d)(2) of this title](/usc/42/7601.md?p=d-2). When such plan becomes effective in accordance with the regulations promulgated under [section 7601(d) of this title](/usc/42/7601.md?p=d), the plan shall become applicable to all areas (except as expressly provided otherwise in the plan) located within the exterior boundaries of the reservation, notwithstanding the issuance of any patent and including rights-of-way running through the reservation.
- (p) **Reports—** Any [State](/usc/42/7602.md?p=d) shall submit, according to such schedule as the [Administrator](/usc/42/7602.md?p=a) may prescribe, such reports as the [Administrator](/usc/42/7602.md?p=a) may require relating to emission reductions, vehicle miles traveled, congestion levels, and any other information the [Administrator](/usc/42/7602.md?p=a) may deem necessary to assess the development[^2] effectiveness, need for revision, or implementation of any plan or plan revision required under this chapter.
# §7411. Standards of performance for new stationary sources
- (a) **Definitions—** For purposes of this section:
- (1) The term “standard of performance” means a [standard](/usc/42/1320d.md?p=7) for emissions of [air pollutants](/usc/42/7602.md?p=g) which reflects the degree of [emission limitation](/usc/42/7602.md?p=k) achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and [energy](/usc/42/6311.md?p=7) requirements) the [Administrator](/usc/42/7602.md?p=a) determines has been adequately demonstrated.
- (2) The term “new source” means any [stationary source](#a-3), the [construction](/usc/42/7479.md?p=2-C) or [modification](#a-4) of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a [standard of performance](#a-1) under this section which will be applicable to such source.
- (3) The term “stationary source” means any [building](/usc/42/6881.md?p=i-3), structure, [facility](/usc/42/11049.md?p=4), or installation which emits or may emit any [air pollutant](/usc/42/7602.md?p=g). Nothing in subchapter II of this chapter relating to [nonroad engines](/usc/42/7550.md?p=10) shall be construed to apply to stationary internal combustion engines.
- (4) The term “modification” means any physical change in, or change in the method of operation of, a [stationary source](#a-3) which increases the amount of any [air pollutant](/usc/42/7602.md?p=g) emitted by such source or which results in the emission of any [air pollutant](/usc/42/7602.md?p=g) not previously emitted.
- (5) The term “owner or operator” means any [person](/usc/42/7602.md?p=e) who owns, leases, operates, controls, or supervises a [stationary source](#a-3).
- (6) The term “existing source” means any [stationary source](#a-3) other than a [new source](#a-2).
- (7) The term “technological system of continuous emission reduction” means—
- (A) a technological process for production or operation by any source which is inherently low-polluting or nonpolluting, or
- (B) a technological system for continuous reduction of the pollution generated by a source before such pollution is emitted into the ambient air, including precombustion cleaning or [treatment](/usc/42/11851.md?p=11) of fuels.
- (8) A conversion to coal (A) by reason of an order under [section 2(a)](/usc/42/2.md) of the [Energy](/usc/42/6311.md?p=7) Supply and Environmental Coordination Act of 1974 [[15 U.S.C. 792(a)](/usc/15/792.md?p=a)] or any amendment thereto, or any subsequent enactment which supersedes such Act [[15 U.S.C. 791](/usc/15/791.md) et seq.], or (B) which qualifies under [section 7413(d)(5)(A)(ii)](/usc/42/7413.md)[^1] of this title, shall not be deemed to be a [modification](#a-4) for purposes of paragraphs (2) and (4) of this subsection.
- (b) **List of categories of stationary sources; standards of performance; information on pollution control techniques; sources owned or operated by United States; particular systems; revised standards—**
- (1)
- (A) The [Administrator](/usc/42/7602.md?p=a) shall, within 90 days after December 31, 1970, publish (and from time to time thereafter shall revise) a list of [categories](/usc/42/1395w–4.md?p=j-1) of [stationary sources](#a-3). He shall include a [category](/usc/42/1395w–4.md?p=j-1) of sources in such list if in his judgment it [causes](/usc/42/9908.md?p=c-2), or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.
- (B) Within one year after the inclusion of a [category](/usc/42/1395w–4.md?p=j-1) of [stationary sources](#a-3) in a list under [subparagraph (A)](#b-1-A), the [Administrator](/usc/42/7602.md?p=a) shall publish proposed regulations, establishing Federal [standards](/usc/42/1320d.md?p=7) of performance for [new sources](#a-2) within such [category](/usc/42/1395w–4.md?p=j-1). The [Administrator](/usc/42/7602.md?p=a) shall afford interested [persons](/usc/42/7602.md?p=e) an opportunity for written comment on such proposed regulations. After considering such comments, he shall promulgate, within one year after such publication, such [standards](/usc/42/1320d.md?p=7) with such [modifications](/usc/42/7501.md?p=4) as he deems appropriate. The [Administrator](/usc/42/7602.md?p=a) shall, at least every 8 years, review and, if appropriate, revise such [standards](/usc/42/1320d.md?p=7) following the procedure required by this subsection for promulgation of such [standards](/usc/42/1320d.md?p=7). Notwithstanding the requirements of the previous sentence, the [Administrator](/usc/42/7602.md?p=a) need not review any such [standard](/usc/42/1320d.md?p=7) if the [Administrator](/usc/42/7602.md?p=a) determines that such review is not appropriate in light of readily available information on the efficacy of such [standard](/usc/42/1320d.md?p=7). [Standards](/usc/42/1320d.md?p=7) of performance or revisions thereof shall become effective upon promulgation. When implementation and enforcement of any requirement of this chapter indicate that [emission limitations](/usc/42/7602.md?p=k) and percent reductions beyond those required by the [standards](/usc/42/1320d.md?p=7) promulgated under this section are achieved in practice, the [Administrator](/usc/42/7602.md?p=a) shall, when revising [standards](/usc/42/1320d.md?p=7) promulgated under this section, consider the [emission limitations](/usc/42/7602.md?p=k) and percent reductions achieved in practice.
- (2) The [Administrator](/usc/42/7602.md?p=a) may distinguish among classes, types, and sizes within [categories](/usc/42/1395w–4.md?p=j-1) of [new sources](#a-2) for the purpose of establishing such [standards](/usc/42/1320d.md?p=7).
- (3) The [Administrator](/usc/42/7602.md?p=a) shall, from time to time, issue information on pollution control techniques for [categories](/usc/42/1395w–4.md?p=j-1) of [new sources](#a-2) and [air pollutants](/usc/42/7602.md?p=g) subject to the provisions of this section.
- (4) The provisions of this section shall apply to any [new source](#a-2) owned or operated by the [United States](/usc/42/403.md?p=k).
- (5) Except as otherwise authorized under [subsection (h)](#h), nothing in this section shall be construed to require, or to authorize the [Administrator](/usc/42/7602.md?p=a) to require, any new or [modified](/usc/42/7501.md?p=4) source to install and operate any particular [technological system of continuous emission reduction](#a-7) to comply with any [new source](#a-2) [standard of performance](#a-1).
- (6) The revised [standards](/usc/42/1320d.md?p=7) of performance required by enactment of subsection (a)(1)(A)(i) and (ii)[^1] shall be promulgated not later than one year after August 7, 1977. Any new or [modified](/usc/42/7501.md?p=4) fossil fuel fired [stationary source](#a-3) which commences [construction](/usc/42/7479.md?p=2-C) prior to the date of publication of the proposed revised [standards](/usc/42/1320d.md?p=7) shall not be required to comply with such revised [standards](/usc/42/1320d.md?p=7).
- (c) **State implementation and enforcement of standards of performance—**
- (1) Each [State](/usc/42/7602.md?p=d) may develop and submit to the [Administrator](/usc/42/7602.md?p=a) a procedure for implementing and enforcing [standards](/usc/42/1320d.md?p=7) of performance for [new sources](#a-2) located in such [State](/usc/42/7602.md?p=d). If the [Administrator](/usc/42/7602.md?p=a) finds the [State](/usc/42/7602.md?p=d) procedure is adequate, he shall delegate to such [State](/usc/42/7602.md?p=d) any authority he has under this chapter to implement and enforce such [standards](/usc/42/1320d.md?p=7).
- (2) Nothing in this subsection shall prohibit the [Administrator](/usc/42/7602.md?p=a) from enforcing any applicable [standard of performance](#a-1) under this section.
- (d) **Standards of performance for existing sources; remaining useful life of source—**
- (1) The [Administrator](/usc/42/7602.md?p=a) shall prescribe regulations which shall establish a procedure similar to that provided by [section 7410 of this title](/usc/42/7410.md) under which each [State](/usc/42/7602.md?p=d) shall submit to the [Administrator](/usc/42/7602.md?p=a) a plan which (A) establishes [standards](/usc/42/1320d.md?p=7) of performance for any [existing source](#a-6) for any [air pollutant](/usc/42/7602.md?p=g) (i) for which air quality criteria have not been issued or which is not included on a list published under [section 7408(a) of this title](/usc/42/7408.md?p=a) or emitted from a source [category](/usc/42/1395w–4.md?p=j-1) which is regulated under [section 7412 of this title](/usc/42/7412.md) but (ii) to which a [standard of performance](#a-1) under this section would apply if such [existing source](#a-6) were a [new source](#a-2), and (B) provides for the implementation and enforcement of such [standards](/usc/42/1320d.md?p=7) of performance. Regulations of the [Administrator](/usc/42/7602.md?p=a) under this paragraph shall permit the [State](/usc/42/7602.md?p=d) in applying a [standard of performance](#a-1) to any particular source under a plan submitted under this paragraph to take into consideration, among other factors, the remaining useful life of the [existing source](#a-6) to which such [standard](/usc/42/1320d.md?p=7) applies.
- (2) The [Administrator](/usc/42/7602.md?p=a) shall have the same authority—
- (A) to prescribe a plan for a [State](/usc/42/7602.md?p=d) in cases where the [State](/usc/42/7602.md?p=d) fails to submit a satisfactory plan as he would have under [section 7410(c) of this title](/usc/42/7410.md?p=c) in the case of failure to submit an implementation plan, and
- (B) to enforce the provisions of such plan in cases where the [State](/usc/42/7602.md?p=d) fails to enforce them as he would have under sections [7413](/usc/42/7413.md) and [7414](/usc/42/7414.md) of this title with respect to an implementation plan.
In promulgating a [standard of performance](#a-1) under a plan prescribed under this paragraph, the [Administrator](/usc/42/7602.md?p=a) shall take into consideration, among other factors, remaining useful lives of the sources in the [category](/usc/42/1395w–4.md?p=j-1) of sources to which such [standard](/usc/42/1320d.md?p=7) applies.
- (e) **Prohibited acts—** After the effective date of [standards](/usc/42/1320d.md?p=7) of performance promulgated under this section, it shall be unlawful for any [owner or operator](#a-5) of any [new source](#a-2) to operate such source in [violation](/usc/42/2000e–16a.md?p=c) of any [standard of performance](#a-1) applicable to such source.
- (f) **New source standards of performance—**
- (1) For those [categories](/usc/42/1395w–4.md?p=j-1) of [major stationary sources](/usc/42/7602.md?p=j) that the [Administrator](/usc/42/7602.md?p=a) listed under [subsection (b)(1)(A)](#b-1-A) before November 15, 1990, and for which regulations had not been proposed by the [Administrator](/usc/42/7602.md?p=a) by November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall—
- (A) propose regulations establishing [standards](/usc/42/1320d.md?p=7) of performance for at least 25 percent of such [categories](/usc/42/1395w–4.md?p=j-1) of sources within 2 years after November 15, 1990;
- (B) propose regulations establishing [standards](/usc/42/1320d.md?p=7) of performance for at least 50 percent of such [categories](/usc/42/1395w–4.md?p=j-1) of sources within 4 years after November 15, 1990; and
- (C) propose regulations for the remaining [categories](/usc/42/1395w–4.md?p=j-1) of sources within 6 years after November 15, 1990.
- (2) In determining priorities for promulgating [standards](/usc/42/1320d.md?p=7) for [categories](/usc/42/1395w–4.md?p=j-1) of [major stationary sources](/usc/42/7602.md?p=j) for the purpose of [paragraph (1)](#f-1), the [Administrator](/usc/42/7602.md?p=a) shall consider—
- (A) the quantity of [air pollutant](/usc/42/7602.md?p=g) emissions which each such [category](/usc/42/1395w–4.md?p=j-1) will emit, or will be designed to emit;
- (B) the extent to which each such [pollutant](/usc/42/1397h.md?p=c-4) may reasonably be anticipated to endanger public health or welfare; and
- (C) the mobility and competitive nature of each such [category](/usc/42/1395w–4.md?p=j-1) of sources and the consequent need for nationally applicable [new source](#a-2) [standards](/usc/42/1320d.md?p=7) of performance.
- (3) Before promulgating any regulations under this subsection or listing any [category](/usc/42/1395w–4.md?p=j-1) of [major stationary sources](/usc/42/7602.md?p=j) as required under this subsection, the [Administrator](/usc/42/7602.md?p=a) shall consult with appropriate [representatives](/usc/42/3058f.md?p=5) of the [Governors](/usc/42/6372.md?p=1) and of [State](/usc/42/7602.md?p=d) [air pollution control agencies](/usc/42/7602.md?p=b).
- (g) **Revision of regulations—**
- (1) Upon application by the [Governor](/usc/42/6372.md?p=1) of a [State](/usc/42/7602.md?p=d) showing that the [Administrator](/usc/42/7602.md?p=a) has failed to specify in regulations under [subsection (f)(1)](#f-1) any [category](/usc/42/1395w–4.md?p=j-1) of [major stationary sources](/usc/42/7602.md?p=j) required to be specified under such regulations, the [Administrator](/usc/42/7602.md?p=a) shall revise such regulations to specify any such [category](/usc/42/1395w–4.md?p=j-1).
- (2) Upon application of the [Governor](/usc/42/6372.md?p=1) of a [State](/usc/42/7602.md?p=d), showing that any [category](/usc/42/1395w–4.md?p=j-1) of [stationary sources](#a-3) which is not included in the list under [subsection (b)(1)(A)](#b-1-A) contributes significantly to air pollution which may reasonably be anticipated to endanger public health or welfare (notwithstanding that such [category](/usc/42/1395w–4.md?p=j-1) is not a [category](/usc/42/1395w–4.md?p=j-1) of [major stationary sources](/usc/42/7602.md?p=j)), the [Administrator](/usc/42/7602.md?p=a) shall revise such regulations to specify such [category](/usc/42/1395w–4.md?p=j-1) of [stationary sources](#a-3).
- (3) Upon application of the [Governor](/usc/42/6372.md?p=1) of a [State](/usc/42/7602.md?p=d) showing that the [Administrator](/usc/42/7602.md?p=a) has failed to apply properly the criteria required to be considered under [subsection (f)(2)](#f-2), the [Administrator](/usc/42/7602.md?p=a) shall revise the list under [subsection (b)(1)(A)](#b-1-A) to apply properly such criteria.
- (4) Upon application of the [Governor](/usc/42/6372.md?p=1) of a [State](/usc/42/7602.md?p=d) showing that—
- (A) a new, innovative, or improved technology or process which achieves greater continuous emission reduction has been adequately demonstrated for any [category](/usc/42/1395w–4.md?p=j-1) of [stationary sources](#a-3), and
- (B) as a result of such technology or process, the [new source](#a-2) [standard of performance](#a-1) in effect under this section for such [category](/usc/42/1395w–4.md?p=j-1) no longer reflects the greatest degree of [emission limitation](/usc/42/7602.md?p=k) achievable through application of the best [technological system of continuous emission reduction](#a-7) which (taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impact and [energy](/usc/42/6311.md?p=7) requirements) has been adequately demonstrated,
the [Administrator](/usc/42/7602.md?p=a) shall revise such [standard of performance](#a-1) for such [category](/usc/42/1395w–4.md?p=j-1) accordingly.
- (5) Unless later deadlines for action of the [Administrator](/usc/42/7602.md?p=a) are otherwise prescribed under this section, the [Administrator](/usc/42/7602.md?p=a) shall, not later than three months following the date of receipt of any application by a [Governor](/usc/42/6372.md?p=1) of a [State](/usc/42/7602.md?p=d), either—
- (A) find that such application does not contain the requisite showing and deny such application, or
- (B) grant such application and take the action required under this subsection.
- (6) Before taking any action required by [subsection (f)](#f) or by this subsection, the [Administrator](/usc/42/7602.md?p=a) shall provide notice and opportunity for public hearing.
- (h) **Design, equipment, work practice, or operational standard; alternative emission limitation—**
- (1) For purposes of this section, if in the judgment of the [Administrator](/usc/42/7602.md?p=a), it is not feasible to prescribe or enforce a [standard of performance](#a-1), he may instead promulgate a design, equipment, work practice, or operational [standard](/usc/42/1320d.md?p=7), or combination thereof, which reflects the best [technological system of continuous emission reduction](#a-7) which (taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impact and [energy](/usc/42/6311.md?p=7) requirements) the [Administrator](/usc/42/7602.md?p=a) determines has been adequately demonstrated. In the event the [Administrator](/usc/42/7602.md?p=a) promulgates a design or equipment [standard](/usc/42/1320d.md?p=7) under this subsection, he shall include as part of such [standard](/usc/42/1320d.md?p=7) such requirements as will assure the proper operation and maintenance of any such element of design or equipment.
- (2) For the purpose of this subsection, the phrase “not feasible to prescribe or enforce a [standard of performance](#a-1)” means any situation in which the [Administrator](/usc/42/7602.md?p=a) determines that (A) a [pollutant](/usc/42/1397h.md?p=c-4) or [pollutants](/usc/42/1397h.md?p=c-4) cannot be emitted through a conveyance designed and constructed to emit or capture such [pollutant](/usc/42/1397h.md?p=c-4), or that any requirement for, or use of, such a conveyance would be inconsistent with any Federal, [State](/usc/42/7602.md?p=d), or local law, or (B) the application of measurement methodology to a particular class of sources is not practicable due to technological or economic limitations.
- (3) If after notice and opportunity for public hearing, any [person](/usc/42/7602.md?p=e) establishes to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that an alternative [means of emission limitation](/usc/42/7602.md?p=m) will achieve a reduction in emissions of any [air pollutant](/usc/42/7602.md?p=g) at least equivalent to the reduction in emissions of such [air pollutant](/usc/42/7602.md?p=g) achieved under the requirements of [paragraph (1)](#h-1), the [Administrator](/usc/42/7602.md?p=a) shall permit the use of such alternative by the source for purposes of compliance with this section with respect to such [pollutant](/usc/42/1397h.md?p=c-4).
- (4) Any [standard](/usc/42/1320d.md?p=7) promulgated under [paragraph (1)](#h-1) shall be promulgated in terms of [standard of performance](#a-1) whenever it becomes feasible to promulgate and enforce such [standard](/usc/42/1320d.md?p=7) in such terms.
- (5) Any design, equipment, work practice, or operational [standard](/usc/42/1320d.md?p=7), or any combination thereof, described in this subsection shall be treated as a [standard of performance](#a-1) for purposes of the provisions of this chapter (other than the provisions of [subsection (a)](#a) and this subsection).
- (i) **Country elevators—** Any regulations promulgated by the [Administrator](/usc/42/7602.md?p=a) under this section applicable to grain elevators shall not apply to country elevators (as defined by the [Administrator](/usc/42/7602.md?p=a)) which have a storage capacity of less than two million five hundred thousand bushels.
- (j) **Innovative technological systems of continuous emission reduction—**
- (1)
- (A) Any [person](/usc/42/7602.md?p=e) proposing to own or operate a [new source](#a-2) may request the [Administrator](/usc/42/7602.md?p=a) for one or more waivers from the requirements of this section for such source or any portion thereof with respect to any [air pollutant](/usc/42/7602.md?p=g) to encourage the use of an innovative technological system or systems of continuous emission reduction. The [Administrator](/usc/42/7602.md?p=a) may, with the consent of the [Governor](/usc/42/6372.md?p=1) of the [State](/usc/42/7602.md?p=d) in which the source is to be located, grant a waiver under this paragraph, if the [Administrator](/usc/42/7602.md?p=a) determines after notice and opportunity for public hearing, that—
- (i) the proposed system or systems have not been adequately demonstrated,
- (ii) the proposed system or systems will operate effectively and there is a substantial likelihood that such system or systems will achieve greater continuous emission reduction than that required to be achieved under the [standards](/usc/42/1320d.md?p=7) of performance which would otherwise apply, or achieve at least an equivalent reduction at lower cost in terms of [energy](/usc/42/6311.md?p=7), economic, or nonair quality environmental impact,
- (iii) the [owner or operator](#a-5) of the proposed source has demonstrated to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that the proposed system will not [cause](/usc/42/9908.md?p=c-2) or contribute to an unreasonable risk to public health, welfare, or safety in its operation, function, or malfunction, and
- (iv) the granting of such waiver is consistent with the requirements of [subparagraph (C)](#j-1-C).
In making any determination under [clause (ii)](#j-1-A-ii), the [Administrator](/usc/42/7602.md?p=a) shall take into account any previous failure of such system or systems to operate effectively or to meet any requirement of the [new source](#a-2) performance [standards](/usc/42/1320d.md?p=7). In determining whether an unreasonable risk exists under [clause (iii)](#j-1-A-iii), the [Administrator](/usc/42/7602.md?p=a) shall consider, among other factors, whether and to what extent the use of the proposed technological system will [cause](/usc/42/9908.md?p=c-2), increase, reduce, or eliminate emissions of any unregulated [pollutants](/usc/42/1397h.md?p=c-4); available methods for reducing or eliminating any risk to public health, welfare, or safety which may be associated with the use of such system; and the availability of other technological systems which may be used to conform to [standards](/usc/42/1320d.md?p=7) under this section without causing or contributing to such unreasonable risk. The [Administrator](/usc/42/7602.md?p=a) may conduct such tests and may require the [owner or operator](#a-5) of the proposed source to conduct such tests and provide such information as is necessary to carry out clause (iii) of this subparagraph. Such requirements shall include a requirement for prompt reporting of the emission of any unregulated [pollutant](/usc/42/1397h.md?p=c-4) from a system if such [pollutant](/usc/42/1397h.md?p=c-4) was not emitted, or was emitted in significantly lesser amounts without use of such system.
- (B) A waiver under this paragraph shall be granted on such terms and conditions as the [Administrator](/usc/42/7602.md?p=a) determines to be necessary to assure—
- (i) emissions from the source will not prevent attainment and maintenance of any national ambient air quality [standards](/usc/42/1320d.md?p=7), and
- (ii) proper functioning of the technological system or systems authorized.
Any such term or condition shall be treated as a [standard of performance](#a-1) for the purposes of [subsection (e)](#e) of this section and [section 7413 of this title](/usc/42/7413.md).
- (C) The number of waivers granted under this paragraph with respect to a proposed [technological system of continuous emission reduction](#a-7) shall not exceed such number as the [Administrator](/usc/42/7602.md?p=a) finds necessary to ascertain whether or not such system will achieve the conditions specified in clauses [(ii)](#j-1-A-ii) and [(iii)](#j-1-A-iii) of subparagraph (A).
- (D) A waiver under this paragraph shall extend to the sooner of—
- (i) the date determined by the [Administrator](/usc/42/7602.md?p=a), after consultation with the [owner or operator](#a-5) of the source, taking into consideration the design, installation, and capital cost of the technological system or systems being used, or
- (ii) the date on which the [Administrator](/usc/42/7602.md?p=a) determines that such system has failed to—
- (I) achieve at least an equivalent continuous emission reduction to that required to be achieved under the [standards](/usc/42/1320d.md?p=7) of performance which would otherwise apply, or
- (II) comply with the condition specified in [paragraph (1)(A)(iii)](#j-1-A-iii),
and that such failure cannot be corrected.
- (E) In carrying out [subparagraph (D)(i)](#j-1-D-i), the [Administrator](/usc/42/7602.md?p=a) shall not permit any waiver for a source or portion thereof to extend beyond the date—
- (i) seven years after the date on which any waiver is granted to such source or portion thereof, or
- (ii) four years after the date on which such source or portion thereof commences operation,
whichever is earlier.
- (F) No waiver under this subsection shall apply to any portion of a source other than the portion on which the innovative technological system or systems of continuous emission reduction is used.
- (2)
- (A) If a waiver under [paragraph (1)](#j-1) is terminated under [clause (ii)](#j-1-D-ii) of paragraph (1)(D), the [Administrator](/usc/42/7602.md?p=a) shall grant an extension of the requirements of this section for such source for such minimum period as may be necessary to comply with the applicable [standard of performance](#a-1) under this section. Such period shall not extend beyond the date three years from the time such waiver is terminated.
- (B) An extension granted under this paragraph shall set forth emission limits and a compliance schedule containing increments of progress which require compliance with the applicable [standards](/usc/42/1320d.md?p=7) of performance as expeditiously as practicable and include such measures as are necessary and practicable in the interim to minimize emissions. Such schedule shall be treated as a [standard of performance](#a-1) for purposes of [subsection (e)](#e) of this section and [section 7413 of this title](/usc/42/7413.md).
# §7412. Hazardous air pollutants
- (a) **Definitions—** For purposes of this section, except [subsection (r)](#r)—
- (1) **Major source—** The term “major source” means any [stationary source](#r-2-C) or group of [stationary sources](#r-2-C) located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any [hazardous air pollutant](#a-6) or 25 tons per year or more of any combination of [hazardous air pollutants](#a-6). The [Administrator](/usc/42/7602.md?p=a) may establish a lesser quantity, or in the case of radionuclides different criteria, for a major source than that specified in the previous sentence, on the basis of the potency of the [air pollutant](/usc/42/7602.md?p=g), persistence, potential for bioaccumulation, other characteristics of the [air pollutant](/usc/42/7602.md?p=g), or other relevant factors.
- (2) **Area source—** The term “area source” means any [stationary source](#r-2-C) of [hazardous air pollutants](#a-6) that is not a [major source](#a-1). For purposes of this section, the term “area source” shall not include [motor vehicles](/usc/42/13211.md?p=13) or nonroad vehicles subject to regulation under subchapter II.
- (3) **Stationary source—** The term “[stationary source](#r-2-C)” shall have the same meaning as such term has under [section 7411(a) of this title](/usc/42/7411.md?p=a).
- (4) **New source—** The term “new source” means a [stationary source](#r-2-C) the [construction](/usc/42/7479.md?p=2-C) or reconstruction of which is commenced after the [Administrator](/usc/42/7602.md?p=a) first proposes regulations under this section establishing an [emission standard](/usc/42/7602.md?p=k) applicable to such source.
- (5) **Modification—** The term “modification” means any physical change in, or change in the method of operation of, a [major source](#a-1) which increases the actual emissions of any [hazardous air pollutant](#a-6) emitted by such source by more than a de minimis amount or which results in the emission of any [hazardous air pollutant](#a-6) not previously emitted by more than a de minimis amount.
- (6) **Hazardous air pollutant—** The term “hazardous air pollutant” means any [air pollutant](/usc/42/7602.md?p=g) listed pursuant to [subsection (b)](#b).
- (7) **Adverse environmental effect—** The term “adverse environmental effect” means any significant and widespread adverse effect, which may reasonably be anticipated, to wildlife, aquatic life, or other natural resources, including adverse impacts on populations of endangered or threatened species or significant degradation of environmental quality over broad areas.
- (8) **Electric utility steam generating unit—** The term “electric utility steam generating unit” means any fossil fuel fired combustion [unit](/usc/42/1395w–114b.md?p=g-2) of more than 25 megawatts that serves a generator that produces electricity for sale. A [unit](/usc/42/1395w–114b.md?p=g-2) that cogenerates steam and electricity and supplies more than one-third of its potential electric output capacity and more than 25 megawatts electrical output to any utility power distribution system for sale shall be considered an electric utility steam generating unit.
- (9) **Owner or operator—** The term “owner or operator” means any [person](/usc/42/7602.md?p=e) who owns, leases, operates, controls, or supervises a [stationary source](#r-2-C).
- (10) **Existing source—** The term “existing source” means any [stationary source](#r-2-C) other than a [new source](#a-4).
- (11) **Carcinogenic effect—** Unless revised, the term “carcinogenic effect” shall have the meaning provided by the [Administrator](/usc/42/7602.md?p=a) under Guidelines for Carcinogenic Risk Assessment as of the date of enactment.[^1] Any revisions in the existing Guidelines shall be subject to notice and opportunity for comment.
- (b) **List of pollutants—**
- (1) **Initial list—** The Congress establishes for purposes of this section a list of [hazardous air pollutants](#a-6) as follows:
| CAS number | Chemical name |
| --- | --- |
| 75070 | Acetaldehyde |
| 60355 | Acetamide |
| 75058 | Acetonitrile |
| 98862 | Acetophenone |
| 53963 | 2-Acetylaminofluorene |
| 107028 | Acrolein |
| 79061 | Acrylamide |
| 79107 | Acrylic acid |
| 107131 | Acrylonitrile |
| 107051 | Allyl chloride |
| 92671 | 4-Aminobiphenyl |
| 62533 | Aniline |
| 90040 | o-Anisidine |
| 1332214 | Asbestos |
| 71432 | Benzene (including benzene from gasoline) |
| 92875 | Benzidine |
| 98077 | Benzotrichloride |
| 100447 | Benzyl chloride |
| 92524 | Biphenyl |
| 117817 | Bis(2-ethylhexyl)phthalate (DEHP) |
| 542881 | Bis(chloromethyl)ether |
| 75252 | Bromoform |
| 106990 | 1,3-Butadiene |
| 156627 | Calcium cyanamide |
| 105602 | Caprolactam |
| 133062 | Captan |
| 63252 | Carbaryl |
| 75150 | Carbon disulfide |
| 56235 | Carbon tetrachloride |
| 463581 | Carbonyl sulfide |
| 120809 | Catechol |
| 133904 | Chloramben |
| 57749 | Chlordane |
| 7782505 | Chlorine |
| 79118 | Chloroacetic acid |
| 532274 | 2-Chloroacetophenone |
| 108907 | Chlorobenzene |
| 510156 | Chlorobenzilate |
| 67663 | Chloroform |
| 107302 | Chloromethyl methyl ether |
| 126998 | Chloroprene |
| 1319773 | Cresols/Cresylic acid (isomers and mixture) |
| 95487 | o-Cresol |
| 108394 | m-Cresol |
| 106445 | p-Cresol |
| 98828 | Cumene |
| 94757 | 2,4-D, salts and esters |
| 3547044 | DDE |
| 334883 | Diazomethane |
| 132649 | Dibenzofurans |
| 96128 | 1,2-Dibromo-3-chloropropane |
| 84742 | Dibutylphthalate |
| 106467 | 1,4-Dichlorobenzene(p) |
| 91941 | 3,3-Dichlorobenzidene |
| 111444 | Dichloroethyl ether (Bis(2-chloroethyl)ether) |
| 542756 | 1,3-Dichloropropene |
| 62737 | Dichlorvos |
| 111422 | Diethanolamine |
| 121697 | N,N-Diethyl aniline (N,N-Dimethylaniline) |
| 64675 | Diethyl sulfate |
| 119904 | 3,3-Dimethoxybenzidine |
| 60117 | Dimethyl aminoazobenzene |
| 119937 | 3,3′-Dimethyl benzidine |
| 79447 | Dimethyl carbamoyl chloride |
| 68122 | Dimethyl formamide |
| 57147 | 1,1-Dimethyl hydrazine |
| 131113 | Dimethyl phthalate |
| 77781 | Dimethyl sulfate |
| 534521 | 4,6-Dinitro-o-cresol, and salts |
| 51285 | 2,4-Dinitrophenol |
| 121142 | 2,4-Dinitrotoluene |
| 123911 | 1,4-Dioxane (1,4-Diethyleneoxide) |
| 122667 | 1,2-Diphenylhydrazine |
| 106898 | Epichlorohydrin (l-Chloro-2,3-epoxypropane) |
| 106887 | 1,2-Epoxybutane |
| 140885 | Ethyl acrylate |
| 100414 | Ethyl benzene |
| 51796 | Ethyl carbamate (Urethane) |
| 75003 | Ethyl chloride (Chloroethane) |
| 106934 | Ethylene dibromide (Dibromoethane) |
| 107062 | Ethylene dichloride (1,2-Dichloroethane) |
| 107211 | Ethylene glycol |
| 151564 | Ethylene imine (Aziridine) |
| 75218 | Ethylene oxide |
| 96457 | Ethylene thiourea |
| 75343 | Ethylidene dichloride (1,1-Dichloroethane) |
| 50000 | Formaldehyde |
| 76448 | Heptachlor |
| 118741 | Hexachlorobenzene |
| 87683 | Hexachlorobutadiene |
| 77474 | Hexachlorocyclopentadiene |
| 67721 | Hexachloroethane |
| 822060 | Hexamethylene-1,6-diisocyanate |
| 680319 | Hexamethylphosphoramide |
| 110543 | Hexane |
| 302012 | Hydrazine |
| 7647010 | Hydrochloric acid |
| 7664393 | [Hydrogen](/usc/42/16152.md?p=1) fluoride (Hydrofluoric acid) |
| 123319 | Hydroquinone |
| 78591 | Isophorone |
| 58899 | Lindane (all isomers) |
| 108316 | Maleic anhydride |
| 67561 | Methanol |
| 72435 | Methoxychlor |
| 74839 | Methyl bromide (Bromomethane) |
| 74873 | Methyl chloride (Chloromethane) |
| 71556 | Methyl chloroform (1,1,1-Trichloroethane) |
| 78933 | Methyl ethyl ketone (2-Butanone) |
| 60344 | Methyl hydrazine |
| 74884 | Methyl iodide (Iodomethane) |
| 108101 | Methyl isobutyl ketone (Hexone) |
| 624839 | Methyl isocyanate |
| 80626 | Methyl methacrylate |
| 1634044 | Methyl tert butyl ether |
| 101144 | 4,4-Methylene bis(2-chloroaniline) |
| 75092 | Methylene chloride (Dichloromethane) |
| 101688 | Methylene diphenyl diisocyanate (MDI) |
| 101779 | 4,4′-Methylenedianiline |
| 91203 | Naphthalene |
| 98953 | Nitrobenzene |
| 92933 | 4-Nitrobiphenyl |
| 100027 | 4-Nitrophenol |
| 79469 | 2-Nitropropane |
| 684935 | N-Nitroso-N-methylurea |
| 62759 | N-Nitrosodimethylamine |
| 59892 | N-Nitrosomorpholine |
| 56382 | Parathion |
| 82688 | Pentachloronitrobenzene (Quintobenzene) |
| 87865 | Pentachlorophenol |
| 108952 | Phenol |
| 106503 | p-Phenylenediamine |
| 75445 | Phosgene |
| 7803512 | Phosphine |
| 7723140 | Phosphorus |
| 85449 | Phthalic anhydride |
| 1336363 | Polychlorinated biphenyls (Aroclors) |
| 1120714 | 1,3-Propane sultone |
| 57578 | beta-Propiolactone |
| 123386 | Propionaldehyde |
| 114261 | Propoxur (Baygon) |
| 78875 | Propylene dichloride (1,2-Dichloropropane) |
| 75569 | Propylene oxide |
| 75558 | 1,2-Propylenimine (2-Methyl aziridine) |
| 91225 | Quinoline |
| 106514 | Quinone |
| 100425 | Styrene |
| 96093 | Styrene oxide |
| 1746016 | 2,3,7,8-Tetrachlorodibenzo-p-dioxin |
| 79345 | 1,1,2,2-Tetrachloroethane |
| 127184 | Tetrachloroethylene (Perchloroethylene) |
| 7550450 | Titanium tetrachloride |
| 108883 | Toluene |
| 95807 | 2,4-Toluene diamine |
| 584849 | 2,4-Toluene diisocyanate |
| 95534 | o-Toluidine |
| 8001352 | Toxaphene (chlorinated camphene) |
| 120821 | 1,2,4-Trichlorobenzene |
| 79005 | 1,1,2-Trichloroethane |
| 79016 | Trichloroethylene |
| 95954 | 2,4,5-Trichlorophenol |
| 88062 | 2,4,6-Trichlorophenol |
| 121448 | Triethylamine |
| 1582098 | Trifluralin |
| 540841 | 2,2,4-Trimethylpentane |
| 108054 | Vinyl acetate |
| 593602 | Vinyl bromide |
| 75014 | Vinyl chloride |
| 75354 | Vinylidene chloride (1,1-Dichloroethylene) |
| 1330207 | Xylenes (isomers and mixture) |
| 95476 | o-Xylenes |
| 108383 | m-Xylenes |
| 106423 | p-Xylenes |
| 0 | Antimony Compounds |
| 0 | Arsenic Compounds (inorganic including arsine) |
| 0 | Beryllium Compounds |
| 0 | Cadmium Compounds |
| 0 | Chromium Compounds |
| 0 | Cobalt Compounds |
| 0 | Coke Oven Emissions |
| 0 | Cyanide Compounds[^1] |
| 0 | Glycol ethers[^2] |
| 0 | Lead Compounds |
| 0 | Manganese Compounds |
| 0 | Mercury Compounds |
| 0 | Fine mineral fibers[^3] |
| 0 | Nickel Compounds |
| 0 | Polycylic Organic Matter[^4] |
| 0 | Radionuclides (including radon)[^5] |
| 0 | Selenium Compounds |
| NOTE: For all listings above which contain the word “compounds” and for glycol ethers, the following applies: Unless otherwise specified, these listings are defined as including any unique chemical substance that contains the named chemical (i.e., antimony, arsenic, etc.) as part of that chemical’s infrastructure. | |
| 1 X′CN where X = H′ or any other group where a formal dissociation may occur. For example KCN or Ca(CN)2. | |
| 2 Includes mono- and di- ethers of ethylene glycol, diethylene glycol, and triethylene glycol R–(OCH2CH2)n–OR′ where | |
| n = 1, 2, or 3 | |
| R = alkyl or aryl groups | |
| R′ = R, H, or groups which, when removed, yield glycol ethers with the structure: R–(OCH2CH)n–OH. Polymers are excluded from the glycol [category](/usc/42/1395w–4.md?p=j-1). | |
| [^3] Includes mineral fiber emissions from [facilities](/usc/42/11049.md?p=4) manufacturing or processing glass, rock, or slag fibers (or other mineral derived fibers) of average diameter 1 micrometer or less. | |
| [^4] Includes organic compounds with more than one benzene ring, and which have a boiling point greater than or equal to 100°C. | |
| [^5] A type of atom which spontaneously undergoes radioactive decay. | |
- (2) **Revision of the list—** The [Administrator](/usc/42/7602.md?p=a) shall periodically review the list established by this subsection and publish the results thereof and, where appropriate, revise such list by rule, adding [pollutants](/usc/42/1397h.md?p=c-4) which present, or may present, through inhalation or other routes of exposure, a threat of adverse human health effects (including, but not limited to, substances which are known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which [cause](/usc/42/9908.md?p=c-2) reproductive dysfunction, or which are acutely or chronically toxic) or [adverse environmental effects](#a-7) whether through ambient concentrations, bioaccumulation, deposition, or otherwise, but not including [releases](/usc/42/9601.md?p=22) subject to regulation under [subsection (r)](#r) as a result of emissions to the air. No [air pollutant](/usc/42/7602.md?p=g) which is listed under [section 7408(a) of this title](/usc/42/7408.md?p=a) may be added to the list under this section, except that the prohibition of this sentence shall not apply to any [pollutant](/usc/42/1397h.md?p=c-4) which independently meets the listing criteria of this paragraph and is a precursor to a [pollutant](/usc/42/1397h.md?p=c-4) which is listed under [section 7408(a) of this title](/usc/42/7408.md?p=a) or to any [pollutant](/usc/42/1397h.md?p=c-4) which is in a class of [pollutants](/usc/42/1397h.md?p=c-4) listed under such section. No substance, practice, process or activity regulated under subchapter VI of this chapter shall be subject to regulation under this section solely due to its adverse effects on the environment.
- (3) **Petitions to modify the list—**
- (A) Beginning at any time after 6 months after November 15, 1990, any [person](/usc/42/7602.md?p=e) may petition the [Administrator](/usc/42/7602.md?p=a) to modify the list of [hazardous air pollutants](#a-6) under this subsection by adding or deleting a substance or, in case of listed [pollutants](/usc/42/1397h.md?p=c-4) without CAS numbers (other than coke oven emissions, mineral fibers, or polycyclic organic matter) removing certain unique substances. Within 18 months after receipt of a petition, the [Administrator](/usc/42/7602.md?p=a) shall either grant or deny the petition by publishing a written explanation of the reasons for the [Administrator](/usc/42/7602.md?p=a)’s decision. Any such petition shall include a showing by the petitioner that there is adequate data on the health or environmental defects[^2] of the [pollutant](/usc/42/1397h.md?p=c-4) or other evidence adequate to support the petition. The [Administrator](/usc/42/7602.md?p=a) may not deny a petition solely on the basis of inadequate resources or time for review.
- (B) The [Administrator](/usc/42/7602.md?p=a) shall add a substance to the list upon a showing by the petitioner or on the [Administrator](/usc/42/7602.md?p=a)’s own determination that the substance is an [air pollutant](/usc/42/7602.md?p=g) and that emissions, ambient concentrations, bioaccumulation or deposition of the substance are known to [cause](/usc/42/9908.md?p=c-2) or may reasonably be anticipated to [cause](/usc/42/9908.md?p=c-2) adverse effects to human health or [adverse environmental effects](#a-7).
- (C) The [Administrator](/usc/42/7602.md?p=a) shall delete a substance from the list upon a showing by the petitioner or on the [Administrator](/usc/42/7602.md?p=a)’s own determination that there is adequate data on the health and environmental effects of the substance to determine that emissions, ambient concentrations, bioaccumulation or deposition of the substance may not reasonably be anticipated to [cause](/usc/42/9908.md?p=c-2) any adverse effects to the human health or [adverse environmental effects](#a-7).
- (D) The [Administrator](/usc/42/7602.md?p=a) shall delete one or more unique chemical substances that contain a listed [hazardous air pollutant](#a-6) not having a CAS number (other than coke oven emissions, mineral fibers, or polycyclic organic matter) upon a showing by the petitioner or on the [Administrator](/usc/42/7602.md?p=a)’s own determination that such unique chemical substances that contain the named chemical of such listed [hazardous air pollutant](#a-6) meet the deletion requirements of [subparagraph (C)](#b-3-C). The [Administrator](/usc/42/7602.md?p=a) must grant or deny a deletion petition prior to promulgating any [emission standards](/usc/42/7602.md?p=k) pursuant to [subsection (d)](#d) applicable to any source [category](/usc/42/1395w–4.md?p=j-1) or subcategory of a listed [hazardous air pollutant](#a-6) without a CAS number listed under [subsection (b)](#b) for which a deletion petition has been filed within 12 months of November 15, 1990.
- (4) **Further information—** If the [Administrator](/usc/42/7602.md?p=a) determines that information on the health or environmental effects of a substance is not sufficient to make a determination required by this subsection, the [Administrator](/usc/42/7602.md?p=a) may use any authority available to the [Administrator](/usc/42/7602.md?p=a) to acquire such information.
- (5) **Test methods—** The [Administrator](/usc/42/7602.md?p=a) may establish, by rule, test measures and other analytic procedures for monitoring and measuring emissions, ambient concentrations, deposition, and bioaccumulation of [hazardous air pollutants](#a-6).
- (6) **Prevention of significant deterioration—** The provisions of part C (prevention of significant deterioration) shall not apply to [pollutants](/usc/42/1397h.md?p=c-4) listed under this section.
- (7) **Lead—** The [Administrator](/usc/42/7602.md?p=a) may not list elemental lead as a [hazardous air pollutant](#a-6) under this subsection.
- (c) **List of source categories—**
- (1) **In general—** Not later than 12 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall publish, and shall from time to time, but no less often than every 8 years, revise, if appropriate, in response to public comment or new information, a list of all [categories](/usc/42/1395w–4.md?p=j-1) and subcategories of [major sources](#a-1) and [area sources](#a-2) (listed under [paragraph (3)](#c-3)) of the [air pollutants](/usc/42/7602.md?p=g) listed pursuant to [subsection (b)](#b). To the extent practicable, the [categories](/usc/42/1395w–4.md?p=j-1) and subcategories listed under this subsection shall be consistent with the list of source [categories](/usc/42/1395w–4.md?p=j-1) established pursuant to [section 7411 of this title](/usc/42/7411.md) and part C. Nothing in the preceding sentence limits the [Administrator](/usc/42/7602.md?p=a)’s authority to establish subcategories under this section, as appropriate.
- (2) **Requirement for emissions standards—** For the [categories](/usc/42/1395w–4.md?p=j-1) and subcategories the [Administrator](/usc/42/7602.md?p=a) lists, the [Administrator](/usc/42/7602.md?p=a) shall establish emissions [standards](/usc/42/1320d.md?p=7) under [subsection (d)](#d), according to the schedule in this subsection and [subsection (e)](#e).
- (3) **Area sources—** The [Administrator](/usc/42/7602.md?p=a) shall list under this subsection each [category](/usc/42/1395w–4.md?p=j-1) or subcategory of [area sources](#a-2) which the [Administrator](/usc/42/7602.md?p=a) finds presents a threat of adverse effects to human health or the environment (by such sources individually or in the aggregate) warranting regulation under this section. The [Administrator](/usc/42/7602.md?p=a) shall, not later than 5 years after November 15, 1990, and pursuant to [subsection (k)(3)(B)](#k-3-B), list, based on actual or estimated aggregate emissions of a listed [pollutant](/usc/42/1397h.md?p=c-4) or [pollutants](/usc/42/1397h.md?p=c-4), sufficient [categories](/usc/42/1395w–4.md?p=j-1) or subcategories of [area sources](#a-2) to ensure that [area sources](#a-2) representing 90 percent of the [area source](#a-2) emissions of the 30 [hazardous air pollutants](#a-6) that present the greatest threat to public health in the largest number of urban areas are subject to regulation under this section. Such regulations shall be promulgated not later than 10 years after November 15, 1990.
- (4) **Previously regulated categories—** The [Administrator](/usc/42/7602.md?p=a) may, in the [Administrator](/usc/42/7602.md?p=a)’s discretion, list any [category](/usc/42/1395w–4.md?p=j-1) or subcategory of sources previously regulated under this section as in effect before November 15, 1990.
- (5) **Additional categories—** In addition to those [categories](/usc/42/1395w–4.md?p=j-1) and subcategories of sources listed for regulation pursuant to paragraphs [(1)](#c-1) and [(3)](#c-3), the [Administrator](/usc/42/7602.md?p=a) may at any time list additional [categories](/usc/42/1395w–4.md?p=j-1) and subcategories of sources of [hazardous air pollutants](#a-6) according to the same criteria for listing applicable under such paragraphs. In the case of source [categories](/usc/42/1395w–4.md?p=j-1) and subcategories listed after publication of the initial list required under paragraph [(1)](#c-1) or [(3)](#c-3), [emission standards](/usc/42/7602.md?p=k) under [subsection (d)](#d) for the [category](/usc/42/1395w–4.md?p=j-1) or subcategory shall be promulgated within 10 years after November 15, 1990, or within 2 years after the date on which such [category](/usc/42/1395w–4.md?p=j-1) or subcategory is listed, whichever is later.
- (6) **Specific pollutants—** With respect to alkylated lead compounds, polycyclic organic matter, hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8-tetrachlorodibenzofurans and 2,3,7,8-tetrachlorodibenzo-p-dioxin, the [Administrator](/usc/42/7602.md?p=a) shall, not later than 5 years after November 15, 1990, list [categories](/usc/42/1395w–4.md?p=j-1) and subcategories of sources assuring that sources accounting for not less than 90 per centum of the aggregate emissions of each such [pollutant](/usc/42/1397h.md?p=c-4) are subject to [standards](/usc/42/1320d.md?p=7) under subsection [(d)(2)](#d-2) or [(d)(4)](#d-4). Such [standards](/usc/42/1320d.md?p=7) shall be promulgated not later than 10 years after November 15, 1990. This paragraph shall not be construed to require the [Administrator](/usc/42/7602.md?p=a) to promulgate [standards](/usc/42/1320d.md?p=7) for such [pollutants](/usc/42/1397h.md?p=c-4) emitted by [electric utility steam generating units](#a-8).
- (7) **Research facilities—** The [Administrator](/usc/42/7602.md?p=a) shall establish a separate [category](/usc/42/1395w–4.md?p=j-1) covering research or [laboratory](/usc/42/300jj.md?p=10) [facilities](/usc/42/11049.md?p=4), as necessary to assure the equitable [treatment](/usc/42/11851.md?p=11) of such [facilities](/usc/42/11049.md?p=4). For purposes of this section, “research or [laboratory](/usc/42/300jj.md?p=10) [facility](/usc/42/11049.md?p=4)” means any [stationary source](#r-2-C) whose primary purpose is to conduct research and development into new processes and products, where such source is operated under the close supervision of technically trained personnel and is not engaged in the [manufacture](/usc/42/300aa–33.md?p=3) of products for commercial sale in [commerce](/usc/42/6311.md?p=7), except in a de minimis manner.
- (8) **Boat manufacturing—** When establishing emissions [standards](/usc/42/1320d.md?p=7) for styrene, the [Administrator](/usc/42/7602.md?p=a) shall list boat manufacturing as a separate subcategory unless the [Administrator](/usc/42/7602.md?p=a) finds that such listing would be inconsistent with the goals and requirements of this chapter.
- (9) **Deletions from the list—**
- (A) Where the sole reason for the inclusion of a source [category](/usc/42/1395w–4.md?p=j-1) on the list required under this subsection is the emission of a unique chemical substance, the [Administrator](/usc/42/7602.md?p=a) shall delete the source [category](/usc/42/1395w–4.md?p=j-1) from the list if it is appropriate because of action taken under either subparagraphs [(C)](#b-3-C) or [(D)](#b-3-D) of subsection (b)(3).
- (B) The [Administrator](/usc/42/7602.md?p=a) may delete any source [category](/usc/42/1395w–4.md?p=j-1) from the list under this subsection, on petition of any [person](/usc/42/7602.md?p=e) or on the [Administrator](/usc/42/7602.md?p=a)’s own motion, whenever the [Administrator](/usc/42/7602.md?p=a) makes the following determination or determinations, as applicable:
- (i) In the case of [hazardous air pollutants](#a-6) emitted by sources in the [category](/usc/42/1395w–4.md?p=j-1) that may result in cancer in humans, a determination that no source in the [category](/usc/42/1395w–4.md?p=j-1) (or group of sources in the case of [area sources](#a-2)) emits such [hazardous air pollutants](#a-6) in quantities which may [cause](/usc/42/9908.md?p=c-2) a lifetime risk of cancer greater than one in one million to the individual in the population who is most exposed to emissions of such [pollutants](/usc/42/1397h.md?p=c-4) from the source (or group of sources in the case of [area sources](#a-2)).
- (ii) In the case of [hazardous air pollutants](#a-6) that may result in adverse health effects in humans other than cancer or [adverse environmental effects](#a-7), a determination that emissions from no source in the [category](/usc/42/1395w–4.md?p=j-1) or subcategory concerned (or group of sources in the case of [area sources](#a-2)) exceed a level which is adequate to protect public health with an ample margin of safety and no [adverse environmental effect](#a-7) will result from emissions from any source (or from a group of sources in the case of [area sources](#a-2)).
The [Administrator](/usc/42/7602.md?p=a) shall grant or deny a petition under this paragraph within 1 year after the petition is filed.
- (d) **Emission standards—**
- (1) **In general—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations establishing [emission standards](/usc/42/7602.md?p=k) for each [category](/usc/42/1395w–4.md?p=j-1) or subcategory of [major sources](#a-1) and [area sources](#a-2) of [hazardous air pollutants](#a-6) listed for regulation pursuant to [subsection (c)](#c) in accordance with the schedules provided in subsections [(c)](#c) and [(e)](#e). The [Administrator](/usc/42/7602.md?p=a) may distinguish among classes, types, and sizes of sources within a [category](/usc/42/1395w–4.md?p=j-1) or subcategory in establishing such [standards](/usc/42/1320d.md?p=7) except that, there shall be no delay in the compliance date for any [standard](/usc/42/1320d.md?p=7) applicable to any source under [subsection (i)](#i) as the result of the authority provided by this sentence.
- (2) **Standards and methods—** Emissions [standards](/usc/42/1320d.md?p=7) promulgated under this subsection and applicable to new or [existing sources](#a-10) of [hazardous air pollutants](#a-6) shall require the maximum degree of reduction in emissions of the [hazardous air pollutants](#a-6) subject to this section (including a prohibition on such emissions, where achievable) that the [Administrator](/usc/42/7602.md?p=a), taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and [energy](/usc/42/6311.md?p=7) requirements, determines is achievable for new or [existing sources](#a-10) in the [category](/usc/42/1395w–4.md?p=j-1) or subcategory to which such [emission standard](/usc/42/7602.md?p=k) applies, through application of measures, processes, methods, systems or techniques including, but not limited to, measures which—
- (A) reduce the volume of, or eliminate emissions of, such [pollutants](/usc/42/1397h.md?p=c-4) through process changes, substitution of materials or other [modifications](/usc/42/7501.md?p=4),
- (B) enclose systems or processes to eliminate emissions,
- (C) collect, capture or treat such [pollutants](/usc/42/1397h.md?p=c-4) when released from a process, stack, storage or fugitive emissions point,
- (D) are design, equipment, work practice, or operational [standards](/usc/42/1320d.md?p=7) (including requirements for operator [training](/usc/42/285e–2.md?p=b-2) or certification) as provided in [subsection (h)](#h), or
- (E) are a combination of the above.
None of the measures described in [subparagraphs (A) through (D)](#d-2-A..d-2-D) shall, consistent with the provisions of [section 7414(c) of this title](/usc/42/7414.md?p=c), in any way compromise any [United States](/usc/42/403.md?p=k) patent or [United States](/usc/42/403.md?p=k) trademark right, or any confidential business information, or any trade secret or any other intellectual property right.
- (3) **New and existing sources—** The maximum degree of reduction in emissions that is deemed achievable for [new sources](#a-4) in a [category](/usc/42/1395w–4.md?p=j-1) or subcategory shall not be less stringent than the emission control that is achieved in practice by the best controlled similar source, as determined by the [Administrator](/usc/42/7602.md?p=a). [Emission standards](/usc/42/7602.md?p=k) promulgated under this subsection for [existing sources](#a-10) in a [category](/usc/42/1395w–4.md?p=j-1) or subcategory may be less stringent than [standards](/usc/42/1320d.md?p=7) for [new sources](#a-4) in the same [category](/usc/42/1395w–4.md?p=j-1) or subcategory but shall not be less stringent, and may be more stringent than—
- (A) the average [emission limitation](/usc/42/7602.md?p=k) achieved by the best performing 12 percent of the [existing sources](#a-10) (for which the [Administrator](/usc/42/7602.md?p=a) has emissions information), excluding those sources that have, within 18 months before the [emission standard](/usc/42/7602.md?p=k) is proposed or within 30 months before such [standard](/usc/42/1320d.md?p=7) is promulgated, whichever is later, first achieved a level of emission rate or emission reduction which complies, or would comply if the source is not subject to such [standard](/usc/42/1320d.md?p=7), with the lowest achievable emission rate (as defined by [section 7501 of this title](/usc/42/7501.md)) applicable to the source [category](/usc/42/1395w–4.md?p=j-1) and prevailing at the time, in the [category](/usc/42/1395w–4.md?p=j-1) or subcategory for [categories](/usc/42/1395w–4.md?p=j-1) and subcategories with 30 or more sources, or
- (B) the average [emission limitation](/usc/42/7602.md?p=k) achieved by the best performing 5 sources (for which the [Administrator](/usc/42/7602.md?p=a) has or could reasonably obtain emissions information) in the [category](/usc/42/1395w–4.md?p=j-1) or subcategory for [categories](/usc/42/1395w–4.md?p=j-1) or subcategories with fewer than 30 sources.
- (4) **Health threshold—** With respect to [pollutants](/usc/42/1397h.md?p=c-4) for which a health threshold has been established, the [Administrator](/usc/42/7602.md?p=a) may consider such threshold level, with an ample margin of safety, when establishing [emission standards](/usc/42/7602.md?p=k) under this subsection.
- (5) **Alternative standard for area sources—** With respect only to [categories](/usc/42/1395w–4.md?p=j-1) and subcategories of [area sources](#a-2) listed pursuant to [subsection (c)](#c), the [Administrator](/usc/42/7602.md?p=a) may, in lieu of the authorities provided in [paragraph (2)](#d-2) and [subsection (f)](#f), elect to promulgate [standards](/usc/42/1320d.md?p=7) or requirements applicable to sources in such [categories](/usc/42/1395w–4.md?p=j-1) or subcategories which provide for the use of generally available control technologies or management [practices](/usc/42/17061.md?p=19) by such sources to reduce emissions of [hazardous air pollutants](#a-6).
- (6) **Review and revision—** The [Administrator](/usc/42/7602.md?p=a) shall review, and revise as necessary (taking into account developments in [practices](/usc/42/17061.md?p=19), processes, and control technologies), [emission standards](/usc/42/7602.md?p=k) promulgated under this section no less often than every 8 years.
- (7) **Other requirements preserved—** No [emission standard](/usc/42/7602.md?p=k) or other requirement promulgated under this section shall be interpreted, construed or applied to diminish or replace the requirements of a more stringent [emission limitation](/usc/42/7602.md?p=k) or other applicable requirement established pursuant to [section 7411 of this title](/usc/42/7411.md), part C or D, or other authority of this chapter or a [standard](/usc/42/1320d.md?p=7) issued under [State authority](/usc/42/6903.md?p=32).
- (8) **Coke ovens—**
- (A) Not later than December 31, 1992, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations establishing [emission standards](/usc/42/7602.md?p=k) under paragraphs (2) and (3) of this subsection for coke oven batteries. In establishing such [standards](/usc/42/1320d.md?p=7), the [Administrator](/usc/42/7602.md?p=a) shall evaluate—
- (i) the use of sodium silicate (or equivalent) luting compounds to prevent door leaks, and other operating [practices](/usc/42/17061.md?p=19) and technologies for their effectiveness in reducing coke oven emissions, and their suitability for use on new and existing coke oven batteries, taking into account costs and reasonable commercial door warranties; and
- (ii) as a basis for [emission standards](/usc/42/7602.md?p=k) under this subsection for new coke oven batteries that begin [construction](/usc/42/7479.md?p=2-C) after the date of proposal of such [standards](/usc/42/1320d.md?p=7), the Jewell design Thompson non-recovery coke oven batteries and other non-recovery coke oven technologies, and other appropriate emission control and coke production technologies, as to their effectiveness in reducing coke oven emissions and their capability for production of steel quality coke.
Such regulations shall require at a minimum that coke oven batteries will not exceed 8 per centum leaking doors, 1 per centum leaking lids, 5 per centum leaking offtakes, and 16 seconds visible emissions per charge, with no exclusion for emissions during the period after the closing of self-sealing oven doors. Notwithstanding [subsection (i)](#i), the compliance date for such [emission standards](/usc/42/7602.md?p=k) for existing coke oven batteries shall be December 31, 1995.
- (B) The [Administrator](/usc/42/7602.md?p=a) shall promulgate work practice regulations under this subsection for coke oven batteries requiring, as appropriate—
- (i) the use of sodium silicate (or equivalent) luting compounds, if the [Administrator](/usc/42/7602.md?p=a) determines that use of sodium silicate is an effective means of emissions control and is achievable, taking into account costs and reasonable commercial warranties for doors and related equipment; and
- (ii) door and jam cleaning [practices](/usc/42/17061.md?p=19).
Notwithstanding [subsection (i)](#i), the compliance date for such work practice regulations for coke oven batteries shall be not later than the date 3 years after November 15, 1990.
- (C) For coke oven batteries electing to qualify for an extension of the compliance date for [standards](/usc/42/1320d.md?p=7) promulgated under [subsection (f)](#f) in accordance with [subsection (i)(8)](#i-8), the [emission standards](/usc/42/7602.md?p=k) under this subsection for coke oven batteries shall require that coke oven batteries not exceed 8 per centum leaking doors, 1 per centum leaking lids, 5 per centum leaking offtakes, and 16 seconds visible emissions per charge, with no exclusion for emissions during the period after the closing of self-sealing doors. Notwithstanding [subsection (i)](#i), the compliance date for such [emission standards](/usc/42/7602.md?p=k) for existing coke oven batteries seeking an extension shall be not later than the date 3 years after November 15, 1990.
- (9) **Sources licensed by the Nuclear Regulatory Commission—** No [standard](/usc/42/1320d.md?p=7) for radionuclide emissions from any [category](/usc/42/1395w–4.md?p=j-1) or subcategory of [facilities](/usc/42/11049.md?p=4) licensed by the Nuclear Regulatory [Commission](/usc/42/2000ff.md?p=1) (or an [Agreement State](/usc/42/2021b.md?p=1)) is required to be promulgated under this section if the [Administrator](/usc/42/7602.md?p=a) determines, by rule, and after consultation with the Nuclear Regulatory [Commission](/usc/42/2000ff.md?p=1), that the regulatory [program](/usc/42/274l–1.md?p=4) established by the Nuclear Regulatory [Commission](/usc/42/2000ff.md?p=1) pursuant to the Atomic Energy Act [[42 U.S.C. 2011](/usc/42/2011.md) et seq.] for such [category](/usc/42/1395w–4.md?p=j-1) or subcategory provides an ample margin of safety to protect the public health. Nothing in this subsection shall preclude or deny the right of any [State](/usc/42/7602.md?p=d) or political subdivision thereof to adopt or enforce any [standard](/usc/42/1320d.md?p=7) or limitation respecting emissions of radionuclides which is more stringent than the [standard](/usc/42/1320d.md?p=7) or limitation in effect under [section 7411 of this title](/usc/42/7411.md) or this section.
- (10) **Effective date—** [Emission standards](/usc/42/7602.md?p=k) or other regulations promulgated under this subsection shall be effective upon promulgation.
- (e) **Schedule for standards and review—**
- (1) **In general—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations establishing [emission standards](/usc/42/7602.md?p=k) for [categories](/usc/42/1395w–4.md?p=j-1) and subcategories of sources initially listed for regulation pursuant to [subsection (c)(1)](#c-1) as expeditiously as practicable, assuring that—
- (A) [emission standards](/usc/42/7602.md?p=k) for not less than 40 [categories](/usc/42/1395w–4.md?p=j-1) and subcategories (not counting coke oven batteries) shall be promulgated not later than 2 years after November 15, 1990;
- (B) [emission standards](/usc/42/7602.md?p=k) for coke oven batteries shall be promulgated not later than December 31, 1992;
- (C) [emission standards](/usc/42/7602.md?p=k) for 25 per centum of the listed [categories](/usc/42/1395w–4.md?p=j-1) and subcategories shall be promulgated not later than 4 years after November 15, 1990;
- (D) [emission standards](/usc/42/7602.md?p=k) for an additional 25 per centum of the listed [categories](/usc/42/1395w–4.md?p=j-1) and subcategories shall be promulgated not later than 7 years after November 15, 1990; and
- (E) [emission standards](/usc/42/7602.md?p=k) for all [categories](/usc/42/1395w–4.md?p=j-1) and subcategories shall be promulgated not later than 10 years after November 15, 1990.
- (2) **Priorities—** In determining priorities for promulgating [standards](/usc/42/1320d.md?p=7) under [subsection (d)](#d), the [Administrator](/usc/42/7602.md?p=a) shall consider—
- (A) the known or anticipated adverse effects of such [pollutants](/usc/42/1397h.md?p=c-4) on public health and the environment;
- (B) the quantity and location of emissions or reasonably anticipated emissions of [hazardous air pollutants](#a-6) that each [category](/usc/42/1395w–4.md?p=j-1) or subcategory will emit; and
- (C) the efficiency of grouping [categories](/usc/42/1395w–4.md?p=j-1) or subcategories according to the [pollutants](/usc/42/1397h.md?p=c-4) emitted, or the processes or technologies used.
- (3) **Published schedule—** Not later than 24 months after November 15, 1990, and after opportunity for comment, the [Administrator](/usc/42/7602.md?p=a) shall publish a schedule establishing a date for the promulgation of [emission standards](/usc/42/7602.md?p=k) for each [category](/usc/42/1395w–4.md?p=j-1) and subcategory of sources listed pursuant to subsection [(c)(1)](#c-1) and [(3)](#c-3) which shall be consistent with the requirements of paragraphs [(1)](#e-1) and [(2)](#e-2). The determination of priorities for the promulgation of [standards](/usc/42/1320d.md?p=7) pursuant to this paragraph is not a rulemaking and shall not be subject to judicial review, except that, failure to promulgate any [standard](/usc/42/1320d.md?p=7) pursuant to the schedule established by this paragraph shall be subject to review under [section 7604 of this title](/usc/42/7604.md).
- (4) **Judicial review—** Notwithstanding [section 7607 of this title](/usc/42/7607.md), no action of the [Administrator](/usc/42/7602.md?p=a) adding a [pollutant](/usc/42/1397h.md?p=c-4) to the list under [subsection (b)](#b) or listing a source [category](/usc/42/1395w–4.md?p=j-1) or subcategory under [subsection (c)](#c) shall be a final agency action subject to judicial review, except that any such action may be reviewed under such [section 7607 of this title](/usc/42/7607.md) when the [Administrator](/usc/42/7602.md?p=a) issues [emission standards](/usc/42/7602.md?p=k) for such [pollutant](/usc/42/1397h.md?p=c-4) or [category](/usc/42/1395w–4.md?p=j-1).
- (5) **Publicly owned treatment works—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate [standards](/usc/42/1320d.md?p=7) pursuant to [subsection (d)](#d) applicable to publicly owned [treatment](/usc/42/11851.md?p=11) works (as defined in title II of the Federal Water Pollution Control Act [[33 U.S.C. 1281](/usc/33/1281.md) et seq.]) not later than 5 years after November 15, 1990.
- (f) **Standard to protect health and environment—**
- (1) **Report—** Not later than 6 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall investigate and report, after consultation with the Surgeon General and after opportunity for public comment, to Congress on—
- (A) methods of calculating the risk to public health remaining, or likely to remain, from sources subject to regulation under this section after the application of [standards](/usc/42/1320d.md?p=7) under [subsection (d)](#d);
- (B) the public health significance of such estimated remaining risk and the technologically and commercially available methods and costs of reducing such risks;
- (C) the actual health effects with respect to [persons](/usc/42/7602.md?p=e) living in the vicinity of sources, any available epidemiological or other health studies, risks presented by background concentrations of [hazardous air pollutants](#a-6), any uncertainties in risk assessment methodology or other health assessment technique, and any negative health or environmental consequences to the community of efforts to reduce such risks; and
- (D) recommendations as to legislation regarding such remaining risk.
- (2) **Emission standards—**
- (A) If Congress does not act on any recommendation submitted under [paragraph (1)](#f-1), the [Administrator](/usc/42/7602.md?p=a) shall, within 8 years after promulgation of [standards](/usc/42/1320d.md?p=7) for each [category](/usc/42/1395w–4.md?p=j-1) or subcategory of sources pursuant to [subsection (d)](#d), promulgate [standards](/usc/42/1320d.md?p=7) for such [category](/usc/42/1395w–4.md?p=j-1) or subcategory if promulgation of such [standards](/usc/42/1320d.md?p=7) is required in order to provide an ample margin of safety to protect public health in accordance with this section (as in effect before November 15, 1990) or to prevent, taking into consideration costs, [energy](/usc/42/6311.md?p=7), safety, and other relevant factors, an [adverse environmental effect](#a-7). [Emission standards](/usc/42/7602.md?p=k) promulgated under this subsection shall provide an ample margin of safety to protect public health in accordance with this section (as in effect before November 15, 1990), unless the [Administrator](/usc/42/7602.md?p=a) determines that a more stringent [standard](/usc/42/1320d.md?p=7) is necessary to prevent, taking into consideration costs, [energy](/usc/42/6311.md?p=7), safety, and other relevant factors, an [adverse environmental effect](#a-7). If [standards](/usc/42/1320d.md?p=7) promulgated pursuant to [subsection (d)](#d) and applicable to a [category](/usc/42/1395w–4.md?p=j-1) or subcategory of sources emitting a [pollutant](/usc/42/1397h.md?p=c-4) (or [pollutants](/usc/42/1397h.md?p=c-4)) classified as a known, probable or possible human carcinogen do not reduce lifetime excess cancer risks to the individual most exposed to emissions from a source in the [category](/usc/42/1395w–4.md?p=j-1) or subcategory to less than one in one million, the [Administrator](/usc/42/7602.md?p=a) shall promulgate [standards](/usc/42/1320d.md?p=7) under this subsection for such source [category](/usc/42/1395w–4.md?p=j-1).
- (B) Nothing in [subparagraph (A)](#f-2-A) or in any other provision of this section shall be construed as affecting, or applying to the [Administrator](/usc/42/7602.md?p=a)’s interpretation of this section, as in effect before November 15, 1990, and set forth in the Federal Register of September 14, 1989 (54 Federal Register 38044).
- (C) The [Administrator](/usc/42/7602.md?p=a) shall determine whether or not to promulgate such [standards](/usc/42/1320d.md?p=7) and, if the [Administrator](/usc/42/7602.md?p=a) decides to promulgate such [standards](/usc/42/1320d.md?p=7), shall promulgate the [standards](/usc/42/1320d.md?p=7) 8 years after promulgation of the [standards](/usc/42/1320d.md?p=7) under [subsection (d)](#d) for each source [category](/usc/42/1395w–4.md?p=j-1) or subcategory concerned. In the case of [categories](/usc/42/1395w–4.md?p=j-1) or subcategories for which [standards](/usc/42/1320d.md?p=7) under [subsection (d)](#d) are required to be promulgated within 2 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall have 9 years after promulgation of the [standards](/usc/42/1320d.md?p=7) under [subsection (d)](#d) to make the determination under the preceding sentence and, if required, to promulgate the [standards](/usc/42/1320d.md?p=7) under this paragraph.
- (3) **Effective date—** Any [emission standard](/usc/42/7602.md?p=k) established pursuant to this subsection shall become effective upon promulgation.
- (4) **Prohibition—** No [air pollutant](/usc/42/7602.md?p=g) to which a [standard](/usc/42/1320d.md?p=7) under this subsection applies may be emitted from any [stationary source](#r-2-C) in [violation](/usc/42/2000e–16a.md?p=c) of such [standard](/usc/42/1320d.md?p=7), except that in the case of an [existing source](#a-10)—
- (A) such [standard](/usc/42/1320d.md?p=7) shall not apply until 90 days after its effective date, and
- (B) the [Administrator](/usc/42/7602.md?p=a) may grant a waiver permitting such source a period of up to 2 years after the effective date of a [standard](/usc/42/1320d.md?p=7) to comply with the [standard](/usc/42/1320d.md?p=7) if the [Administrator](/usc/42/7602.md?p=a) finds that such period is necessary for the installation of controls and that steps will be taken during the period of the waiver to assure that the health of [persons](/usc/42/7602.md?p=e) will be protected from imminent endangerment.
- (5) **Area sources—** The [Administrator](/usc/42/7602.md?p=a) shall not be required to conduct any review under this subsection or promulgate [emission limitations](/usc/42/7602.md?p=k) under this subsection for any [category](/usc/42/1395w–4.md?p=j-1) or subcategory of [area sources](#a-2) that is listed pursuant to [subsection (c)(3)](#c-3) and for which an [emission standard](/usc/42/7602.md?p=k) is promulgated pursuant to [subsection (d)(5)](#d-5).
- (6) **Unique chemical substances—** In establishing [standards](/usc/42/1320d.md?p=7) for the control of unique chemical substances of listed [pollutants](/usc/42/1397h.md?p=c-4) without CAS numbers under this subsection, the [Administrator](/usc/42/7602.md?p=a) shall establish such [standards](/usc/42/1320d.md?p=7) with respect to the health and environmental effects of the substances actually emitted by sources and direct transformation byproducts of such emissions in the [categories](/usc/42/1395w–4.md?p=j-1) and subcategories.
- (g) **Modifications—**
- (1) **Offsets—**
- (A) A physical change in, or change in the method of operation of, a [major source](#a-1) which results in a greater than de minimis increase in actual emissions of a [hazardous air pollutant](#a-6) shall not be considered a [modification](#a-5), if such increase in the quantity of actual emissions of any [hazardous air pollutant](#a-6) from such source will be offset by an equal or greater decrease in the quantity of emissions of another [hazardous air pollutant](#a-6) (or [pollutants](/usc/42/1397h.md?p=c-4)) from such source which is deemed more hazardous, pursuant to guidance issued by the [Administrator](/usc/42/7602.md?p=a) under [subparagraph (B)](#g-1-B). The [owner or operator](#a-9) of such source shall submit a showing to the [Administrator](/usc/42/7602.md?p=a) (or the [State](/usc/42/7602.md?p=d)) that such increase has been offset under the preceding sentence.
- (B) The [Administrator](/usc/42/7602.md?p=a) shall, after notice and opportunity for comment and not later than 18 months after November 15, 1990, publish guidance with respect to implementation of this subsection. Such guidance shall include an identification, to the extent practicable, of the relative [hazard](/usc/42/5165f.md?p=a-3) to human health resulting from emissions to the ambient air of each of the [pollutants](/usc/42/1397h.md?p=c-4) listed under [subsection (b)](#b) sufficient to facilitate the offset showing authorized by [subparagraph (A)](#g-1-A). Such guidance shall not authorize offsets between [pollutants](/usc/42/1397h.md?p=c-4) where the increased [pollutant](/usc/42/1397h.md?p=c-4) (or more than one [pollutant](/usc/42/1397h.md?p=c-4) in a stream of [pollutants](/usc/42/1397h.md?p=c-4)) [causes](/usc/42/9908.md?p=c-2) adverse effects to human health for which no safety threshold for exposure can be determined unless there are corresponding decreases in such types of [pollutant](/usc/42/1397h.md?p=c-4)(s).
- (2) **Construction, reconstruction and modifications—**
- (A) After the effective date of a permit [program](/usc/42/274l–1.md?p=4) under subchapter V in any [State](/usc/42/7602.md?p=d), no [person](/usc/42/7602.md?p=e) may modify a [major source](#a-1) of [hazardous air pollutants](#a-6) in such [State](/usc/42/7602.md?p=d), unless the [Administrator](/usc/42/7602.md?p=a) (or the [State](/usc/42/7602.md?p=d)) determines that the maximum achievable control technology [emission limitation](/usc/42/7602.md?p=k) under this section for [existing sources](#a-10) will be met. Such determination shall be made on a case-by-case basis where no applicable emissions limitations have been established by the [Administrator](/usc/42/7602.md?p=a).
- (B) After the effective date of a permit [program](/usc/42/274l–1.md?p=4) under subchapter V in any [State](/usc/42/7602.md?p=d), no [person](/usc/42/7602.md?p=e) may construct or reconstruct any [major source](#a-1) of [hazardous air pollutants](#a-6), unless the [Administrator](/usc/42/7602.md?p=a) (or the [State](/usc/42/7602.md?p=d)) determines that the maximum achievable control technology [emission limitation](/usc/42/7602.md?p=k) under this section for [new sources](#a-4) will be met. Such determination shall be made on a case-by-case basis where no applicable [emission limitations](/usc/42/7602.md?p=k) have been established by the [Administrator](/usc/42/7602.md?p=a).
- (3) **Procedures for modifications—** The [Administrator](/usc/42/7602.md?p=a) (or the [State](/usc/42/7602.md?p=d)) shall establish reasonable procedures for assuring that the requirements applying to [modifications](/usc/42/7501.md?p=4) under this section are reflected in the permit.
- (h) **Work practice standards and other requirements—**
- (1) **In general—** For purposes of this section, if it is not feasible in the judgment of the [Administrator](/usc/42/7602.md?p=a) to prescribe or enforce an [emission standard](/usc/42/7602.md?p=k) for control of a [hazardous air pollutant](#a-6) or [pollutants](/usc/42/1397h.md?p=c-4), the [Administrator](/usc/42/7602.md?p=a) may, in lieu thereof, promulgate a design, equipment, work practice, or operational [standard](/usc/42/1320d.md?p=7), or combination thereof, which in the [Administrator](/usc/42/7602.md?p=a)’s judgment is consistent with the provisions of subsection [(d)](#d) or [(f)](#f). In the event the [Administrator](/usc/42/7602.md?p=a) promulgates a design or equipment [standard](/usc/42/1320d.md?p=7) under this subsection, the [Administrator](/usc/42/7602.md?p=a) shall include as part of such [standard](/usc/42/1320d.md?p=7) such requirements as will assure the proper operation and maintenance of any such element of design or equipment.
- (2) **Definition—** For the purpose of this subsection, the phrase “not feasible to prescribe or enforce an [emission standard](/usc/42/7602.md?p=k)” means any situation in which the [Administrator](/usc/42/7602.md?p=a) determines that—
- (A) a [hazardous air pollutant](#a-6) or [pollutants](/usc/42/1397h.md?p=c-4) cannot be emitted through a conveyance designed and constructed to emit or capture such [pollutant](/usc/42/1397h.md?p=c-4), or that any requirement for, or use of, such a conveyance would be inconsistent with any Federal, [State](/usc/42/7602.md?p=d) or local law, or
- (B) the application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations.
- (3) **Alternative standard—** If after notice and opportunity for comment, the [owner or operator](#a-9) of any source establishes to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that an alternative [means of emission limitation](/usc/42/7602.md?p=m) will achieve a reduction in emissions of any [air pollutant](/usc/42/7602.md?p=g) at least equivalent to the reduction in emissions of such [pollutant](/usc/42/1397h.md?p=c-4) achieved under the requirements of [paragraph (1)](#h-1), the [Administrator](/usc/42/7602.md?p=a) shall permit the use of such alternative by the source for purposes of compliance with this section with respect to such [pollutant](/usc/42/1397h.md?p=c-4).
- (4) **Numerical standard required—** Any [standard](/usc/42/1320d.md?p=7) promulgated under [paragraph (1)](#h-1) shall be promulgated in terms of an [emission standard](/usc/42/7602.md?p=k) whenever it is feasible to promulgate and enforce a [standard](/usc/42/1320d.md?p=7) in such terms.
- (i) **Schedule for compliance—**
- (1) **Preconstruction and operating requirements—** After the effective date of any [emission standard](/usc/42/7602.md?p=k), limitation, or regulation under subsection [(d)](#d), [(f)](#f) or [(h)](#h), no [person](/usc/42/7602.md?p=e) may construct any new [major source](#a-1) or reconstruct any existing [major source](#a-1) subject to such [emission standard](/usc/42/7602.md?p=k), regulation or limitation unless the [Administrator](/usc/42/7602.md?p=a) (or a [State](/usc/42/7602.md?p=d) with a permit [program](/usc/42/274l–1.md?p=4) approved under subchapter V) determines that such source, if properly constructed, reconstructed and operated, will comply with the [standard](/usc/42/1320d.md?p=7), regulation or limitation.
- (2) **Special rule—** Notwithstanding the requirements of [paragraph (1)](#i-1), a [new source](#a-4) which commences [construction](/usc/42/7479.md?p=2-C) or reconstruction after a [standard](/usc/42/1320d.md?p=7), limitation or regulation applicable to such source is proposed and before such [standard](/usc/42/1320d.md?p=7), limitation or regulation is promulgated shall not be required to comply with such promulgated [standard](/usc/42/1320d.md?p=7) until the date 3 years after the date of promulgation if—
- (A) the promulgated [standard](/usc/42/1320d.md?p=7), limitation or regulation is more stringent than the [standard](/usc/42/1320d.md?p=7), limitation or regulation proposed; and
- (B) the source complies with the [standard](/usc/42/1320d.md?p=7), limitation, or regulation as proposed during the 3-year period immediately after promulgation.
- (3) **Compliance schedule for existing sources—**
- (A) After the effective date of any emissions [standard](/usc/42/1320d.md?p=7), limitation or regulation promulgated under this section and applicable to a source, no [person](/usc/42/7602.md?p=e) may operate such source in [violation](/usc/42/2000e–16a.md?p=c) of such [standard](/usc/42/1320d.md?p=7), limitation or regulation except, in the case of an [existing source](#a-10), the [Administrator](/usc/42/7602.md?p=a) shall establish a compliance date or dates for each [category](/usc/42/1395w–4.md?p=j-1) or subcategory of [existing sources](#a-10), which shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the effective date of such [standard](/usc/42/1320d.md?p=7), except as provided in [subparagraph (B)](#i-3-B) and [paragraphs (4) through (8)](#i-4..i-8).
- (B) The [Administrator](/usc/42/7602.md?p=a) (or a [State](/usc/42/7602.md?p=d) with a [program](/usc/42/274l–1.md?p=4) approved under subchapter V) may issue a permit that grants an extension permitting an [existing source](#a-10) up to 1 additional year to comply with [standards](/usc/42/1320d.md?p=7) under [subsection (d)](#d) if such additional period is necessary for the installation of controls. An additional extension of up to 3 years may be added for mining waste operations, if the 4-year compliance time is insufficient to dry and cover mining waste in order to reduce emissions of any [pollutant](/usc/42/1397h.md?p=c-4) listed under [subsection (b)](#b).
- (4) **Presidential exemption—** The President may exempt any [stationary source](#r-2-C) from compliance with any [standard](/usc/42/1320d.md?p=7) or limitation under this section for a period of not more than 2 years if the President determines that the technology to implement such [standard](/usc/42/1320d.md?p=7) is not available and that it is in the national security interests of the [United States](/usc/42/403.md?p=k) to do so. An exemption under this paragraph may be extended for 1 or more additional periods, each period not to exceed 2 years. The President shall report to Congress with respect to each exemption (or extension thereof) made under this paragraph.
- (5) **Early reduction—**
- (A) The [Administrator](/usc/42/7602.md?p=a) (or a [State](/usc/42/7602.md?p=d) acting pursuant to a permit [program](/usc/42/274l–1.md?p=4) approved under subchapter V) shall issue a permit allowing an [existing source](#a-10), for which the [owner or operator](#a-9) demonstrates that the source has achieved a reduction of 90 per centum or more in emissions of [hazardous air pollutants](#a-6) (95 per centum in the case of [hazardous air pollutants](#a-6) which are particulates) from the source, to meet an alternative [emission limitation](/usc/42/7602.md?p=k) reflecting such reduction in lieu of an [emission limitation](/usc/42/7602.md?p=k) promulgated under [subsection (d)](#d) for a period of 6 years from the compliance date for the otherwise applicable [standard](/usc/42/1320d.md?p=7), provided that such reduction is achieved before the otherwise applicable [standard](/usc/42/1320d.md?p=7) under [subsection (d)](#d) is first proposed. Nothing in this paragraph shall preclude a [State](/usc/42/7602.md?p=d) from requiring reductions in excess of those specified in this subparagraph as a condition of granting the extension authorized by the previous sentence.
- (B) An [existing source](#a-10) which achieves the reduction referred to in [subparagraph (A)](#i-5-A) after the proposal of an applicable [standard](/usc/42/1320d.md?p=7) but before January 1, 1994, may qualify under [subparagraph (A)](#i-5-A), if the source makes an enforceable commitment to achieve such reduction before the proposal of the [standard](/usc/42/1320d.md?p=7). Such commitment shall be enforceable to the same extent as a regulation under this section.
- (C) The reduction shall be determined with respect to verifiable and actual emissions in a base year not earlier than calendar year 1987, provided that, there is no evidence that emissions in the base year are artificially or substantially greater than emissions in other years prior to implementation of [emissions reduction](/usc/42/17114.md?p=a-3) measures. The [Administrator](/usc/42/7602.md?p=a) may allow a source to use a baseline year of 1985 or 1986 provided that the source can demonstrate to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that emissions data for the source reflects verifiable data based on information for such source, received by the [Administrator](/usc/42/7602.md?p=a) prior to November 15, 1990, pursuant to an information request issued under [section 7414 of this title](/usc/42/7414.md).
- (D) For each source granted an alternative [emission limitation](/usc/42/7602.md?p=k) under this paragraph there shall be established by a permit issued pursuant to subchapter V an enforceable [emission limitation](/usc/42/7602.md?p=k) for [hazardous air pollutants](#a-6) reflecting the reduction which qualifies the source for an alternative [emission limitation](/usc/42/7602.md?p=k) under this paragraph. An alternative [emission limitation](/usc/42/7602.md?p=k) under this paragraph shall not be available with respect to [standards](/usc/42/1320d.md?p=7) or requirements promulgated pursuant to [subsection (f)](#f) and the [Administrator](/usc/42/7602.md?p=a) shall, for the purpose of determining whether a [standard](/usc/42/1320d.md?p=7) under [subsection (f)](#f) is necessary, review emissions from sources granted an alternative [emission limitation](/usc/42/7602.md?p=k) under this paragraph at the same time that other sources in the [category](/usc/42/1395w–4.md?p=j-1) or subcategory are reviewed.
- (E) With respect to [pollutants](/usc/42/1397h.md?p=c-4) for which high risks of adverse public health effects may be associated with exposure to small quantities including, but not limited to, chlorinated dioxins and furans, the [Administrator](/usc/42/7602.md?p=a) shall by regulation limit the use of offsetting reductions in emissions of other [hazardous air pollutants](#a-6) from the source as counting toward the 90 per centum reduction in such high-risk [pollutants](/usc/42/1397h.md?p=c-4) qualifying for an alternative emissions limitation under this paragraph.
- (6) **Other reductions—** Notwithstanding the requirements of this section, no [existing source](#a-10) that has installed—
- (A) best available control technology (as defined in [section 7479(3) of this title](/usc/42/7479.md?p=3)), or
- (B) technology required to meet a lowest achievable emission rate (as defined in [section 7501 of this title](/usc/42/7501.md)),
prior to the promulgation of a [standard](/usc/42/1320d.md?p=7) under this section applicable to such source and the same [pollutant](/usc/42/1397h.md?p=c-4) (or stream of [pollutants](/usc/42/1397h.md?p=c-4)) controlled pursuant to an action described in subparagraph [(A)](#i-6-A) or [(B)](#i-6-B) shall be required to comply with such [standard](/usc/42/1320d.md?p=7) under this section until the date 5 years after the date on which such installation or reduction has been achieved, as determined by the [Administrator](/usc/42/7602.md?p=a). The [Administrator](/usc/42/7602.md?p=a) may issue such rules and guidance as are necessary to implement this paragraph.
- (7) **Extension for new sources—** A source for which [construction](/usc/42/7479.md?p=2-C) or reconstruction is commenced after the date an [emission standard](/usc/42/7602.md?p=k) applicable to such source is proposed pursuant to [subsection (d)](#d) but before the date an [emission standard](/usc/42/7602.md?p=k) applicable to such source is proposed pursuant to [subsection (f)](#f) shall not be required to comply with the [emission standard](/usc/42/7602.md?p=k) under [subsection (f)](#f) until the date 10 years after the date [construction](/usc/42/7479.md?p=2-C) or reconstruction is commenced.
- (8) **Coke ovens—**
- (A) Any coke oven battery that complies with the [emission limitations](/usc/42/7602.md?p=k) established under [subsection (d)(8)(C)](#d-8-C), [subparagraph (B)](#i-8-B), and [subparagraph (C)](#i-8-C), and complies with the provisions of [subparagraph (E)](#i-8-E), shall not be required to achieve [emission limitations](/usc/42/7602.md?p=k) promulgated under [subsection (f)](#f) until January 1, 2020.
- (B)
- (i) Not later than December 31, 1992, the [Administrator](/usc/42/7602.md?p=a) shall promulgate [emission limitations](/usc/42/7602.md?p=k) for coke oven emissions from coke oven batteries. Notwithstanding paragraph (3) of this subsection, the compliance date for such [emission limitations](/usc/42/7602.md?p=k) for existing coke oven batteries shall be January 1, 1998. Such [emission limitations](/usc/42/7602.md?p=k) shall reflect the lowest achievable emission rate as defined in [section 7501 of this title](/usc/42/7501.md) for a coke oven battery that is rebuilt or a replacement at a coke oven plant for an existing battery. Such [emission limitations](/usc/42/7602.md?p=k) shall be no less stringent than—
- (I) 3 per centum leaking doors (5 per centum leaking doors for six meter batteries);
- (II) 1 per centum leaking lids;
- (III) 4 per centum leaking offtakes; and
- (IV) 16 seconds visible emissions per charge,
with an exclusion for emissions during the period after the closing of self-sealing oven doors (or the total mass emissions equivalent). The rulemaking in which such [emission limitations](/usc/42/7602.md?p=k) are promulgated shall also establish an appropriate measurement methodology for determining compliance with such [emission limitations](/usc/42/7602.md?p=k), and shall establish such [emission limitations](/usc/42/7602.md?p=k) in terms of an equivalent level of mass [emissions reduction](/usc/42/17114.md?p=a-3) from a coke oven battery, unless the [Administrator](/usc/42/7602.md?p=a) finds that such a mass emissions [standard](/usc/42/1320d.md?p=7) would not be practicable or enforceable. Such measurement methodology, to the extent it measures leaking doors, shall take into consideration [alternative test methods](/usc/42/285l–2.md?p=1) that reflect the best technology and [practices](/usc/42/17061.md?p=19) actually applied in the affected industries, and shall assure that the final test methods are consistent with the performance of such best technology and [practices](/usc/42/17061.md?p=19).
- (ii) If the [Administrator](/usc/42/7602.md?p=a) fails to promulgate such [emission limitations](/usc/42/7602.md?p=k) under this subparagraph prior to the effective date of such [emission limitations](/usc/42/7602.md?p=k), the [emission limitations](/usc/42/7602.md?p=k) applicable to coke oven batteries under this subparagraph shall be—
- (I) 3 per centum leaking doors (5 per centum leaking doors for six meter batteries);
- (II) 1 per centum leaking lids;
- (III) 4 per centum leaking offtakes; and
- (IV) 16 seconds visible emissions per charge,
or the total mass emissions equivalent (if the total mass emissions equivalent is determined to be practicable and enforceable), with no exclusion for emissions during the period after the closing of self-sealing oven doors.
- (C) Not later than January 1, 2007, the [Administrator](/usc/42/7602.md?p=a) shall review the [emission limitations](/usc/42/7602.md?p=k) promulgated under [subparagraph (B)](#i-8-B) and revise, as necessary, such [emission limitations](/usc/42/7602.md?p=k) to reflect the lowest achievable emission rate as defined in [section 7501 of this title](/usc/42/7501.md) at the time for a coke oven battery that is rebuilt or a replacement at a coke oven plant for an existing battery. Such [emission limitations](/usc/42/7602.md?p=k) shall be no less stringent than the [emission limitation](/usc/42/7602.md?p=k) promulgated under [subparagraph (B)](#i-8-B). Notwithstanding paragraph (2) of this subsection, the compliance date for such [emission limitations](/usc/42/7602.md?p=k) for existing coke oven batteries shall be January 1, 2010.
- (D) At any time prior to January 1, 1998, the [owner or operator](#a-9) of any coke oven battery may elect to comply with [emission limitations](/usc/42/7602.md?p=k) promulgated under [subsection (f)](#f) by the date such [emission limitations](/usc/42/7602.md?p=k) would otherwise apply to such coke oven battery, in lieu of the [emission limitations](/usc/42/7602.md?p=k) and the compliance dates provided under subparagraphs (B) and (C) of this paragraph. Any such [owner or operator](#a-9) shall be legally bound to comply with such [emission limitations](/usc/42/7602.md?p=k) promulgated under [subsection (f)](#f) with respect to such coke oven battery as of January 1, 2003. If no such [emission limitations](/usc/42/7602.md?p=k) have been promulgated for such coke oven battery, the [Administrator](/usc/42/7602.md?p=a) shall promulgate such [emission limitations](/usc/42/7602.md?p=k) in accordance with [subsection (f)](#f) for such coke oven battery.
- (E) Coke oven batteries qualifying for an extension under [subparagraph (A)](#i-8-A) shall make available not later than January 1, 2000, to the surrounding communities the results of any risk assessment performed by the [Administrator](/usc/42/7602.md?p=a) to determine the appropriate level of any [emission standard](/usc/42/7602.md?p=k) established by the [Administrator](/usc/42/7602.md?p=a) pursuant to [subsection (f)](#f).
- (F) Notwithstanding the provisions of this section, reconstruction of any source of coke oven emissions qualifying for an extension under this paragraph shall not subject such source to [emission limitations](/usc/42/7602.md?p=k) under [subsection (f)](#f) more stringent than those established under subparagraphs [(B)](#i-8-B) and [(C)](#i-8-C) until January 1, 2020. For the purposes of this subparagraph, the term “reconstruction” includes the replacement of existing coke oven battery capacity with new coke oven batteries of comparable or lower capacity and lower potential emissions.
- (j) **Equivalent emission limitation by permit—**
- (1) **Effective date—** The requirements of this subsection shall apply in each [State](/usc/42/7602.md?p=d) beginning on the effective date of a permit [program](/usc/42/274l–1.md?p=4) established pursuant to subchapter V in such [State](/usc/42/7602.md?p=d), but not prior to the date 42 months after November 15, 1990.
- (2) **Failure to promulgate a standard—** In the event that the [Administrator](/usc/42/7602.md?p=a) fails to promulgate a [standard](/usc/42/1320d.md?p=7) for a [category](/usc/42/1395w–4.md?p=j-1) or subcategory of [major sources](#a-1) by the date established pursuant to subsection [(e)(1)](#e-1) and [(3)](#e-3), and beginning 18 months after such date (but not prior to the effective date of a permit [program](/usc/42/274l–1.md?p=4) under subchapter V), the [owner or operator](#a-9) of any [major source](#a-1) in such [category](/usc/42/1395w–4.md?p=j-1) or subcategory shall submit a permit application under [paragraph (3)](#j-3) and such [owner or operator](#a-9) shall also comply with paragraphs [(5)](#j-5) and [(6)](#j-6).
- (3) **Applications—** By the date established by [paragraph (2)](#j-2), the [owner or operator](#a-9) of a [major source](#a-1) subject to this subsection shall file an application for a permit. If the [owner or operator](#a-9) of a source has submitted a timely and complete application for a permit required by this subsection, any failure to have a permit shall not be a [violation](/usc/42/2000e–16a.md?p=c) of [paragraph (2)](#j-2), unless the delay in final action is due to the failure of the applicant to timely submit information required or requested to process the application. The [Administrator](/usc/42/7602.md?p=a) shall not later than 18 months after November 15, 1990, and after notice and opportunity for comment, establish requirements for applications under this subsection including a [standard](/usc/42/1320d.md?p=7) application form and criteria for determining in a timely manner the completeness of applications.
- (4) **Review and approval—** Permit applications submitted under this subsection shall be reviewed and approved or disapproved according to the provisions of [section 7661d of this title](/usc/42/7661d.md). In the event that the [Administrator](/usc/42/7602.md?p=a) (or the [State](/usc/42/7602.md?p=d)) disapproves a permit application submitted under this subsection or determines that the application is incomplete, the applicant shall have up to 6 months to revise the application to meet the objections of the [Administrator](/usc/42/7602.md?p=a) (or the [State](/usc/42/7602.md?p=d)).
- (5) **Emission limitation—** The permit shall be issued pursuant to subchapter V and shall contain [emission limitations](/usc/42/7602.md?p=k) for the [hazardous air pollutants](#a-6) subject to regulation under this section and emitted by the source that the [Administrator](/usc/42/7602.md?p=a) (or the [State](/usc/42/7602.md?p=d)) determines, on a case-by-case basis, to be equivalent to the limitation that would apply to such source if an [emission standard](/usc/42/7602.md?p=k) had been promulgated in a timely manner under [subsection (d)](#d). In the alternative, if the applicable criteria are met, the permit may contain an emissions limitation established according to the provisions of [subsection (i)(5)](#i-5). For purposes of the preceding sentence, the reduction required by [subsection (i)(5)(A)](#i-5-A) shall be achieved by the date on which the relevant [standard](/usc/42/1320d.md?p=7) should have been promulgated under [subsection (d)](#d). No such [pollutant](/usc/42/1397h.md?p=c-4) may be emitted in amounts exceeding an [emission limitation](/usc/42/7602.md?p=k) contained in a permit immediately for [new sources](#a-4) and, as expeditiously as practicable, but not later than the date 3 years after the permit is issued for [existing sources](#a-10) or such other compliance date as would apply under [subsection (i)](#i).
- (6) **Applicability of subsequent standards—** If the [Administrator](/usc/42/7602.md?p=a) promulgates an [emission standard](/usc/42/7602.md?p=k) that is applicable to the [major source](#a-1) prior to the date on which a permit application is approved, the [emission limitation](/usc/42/7602.md?p=k) in the permit shall reflect the promulgated [standard](/usc/42/1320d.md?p=7) rather than the [emission limitation](/usc/42/7602.md?p=k) determined pursuant to [paragraph (5)](#j-5), provided that the source shall have the compliance period provided under [subsection (i)](#i). If the [Administrator](/usc/42/7602.md?p=a) promulgates a [standard](/usc/42/1320d.md?p=7) under [subsection (d)](#d) that would be applicable to the source in lieu of the [emission limitation](/usc/42/7602.md?p=k) established by permit under this subsection after the date on which the permit has been issued, the [Administrator](/usc/42/7602.md?p=a) (or the [State](/usc/42/7602.md?p=d)) shall revise such permit upon the next renewal to reflect the [standard](/usc/42/1320d.md?p=7) promulgated by the [Administrator](/usc/42/7602.md?p=a) providing such source a reasonable time to comply, but no longer than 8 years after such [standard](/usc/42/1320d.md?p=7) is promulgated or 8 years after the date on which the source is first required to comply with the emissions limitation established by [paragraph (5)](#j-5), whichever is earlier.
- (k) **Area source program—**
- (1) **Findings and purpose—** The Congress finds that emissions of [hazardous air pollutants](#a-6) from [area sources](#a-2) may individually, or in the aggregate, present significant risks to public health in urban areas. Considering the large number of [persons](/usc/42/7602.md?p=e) exposed and the risks of carcinogenic and other adverse health effects from [hazardous air pollutants](#a-6), ambient concentrations characteristic of large urban areas should be reduced to levels substantially below those currently experienced. It is the purpose of this subsection to achieve a substantial reduction in emissions of [hazardous air pollutants](#a-6) from [area sources](#a-2) and an equivalent reduction in the public health risks associated with such sources including a reduction of not less than 75 per centum in the incidence of cancer attributable to emissions from such sources.
- (2) **Research program—** The [Administrator](/usc/42/7602.md?p=a) shall, after consultation with [State](/usc/42/7602.md?p=d) and local air pollution control officials, conduct a [program](/usc/42/274l–1.md?p=4) of research with respect to sources of [hazardous air pollutants](#a-6) in urban areas and shall include within such [program](/usc/42/274l–1.md?p=4)—
- (A) ambient monitoring for a broad range of [hazardous air pollutants](#a-6) (including, but not limited to, volatile organic compounds, metals, pesticides and products of incomplete combustion) in a [representative](/usc/42/3058f.md?p=5) number of urban locations;
- (B) analysis to characterize the sources of such pollution with a focus on [area sources](#a-2) and the contribution that such sources make to public health risks from [hazardous air pollutants](#a-6); and
- (C) consideration of atmospheric transformation and other factors which can elevate public health risks from such [pollutants](/usc/42/1397h.md?p=c-4).
Health effects considered under this [program](/usc/42/274l–1.md?p=4) shall include, but not be limited to, carcinogenicity, mutagenicity, teratogenicity, neurotoxicity, reproductive dysfunction and other acute and chronic effects including the role of such [pollutants](/usc/42/1397h.md?p=c-4) as precursors of ozone or acid aerosol formation. The [Administrator](/usc/42/7602.md?p=a) shall report the preliminary results of such research not later than 3 years after November 15, 1990.
- (3) **National strategy—**
- (A) Considering information collected pursuant to the monitoring [program](/usc/42/274l–1.md?p=4) authorized by [paragraph (2)](#k-2), the [Administrator](/usc/42/7602.md?p=a) shall, not later than 5 years after November 15, 1990, and after notice and opportunity for public comment, prepare and transmit to the Congress a comprehensive strategy to control emissions of [hazardous air pollutants](#a-6) from [area sources](#a-2) in urban areas.
- (B) The strategy shall—
- (i) identify not less than 30 [hazardous air pollutants](#a-6) which, as the result of emissions from [area sources](#a-2), present the greatest threat to public health in the largest number of urban areas and that are or will be listed pursuant to [subsection (b)](#b), and
- (ii) identify the source [categories](/usc/42/1395w–4.md?p=j-1) or subcategories emitting such [pollutants](/usc/42/1397h.md?p=c-4) that are or will be listed pursuant to [subsection (c)](#c). When identifying [categories](/usc/42/1395w–4.md?p=j-1) and subcategories of sources under this subparagraph, the [Administrator](/usc/42/7602.md?p=a) shall assure that sources accounting for 90 per centum or more of the aggregate emissions of each of the 30 identified [hazardous air pollutants](#a-6) are subject to [standards](/usc/42/1320d.md?p=7) pursuant to [subsection (d)](#d).
- (C) The strategy shall include a schedule of specific actions to substantially reduce the public health risks posed by the [release](/usc/42/9601.md?p=22) of [hazardous air pollutants](#a-6) from [area sources](#a-2) that will be implemented by the [Administrator](/usc/42/7602.md?p=a) under the authority of this or other laws (including, but not limited to, the Toxic Substances Control Act [[15 U.S.C. 2601](/usc/15/2601.md) et seq.], the Federal Insecticide, Fungicide and Rodenticide Act [[7 U.S.C. 136](/usc/7/136.md) et seq.] and the Resource Conservation and Recovery Act [[42 U.S.C. 6901](/usc/42/6901.md) et seq.]) or by the [States](/usc/42/7602.md?p=d). The strategy shall achieve a reduction in the incidence of cancer attributable to exposure to [hazardous air pollutants](#a-6) emitted by [stationary sources](#r-2-C) of not less than 75 per centum, considering control of emissions of [hazardous air pollutants](#a-6) from all [stationary sources](#r-2-C) and resulting from measures implemented by the [Administrator](/usc/42/7602.md?p=a) or by the [States](/usc/42/7602.md?p=d) under this or other laws.
- (D) The strategy may also identify research needs in monitoring, analytical methodology, modeling or pollution control techniques and recommendations for changes in law that would further the goals and objectives of this subsection.
- (E) Nothing in this subsection shall be interpreted to preclude or delay implementation of actions with respect to [area sources](#a-2) of [hazardous air pollutants](#a-6) under consideration pursuant to this or any other law and that may be promulgated before the strategy is prepared.
- (F) The [Administrator](/usc/42/7602.md?p=a) shall implement the strategy as expeditiously as practicable assuring that all sources are in compliance with all requirements not later than 9 years after November 15, 1990.
- (G) As part of such strategy the [Administrator](/usc/42/7602.md?p=a) shall provide for ambient monitoring and emissions modeling in urban areas as appropriate to demonstrate that the goals and objectives of the strategy are being met.
- (4) **Areawide activities—** In addition to the national urban air toxics strategy authorized by [paragraph (3)](#k-3), the [Administrator](/usc/42/7602.md?p=a) shall also encourage and support areawide strategies developed by [State](/usc/42/7602.md?p=d) or local [air pollution control agencies](/usc/42/7602.md?p=b) that are intended to reduce risks from emissions by [area sources](#a-2) within a particular urban area. From the [funds](/usc/42/12854.md?p=3) available for grants under this section, the [Administrator](/usc/42/7602.md?p=a) shall set aside not less than 10 per centum to support areawide strategies addressing [hazardous air pollutants](#a-6) emitted by [area sources](#a-2) and shall award such [funds](/usc/42/12854.md?p=3) on a demonstration basis to those [States](/usc/42/7602.md?p=d) with innovative and effective strategies. At the request of [State](/usc/42/7602.md?p=d) or local air pollution control officials, the [Administrator](/usc/42/7602.md?p=a) shall prepare guidelines for control technologies or management [practices](/usc/42/17061.md?p=19) which may be applicable to various [categories](/usc/42/1395w–4.md?p=j-1) or subcategories of [area sources](#a-2).
- (5) **Report—** The [Administrator](/usc/42/7602.md?p=a) shall report to the Congress at intervals not later than 8 and 12 years after November 15, 1990, on actions taken under this subsection and other parts of this chapter to reduce the risk to public health posed by the [release](/usc/42/9601.md?p=22) of [hazardous air pollutants](#a-6) from [area sources](#a-2). The reports shall also identify specific metropolitan areas that continue to experience high risks to public health as the result of emissions from [area sources](#a-2).
- (l) **State programs—**
- (1) **In general—** Each [State](/usc/42/7602.md?p=d) may develop and submit to the [Administrator](/usc/42/7602.md?p=a) for approval a [program](/usc/42/274l–1.md?p=4) for the implementation and enforcement (including a review of enforcement delegations previously granted) of [emission standards](/usc/42/7602.md?p=k) and other requirements for [air pollutants](/usc/42/7602.md?p=g) subject to this section or requirements for the prevention and mitigation of [accidental releases](#r-2-A) pursuant to [subsection (r)](#r). A [program](/usc/42/274l–1.md?p=4) submitted by a [State](/usc/42/7602.md?p=d) under this subsection may provide for partial or complete delegation of the [Administrator](/usc/42/7602.md?p=a)’s authorities and responsibilities to implement and enforce emissions [standards](/usc/42/1320d.md?p=7) and prevention requirements but shall not include authority to set [standards](/usc/42/1320d.md?p=7) less stringent than those promulgated by the [Administrator](/usc/42/7602.md?p=a) under this chapter.
- (2) **Guidance—** Not later than 12 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall publish guidance that would be useful to the [States](/usc/42/7602.md?p=d) in developing [programs](/usc/42/274l–1.md?p=4) for submittal under this subsection. The guidance shall also provide for the registration of all [facilities](/usc/42/11049.md?p=4) producing, processing, handling or storing any substance listed pursuant to [subsection (r)](#r) in amounts greater than the threshold quantity. The [Administrator](/usc/42/7602.md?p=a) shall include as an element in such guidance an optional [program](/usc/42/274l–1.md?p=4) begun in 1986 for the review of high-risk point sources of [air pollutants](/usc/42/7602.md?p=g) including, but not limited to, [hazardous air pollutants](#a-6) listed pursuant to [subsection (b)](#b).
- (3) **Technical assistance—** The [Administrator](/usc/42/7602.md?p=a) shall establish and maintain an air toxics clearinghouse and center to provide technical information and assistance to [State](/usc/42/7602.md?p=d) and local agencies and, on a cost recovery basis, to others on control technology, health and ecological risk assessment, risk analysis, ambient monitoring and modeling, and emissions measurement and monitoring. The [Administrator](/usc/42/7602.md?p=a) shall use the authority of [section 7403 of this title](/usc/42/7403.md) to examine methods for preventing, measuring, and controlling emissions and evaluating associated health and ecological risks. Where appropriate, such activity shall be conducted with not-for-profit organizations. The [Administrator](/usc/42/7602.md?p=a) may conduct research on methods for preventing, measuring and controlling emissions and evaluating associated health and environment risks. All information collected under this paragraph shall be available to the public.
- (4) **Grants—** Upon application of a [State](/usc/42/7602.md?p=d), the [Administrator](/usc/42/7602.md?p=a) may make grants, subject to such terms and conditions as the [Administrator](/usc/42/7602.md?p=a) deems appropriate, to such [State](/usc/42/7602.md?p=d) for the purpose of assisting the [State](/usc/42/7602.md?p=d) in developing and implementing a [program](/usc/42/274l–1.md?p=4) for submittal and approval under this subsection. [Programs](/usc/42/274l–1.md?p=4) assisted under this paragraph may include [program](/usc/42/274l–1.md?p=4) elements addressing [air pollutants](/usc/42/7602.md?p=g) or [extremely hazardous substances](/usc/42/11049.md?p=3) other than those specifically subject to this section. Grants under this paragraph may include support for high-risk point source review as provided in [paragraph (2)](#l-2) and support for the development and implementation of areawide [area source](#a-2) [programs](/usc/42/274l–1.md?p=4) pursuant to [subsection (k)](#k).
- (5) **Approval or disapproval—** Not later than 180 days after receiving a [program](/usc/42/274l–1.md?p=4) submitted by a [State](/usc/42/7602.md?p=d), and after notice and opportunity for public comment, the [Administrator](/usc/42/7602.md?p=a) shall either approve or disapprove such [program](/usc/42/274l–1.md?p=4). The [Administrator](/usc/42/7602.md?p=a) shall disapprove any [program](/usc/42/274l–1.md?p=4) submitted by a [State](/usc/42/7602.md?p=d), if the [Administrator](/usc/42/7602.md?p=a) determines that—
- (A) the authorities contained in the [program](/usc/42/274l–1.md?p=4) are not adequate to assure compliance by all sources within the [State](/usc/42/7602.md?p=d) with each applicable [standard](/usc/42/1320d.md?p=7), regulation or requirement established by the [Administrator](/usc/42/7602.md?p=a) under this section;
- (B) adequate authority does not exist, or adequate resources are not available, to implement the [program](/usc/42/274l–1.md?p=4);
- (C) the schedule for implementing the [program](/usc/42/274l–1.md?p=4) and assuring compliance by affected sources is not sufficiently expeditious; or
- (D) the [program](/usc/42/274l–1.md?p=4) is otherwise not in compliance with the guidance issued by the [Administrator](/usc/42/7602.md?p=a) under [paragraph (2)](#l-2) or is not likely to satisfy, in whole or in part, the objectives of this chapter.
If the [Administrator](/usc/42/7602.md?p=a) disapproves a [State](/usc/42/7602.md?p=d) [program](/usc/42/274l–1.md?p=4), the [Administrator](/usc/42/7602.md?p=a) shall notify the [State](/usc/42/7602.md?p=d) of any revisions or [modifications](/usc/42/7501.md?p=4) necessary to obtain approval. The [State](/usc/42/7602.md?p=d) may revise and resubmit the proposed [program](/usc/42/274l–1.md?p=4) for review and approval pursuant to the provisions of this subsection.
- (6) **Withdrawal—** Whenever the [Administrator](/usc/42/7602.md?p=a) determines, after public hearing, that a [State](/usc/42/7602.md?p=d) is not administering and enforcing a [program](/usc/42/274l–1.md?p=4) approved pursuant to this subsection in accordance with the guidance published pursuant to [paragraph (2)](#l-2) or the requirements of [paragraph (5)](#l-5), the [Administrator](/usc/42/7602.md?p=a) shall so notify the [State](/usc/42/7602.md?p=d) and, if action which will assure prompt compliance is not taken within 90 days, the [Administrator](/usc/42/7602.md?p=a) shall withdraw approval of the [program](/usc/42/274l–1.md?p=4). The [Administrator](/usc/42/7602.md?p=a) shall not withdraw approval of any [program](/usc/42/274l–1.md?p=4) unless the [State](/usc/42/7602.md?p=d) shall have been notified and the reasons for withdrawal shall have been stated in writing and made public.
- (7) **Authority to enforce—** Nothing in this subsection shall prohibit the [Administrator](/usc/42/7602.md?p=a) from enforcing any applicable [emission standard](/usc/42/7602.md?p=k) or requirement under this section.
- (8) **Local program—** The [Administrator](/usc/42/7602.md?p=a) may, after notice and opportunity for public comment, approve a [program](/usc/42/274l–1.md?p=4) developed and submitted by a local [air pollution control agency](/usc/42/7602.md?p=b) (after consultation with the [State](/usc/42/7602.md?p=d)) pursuant to this subsection and any such agency implementing an approved [program](/usc/42/274l–1.md?p=4) may take any action authorized to be taken by a [State](/usc/42/7602.md?p=d) under this section.
- (9) **Permit authority—** Nothing in this subsection shall affect the authorities and obligations of the [Administrator](/usc/42/7602.md?p=a) or the [State](/usc/42/7602.md?p=d) under subchapter V.
- (m) **Atmospheric deposition to Great Lakes and coastal waters—**
- (1) **Deposition assessment—** The [Administrator](/usc/42/7602.md?p=a), in cooperation with the Under [Secretary](/usc/42/242q–4.md?p=2) of [Commerce](/usc/42/6311.md?p=7) for Oceans and Atmosphere, shall conduct a [program](/usc/42/274l–1.md?p=4) to identify and assess the extent of atmospheric deposition of [hazardous air pollutants](#a-6) (and in the discretion of the [Administrator](/usc/42/7602.md?p=a), other [air pollutants](/usc/42/7602.md?p=g)) to the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters. As part of such [program](/usc/42/274l–1.md?p=4), the [Administrator](/usc/42/7602.md?p=a) shall—
- (A) monitor the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters, including monitoring of the Great Lakes through the monitoring network established pursuant to paragraph (2) of this subsection and designing and deploying an atmospheric monitoring network for coastal waters pursuant to [paragraph (4)](#m-4);
- (B) investigate the sources and deposition rates of atmospheric deposition of [air pollutants](/usc/42/7602.md?p=g) (and their atmospheric transformation precursors);
- (C) conduct research to develop and improve monitoring methods and to determine the relative contribution of atmospheric [pollutants](/usc/42/1397h.md?p=c-4) to total pollution loadings to the Great Lakes, the Chesapeake Bay, Lake Champlain, and coastal waters;
- (D) evaluate any adverse effects to public health or the environment caused by such deposition (including effects resulting from indirect exposure pathways) and assess the contribution of such deposition to [violations](/usc/42/2000e–16a.md?p=c) of water quality [standards](/usc/42/1320d.md?p=7) established pursuant to the Federal Water Pollution Control Act [[33 U.S.C. 1251](/usc/33/1251.md) et seq.] and drinking water [standards](/usc/42/1320d.md?p=7) established pursuant to the Safe Drinking Water Act [[42 U.S.C. 300f](/usc/42/300f.md) et seq.]; and
- (E) sample for such [pollutants](/usc/42/1397h.md?p=c-4) in biota, fish, and wildlife of the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters and characterize the sources of such [pollutants](/usc/42/1397h.md?p=c-4).
- (2) **Great Lakes monitoring network—** The [Administrator](/usc/42/7602.md?p=a) shall oversee, in accordance with Annex 15 of the Great Lakes Water Quality [Agreement](/usc/42/1320b–8.md?p=a-3-A), the establishment and operation of a Great Lakes atmospheric deposition network to monitor atmospheric deposition of [hazardous air pollutants](#a-6) (and in the [Administrator](/usc/42/7602.md?p=a)’s discretion, other [air pollutants](/usc/42/7602.md?p=g)) to the Great Lakes.
- (A) As part of the network provided for in this paragraph, and not later than December 31, 1991, the [Administrator](/usc/42/7602.md?p=a) shall establish in each of the 5 Great Lakes at least 1 [facility](/usc/42/11049.md?p=4) capable of monitoring the atmospheric deposition of [hazardous air pollutants](#a-6) in both dry and wet conditions.
- (B) The [Administrator](/usc/42/7602.md?p=a) shall use the data provided by the network to identify and track the movement of [hazardous air pollutants](#a-6) through the Great Lakes, to determine the portion of water pollution loadings attributable to atmospheric deposition of such [pollutants](/usc/42/1397h.md?p=c-4), and to support development of remedial action plans and other management plans as required by the Great Lakes Water Quality [Agreement](/usc/42/1320b–8.md?p=a-3-A).
- (C) The [Administrator](/usc/42/7602.md?p=a) shall assure that the data collected by the Great Lakes atmospheric deposition monitoring network is in a format compatible with databases sponsored by the International Joint [Commission](/usc/42/2000ff.md?p=1), Canada, and the several [States](/usc/42/7602.md?p=d) of the Great Lakes region.
- (3) **Monitoring for the Chesapeake Bay and Lake Champlain—** The [Administrator](/usc/42/7602.md?p=a) shall establish at the Chesapeake Bay and Lake Champlain atmospheric deposition stations to monitor deposition of [hazardous air pollutants](#a-6) (and in the [Administrator](/usc/42/7602.md?p=a)’s discretion, other [air pollutants](/usc/42/7602.md?p=g)) within the Chesapeake Bay and Lake Champlain watersheds. The [Administrator](/usc/42/7602.md?p=a) shall determine the role of air deposition in the [pollutant](/usc/42/1397h.md?p=c-4) loadings of the Chesapeake Bay and Lake Champlain, investigate the sources of [air pollutants](/usc/42/7602.md?p=g) deposited in the watersheds, evaluate the health and environmental effects of such [pollutant](/usc/42/1397h.md?p=c-4) loadings, and shall sample such [pollutants](/usc/42/1397h.md?p=c-4) in biota, fish and wildlife within the watersheds, as necessary to characterize such effects.
- (4) **Monitoring for coastal waters—** The [Administrator](/usc/42/7602.md?p=a) shall design and deploy atmospheric deposition monitoring networks for coastal waters and their watersheds and shall make any information collected through such networks available to the public. As part of this effort, the [Administrator](/usc/42/7602.md?p=a) shall conduct research to develop and improve deposition monitoring methods, and to determine the relative contribution of atmospheric [pollutants](/usc/42/1397h.md?p=c-4) to [pollutant](/usc/42/1397h.md?p=c-4) loadings. For purposes of this subsection, “coastal waters” shall mean estuaries selected pursuant to section 320(a)(2)(A) of the Federal Water Pollution Control Act [[33 U.S.C. 1330(a)(2)(A)](/usc/33/1330.md?p=a-2-A)] or listed pursuant to section 320(a)(2)(B) of such Act [[33 U.S.C. 1330(a)(2)(B)](/usc/33/1330.md?p=a-2-B)] or estuarine research reserves designated pursuant to [section 1461 of title 16](/usc/16/1461.md).
- (5) **Report—** Within 3 years of November 15, 1990, and biennially thereafter, the [Administrator](/usc/42/7602.md?p=a), in cooperation with the Under [Secretary](/usc/42/242q–4.md?p=2) of [Commerce](/usc/42/6311.md?p=7) for Oceans and Atmosphere, shall submit to the Congress a report on the results of any monitoring, studies, and investigations conducted pursuant to this subsection. Such report shall include, at a minimum, an assessment of—
- (A) the contribution of atmospheric deposition to pollution loadings in the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters;
- (B) the environmental and public health effects of any pollution which is attributable to atmospheric deposition to the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters;
- (C) the source or sources of any pollution to the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters which is attributable to atmospheric deposition;
- (D) whether pollution loadings in the Great Lakes, the Chesapeake Bay, Lake Champlain or coastal waters [cause](/usc/42/9908.md?p=c-2) or contribute to exceedances of drinking water [standards](/usc/42/1320d.md?p=7) pursuant to the Safe Drinking Water Act [[42 U.S.C. 300f](/usc/42/300f.md) et seq.] or water quality [standards](/usc/42/1320d.md?p=7) pursuant to the Federal Water Pollution Control Act [[33 U.S.C. 1251](/usc/33/1251.md) et seq.] or, with respect to the Great Lakes, exceedances of the specific objectives of the Great Lakes Water Quality [Agreement](/usc/42/1320b–8.md?p=a-3-A); and
- (E) a description of any revisions of the requirements, [standards](/usc/42/1320d.md?p=7), and limitations pursuant to this chapter and other applicable Federal laws as are necessary to assure protection of human health and the environment.
- (6) **Additional regulation—** As part of the report to Congress, the [Administrator](/usc/42/7602.md?p=a) shall determine whether the other provisions of this section are adequate to prevent serious adverse effects to public health and serious or widespread environmental effects, including such effects resulting from indirect exposure pathways, associated with atmospheric deposition to the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters of [hazardous air pollutants](#a-6) (and their atmospheric transformation products). The [Administrator](/usc/42/7602.md?p=a) shall take into consideration the tendency of such [pollutants](/usc/42/1397h.md?p=c-4) to bioaccumulate. Within 5 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall, based on such report and determination, promulgate, in accordance with this section, such further [emission standards](/usc/42/7602.md?p=k) or control measures as may be necessary and appropriate to prevent such effects, including effects due to bioaccumulation and indirect exposure pathways. Any requirements promulgated pursuant to this paragraph with respect to coastal waters shall only apply to the coastal waters of the [States](/usc/42/7602.md?p=d) which are subject to [section 7627(a) of this title](/usc/42/7627.md?p=a).
- (n) **Other provisions—**
- (1) **Electric utility steam generating units—**
- (A) The [Administrator](/usc/42/7602.md?p=a) shall perform a study of the [hazards](/usc/42/5165f.md?p=a-3) to public health reasonably anticipated to occur as a result of emissions by [electric utility steam generating units](#a-8) of [pollutants](/usc/42/1397h.md?p=c-4) listed under [subsection (b)](#b) after imposition of the requirements of this chapter. The [Administrator](/usc/42/7602.md?p=a) shall report the results of this study to the Congress within 3 years after November 15, 1990. The [Administrator](/usc/42/7602.md?p=a) shall develop and describe in the [Administrator](/usc/42/7602.md?p=a)’s report to Congress alternative control strategies for emissions which may warrant regulation under this section. The [Administrator](/usc/42/7602.md?p=a) shall regulate [electric utility steam generating units](#a-8) under this section, if the [Administrator](/usc/42/7602.md?p=a) finds such regulation is appropriate and necessary after considering the results of the study required by this subparagraph.
- (B) The [Administrator](/usc/42/7602.md?p=a) shall conduct, and transmit to the Congress not later than 4 years after November 15, 1990, a study of mercury emissions from [electric utility steam generating units](#a-8), municipal waste combustion [units](/usc/42/1395w–114b.md?p=g-2), and other sources, including [area sources](#a-2). Such study shall consider the rate and mass of such emissions, the health and environmental effects of such emissions, technologies which are available to control such emissions, and the costs of such technologies.
- (C) The National Institute of Environmental Health Sciences shall conduct, and transmit to the Congress not later than 3 years after November 15, 1990, a study to determine the threshold level of mercury exposure below which adverse human health effects are not expected to occur. Such study shall include a threshold for mercury concentrations in the tissue of fish which may be consumed (including consumption by sensitive populations) without adverse effects to public health.
- (2) **Coke oven production technology study—**
- (A) The [Secretary](/usc/42/242q–4.md?p=2) of the Department of [Energy](/usc/42/6311.md?p=7) and the [Administrator](/usc/42/7602.md?p=a) shall jointly undertake a 6-year study to assess coke oven production emission control technologies and to assist in the development and commercialization of technically practicable and economically viable control technologies which have the potential to significantly reduce emissions of [hazardous air pollutants](#a-6) from coke oven production [facilities](/usc/42/11049.md?p=4). In identifying control technologies, the [Secretary](/usc/42/242q–4.md?p=2) and the [Administrator](/usc/42/7602.md?p=a) shall consider the range of existing coke oven operations and battery design and the availability of sources of materials for such coke ovens as well as alternatives to existing coke oven production design.
- (B) The [Secretary](/usc/42/242q–4.md?p=2) and the [Administrator](/usc/42/7602.md?p=a) are authorized to enter into [agreements](/usc/42/1320b–8.md?p=a-3-A) with [persons](/usc/42/7602.md?p=e) who propose to develop, install and operate coke production emission control technologies which have the potential for significant [emissions reductions](/usc/42/17114.md?p=a-3) of [hazardous air pollutants](#a-6) provided that Federal [funds](/usc/42/12854.md?p=3) shall not exceed 50 per centum of the cost of any [project](/usc/42/11360.md?p=20) assisted pursuant to this paragraph.
- (C) On completion of the study, the [Secretary](/usc/42/242q–4.md?p=2) shall submit to Congress a report on the results of the study and shall make recommendations to the [Administrator](/usc/42/7602.md?p=a) identifying practicable and economically viable control technologies for coke oven production [facilities](/usc/42/11049.md?p=4) to reduce residual risks remaining after implementation of the [standard](/usc/42/1320d.md?p=7) under [subsection (d)](#d).
- (D) There are authorized to be appropriated $5,000,000 for each of the fiscal years 1992 through 1997 to carry out the [program](/usc/42/274l–1.md?p=4) authorized by this paragraph.
- (3) **Publicly owned treatment works—** The [Administrator](/usc/42/7602.md?p=a) may conduct, in cooperation with the [owners](/usc/42/13641.md?p=4) and operators of publicly owned [treatment](/usc/42/11851.md?p=11) works, studies to characterize emissions of [hazardous air pollutants](#a-6) emitted by such [facilities](/usc/42/11049.md?p=4), to identify industrial, commercial and residential discharges that contribute to such emissions and to demonstrate control measures for such emissions. When promulgating any [standard](/usc/42/1320d.md?p=7) under this section applicable to publicly owned [treatment](/usc/42/11851.md?p=11) works, the [Administrator](/usc/42/7602.md?p=a) may provide for control measures that include pretreatment of discharges causing emissions of [hazardous air pollutants](#a-6) and process or product substitutions or limitations that may be effective in reducing such emissions. The [Administrator](/usc/42/7602.md?p=a) may prescribe uniform sampling, modeling and risk assessment methods for use in implementing this subsection.
- (4) **Oil and gas wells; pipeline facilities—**
- (A) Notwithstanding the provisions of [subsection (a)](#a), emissions from any oil or gas exploration or production well (with its associated equipment) and emissions from any pipeline compressor or pump station shall not be aggregated with emissions from other similar [units](/usc/42/1395w–114b.md?p=g-2), whether or not such [units](/usc/42/1395w–114b.md?p=g-2) are in a contiguous area or under common control, to determine whether such [units](/usc/42/1395w–114b.md?p=g-2) or stations are [major sources](#a-1), and in the case of any oil or gas exploration or production well (with its associated equipment), such emissions shall not be aggregated for any purpose under this section.
- (B) The [Administrator](/usc/42/7602.md?p=a) shall not list oil and gas production wells (with its associated equipment) as an [area source](#a-2) [category](/usc/42/1395w–4.md?p=j-1) under [subsection (c)](#c), except that the [Administrator](/usc/42/7602.md?p=a) may establish an [area source](#a-2) [category](/usc/42/1395w–4.md?p=j-1) for oil and gas production wells located in any metropolitan statistical area or consolidated metropolitan statistical area with a population in excess of 1 million, if the [Administrator](/usc/42/7602.md?p=a) determines that emissions of [hazardous air pollutants](#a-6) from such wells present more than a negligible risk of adverse effects to public health.
- (5) **Hydrogen sulfide—** The [Administrator](/usc/42/7602.md?p=a) is directed to assess the [hazards](/usc/42/5165f.md?p=a-3) to public health and the environment resulting from the emission of [hydrogen](/usc/42/16152.md?p=1) sulfide associated with the extraction of oil and natural gas resources. To the extent practicable, the assessment shall build upon and not duplicate work conducted for an assessment pursuant to section 8002(m) of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6982(m)](/usc/42/6982.md?p=m)] and shall reflect consultation with the [States](/usc/42/7602.md?p=d). The assessment shall include a review of existing [State](/usc/42/7602.md?p=d) and industry control [standards](/usc/42/1320d.md?p=7), techniques and enforcement. The [Administrator](/usc/42/7602.md?p=a) shall report to the Congress within 24 months after November 15, 1990, with the findings of such assessment, together with any recommendations, and shall, as appropriate, develop and implement a control strategy for emissions of [hydrogen](/usc/42/16152.md?p=1) sulfide to protect human health and the environment, based on the findings of such assessment, using authorities under this chapter including sections[^3] 7411 of this title and this section.
- (6) **Hydrofluoric acid—** Not later than 2 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall, for those regions of the country which do not have comprehensive health and safety regulations with respect to hydrofluoric acid, complete a study of the potential [hazards](/usc/42/5165f.md?p=a-3) of hydrofluoric acid and the uses of hydrofluoric acid in industrial and commercial applications to public health and the environment considering a range of events including worst-case [accidental releases](#r-2-A) and shall make recommendations to the Congress for the reduction of such [hazards](/usc/42/5165f.md?p=a-3), if appropriate.
- (7) **RCRA facilities—** In the case of any [category](/usc/42/1395w–4.md?p=j-1) or subcategory of sources the air emissions of which are regulated under subtitle C of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6921](/usc/42/6921.md) et seq.], the [Administrator](/usc/42/7602.md?p=a) shall take into account any regulations of such emissions which are promulgated under such subtitle and shall, to the maximum extent practicable and consistent with the provisions of this section, ensure that the requirements of such subtitle and this section are consistent.
- (o) **National Academy of Sciences study—**
- (1) **Request of the Academy—** Within 3 months of November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall enter into appropriate arrangements with the National Academy of Sciences to conduct a review of—
- (A) risk assessment methodology used by the Environmental Protection Agency to determine the carcinogenic risk associated with exposure to [hazardous air pollutants](#a-6) from source [categories](/usc/42/1395w–4.md?p=j-1) and subcategories subject to the requirements of this section; and
- (B) improvements in such methodology.
- (2) **Elements to be studied—** In conducting such review, the National Academy of Sciences should consider, but not be limited to, the following—
- (A) the techniques used for estimating and describing the carcinogenic potency to humans of [hazardous air pollutants](#a-6); and
- (B) the techniques used for estimating exposure to [hazardous air pollutants](#a-6) (for hypothetical and actual maximally exposed individuals as well as other exposed individuals).
- (3) **Other health effects of concern—** To the extent practicable, the Academy shall evaluate and report on the methodology for assessing the risk of adverse human health effects other than cancer for which safe thresholds of exposure may not exist, including, but not limited to, inheritable genetic mutations, birth defects, and reproductive dysfunctions.
- (4) **Report—** A report on the results of such review shall be submitted to the Senate Committee on Environment and Public Works, the House Committee on [Energy](/usc/42/6311.md?p=7) and [Commerce](/usc/42/6311.md?p=7), the Risk Assessment and Management [Commission](/usc/42/2000ff.md?p=1) established by section 303 of the Clean Air Act Amendments of 1990 and the [Administrator](/usc/42/7602.md?p=a) not later than 30 months after November 15, 1990.
- (5) **Assistance—** The [Administrator](/usc/42/7602.md?p=a) shall assist the Academy in gathering any information the Academy deems necessary to carry out this subsection. The [Administrator](/usc/42/7602.md?p=a) may use any authority under this chapter to obtain information from any [person](/usc/42/7602.md?p=e), and to require any [person](/usc/42/7602.md?p=e) to conduct tests, keep and produce records, and make reports respecting research or other activities conducted by such [person](/usc/42/7602.md?p=e) as necessary to carry out this subsection.
- (6) **Authorization—** Of the [funds](/usc/42/12854.md?p=3) authorized to be appropriated to the [Administrator](/usc/42/7602.md?p=a) by this chapter, such amounts as are required shall be available to carry out this subsection.
- (7) **Guidelines for carcinogenic risk assessment—** The [Administrator](/usc/42/7602.md?p=a) shall consider, but need not adopt, the recommendations contained in the report of the National Academy of Sciences prepared pursuant to this subsection and the views of the Science Advisory [Board](/usc/42/10261.md?p=2), with respect to such report. Prior to the promulgation of any [standard](/usc/42/1320d.md?p=7) under [subsection (f)](#f), and after notice and opportunity for comment, the [Administrator](/usc/42/7602.md?p=a) shall publish revised Guidelines for Carcinogenic Risk Assessment or a detailed explanation of the reasons that any recommendations contained in the report of the National Academy of Sciences will not be implemented. The publication of such revised Guidelines shall be a final Agency action for purposes of [section 7607 of this title](/usc/42/7607.md).
- (p) **Mickey Leland National Urban Air Toxics Research Center—**
- (1) **Establishment—** The [Administrator](/usc/42/7602.md?p=a) shall oversee the establishment of a National Urban Air Toxics Research Center, to be located at a university, a [hospital](/usc/42/1395dd.md?p=e-5), or other [facility](/usc/42/11049.md?p=4) capable of undertaking and maintaining similar research capabilities in the areas of epidemiology, oncology, toxicology, pulmonary medicine, pathology, and biostatistics. The center shall be known as the Mickey Leland National Urban Air Toxics Research Center. The geographic site of the National Urban Air Toxics Research Center should be further directed to Harris County, Texas, in order to take full advantage of the well developed scientific community presence on-site at the Texas Medical Center as well as the extensive data previously compiled for the comprehensive monitoring system currently in place.
- (2) **Board of Directors—** The National Urban Air Toxics Research Center shall be governed by a [Board of Directors](/usc/42/12854.md?p=1) to be comprised of 9 members, the appointment of which shall be allocated pro rata among the Speaker of the House, the Majority Leader of the Senate and the President. The members of the [Board of Directors](/usc/42/12854.md?p=1) shall be selected based on their respective academic and professional backgrounds and expertise in matters relating to public health, environmental pollution and industrial hygiene. The duties of the [Board of Directors](/usc/42/12854.md?p=1) shall be to determine policy and research guidelines, submit views from center sponsors and the public and issue periodic reports of center findings and activities.
- (3) **Scientific Advisory Panel—** The [Board of Directors](/usc/42/12854.md?p=1) shall be advised by a Scientific Advisory [Panel](/usc/42/10362.md?p=16), the 13 members of which shall be appointed by the [Board](/usc/42/10261.md?p=2), and to include eminent members of the scientific and medical communities. The [Panel](/usc/42/10362.md?p=16) membership may include scientists with relevant experience from the National Institute of Environmental Health Sciences, the Center for Disease Control, the Environmental Protection Agency, the National Cancer Institute, and others, and the [Panel](/usc/42/10362.md?p=16) shall conduct peer review and evaluate research results. The [Panel](/usc/42/10362.md?p=16) shall assist the [Board](/usc/42/10261.md?p=2) in developing the research agenda, reviewing proposals and applications, and advise on the awarding of research grants.
- (4) **Funding—** The center shall be established and funded with both Federal and private source [funds](/usc/42/12854.md?p=3).
- (q) **Savings provision—**
- (1) **Standards previously promulgated—** Any [standard](/usc/42/1320d.md?p=7) under this section in effect before the date of enactment of the Clean Air Act Amendments of 1990 [November 15, 1990] shall remain in force and effect after such date unless [modified](/usc/42/7501.md?p=4) as provided in this section before the date of enactment of such Amendments or under such Amendments. Except as provided in [paragraph (4)](#q-4), any [standard](/usc/42/1320d.md?p=7) under this section which has been promulgated, but has not taken effect, before such date shall not be affected by such Amendments unless [modified](/usc/42/7501.md?p=4) as provided in this section before such date or under such Amendments. Each such [standard](/usc/42/1320d.md?p=7) shall be reviewed and, if appropriate, revised, to comply with the requirements of [subsection (d)](#d) within 10 years after the date of enactment of the Clean Air Act Amendments of 1990. If a timely petition for review of any such [standard](/usc/42/1320d.md?p=7) under [section 7607 of this title](/usc/42/7607.md) is pending on such date of enactment, the [standard](/usc/42/1320d.md?p=7) shall be upheld if it complies with this section as in effect before that date. If any such [standard](/usc/42/1320d.md?p=7) is remanded to the [Administrator](/usc/42/7602.md?p=a), the [Administrator](/usc/42/7602.md?p=a) may in the [Administrator](/usc/42/7602.md?p=a)’s discretion apply either the requirements of this section, or those of this section as in effect before the date of enactment of the Clean Air Act Amendments of 1990.
- (2) **Special rule—** Notwithstanding [paragraph (1)](#q-1), no [standard](/usc/42/1320d.md?p=7) shall be established under this section, as amended by the Clean Air Act Amendments of 1990, for radionuclide emissions from (A) elemental phosphorous plants, (B) grate calcination elemental phosphorous plants, (C) phosphogypsum stacks, or (D) any subcategory of the foregoing. This section, as in effect prior to the date of enactment of the Clean Air Act Amendments of 1990 [November 15, 1990], shall remain in effect for radionuclide emissions from such plants and stacks.
- (3) **Other categories—** Notwithstanding [paragraph (1)](#q-1), this section, as in effect prior to the date of enactment of the Clean Air Act Amendments of 1990 [November 15, 1990], shall remain in effect for radionuclide emissions from non-Department of [Energy](/usc/42/6311.md?p=7) [Federal facilities](/usc/42/17061.md?p=8) that are not licensed by the Nuclear Regulatory [Commission](/usc/42/2000ff.md?p=1), coal-fired utility and industrial boilers, underground uranium mines, surface uranium mines, and [disposal](/usc/42/2021b.md?p=7) of uranium mill tailings piles, unless the [Administrator](/usc/42/7602.md?p=a), in the [Administrator](/usc/42/7602.md?p=a)’s discretion, applies the requirements of this section as [modified](/usc/42/7501.md?p=4) by the Clean Air Act Amendments of 1990 to such sources of radionuclides.
- (4) **Medical facilities—** Notwithstanding [paragraph (1)](#q-1), no [standard](/usc/42/1320d.md?p=7) promulgated under this section prior to November 15, 1990, with respect to medical research or [treatment](/usc/42/11851.md?p=11) [facilities](/usc/42/11049.md?p=4) shall take effect for two years following November 15, 1990, unless the [Administrator](/usc/42/7602.md?p=a) makes a determination pursuant to a rulemaking under [subsection (d)(9)](#d-9). If the [Administrator](/usc/42/7602.md?p=a) determines that the regulatory [program](/usc/42/274l–1.md?p=4) established by the Nuclear Regulatory [Commission](/usc/42/2000ff.md?p=1) for such [facilities](/usc/42/11049.md?p=4) does not provide an ample margin of safety to protect public health, the requirements of this section shall fully apply to such [facilities](/usc/42/11049.md?p=4). If the [Administrator](/usc/42/7602.md?p=a) determines that such regulatory [program](/usc/42/274l–1.md?p=4) does provide an ample margin of safety to protect the public health, the [Administrator](/usc/42/7602.md?p=a) is not required to promulgate a [standard](/usc/42/1320d.md?p=7) under this section for such [facilities](/usc/42/11049.md?p=4), as provided in [subsection (d)(9)](#d-9).
- (r) **Prevention of accidental releases—**
- (1) **Purpose and general duty—** It shall be the objective of the regulations and [programs](/usc/42/274l–1.md?p=4) authorized under this subsection to prevent the [accidental release](#r-2-A) and to minimize the consequences of any such [release](/usc/42/9601.md?p=22) of any substance listed pursuant to [paragraph (3)](#r-3) or any other [extremely hazardous substance](/usc/42/11049.md?p=3). The [owners](/usc/42/13641.md?p=4) and operators of [stationary sources](#r-2-C) producing, processing, handling or storing such substances have a general duty in the same manner and to the same extent as [section 654 of title 29](/usc/29/654.md) to identify [hazards](/usc/42/5165f.md?p=a-3) which may result from such [releases](/usc/42/9601.md?p=22) using appropriate [hazard](/usc/42/5165f.md?p=a-3) assessment techniques, to design and maintain a safe [facility](/usc/42/11049.md?p=4) taking such steps as are necessary to prevent [releases](/usc/42/9601.md?p=22), and to minimize the consequences of [accidental releases](#r-2-A) which do occur. For purposes of this paragraph, the provisions of [section 7604 of this title](/usc/42/7604.md) shall not be available to any [person](/usc/42/7602.md?p=e) or otherwise be construed to be applicable to this paragraph. Nothing in this section shall be interpreted, construed, implied or applied to create any liability or basis for suit for compensation for bodily injury or any other injury or property [damages](/usc/42/9601.md?p=6) to any [person](/usc/42/7602.md?p=e) which may result from [accidental releases](#r-2-A) of such substances.
- (2) **Definitions—**
- (A) The term “accidental release” means an unanticipated emission of a [regulated substance](#r-2-B) or other [extremely hazardous substance](/usc/42/11049.md?p=3) into the ambient air from a [stationary source](#r-2-C).
- (B) The term “regulated substance” means a substance listed under [paragraph (3)](#r-3).
- (C) The term “stationary source” means any [buildings](/usc/42/6881.md?p=i-3), structures, equipment, installations or substance emitting stationary activities (i) which belong to the same industrial group, (ii) which are located on one or more contiguous properties, (iii) which are under the control of the same [person](/usc/42/7602.md?p=e) (or [persons](/usc/42/7602.md?p=e) under common control), and (iv) from which an [accidental release](#r-2-A) may occur.
- (D) The term “retail facility” means a [stationary source](#r-2-C) at which more than one-half of the [income](/usc/42/292s.md?p=c-4) is obtained from direct sales to end users or at which more than one-half of the fuel sold, by volume, is sold through a cylinder [exchange](/usc/42/300gg–91.md?p=d-21) [program](/usc/42/274l–1.md?p=4).
- (3) **List of substances—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate not later than 24 months after November 15, 1990, an initial list of 100 substances which, in the case of an [accidental release](#r-2-A), are known to [cause](/usc/42/9908.md?p=c-2) or may reasonably be anticipated to [cause](/usc/42/9908.md?p=c-2) death, injury, or serious adverse effects to human health or the environment. For purposes of promulgating such list, the [Administrator](/usc/42/7602.md?p=a) shall use, but is not limited to, the list of [extremely hazardous substances](/usc/42/11049.md?p=3) published under the Emergency Planning and Community Right-to-Know[^4] Act of 1986 [[42 U.S.C. 11001](/usc/42/11001.md) et seq.], with such [modifications](/usc/42/7501.md?p=4) as the [Administrator](/usc/42/7602.md?p=a) deems appropriate. The initial list shall include chlorine, anhydrous ammonia, methyl chloride, ethylene oxide, vinyl chloride, methyl isocyanate, [hydrogen](/usc/42/16152.md?p=1) cyanide, ammonia, [hydrogen](/usc/42/16152.md?p=1) sulfide, toluene diisocyanate, phosgene, bromine, anhydrous [hydrogen](/usc/42/16152.md?p=1) chloride, [hydrogen](/usc/42/16152.md?p=1) fluoride, anhydrous sulfur dioxide, and sulfur trioxide. The initial list shall include at least 100 substances which pose the greatest risk of causing death, injury, or serious adverse effects to human health or the environment from [accidental releases](#r-2-A). Regulations establishing the list shall include an explanation of the basis for establishing the list. The list may be revised from time to time by the [Administrator](/usc/42/7602.md?p=a) on the [Administrator](/usc/42/7602.md?p=a)’s own motion or by petition and shall be reviewed at least every 5 years. No [air pollutant](/usc/42/7602.md?p=g) for which a national primary ambient air quality [standard](/usc/42/1320d.md?p=7) has been established shall be included on any such list. No substance, practice, process, or activity regulated under subchapter VI shall be subject to regulations under this subsection. The [Administrator](/usc/42/7602.md?p=a) shall establish procedures for the addition and deletion of substances from the list established under this paragraph consistent with those applicable to the list in [subsection (b)](#b).
- (4) **Factors to be considered—** In listing substances under [paragraph (3)](#r-3), the [Administrator](/usc/42/7602.md?p=a)—
- (A) shall consider—
- (i) the severity of any acute adverse health effects associated with [accidental releases](#r-2-A) of the substance;
- (ii) the likelihood of [accidental releases](#r-2-A) of the substance; and
- (iii) the potential magnitude of human exposure to [accidental releases](#r-2-A) of the substance; and
- (B) shall not list a flammable substance when used as a fuel or held for sale as a fuel at a [retail facility](#r-2-D) under this subsection solely because of the explosive or flammable properties of the substance, unless a fire or explosion caused by the substance will result in acute adverse health effects from human exposure to the substance, including the unburned fuel or its combustion byproducts, other than those caused by the heat of the fire or impact of the explosion.
- (5) **Threshold quantity—** At the time any substance is listed pursuant to [paragraph (3)](#r-3), the [Administrator](/usc/42/7602.md?p=a) shall establish by rule, a threshold quantity for the substance, taking into account the toxicity, reactivity, volatility, dispersibility, combustibility, or flammability of the substance and the amount of the substance which, as a result of an [accidental release](#r-2-A), is known to [cause](/usc/42/9908.md?p=c-2) or may reasonably be anticipated to [cause](/usc/42/9908.md?p=c-2) death, injury or serious adverse effects to human health for which the substance was listed. The [Administrator](/usc/42/7602.md?p=a) is authorized to establish a greater threshold quantity for, or to exempt entirely, any substance that is a nutrient used in agriculture when held by a farmer.
- (6) **Chemical Safety Board—**
- (A) There is hereby established an independent safety [board](/usc/42/10261.md?p=2) to be known as the Chemical Safety and [Hazard](/usc/42/5165f.md?p=a-3) Investigation [Board](/usc/42/10261.md?p=2).
- (B) The [Board](/usc/42/10261.md?p=2) shall consist of 5 members, including a Chairperson, who shall be appointed by the President, by and with the advice and consent of the Senate. Members of the [Board](/usc/42/10261.md?p=2) shall be appointed on the basis of technical qualification, professional standing, and demonstrated knowledge in the fields of accident reconstruction, safety engineering, human factors, toxicology, or air pollution regulation. The terms of [office](/usc/42/3058f.md?p=1) of members of the [Board](/usc/42/10261.md?p=2) shall be 5 years. Any member of the [Board](/usc/42/10261.md?p=2), including the Chairperson, may be removed for inefficiency, neglect of duty, or malfeasance in [office](/usc/42/3058f.md?p=1). The Chairperson shall be the [Chief Executive Officer](/usc/42/12511.md?p=9) of the [Board](/usc/42/10261.md?p=2) and shall exercise the executive and administrative functions of the [Board](/usc/42/10261.md?p=2).
- (C) The [Board](/usc/42/10261.md?p=2) shall—
- (i) investigate (or [cause](/usc/42/9908.md?p=c-2) to be investigated), determine and report to the public in writing the facts, conditions, and circumstances and the [cause](/usc/42/9908.md?p=c-2) or probable [cause](/usc/42/9908.md?p=c-2) of any [accidental release](#r-2-A) resulting in a fatality, serious injury or substantial property [damages](/usc/42/9601.md?p=6);
- (ii) issue periodic reports to the Congress, Federal, [State](/usc/42/7602.md?p=d) and local agencies, including the Environmental Protection Agency and the Occupational Safety and Health Administration, concerned with the safety of chemical production, processing, handling and storage, and other interested [persons](/usc/42/7602.md?p=e) recommending measures to reduce the likelihood or the consequences of [accidental releases](#r-2-A) and proposing corrective steps to make chemical production, processing, handling and storage as safe and free from risk of injury as is possible and may include in such reports proposed rules or orders which should be issued by the [Administrator](/usc/42/7602.md?p=a) under the authority of this section or the [Secretary](/usc/42/242q–4.md?p=2) of Labor under the Occupational Safety and Health Act [[29 U.S.C. 651](/usc/29/651.md) et seq.] to prevent or minimize the consequences of any [release](/usc/42/9601.md?p=22) of substances that may [cause](/usc/42/9908.md?p=c-2) death, injury or other serious adverse effects on human health or substantial property damage as the result of an [accidental release](#r-2-A); and
- (iii) establish by regulation requirements binding on [persons](/usc/42/7602.md?p=e) for reporting [accidental releases](#r-2-A) into the ambient air subject to the [Board](/usc/42/10261.md?p=2)’s investigatory jurisdiction. Reporting [releases](/usc/42/9601.md?p=22) to the National Response Center, in lieu of the [Board](/usc/42/10261.md?p=2) directly, shall satisfy such regulations. The National Response Center shall promptly notify the [Board](/usc/42/10261.md?p=2) of any [releases](/usc/42/9601.md?p=22) which are within the [Board](/usc/42/10261.md?p=2)’s jurisdiction.
- (D) The [Board](/usc/42/10261.md?p=2) may utilize the expertise and experience of other agencies.
- (E) The [Board](/usc/42/10261.md?p=2) shall coordinate its activities with investigations and studies conducted by other agencies of the [United States](/usc/42/403.md?p=k) having a responsibility to protect public health and safety. The [Board](/usc/42/10261.md?p=2) shall enter into a memorandum of understanding with the National Transportation Safety [Board](/usc/42/10261.md?p=2) to assure coordination of functions and to limit duplication of activities which shall designate the National Transportation Safety [Board](/usc/42/10261.md?p=2) as the [lead agency](/usc/42/9858n.md?p=9) for the investigation of [releases](/usc/42/9601.md?p=22) which are transportation related. The [Board](/usc/42/10261.md?p=2) shall not be authorized to investigate marine oil spills, which the National Transportation Safety [Board](/usc/42/10261.md?p=2) is authorized to investigate. The [Board](/usc/42/10261.md?p=2) shall enter into a memorandum of understanding with the Occupational Safety and Health Administration so as to limit duplication of activities. In no event shall the [Board](/usc/42/10261.md?p=2) forego an investigation where an [accidental release](#r-2-A) [causes](/usc/42/9908.md?p=c-2) a fatality or serious injury among the general public, or had the potential to [cause](/usc/42/9908.md?p=c-2) substantial property damage or a number of deaths or injuries among the general public.
- (F) The [Board](/usc/42/10261.md?p=2) is authorized to conduct research and studies with respect to the potential for [accidental releases](#r-2-A), whether or not an [accidental release](#r-2-A) has occurred, where there is evidence which indicates the presence of a potential [hazard](/usc/42/5165f.md?p=a-3) or [hazards](/usc/42/5165f.md?p=a-3). To the extent practicable, the [Board](/usc/42/10261.md?p=2) shall conduct such studies in cooperation with other Federal agencies having emergency response authorities, [State](/usc/42/7602.md?p=d) and local governmental agencies and associations and organizations from the industrial, commercial, and nonprofit sectors.
- (G) No part of the conclusions, findings, or recommendations of the [Board](/usc/42/10261.md?p=2) relating to any [accidental release](#r-2-A) or the investigation thereof shall be admitted as evidence or used in any action or suit for [damages](/usc/42/9601.md?p=6) arising out of any matter mentioned in such report.
- (H) Not later than 18 months after November 15, 1990, the [Board](/usc/42/10261.md?p=2) shall publish a report accompanied by recommendations to the [Administrator](/usc/42/7602.md?p=a) on the use of [hazard](/usc/42/5165f.md?p=a-3) assessments in preventing the occurrence and minimizing the consequences of [accidental releases](#r-2-A) of [extremely hazardous substances](/usc/42/11049.md?p=3). The recommendations shall include a list of [extremely hazardous substances](/usc/42/11049.md?p=3) which are not [regulated substances](#r-2-B) (including threshold quantities for such substances) and [categories](/usc/42/1395w–4.md?p=j-1) of [stationary sources](#r-2-C) for which [hazard](/usc/42/5165f.md?p=a-3) assessments would be an appropriate measure to aid in the prevention of [accidental releases](#r-2-A) and to minimize the consequences of those [releases](/usc/42/9601.md?p=22) that do occur. The recommendations shall also include a description of the information and analysis which would be appropriate to include in any [hazard](/usc/42/5165f.md?p=a-3) assessment. The [Board](/usc/42/10261.md?p=2) shall also make recommendations with respect to the role of risk management plans as required by paragraph (8)(B)[^5] in preventing [accidental releases](#r-2-A). The [Board](/usc/42/10261.md?p=2) may from time to time review and revise its recommendations under this subparagraph.
- (I) Whenever the [Board](/usc/42/10261.md?p=2) submits a recommendation with respect to [accidental releases](#r-2-A) to the [Administrator](/usc/42/7602.md?p=a), the [Administrator](/usc/42/7602.md?p=a) shall respond to such recommendation formally and in writing not later than 180 days after receipt thereof. The response to the [Board](/usc/42/10261.md?p=2)’s recommendation by the [Administrator](/usc/42/7602.md?p=a) shall indicate whether the [Administrator](/usc/42/7602.md?p=a) will—
- (i) initiate a rulemaking or issue such orders as are necessary to implement the recommendation in full or in part, pursuant to any timetable contained in the recommendation;[^6]
- (ii) decline to initiate a rulemaking or issue orders as recommended.
Any determination by the [Administrator](/usc/42/7602.md?p=a) not to implement a recommendation of the [Board](/usc/42/10261.md?p=2) or to implement a recommendation only in part, including any variation from the schedule contained in the recommendation, shall be accompanied by a statement from the [Administrator](/usc/42/7602.md?p=a) setting forth the reasons for such determination.
- (J) The [Board](/usc/42/10261.md?p=2) may make recommendations with respect to [accidental releases](#r-2-A) to the [Secretary](/usc/42/242q–4.md?p=2) of Labor. Whenever the [Board](/usc/42/10261.md?p=2) submits such recommendation, the [Secretary](/usc/42/242q–4.md?p=2) shall respond to such recommendation formally and in writing not later than 180 days after receipt thereof. The response to the [Board](/usc/42/10261.md?p=2)’s recommendation by the [Administrator](/usc/42/7602.md?p=a)[^7] shall indicate whether the [Secretary](/usc/42/242q–4.md?p=2) will—
- (i) initiate a rulemaking or issue such orders as are necessary to implement the recommendation in full or in part, pursuant to any timetable contained in the recommendation;[^6]
- (ii) decline to initiate a rulemaking or issue orders as recommended.
Any determination by the [Secretary](/usc/42/242q–4.md?p=2) not to implement a recommendation or to implement a recommendation only in part, including any variation from the schedule contained in the recommendation, shall be accompanied by a statement from the [Secretary](/usc/42/242q–4.md?p=2) setting forth the reasons for such determination.
- (K) Within 2 years after November 15, 1990, the [Board](/usc/42/10261.md?p=2) shall issue a report to the [Administrator](/usc/42/7602.md?p=a) of the Environmental Protection Agency and to the [Administrator](/usc/42/7602.md?p=a) of the Occupational Safety and Health Administration recommending the adoption of regulations for the preparation of risk management plans and general requirements for the prevention of [accidental releases](#r-2-A) of [regulated substances](#r-2-B) into the ambient air (including recommendations for listing substances under [paragraph (3)](#r-3)) and for the mitigation of the potential adverse effect on human health or the environment as a result of [accidental releases](#r-2-A) which should be applicable to any [stationary source](#r-2-C) handling any [regulated substance](#r-2-B) in more than threshold amounts. The [Board](/usc/42/10261.md?p=2) may include proposed rules or orders which should be issued by the [Administrator](/usc/42/7602.md?p=a) under authority of this subsection or by the [Secretary](/usc/42/242q–4.md?p=2) of Labor under the Occupational Safety and Health Act [[29 U.S.C. 651](/usc/29/651.md) et seq.]. Any such recommendations shall be specific and shall identify the [regulated substance](#r-2-B) or class of [regulated substances](#r-2-B) (or other substances) to which the recommendations apply. The [Administrator](/usc/42/7602.md?p=a) shall consider such recommendations before promulgating regulations required by [paragraph (7)(B)](#r-7-B).
- (L) The [Board](/usc/42/10261.md?p=2), or upon authority of the [Board](/usc/42/10261.md?p=2), any member thereof, any administrative law judge employed by or assigned to the [Board](/usc/42/10261.md?p=2), or any officer or [employee](/usc/42/1320a–7h.md?p=e-7) duly designated by the [Board](/usc/42/10261.md?p=2), may for the purpose of carrying out duties authorized by [subparagraph (C)](#r-6-C)—
- (i) hold such hearings, sit and act at such times and places, administer such oaths, and require by subpoena or otherwise attendance and testimony of such witnesses and the production of evidence and may require by order that any [person](/usc/42/7602.md?p=e) engaged in the production, processing, handling, or storage of [extremely hazardous substances](/usc/42/11049.md?p=3) submit written reports and responses to requests and questions within such time and in such form as the [Board](/usc/42/10261.md?p=2) may require; and
- (ii) upon presenting appropriate credentials and a written notice of [inspection](/usc/42/4851b.md?p=12) authority, enter any property where an [accidental release](#r-2-A) causing a fatality, serious injury or substantial property damage has occurred and do all things therein necessary for a proper investigation pursuant to [subparagraph (C)](#r-6-C) and inspect at reasonable times records, files, papers, processes, controls, and [facilities](/usc/42/11049.md?p=4) and take such samples as are relevant to such investigation.
Whenever the [Administrator](/usc/42/7602.md?p=a) or the [Board](/usc/42/10261.md?p=2) conducts an [inspection](/usc/42/4851b.md?p=12) of a [facility](/usc/42/11049.md?p=4) pursuant to this subsection, [employees](/usc/42/1320a–7h.md?p=e-7) and their [representatives](/usc/42/3058f.md?p=5) shall have the same rights to participate in such [inspections](/usc/42/4851b.md?p=12) as provided in the Occupational Safety and Health Act [[29 U.S.C. 651](/usc/29/651.md) et seq.].
- (M) In addition to that described in [subparagraph (L)](#r-6-L), the [Board](/usc/42/10261.md?p=2) may use any information gathering authority of the [Administrator](/usc/42/7602.md?p=a) under this chapter, including the subpoena power provided in [section 7607(a)(1) of this title](/usc/42/7607.md).
- (N) The [Board](/usc/42/10261.md?p=2) is authorized to establish such procedural and administrative rules as are necessary to the exercise of its functions and duties. The [Board](/usc/42/10261.md?p=2) is authorized without regard to [section 6101 of title 41](/usc/41/6101.md) to enter into contracts, leases, cooperative [agreements](/usc/42/1320b–8.md?p=a-3-A) or other transactions as may be necessary in the conduct of the duties and functions of the [Board](/usc/42/10261.md?p=2) with any other agency, institution, or [person](/usc/42/7602.md?p=e).
- (O) After the effective date of any reporting requirement promulgated pursuant to [subparagraph (C)(iii)](#r-6-C-iii) it shall be unlawful for any [person](/usc/42/7602.md?p=e) to fail to report any [release](/usc/42/9601.md?p=22) of any [extremely hazardous substance](/usc/42/11049.md?p=3) as required by such subparagraph. The [Administrator](/usc/42/7602.md?p=a) is authorized to enforce any regulation or requirements established by the [Board](/usc/42/10261.md?p=2) pursuant to [subparagraph (C)(iii)](#r-6-C-iii) using the authorities of sections [7413](/usc/42/7413.md) and [7414](/usc/42/7414.md) of this title. Any request for information from the [owner or operator](#a-9) of a [stationary source](#r-2-C) made by the [Board](/usc/42/10261.md?p=2) or by the [Administrator](/usc/42/7602.md?p=a) under this section shall be treated, for purposes of sections [7413](/usc/42/7413.md), [7414](/usc/42/7414.md), [7416](/usc/42/7416.md), [7420](/usc/42/7420.md), [7603](/usc/42/7603.md), [7604](/usc/42/7604.md) and [7607](/usc/42/7607.md) of this title and any other enforcement provisions of this chapter, as a request made by the [Administrator](/usc/42/7602.md?p=a) under [section 7414 of this title](/usc/42/7414.md) and may be enforced by the Chairperson of the [Board](/usc/42/10261.md?p=2) or by the [Administrator](/usc/42/7602.md?p=a) as provided in such section.
- (P) The [Administrator](/usc/42/7602.md?p=a) shall provide to the [Board](/usc/42/10261.md?p=2) such support and [facilities](/usc/42/11049.md?p=4) as may be necessary for operation of the [Board](/usc/42/10261.md?p=2).
- (Q) Consistent with subsection[^8] (G) and [section 7414(c) of this title](/usc/42/7414.md?p=c) any records, reports or information obtained by the [Board](/usc/42/10261.md?p=2) shall be available to the [Administrator](/usc/42/7602.md?p=a), the [Secretary](/usc/42/242q–4.md?p=2) of Labor, the Congress and the public, except that upon a showing satisfactory to the [Board](/usc/42/10261.md?p=2) by any [person](/usc/42/7602.md?p=e) that records, reports, or information, or particular part thereof (other than [release](/usc/42/9601.md?p=22) or emissions data) to which the [Board](/usc/42/10261.md?p=2) has access, if made public, is likely to [cause](/usc/42/9908.md?p=c-2) substantial harm to the [person](/usc/42/7602.md?p=e)’s competitive position, the [Board](/usc/42/10261.md?p=2) shall consider such record, report, or information or particular portion thereof confidential in accordance with [section 1905 of title 18](/usc/18/1905.md), except that such record, report, or information may be disclosed to other officers, [employees](/usc/42/1320a–7h.md?p=e-7), and authorized [representatives](/usc/42/3058f.md?p=5) of the [United States](/usc/42/403.md?p=k) concerned with carrying out this chapter or when relevant under any proceeding under this chapter. This subparagraph does not constitute authority to withhold records, reports, or information from the Congress.
- (R) Whenever the [Board](/usc/42/10261.md?p=2) submits or transmits any budget estimate, budget request, supplemental budget request, or other budget information, legislative recommendation, prepared testimony for congressional hearings, recommendation or study to the President, the [Secretary](/usc/42/242q–4.md?p=2) of Labor, the [Administrator](/usc/42/7602.md?p=a), or the [Director](/usc/42/5061.md?p=1) of the [Office](/usc/42/3058f.md?p=1) of Management and Budget, it shall concurrently transmit a copy thereof to the Congress. No report of the [Board](/usc/42/10261.md?p=2) shall be subject to review by the [Administrator](/usc/42/7602.md?p=a) or any Federal agency or to judicial review in any court. No officer or agency of the [United States](/usc/42/403.md?p=k) shall have authority to require the [Board](/usc/42/10261.md?p=2) to submit its budget requests or estimates, legislative recommendations, prepared testimony, comments, recommendations or reports to any officer or agency of the [United States](/usc/42/403.md?p=k) for approval or review prior to the submission of such recommendations, testimony, comments or reports to the Congress. In the performance of their functions as established by this chapter, the members, officers and [employees](/usc/42/1320a–7h.md?p=e-7) of the [Board](/usc/42/10261.md?p=2) shall not be responsible to or subject to supervision or direction, in carrying out any duties under this subsection, of any officer or [employee](/usc/42/1320a–7h.md?p=e-7) or agent of the Environmental Protection Agency, the Department of Labor or any other agency of the [United States](/usc/42/403.md?p=k) except that the President may [remove](/usc/42/9601.md?p=23) any member, officer or [employee](/usc/42/1320a–7h.md?p=e-7) of the [Board](/usc/42/10261.md?p=2) for inefficiency, neglect of duty or malfeasance in [office](/usc/42/3058f.md?p=1). Nothing in this section shall affect the application of [title 5](/usc/5.md) to officers or [employees](/usc/42/1320a–7h.md?p=e-7) of the [Board](/usc/42/10261.md?p=2).
- (S) The [Board](/usc/42/10261.md?p=2) shall submit an annual report to the President and to the Congress which shall include, but not be limited to, information on [accidental releases](#r-2-A) which have been investigated by or reported to the [Board](/usc/42/10261.md?p=2) during the previous year, recommendations for legislative or administrative action which the [Board](/usc/42/10261.md?p=2) has made, the actions which have been taken by the [Administrator](/usc/42/7602.md?p=a) or the [Secretary](/usc/42/242q–4.md?p=2) of Labor or the heads of other agencies to implement such recommendations, an identification of priorities for study and investigation in the succeeding year, progress in the development of risk-reduction technologies and the response to and implementation of significant research findings on chemical safety in the public and private sector.
- (7) **Accident prevention—**
- (A) In order to prevent [accidental releases](#r-2-A) of [regulated substances](#r-2-B), the [Administrator](/usc/42/7602.md?p=a) is authorized to promulgate [release](/usc/42/9601.md?p=22) prevention, detection, and correction requirements which may include monitoring, record-keeping, reporting, [training](/usc/42/285e–2.md?p=b-2), vapor recovery, secondary containment, and other design, equipment, work practice, and operational requirements. Regulations promulgated under this paragraph may make distinctions between various types, classes, and kinds of [facilities](/usc/42/11049.md?p=4), devices and systems taking into consideration factors including, but not limited to, the size, location, process, process controls, quantity of substances handled, potency of substances, and response capabilities present at any [stationary source](#r-2-C). Regulations promulgated pursuant to this subparagraph shall have an effective date, as determined by the [Administrator](/usc/42/7602.md?p=a), assuring compliance as expeditiously as practicable.
- (B)
- (i) Within 3 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate reasonable regulations and appropriate guidance to provide, to the greatest extent practicable, for the prevention and detection of [accidental releases](#r-2-A) of [regulated substances](#r-2-B) and for response to such [releases](/usc/42/9601.md?p=22) by the [owners](/usc/42/13641.md?p=4) or operators of the sources of such [releases](/usc/42/9601.md?p=22). The [Administrator](/usc/42/7602.md?p=a) shall utilize the expertise of the [Secretaries](/usc/42/242q–4.md?p=2) of Transportation and Labor in promulgating such regulations. As appropriate, such regulations shall cover the use, operation, repair, replacement, and maintenance of equipment to monitor, detect, inspect, and control such [releases](/usc/42/9601.md?p=22), including [training](/usc/42/285e–2.md?p=b-2) of [persons](/usc/42/7602.md?p=e) in the use and maintenance of such equipment and in the conduct of periodic [inspections](/usc/42/4851b.md?p=12). The regulations shall include procedures and measures for emergency response after an [accidental release](#r-2-A) of a [regulated substance](#r-2-B) in order to protect human health and the environment. The regulations shall cover storage, as well as operations. The regulations shall, as appropriate, recognize differences in size, operations, processes, class and [categories](/usc/42/1395w–4.md?p=j-1) of sources and the voluntary actions of such sources to prevent such [releases](/usc/42/9601.md?p=22) and respond to such [releases](/usc/42/9601.md?p=22). The regulations shall be applicable to a [stationary source](#r-2-C) 3 years after the date of promulgation, or 3 years after the date on which a [regulated substance](#r-2-B) present at the source in more than threshold amounts is first listed under [paragraph (3)](#r-3), whichever is later.
- (ii) The regulations under this subparagraph shall require the [owner or operator](#a-9) of [stationary sources](#r-2-C) at which a [regulated substance](#r-2-B) is present in more than a threshold quantity to prepare and implement a risk management plan to detect and prevent or minimize [accidental releases](#r-2-A) of such substances from the [stationary source](#r-2-C), and to provide a prompt emergency response to any such [releases](/usc/42/9601.md?p=22) in order to protect human health and the environment. Such plan shall provide for compliance with the requirements of this subsection and shall also include each of the following:
- (I) a [hazard](/usc/42/5165f.md?p=a-3) assessment to assess the potential effects of an [accidental release](#r-2-A) of any [regulated substance](#r-2-B). This assessment shall include an estimate of potential [release](/usc/42/9601.md?p=22) quantities and a determination of downwind effects, including potential exposures to affected populations. Such assessment shall include a previous [release](/usc/42/9601.md?p=22) history of the past 5 years, including the size, concentration, and duration of [releases](/usc/42/9601.md?p=22), and shall include an evaluation of worst case [accidental releases](#r-2-A);
- (II) a [program](/usc/42/274l–1.md?p=4) for preventing [accidental releases](#r-2-A) of [regulated substances](#r-2-B), including safety precautions and maintenance, monitoring and [employee](/usc/42/1320a–7h.md?p=e-7) [training](/usc/42/285e–2.md?p=b-2) measures to be used at the source; and
- (III) a response [program](/usc/42/274l–1.md?p=4) providing for specific actions to be taken in response to an [accidental release](#r-2-A) of a [regulated substance](#r-2-B) so as to protect human health and the environment, including procedures for informing the public and local agencies responsible for responding to [accidental releases](#r-2-A), emergency health care, and [employee](/usc/42/1320a–7h.md?p=e-7) [training](/usc/42/285e–2.md?p=b-2) measures.
At the time regulations are promulgated under this subparagraph, the [Administrator](/usc/42/7602.md?p=a) shall promulgate guidelines to assist [stationary sources](#r-2-C) in the preparation of risk management plans. The guidelines shall, to the extent practicable, include model risk management plans.
- (iii) The [owner or operator](#a-9) of each [stationary source](#r-2-C) covered by [clause (ii)](#r-7-B-ii) shall register a risk management plan prepared under this subparagraph with the [Administrator](/usc/42/7602.md?p=a) before the effective date of regulations under [clause (i)](#r-7-B-i) in such form and manner as the [Administrator](/usc/42/7602.md?p=a) shall, by rule, require. Plans prepared pursuant to this subparagraph shall also be submitted to the Chemical Safety and [Hazard](/usc/42/5165f.md?p=a-3) Investigation [Board](/usc/42/10261.md?p=2), to the [State](/usc/42/7602.md?p=d) in which the [stationary source](#r-2-C) is located, and to any local agency or entity having responsibility for planning for or responding to [accidental releases](#r-2-A) which may occur at such source, and shall be available to the public under [section 7414(c) of this title](/usc/42/7414.md?p=c). The [Administrator](/usc/42/7602.md?p=a) shall establish, by rule, an auditing system to regularly review and, if necessary, require revision in risk management plans to assure that the plans comply with this subparagraph. Each such plan shall be updated periodically as required by the [Administrator](/usc/42/7602.md?p=a), by rule.
- (C) Any regulations promulgated pursuant to this subsection shall to the maximum extent practicable, consistent with this subsection, be consistent with the recommendations and [standards](/usc/42/1320d.md?p=7) established by the American Society of Mechanical Engineers (ASME), the American National [Standards](/usc/42/1320d.md?p=7) Institute (ANSI) or the American Society of Testing Materials (ASTM). The [Administrator](/usc/42/7602.md?p=a) shall take into consideration the concerns of small business in promulgating regulations under this subsection.
- (D) In carrying out the authority of this paragraph, the [Administrator](/usc/42/7602.md?p=a) shall consult with the [Secretary](/usc/42/242q–4.md?p=2) of Labor and the [Secretary](/usc/42/242q–4.md?p=2) of Transportation and shall coordinate any requirements under this paragraph with any requirements established for comparable purposes by the Occupational Safety and Health Administration or the Department of Transportation. Nothing in this subsection shall be interpreted, construed or applied to impose requirements affecting, or to grant the [Administrator](/usc/42/7602.md?p=a), the Chemical Safety and [Hazard](/usc/42/5165f.md?p=a-3) Investigation [Board](/usc/42/10261.md?p=2), or any other agency any authority to regulate (including requirements for [hazard](/usc/42/5165f.md?p=a-3) assessment), the [accidental release](#r-2-A) of radionuclides arising from the [construction](/usc/42/7479.md?p=2-C) and operation of [facilities](/usc/42/11049.md?p=4) licensed by the Nuclear Regulatory [Commission](/usc/42/2000ff.md?p=1).
- (E) After the effective date of any regulation or requirement imposed under this subsection, it shall be unlawful for any [person](/usc/42/7602.md?p=e) to operate any [stationary source](#r-2-C) subject to such regulation or requirement in [violation](/usc/42/2000e–16a.md?p=c) of such regulation or requirement. Each regulation or requirement under this subsection shall for purposes of sections [7413](/usc/42/7413.md), [7414](/usc/42/7414.md), [7416](/usc/42/7416.md), [7420](/usc/42/7420.md), [7604](/usc/42/7604.md), and [7607](/usc/42/7607.md) of this title and other enforcement provisions of this chapter, be treated as a [standard](/usc/42/1320d.md?p=7) in effect under [subsection (d)](#d).
- (F) Notwithstanding the provisions of subchapter V or this section, no [stationary source](#r-2-C) shall be required to apply for, or operate pursuant to, a permit issued under such subchapter solely because such source is subject to regulations or requirements under this subsection.
- (G) In exercising any authority under this subsection, the [Administrator](/usc/42/7602.md?p=a) shall not, for purposes of [section 653(b)(1) of title 29](/usc/29/653.md?p=b-1), be deemed to be exercising statutory authority to prescribe or enforce [standards](/usc/42/1320d.md?p=7) or regulations affecting occupational safety and health.
- (H) **Public access to off-site consequence analysis information.—**
- (i) **Definitions.—** In this subparagraph:
- (I) **Covered person.—** The term “covered person” means—
- (aa) an officer or [employee](/usc/42/1320a–7h.md?p=e-7) of the [United States](/usc/42/403.md?p=k);
- (bb) an officer or [employee](/usc/42/1320a–7h.md?p=e-7) of an agent or contractor of the Federal Government;
- (cc) an officer or [employee](/usc/42/1320a–7h.md?p=e-7) of a [State](/usc/42/7602.md?p=d) or [local government](/usc/42/8401a.md);
- (dd) an officer or [employee](/usc/42/1320a–7h.md?p=e-7) of an agent or contractor of a [State](/usc/42/7602.md?p=d) or [local government](/usc/42/8401a.md);
- (ee) an individual affiliated with an entity that has been given, by a [State](/usc/42/7602.md?p=d) or [local government](/usc/42/8401a.md), responsibility for preventing, planning for, or responding to [accidental releases](#r-2-A);
- (ff) an officer or [employee](/usc/42/1320a–7h.md?p=e-7) or an agent or contractor of an entity described in [item (ee)](#r-7-H-i-I-ee); and
- (gg) a qualified researcher under [clause (vii)](#r-7-H-vii).
- (II) **Official use.—** The term “official use” means an action of a Federal, [State](/usc/42/7602.md?p=d), or [local government](/usc/42/8401a.md) agency or an entity referred to in [subclause (I)(ee)](#r-7-H-i-I-ee) intended to carry out a function relevant to preventing, planning for, or responding to [accidental releases](#r-2-A).
- (III) **Off-site consequence analysis information.—** The term “off-site consequence analysis information” means those portions of a [risk management plan](#r-7-H-i-IV), excluding the executive summary of the plan, consisting of an evaluation of 1 or more worst-case [release](/usc/42/9601.md?p=22) scenarios or alternative [release](/usc/42/9601.md?p=22) scenarios, and any electronic data base created by the [Administrator](/usc/42/7602.md?p=a) from those portions.
- (IV) **Risk management plan.—** The term “risk management plan” means a risk management plan submitted to the [Administrator](/usc/42/7602.md?p=a) by an [owner or operator](#a-9) of a [stationary source](#r-2-C) under [subparagraph (B)(iii)](#r-7-B-iii).
- (ii) **Regulations.—** Not later than 1 year after August 5, 1999, the President shall—
- (I) assess—
- (aa) the increased risk of terrorist and other criminal activity associated with the posting of [off-site consequence analysis information](#r-7-H-i-III) on the Internet; and
- (bb) the incentives created by public disclosure of [off-site consequence analysis information](#r-7-H-i-III) for reduction in the risk of [accidental releases](#r-2-A); and
- (II) based on the assessment under [subclause (I)](#r-7-H-ii-I), promulgate regulations governing the distribution of [off-site consequence analysis information](#r-7-H-i-III) in a manner that, in the opinion of the President, minimizes the likelihood of [accidental releases](#r-2-A) and the risk described in [subclause (I)(aa)](#r-7-H-ii-I-aa) and the likelihood of harm to public health and welfare, and—
- (aa) allows access by any member of the public to paper copies of [off-site consequence analysis information](#r-7-H-i-III) for a limited number of [stationary sources](#r-2-C) located anywhere in the [United States](/usc/42/403.md?p=k), without any geographical restriction;
- (bb) allows other public access to [off-site consequence analysis information](#r-7-H-i-III) as appropriate;
- (cc) allows access for [official use](#r-7-H-i-II) by a [covered person](#r-7-H-i-I) described in any of [items (cc) through (ff)](#r-7-H-i-I-cc..r-7-H-i-I-ff) of clause (i)(I) (referred to in this subclause as a “[State](/usc/42/7602.md?p=d) or local [covered person](#r-7-H-i-I)”) to [off-site consequence analysis information](#r-7-H-i-III) relating to [stationary sources](#r-2-C) located in the [person](/usc/42/7602.md?p=e)’s [State](/usc/42/7602.md?p=d);
- (dd) allows a [State](/usc/42/7602.md?p=d) or local [covered person](#r-7-H-i-I) to provide, for [official use](#r-7-H-i-II), [off-site consequence analysis information](#r-7-H-i-III) relating to [stationary sources](#r-2-C) located in the [person](/usc/42/7602.md?p=e)’s [State](/usc/42/7602.md?p=d) to a [State](/usc/42/7602.md?p=d) or local [covered person](#r-7-H-i-I) in a contiguous [State](/usc/42/7602.md?p=d); and
- (ee) allows a [State](/usc/42/7602.md?p=d) or local [covered person](#r-7-H-i-I) to obtain for [official use](#r-7-H-i-II), by request to the [Administrator](/usc/42/7602.md?p=a), [off-site consequence analysis information](#r-7-H-i-III) that is not available to the [person](/usc/42/7602.md?p=e) under item (cc).
- (iii) **Availability under freedom of information act.—**
- (I) **First year.—** [Off-site consequence analysis information](#r-7-H-i-III), and any ranking of [stationary sources](#r-2-C) derived from the information, shall not be made available under [section 552 of title 5](/usc/5/552.md) during the 1-year period beginning on August 5, 1999.
- (II) **After first year.—** If the regulations under [clause (ii)](#r-7-H-ii) are promulgated on or before the end of the period described in [subclause (I)](#r-7-H-iii-I), [off-site consequence analysis information](#r-7-H-i-III) covered by the regulations, and any ranking of [stationary sources](#r-2-C) derived from the information, shall not be made available under [section 552 of title 5](/usc/5/552.md) after the end of that period.
- (III) **Applicability.—** Subclauses [(I)](#r-7-H-iii-I) and [(II)](#r-7-H-iii-II) apply to [off-site consequence analysis information](#r-7-H-i-III) submitted to the [Administrator](/usc/42/7602.md?p=a) before, on, or after August 5, 1999.
- (iv) **Availability of information during transition period.—** The [Administrator](/usc/42/7602.md?p=a) shall make [off-site consequence analysis information](#r-7-H-i-III) available to [covered persons](#r-7-H-i-I) for [official use](#r-7-H-i-II) in a manner that meets the requirements of [items (cc) through (ee)](#r-7-H-ii-II-cc..r-7-H-ii-II-ee) of clause (ii)(II), and to the public in a form that does not make available any information concerning the identity or location of [stationary sources](#r-2-C), during the period—
- (I) beginning on August 5, 1999; and
- (II) ending on the earlier of the date of promulgation of the regulations under [clause (ii)](#r-7-H-ii) or the date that is 1 year after August 5, 1999.
- (v) **Prohibition on unauthorized disclosure of information by covered persons.—**
- (I) **In general.—** Beginning on August 5, 1999, a [covered person](#r-7-H-i-I) shall not disclose to the public [off-site consequence analysis information](#r-7-H-i-III) in any form, or any statewide or national ranking of identified [stationary sources](#r-2-C) derived from such information, except as authorized by this subparagraph (including the regulations promulgated under [clause (ii)](#r-7-H-ii)). After the end of the 1-year period beginning on August 5, 1999, if regulations have not been promulgated under [clause (ii)](#r-7-H-ii), the preceding sentence shall not apply.
- (II) **Criminal penalties.—** Notwithstanding [section 7413 of this title](/usc/42/7413.md), a [covered person](#r-7-H-i-I) that willfully violates a restriction or prohibition established by this subparagraph (including the regulations promulgated under [clause (ii)](#r-7-H-ii)) shall, upon conviction, be fined for an infraction under [section 3571 of title 18](/usc/18/3571.md) (but shall not be subject to imprisonment) for each unauthorized disclosure of [off-site consequence analysis information](#r-7-H-i-III), except that [subsection (d)](/usc/18/3571.md?p=d) of such section 3571 shall not apply to a case in which the offense results in pecuniary loss unless the defendant knew that such loss would occur. The disclosure of [off-site consequence analysis information](#r-7-H-i-III) for each specific [stationary source](#r-2-C) shall be considered a separate offense. The total of all penalties that may be imposed on a [single](/usc/42/2304.md?p=m) [person](/usc/42/7602.md?p=e) or organization under this item shall not exceed $1,000,000 for [violations](/usc/42/2000e–16a.md?p=c) committed during any 1 calendar year.
- (III) **Applicability.—** If the [owner or operator](#a-9) of a [stationary source](#r-2-C) makes [off-site consequence analysis information](#r-7-H-i-III) relating to that [stationary source](#r-2-C) available to the public without restriction—
- (aa) subclauses [(I)](#r-7-H-v-I) and [(II)](#r-7-H-v-II) shall not apply with respect to the information; and
- (bb) the [owner or operator](#a-9) shall notify the [Administrator](/usc/42/7602.md?p=a) of the public availability of the information.
- (IV) **List.—** The [Administrator](/usc/42/7602.md?p=a) shall maintain and make publicly available a list of all [stationary sources](#r-2-C) that have provided notification under [subclause (III)(bb)](#r-7-H-v-III-bb).
- (vi) **Notice.—** The [Administrator](/usc/42/7602.md?p=a) shall provide notice of the definition of [official use](#r-7-H-i-II) as provided in [clause (i)(III)](#r-7-H-i-III)[^9] and examples of actions that would and would not meet that definition, and notice of the restrictions on further dissemination and the penalties established by this chapter to each [covered person](#r-7-H-i-I) who receives [off-site consequence analysis information](#r-7-H-i-III) under [clause (iv)](#r-7-H-iv) and each [covered person](#r-7-H-i-I) who receives [off-site consequence analysis information](#r-7-H-i-III) for an [official use](#r-7-H-i-II) under the regulations promulgated under [clause (ii)](#r-7-H-ii).
- (vii) **Qualified researchers.—**
- (I) **In general.—** Not later than 180 days after August 5, 1999, the [Administrator](/usc/42/7602.md?p=a), in consultation with the [Attorney General](/usc/42/14902.md?p=6), shall develop and implement a system for providing [off-site consequence analysis information](#r-7-H-i-III), including [facility](/usc/42/11049.md?p=4) identification, to any qualified researcher, including a qualified researcher from industry or any public interest group.
- (II) **Limitation on dissemination.—** The system shall not allow the researcher to disseminate, or make available on the Internet, the [off-site consequence analysis information](#r-7-H-i-III), or any portion of the [off-site consequence analysis information](#r-7-H-i-III), received under this clause.
- (viii) **Read-only information technology system.—** In consultation with the [Attorney General](/usc/42/14902.md?p=6) and the heads of other appropriate Federal agencies, the [Administrator](/usc/42/7602.md?p=a) shall establish an information technology system that provides for the availability to the public of [off-site consequence analysis information](#r-7-H-i-III) by means of a central data base under the control of the Federal Government that contains information that users may read, but that provides no means by which an electronic or mechanical copy of the information may be made.
- (ix) **Voluntary industry accident prevention standards.—** The Environmental Protection Agency, the Department of Justice, and other appropriate agencies may provide technical assistance to [owners](/usc/42/13641.md?p=4) and operators of [stationary sources](#r-2-C) and participate in the development of voluntary industry [standards](/usc/42/1320d.md?p=7) that will help achieve the objectives set forth in [paragraph (1)](#r-1).
- (x) **Effect on state or local law.—**
- (I) **In general.—** Subject to [subclause (II)](#r-7-H-x-II), this subparagraph (including the regulations promulgated under this subparagraph) shall supersede any provision of [State](/usc/42/7602.md?p=d) or local law that is inconsistent with this subparagraph (including the regulations).
- (II) **Availability of information under state law.—** Nothing in this subparagraph precludes a [State](/usc/42/7602.md?p=d) from making available data on the off-site consequences of chemical [releases](/usc/42/9601.md?p=22) collected in accordance with [State](/usc/42/7602.md?p=d) law.
- (xi) **Report.—**
- (I) **In general.—** Not later than 3 years after August 5, 1999, the [Attorney General](/usc/42/14902.md?p=6), in consultation with appropriate [State](/usc/42/7602.md?p=d), local, and Federal Government agencies, affected industry, and the public, shall submit to Congress a report that describes the extent to which regulations promulgated under this paragraph have resulted in actions, including the design and maintenance of safe [facilities](/usc/42/11049.md?p=4), that are effective in detecting, preventing, and minimizing the consequences of [releases](/usc/42/9601.md?p=22) of [regulated substances](#r-2-B) that may be caused by criminal activity. As part of this report, the [Attorney General](/usc/42/14902.md?p=6), using available data to the extent possible, and a sampling of covered [stationary sources](#r-2-C) selected at the discretion of the [Attorney General](/usc/42/14902.md?p=6), and in consultation with appropriate [State](/usc/42/7602.md?p=d), local, and Federal governmental agencies, affected industry, and the public, shall review the vulnerability of covered [stationary sources](#r-2-C) to criminal and terrorist activity, current industry [practices](/usc/42/17061.md?p=19) regarding site security, and security of transportation of [regulated substances](#r-2-B). The [Attorney General](/usc/42/14902.md?p=6) shall submit this report, containing the results of the review, together with recommendations, if any, for reducing vulnerability of covered [stationary sources](#r-2-C) to criminal and terrorist activity, to the Committee on [Commerce](/usc/42/6311.md?p=7) of the [United States](/usc/42/403.md?p=k) House of [Representatives](/usc/42/3058f.md?p=5) and the Committee on Environment and Public Works of the [United States](/usc/42/403.md?p=k) Senate and other relevant committees of Congress.
- (II) **Interim report.—** Not later than 12 months after August 5, 1999, the [Attorney General](/usc/42/14902.md?p=6) shall submit to the Committee on [Commerce](/usc/42/6311.md?p=7) of the [United States](/usc/42/403.md?p=k) House of [Representatives](/usc/42/3058f.md?p=5) and the Committee on Environment and Public Works of the [United States](/usc/42/403.md?p=k) Senate, and other relevant committees of Congress, an interim report that includes, at a minimum—
- (aa) the preliminary findings under [subclause (I)](#r-7-H-xi-I);
- (bb) the methods used to develop the findings; and
- (cc) an explanation of the activities expected to occur that could [cause](/usc/42/9908.md?p=c-2) the findings of the report under [subclause (I)](#r-7-H-xi-I) to be different than the preliminary findings.
- (III) **Availability of information.—** Information that is developed by the [Attorney General](/usc/42/14902.md?p=6) or requested by the [Attorney General](/usc/42/14902.md?p=6) and received from a covered [stationary source](#r-2-C) for the purpose of conducting the review under subclauses [(I)](#r-7-H-xi-I) and [(II)](#r-7-H-xi-II) shall be exempt from disclosure under [section 552 of title 5](/usc/5/552.md) if such information would pose a threat to national security.
- (xii) **Scope.—** This subparagraph—
- (I) applies only to [covered persons](#r-7-H-i-I); and
- (II) does not restrict the dissemination of [off-site consequence analysis information](#r-7-H-i-III) by any [covered person](#r-7-H-i-I) in any manner or form except in the form of a [risk management plan](#r-7-H-i-IV) or an electronic data base created by the [Administrator](/usc/42/7602.md?p=a) from [off-site consequence analysis information](#r-7-H-i-III).
- (xiii) **Authorization of appropriations.—** There are authorized to be appropriated to the [Administrator](/usc/42/7602.md?p=a) and the [Attorney General](/usc/42/14902.md?p=6) such sums as are necessary to carry out this subparagraph (including the regulations promulgated under [clause (ii)](#r-7-H-ii)), to remain available until expended.
- (8) **Research on hazard assessments—** The [Administrator](/usc/42/7602.md?p=a) may collect and publish information on accident scenarios and consequences covering a range of possible events for substances listed under [paragraph (3)](#r-3). The [Administrator](/usc/42/7602.md?p=a) shall establish a [program](/usc/42/274l–1.md?p=4) of long-term research to develop and disseminate information on methods and techniques for [hazard](/usc/42/5165f.md?p=a-3) assessment which may be useful in improving and validating the procedures employed in the preparation of [hazard](/usc/42/5165f.md?p=a-3) assessments under this subsection.
- (9) **Order authority—**
- (A) In addition to any other action taken, when the [Administrator](/usc/42/7602.md?p=a) determines that there may be an imminent and substantial endangerment to the human health or welfare or the environment because of an actual or threatened [accidental release](#r-2-A) of a [regulated substance](#r-2-B), the [Administrator](/usc/42/7602.md?p=a) may secure such relief as may be necessary to abate such danger or threat, and the district court of the [United States](/usc/42/403.md?p=k) in the district in which the threat occurs shall have jurisdiction to grant such relief as the public interest and the equities of the case may require. The [Administrator](/usc/42/7602.md?p=a) may also, after notice to the [State](/usc/42/7602.md?p=d) in which the [stationary source](#r-2-C) is located, take other action under this paragraph including, but not limited to, issuing such orders as may be necessary to protect human health. The [Administrator](/usc/42/7602.md?p=a) shall take action under [section 7603 of this title](/usc/42/7603.md) rather than this paragraph whenever the authority of such section is adequate to protect human health and the environment.
- (B) Orders issued pursuant to this paragraph may be enforced in an action brought in the appropriate [United States](/usc/42/403.md?p=k) district court as if the order were issued under [section 7603 of this title](/usc/42/7603.md).
- (C) Within 180 days after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall publish guidance for using the order authorities established by this paragraph. Such guidance shall provide for the coordinated use of the authorities of this paragraph with other emergency powers authorized by [section 9606 of this title](/usc/42/9606.md), sections 311(c), 308, 309 and 504(a) of the Federal Water Pollution Control Act [[33 U.S.C. 1321(c)](/usc/33/1321.md?p=c), 1318, 1319, 1364(a)], sections 3007, 3008, 3013, and 7003 of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6927](/usc/42/6927.md), 6928, 6934, 6973], sections 1445 and 1431 of the Safe Drinking Water Act [[42 U.S.C. 300j–4](/usc/42/300j–4.md), 300i], sections 5 and 7 of the Toxic Substances Control Act [[15 U.S.C. 2604](/usc/15/2604.md), 2606], and sections [7413](/usc/42/7413.md), [7414](/usc/42/7414.md), and [7603](/usc/42/7603.md) of this title.
- (10) **Presidential review—** The President shall conduct a review of [release](/usc/42/9601.md?p=22) prevention, mitigation and response authorities of the various Federal agencies and shall clarify and coordinate agency responsibilities to assure the most effective and efficient implementation of such authorities and to identify any deficiencies in authority or resources which may exist. The President may utilize the resources and solicit the recommendations of the Chemical Safety and [Hazard](/usc/42/5165f.md?p=a-3) Investigation [Board](/usc/42/10261.md?p=2) in conducting such review. At the conclusion of such review, but not later than 24 months after November 15, 1990, the President shall transmit a message to the Congress on the [release](/usc/42/9601.md?p=22) prevention, mitigation and response activities of the Federal Government making such recommendations for change in law as the President may deem appropriate. Nothing in this paragraph shall be interpreted, construed or applied to authorize the President to modify or reassign [release](/usc/42/9601.md?p=22) prevention, mitigation or response authorities otherwise established by law.
- (11) **State authority—** Nothing in this subsection shall preclude, deny or limit any right of a [State](/usc/42/7602.md?p=d) or political subdivision thereof to adopt or enforce any regulation, requirement, limitation or [standard](/usc/42/1320d.md?p=7) (including any procedural requirement) that is more stringent than a regulation, requirement, limitation or [standard](/usc/42/1320d.md?p=7) in effect under this subsection or that applies to a substance not subject to this subsection.
- (s) **Periodic report—** Not later than January 15, 1993 and every 3 years thereafter, the [Administrator](/usc/42/7602.md?p=a) shall prepare and transmit to the Congress a comprehensive report on the measures taken by the Agency and by the [States](/usc/42/7602.md?p=d) to implement the provisions of this section. The [Administrator](/usc/42/7602.md?p=a) shall maintain a database on [pollutants](/usc/42/1397h.md?p=c-4) and sources subject to the provisions of this section and shall include aggregate information from the database in each annual report. The report shall include, but not be limited to—
- (1) a status report on [standard](/usc/42/1320d.md?p=7)-setting under subsections [(d)](#d) and [(f)](#f);
- (2) information with respect to compliance with such [standards](/usc/42/1320d.md?p=7) including the costs of compliance experienced by sources in various [categories](/usc/42/1395w–4.md?p=j-1) and subcategories;
- (3) development and implementation of the national urban air toxics [program](/usc/42/274l–1.md?p=4); and
- (4) recommendations of the Chemical Safety and [Hazard](/usc/42/5165f.md?p=a-3) Investigation [Board](/usc/42/10261.md?p=2) with respect to the prevention and mitigation of [accidental releases](#r-2-A).
# §7413. Federal enforcement
- (a) **In general—**
- (1) **Order to comply with SIP—** Whenever, on the basis of any information available to the [Administrator](/usc/42/7602.md?p=a), the [Administrator](/usc/42/7602.md?p=a) finds that any [person](/usc/42/7602.md?p=e) has violated or is in [violation](/usc/42/2000e–16a.md?p=c) of any requirement or prohibition of an [applicable implementation plan](/usc/42/7602.md?p=q) or permit, the [Administrator](/usc/42/7602.md?p=a) shall notify the [person](/usc/42/7602.md?p=e) and the [State](/usc/42/7602.md?p=d) in which the plan applies of such finding. At any time after the expiration of 30 days following the date on which such notice of a [violation](/usc/42/2000e–16a.md?p=c) is issued, the [Administrator](/usc/42/7602.md?p=a) may, without regard to the period of [violation](/usc/42/2000e–16a.md?p=c) (subject to [section 2462 of title 28](/usc/28/2462.md))—
- (A) issue an order requiring such [person](/usc/42/7602.md?p=e) to comply with the requirements or prohibitions of such plan or permit,
- (B) issue an administrative penalty order in accordance with [subsection (d)](#d), or
- (C) bring a civil action in accordance with [subsection (b)](#b).
- (2) **State failure to enforce SIP or permit program—** Whenever, on the basis of information available to the [Administrator](/usc/42/7602.md?p=a), the [Administrator](/usc/42/7602.md?p=a) finds that [violations](/usc/42/2000e–16a.md?p=c) of an [applicable implementation plan](/usc/42/7602.md?p=q) or an approved permit [program](/usc/42/274l–1.md?p=4) under subchapter V are so widespread that such [violations](/usc/42/2000e–16a.md?p=c) appear to result from a failure of the [State](/usc/42/7602.md?p=d) in which the plan or permit [program](/usc/42/274l–1.md?p=4) applies to enforce the plan or permit [program](/usc/42/274l–1.md?p=4) effectively, the [Administrator](/usc/42/7602.md?p=a) shall so notify the [State](/usc/42/7602.md?p=d). In the case of a permit [program](/usc/42/274l–1.md?p=4), the notice shall be made in accordance with subchapter V. If the [Administrator](/usc/42/7602.md?p=a) finds such failure extends beyond the 30th day after such notice (90 days in the case of such permit [program](/usc/42/274l–1.md?p=4)), the [Administrator](/usc/42/7602.md?p=a) shall give public notice of such finding. During the period beginning with such public notice and ending when such [State](/usc/42/7602.md?p=d) satisfies the [Administrator](/usc/42/7602.md?p=a) that it will enforce such plan or permit [program](/usc/42/274l–1.md?p=4) (hereafter referred to in this section as “period of federally assumed enforcement”), the [Administrator](/usc/42/7602.md?p=a) may enforce any requirement or prohibition of such plan or permit [program](/usc/42/274l–1.md?p=4) with respect to any [person](/usc/42/7602.md?p=e) by—
- (A) issuing an order requiring such [person](/usc/42/7602.md?p=e) to comply with such requirement or prohibition,
- (B) issuing an administrative penalty order in accordance with [subsection (d)](#d), or
- (C) bringing a civil action in accordance with [subsection (b)](#b).
- (3) **EPA enforcement of other requirements—** Except for a requirement or prohibition enforceable under the preceding provisions of this subsection, whenever, on the basis of any information available to the [Administrator](/usc/42/7602.md?p=a), the [Administrator](/usc/42/7602.md?p=a) finds that any [person](/usc/42/7602.md?p=e) has violated, or is in [violation](/usc/42/2000e–16a.md?p=c) of, any other requirement or prohibition of this subchapter, [section 7603 of this title](/usc/42/7603.md), subchapter IV–A, subchapter V, or subchapter VI, including, but not limited to, a requirement or prohibition of any rule, plan, order, waiver, or permit promulgated, issued, or approved under those provisions or subchapters, or for the payment of any fee owed to the [United States](/usc/42/403.md?p=k) under this chapter (other than subchapter II), the [Administrator](/usc/42/7602.md?p=a) may—
- (A) issue an administrative penalty order in accordance with [subsection (d)](#d),
- (B) issue an order requiring such [person](/usc/42/7602.md?p=e) to comply with such requirement or prohibition,
- (C) bring a civil action in accordance with [subsection (b)](#b) or [section 7605 of this title](/usc/42/7605.md), or
- (D) request the [Attorney General](/usc/42/14902.md?p=6) to commence a criminal action in accordance with [subsection (c)](#c).
- (4) **Requirements for orders—** An order issued under this subsection (other than an order relating to a [violation](/usc/42/2000e–16a.md?p=c) of [section 7412 of this title](/usc/42/7412.md)) shall not take effect until the [person](/usc/42/7602.md?p=e) to whom it is issued has had an opportunity to confer with the [Administrator](/usc/42/7602.md?p=a) concerning the alleged [violation](/usc/42/2000e–16a.md?p=c). A copy of any order issued under this subsection shall be sent to the [State](/usc/42/7602.md?p=d) [air pollution control agency](/usc/42/7602.md?p=b) of any [State](/usc/42/7602.md?p=d) in which the [violation](/usc/42/2000e–16a.md?p=c) occurs. Any order issued under this subsection shall [state](/usc/42/7602.md?p=d) with reasonable specificity the nature of the [violation](/usc/42/2000e–16a.md?p=c) and specify a time for compliance which the [Administrator](/usc/42/7602.md?p=a) determines is reasonable, taking into account the seriousness of the [violation](/usc/42/2000e–16a.md?p=c) and any good faith efforts to comply with applicable requirements. In any case in which an order under this subsection (or notice to a violator under [paragraph (1)](#a-1)) is issued to a [corporation](/usc/42/2296b–7.md?p=1), a copy of such order (or notice) shall be issued to appropriate corporate officers. An order issued under this subsection shall require the [person](/usc/42/7602.md?p=e) to whom it was issued to comply with the requirement as expeditiously as practicable, but in no event longer than one year after the date the order was issued, and shall be nonrenewable. No order issued under this subsection shall prevent the [State](/usc/42/7602.md?p=d) or the [Administrator](/usc/42/7602.md?p=a) from assessing any penalties nor otherwise affect or limit the [State](/usc/42/7602.md?p=d)’s or the [United States](/usc/42/403.md?p=k) authority to enforce under other provisions of this chapter, nor affect any [person](/usc/42/7602.md?p=e)’s obligations to comply with any section of this chapter or with a term or condition of any permit or [applicable implementation plan](/usc/42/7602.md?p=q) promulgated or approved under this chapter.
- (5) **Failure to comply with new source requirements—** Whenever, on the basis of any available information, the [Administrator](/usc/42/7602.md?p=a) finds that a [State](/usc/42/7602.md?p=d) is not acting in compliance with any requirement or prohibition of the chapter relating to the [construction](/usc/42/7479.md?p=2-C) of new sources or the [modification](/usc/42/7501.md?p=4) of existing sources, the [Administrator](/usc/42/7602.md?p=a) may—
- (A) issue an order prohibiting the [construction](/usc/42/7479.md?p=2-C) or [modification](/usc/42/7501.md?p=4) of any [major stationary source](/usc/42/7602.md?p=j) in any area to which such requirement applies;[^1]
- (B) issue an administrative penalty order in accordance with [subsection (d)](#d), or
- (C) bring a civil action under [subsection (b)](#b).
Nothing in this subsection shall preclude the [United States](/usc/42/403.md?p=k) from commencing a criminal action under [subsection (c)](#c) at any time for any such [violation](/usc/42/2000e–16a.md?p=c).
- (b) **Civil judicial enforcement—** The [Administrator](/usc/42/7602.md?p=a) shall, as appropriate, in the case of any [person](/usc/42/7602.md?p=e) that is the [owner or operator](/usc/42/9601.md?p=20-B) of an affected source, a [major emitting facility](/usc/42/7602.md?p=j), or a [major stationary source](/usc/42/7602.md?p=j), and may, in the case of any other [person](/usc/42/7602.md?p=e), commence a civil action for a permanent or temporary injunction, or to assess and recover a civil penalty of not more than $25,000 per day for each [violation](/usc/42/2000e–16a.md?p=c), or both, in any of the following instances:
- (1) Whenever such [person](/usc/42/7602.md?p=e) has violated, or is in [violation](/usc/42/2000e–16a.md?p=c) of, any requirement or prohibition of an [applicable implementation plan](/usc/42/7602.md?p=q) or permit. Such an action shall be commenced (A) during any period of federally assumed enforcement, or (B) more than 30 days following the date of the [Administrator](/usc/42/7602.md?p=a)’s notification under [subsection (a)(1)](#a-1) that such [person](/usc/42/7602.md?p=e) has violated, or is in [violation](/usc/42/2000e–16a.md?p=c) of, such requirement or prohibition.
- (2) Whenever such [person](/usc/42/7602.md?p=e) has violated, or is in [violation](/usc/42/2000e–16a.md?p=c) of, any other requirement or prohibition of this subchapter, [section 7603 of this title](/usc/42/7603.md), subchapter IV–A, subchapter V, or subchapter VI, including, but not limited to, a requirement or prohibition of any rule, order, waiver or permit promulgated, issued, or approved under this chapter, or for the payment of any fee owed the [United States](/usc/42/403.md?p=k) under this chapter (other than subchapter II).
- (3) Whenever such [person](/usc/42/7602.md?p=e) attempts to construct or modify a [major stationary source](/usc/42/7602.md?p=j) in any area with respect to which a finding under [subsection (a)(5)](#a-5) has been made.
Any action under this subsection may be brought in the district court of the [United States](/usc/42/403.md?p=k) for the district in which the [violation](/usc/42/2000e–16a.md?p=c) is alleged to have occurred, or is occurring, or in which the defendant resides, or where the defendant’s principal place of business is located, and such court shall have jurisdiction to restrain such [violation](/usc/42/2000e–16a.md?p=c), to require compliance, to assess such civil penalty, to collect any fees owed the [United States](/usc/42/403.md?p=k) under this chapter (other than subchapter II) and any noncompliance assessment and nonpayment penalty owed under [section 7420 of this title](/usc/42/7420.md), and to award any other appropriate relief. Notice of the commencement of such action shall be given to the appropriate [State](/usc/42/7602.md?p=d) [air pollution control agency](/usc/42/7602.md?p=b). In the case of any action brought by the [Administrator](/usc/42/7602.md?p=a) under this subsection, the court may award costs of litigation (including reasonable attorney and expert witness fees) to the party or parties against whom such action was brought if the court finds that such action was unreasonable.
- (c) **Criminal penalties—**
- (1) Any [person](#c-6) who knowingly violates any requirement or prohibition of an [applicable implementation plan](/usc/42/7602.md?p=q) (during any period of federally assumed enforcement or more than 30 days after having been notified under [subsection (a)(1)](#a-1) by the [Administrator](/usc/42/7602.md?p=a) that such [person](#c-6) is violating such requirement or prohibition), any order under [subsection (a)](#a) of this section, requirement or prohibition of [section 7411(e) of this title](/usc/42/7411.md?p=e) (relating to new source performance [standards](/usc/42/1320d.md?p=7)), [section 7412 of this title](/usc/42/7412.md), [section 7414 of this title](/usc/42/7414.md) (relating to [inspections](/usc/42/4851b.md?p=12), etc.), [section 7429 of this title](/usc/42/7429.md) (relating to [solid waste](/usc/42/7546.md?p=a-1) combustion), [section 7475(a) of this title](/usc/42/7475.md?p=a) (relating to preconstruction requirements), an order under [section 7477 of this title](/usc/42/7477.md) (relating to preconstruction requirements), an order under [section 7603 of this title](/usc/42/7603.md) (relating to emergency orders), section [7661a(a)](/usc/42/7661a.md?p=a) or [7661b(c)](/usc/42/7661b.md?p=c) of this title (relating to permits), or any requirement or prohibition of subchapter IV–A (relating to acid deposition control), or subchapter VI (relating to stratospheric ozone control), including a requirement of any rule, order, waiver, or permit promulgated or approved under such sections or subchapters, and including any requirement for the payment of any fee owed the [United States](/usc/42/403.md?p=k) under this chapter (other than subchapter II) shall, upon conviction, be punished by a fine pursuant to [title 18](/usc/18.md) or by imprisonment for not to exceed 5 years, or both. If a conviction of any [person](#c-6) under this paragraph is for a [violation](/usc/42/2000e–16a.md?p=c) committed after a first conviction of such [person](#c-6) under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment.
- (2) Any [person](#c-6) who knowingly—
- (A) makes any false material statement, representation, or certification in, or omits material information from, or knowingly alters, conceals, or fails to file or maintain any notice, application, record, report, plan, or other document required pursuant to this chapter to be either filed or maintained (whether with respect to the requirements imposed by the [Administrator](/usc/42/7602.md?p=a) or by a [State](/usc/42/7602.md?p=d));
- (B) fails to notify or report as required under this chapter; or
- (C) falsifies, tampers with, renders inaccurate, or fails to install any monitoring device or method required to be maintained or followed under this chapter[^2]
shall, upon conviction, be punished by a fine pursuant to [title 18](/usc/18.md) or by imprisonment for not more than 2 years, or both. If a conviction of any [person](#c-6) under this paragraph is for a [violation](/usc/42/2000e–16a.md?p=c) committed after a first conviction of such [person](#c-6) under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment.
- (3) Any [person](#c-6) who knowingly fails to pay any fee owed the [United States](/usc/42/403.md?p=k) under this subchapter, subchapter III, IV–A, V, or VI shall, upon conviction, be punished by a fine pursuant to [title 18](/usc/18.md) or by imprisonment for not more than 1 year, or both. If a conviction of any [person](#c-6) under this paragraph is for a [violation](/usc/42/2000e–16a.md?p=c) committed after a first conviction of such [person](#c-6) under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment.
- (4) Any [person](#c-6) who negligently [releases](/usc/42/9601.md?p=22) into the ambient air any hazardous [air pollutant](/usc/42/7602.md?p=g) listed pursuant to [section 7412 of this title](/usc/42/7412.md) or any [extremely hazardous substance](/usc/42/11049.md?p=3) listed pursuant to [section 11002(a)(2) of this title](/usc/42/11002.md?p=a-2) that is not listed in [section 7412 of this title](/usc/42/7412.md), and who at the time negligently places another [person](#c-6) in imminent danger of death or [serious bodily injury](#c-5-F) shall, upon conviction, be punished by a fine under [title 18](/usc/18.md) or by imprisonment for not more than 1 year, or both. If a conviction of any [person](#c-6) under this paragraph is for a [violation](/usc/42/2000e–16a.md?p=c) committed after a first conviction of such [person](#c-6) under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment.
- (5)
- (A) Any [person](#c-6) who knowingly [releases](/usc/42/9601.md?p=22) into the ambient air any hazardous [air pollutant](/usc/42/7602.md?p=g) listed pursuant to [section 7412 of this title](/usc/42/7412.md) or any [extremely hazardous substance](/usc/42/11049.md?p=3) listed pursuant to [section 11002(a)(2) of this title](/usc/42/11002.md?p=a-2) that is not listed in [section 7412 of this title](/usc/42/7412.md), and who knows at the time that he thereby places another [person](#c-6) in imminent danger of death or [serious bodily injury](#c-5-F) shall, upon conviction, be punished by a fine under [title 18](/usc/18.md) or by imprisonment of not more than 15 years, or both. Any [person](#c-6) committing such [violation](/usc/42/2000e–16a.md?p=c) which is an [organization](#c-5-E) shall, upon conviction under this paragraph, be subject to a fine of not more than $1,000,000 for each [violation](/usc/42/2000e–16a.md?p=c). If a conviction of any [person](#c-6) under this paragraph is for a [violation](/usc/42/2000e–16a.md?p=c) committed after a first conviction of such [person](#c-6) under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment. For any [air pollutant](/usc/42/7602.md?p=g) for which the [Administrator](/usc/42/7602.md?p=a) has set an emissions [standard](/usc/42/1320d.md?p=7) or for any source for which a permit has been issued under subchapter V, a [release](/usc/42/9601.md?p=22) of such [pollutant](/usc/42/1397h.md?p=c-4) in accordance with that [standard](/usc/42/1320d.md?p=7) or permit shall not constitute a [violation](/usc/42/2000e–16a.md?p=c) of this paragraph or [paragraph (4)](#c-4).
- (B) In determining whether a defendant who is an individual knew that the [violation](/usc/42/2000e–16a.md?p=c) placed another [person](#c-6) in imminent danger of death or [serious bodily injury](#c-5-F)—
- (i) the defendant is responsible only for actual awareness or actual belief possessed; and
- (ii) knowledge possessed by [a person](#h) other than the defendant, but not by the defendant, may not be attributed to the defendant;
except that in proving a defendant’s possession of actual knowledge, circumstantial evidence may be used, including evidence that the defendant took affirmative steps to be shielded from relevant information.
- (C) It is an affirmative defense to a prosecution that the conduct charged was freely consented to by the [person](#c-6) endangered and that the danger and conduct charged were reasonably foreseeable [hazards](/usc/42/5165f.md?p=a-3) of—
- (i) an occupation, a business, or a profession; or
- (ii) medical [treatment](/usc/42/11851.md?p=11) or medical or scientific experimentation conducted by professionally approved methods and such other [person](#c-6) had been made aware of the risks involved prior to giving consent.
The defendant may establish an affirmative defense under this subparagraph by a preponderance of the evidence.
- (D) All general defenses, affirmative defenses, and bars to prosecution that may apply with respect to other Federal criminal offenses may apply under subparagraph (A) of this paragraph and shall be determined by the courts of the [United States](/usc/42/403.md?p=k) according to the principles of common law as they may be interpreted in the light of reason and experience. Concepts of justification and excuse applicable under this section may be developed in the light of reason and experience.
- (E) The term “organization” means a legal entity, other than a government, established or organized for any purpose, and such term includes a [corporation](/usc/42/2296b–7.md?p=1), company, association, firm, partnership, joint stock company, [foundation](/usc/42/17351.md?p=3), institution, [trust](/usc/42/12854.md?p=6), society, union, or any other association of [persons](#c-6).
- (F) The term “serious bodily injury” means bodily injury which involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, [organ](/usc/42/274b.md?p=d-2), or mental faculty.
- (6) For the purpose of this subsection, the term “person” includes, in addition to the entities referred to in [section 7602(e) of this title](/usc/42/7602.md?p=e), any responsible corporate officer.
- (d) **Administrative assessment of civil penalties—**
- (1) The [Administrator](/usc/42/7602.md?p=a) may issue an administrative order against any [person](/usc/42/7602.md?p=e) assessing a civil administrative penalty of up to $25,000, per day of [violation](/usc/42/2000e–16a.md?p=c), whenever, on the basis of any available information, the [Administrator](/usc/42/7602.md?p=a) finds that such [person](/usc/42/7602.md?p=e)—
- (A) has violated or is violating any requirement or prohibition of an [applicable implementation plan](/usc/42/7602.md?p=q) (such order shall be issued (i) during any period of federally assumed enforcement, or (ii) more than thirty days following the date of the [Administrator](/usc/42/7602.md?p=a)’s notification under [subsection (a)(1)](#a-1) of this section of a finding that such [person](/usc/42/7602.md?p=e) has violated or is violating such requirement or prohibition); or
- (B) has violated or is violating any other requirement or prohibition of this subchapter or subchapter III, IV–A, V, or VI, including, but not limited to, a requirement or prohibition of any rule, order, waiver, permit, or plan promulgated, issued, or approved under this chapter, or for the payment of any fee owed the [United States](/usc/42/403.md?p=k) under this chapter (other than subchapter II); or
- (C) attempts to construct or modify a [major stationary source](/usc/42/7602.md?p=j) in any area with respect to which a finding under [subsection (a)(5)](#a-5) of this section has been made.
The [Administrator](/usc/42/7602.md?p=a)’s authority under this paragraph shall be limited to matters where the total penalty sought does not exceed $200,000 and the first alleged date of [violation](/usc/42/2000e–16a.md?p=c) occurred no more than 12 months prior to the initiation of the administrative action, except where the [Administrator](/usc/42/7602.md?p=a) and the [Attorney General](/usc/42/14902.md?p=6) jointly determine that a matter involving a larger [penalty amount](/usc/42/655.md?p=a-4-B-i) or longer period of [violation](/usc/42/2000e–16a.md?p=c) is appropriate for administrative penalty action. Any such determination by the [Administrator](/usc/42/7602.md?p=a) and the [Attorney General](/usc/42/14902.md?p=6) shall not be subject to judicial review.
- (2)
- (A) An administrative penalty assessed under [paragraph (1)](#d-1) shall be assessed by the [Administrator](/usc/42/7602.md?p=a) by an order made after opportunity for a hearing on the record in accordance with sections [554](/usc/5/554.md) and [556](/usc/5/556.md) of title 5. The [Administrator](/usc/42/7602.md?p=a) shall issue reasonable rules for discovery and other procedures for hearings under this paragraph. Before issuing such an order, the [Administrator](/usc/42/7602.md?p=a) shall give written notice to the [person](/usc/42/7602.md?p=e) to be assessed an administrative penalty of the [Administrator](/usc/42/7602.md?p=a)’s proposal to issue such order and provide such [person](/usc/42/7602.md?p=e) an opportunity to request such a hearing on the order, within 30 days of the date the notice is received by such [person](/usc/42/7602.md?p=e).
- (B) The [Administrator](/usc/42/7602.md?p=a) may compromise, modify, or remit, with or without conditions, any administrative penalty which may be imposed under this subsection.
- (3) The [Administrator](/usc/42/7602.md?p=a) may implement, after consultation with the [Attorney General](/usc/42/14902.md?p=6) and the [States](/usc/42/7602.md?p=d), a field citation [program](/usc/42/274l–1.md?p=4) through regulations establishing appropriate minor [violations](/usc/42/2000e–16a.md?p=c) for which field citations assessing civil penalties not to exceed $5,000 per day of [violation](/usc/42/2000e–16a.md?p=c) may be issued by officers or [employees](/usc/42/1320a–7h.md?p=e-7) designated by the [Administrator](/usc/42/7602.md?p=a). Any [person](/usc/42/7602.md?p=e) to whom a field citation is assessed may, within a reasonable time as prescribed by the [Administrator](/usc/42/7602.md?p=a) through regulation, elect to pay the penalty assessment or to request a hearing on the field citation. If a request for a hearing is not made within the time specified in the regulation, the penalty assessment in the field citation shall be final. Such hearing shall not be subject to section [554](/usc/5/554.md) or [556](/usc/5/556.md) of title 5, but shall provide a reasonable opportunity to be heard and to present evidence. Payment of a civil penalty required by a field citation shall not be a defense to further enforcement by the [United States](/usc/42/403.md?p=k) or a [State](/usc/42/7602.md?p=d) to correct a [violation](/usc/42/2000e–16a.md?p=c), or to assess the statutory maximum penalty pursuant to other authorities in the chapter, if the [violation](/usc/42/2000e–16a.md?p=c) continues.
- (4) Any [person](/usc/42/7602.md?p=e) against whom a civil penalty is assessed under paragraph (3) of this subsection or to whom an administrative penalty order is issued under paragraph (1) of this subsection may seek review of such assessment in the [United States](/usc/42/403.md?p=k) District Court for the District of Columbia or for the district in which the [violation](/usc/42/2000e–16a.md?p=c) is alleged to have occurred, in which such [person](/usc/42/7602.md?p=e) resides, or where such [person](/usc/42/7602.md?p=e)’s principal place of business is located, by filing in such court within 30 days following the date the administrative penalty order becomes final under [paragraph (2)](#d-2), the assessment becomes final under [paragraph (3)](#d-3), or a final decision following a hearing under [paragraph (3)](#d-3) is rendered, and by simultaneously sending a copy of the filing by certified mail to the [Administrator](/usc/42/7602.md?p=a) and the [Attorney General](/usc/42/14902.md?p=6). Within 30 days thereafter, the [Administrator](/usc/42/7602.md?p=a) shall file in such court a certified copy, or certified index, as appropriate, of the record on which the administrative penalty order or assessment was issued. Such court shall not set aside or remand such order or assessment unless there is not substantial evidence in the record, taken as a whole, to support the finding of a [violation](/usc/42/2000e–16a.md?p=c) or unless the order or penalty assessment constitutes an abuse of discretion. Such order or penalty assessment shall not be subject to review by any court except as provided in this paragraph. In any such proceedings, the [United States](/usc/42/403.md?p=k) may seek to recover civil penalties ordered or assessed under this section.
- (5) If any [person](/usc/42/7602.md?p=e) fails to pay an assessment of a civil penalty or fails to comply with an administrative penalty order—
- (A) after the order or assessment has become final, or
- (B) after a court in an action brought under [paragraph (4)](#d-4) has entered a final judgment in favor of the [Administrator](/usc/42/7602.md?p=a),
the [Administrator](/usc/42/7602.md?p=a) shall request the [Attorney General](/usc/42/14902.md?p=6) to bring a civil action in an appropriate district court to enforce the order or to recover the amount ordered or assessed (plus interest at rates established pursuant to [section 6621(a)(2) of title 26](/usc/26/6621.md?p=a-2) from the date of the final order or decision or the date of the final judgment, as the case may be). In such an action, the validity, amount, and appropriateness of such order or assessment shall not be subject to review. Any [person](/usc/42/7602.md?p=e) who fails to pay on a timely basis a civil penalty ordered or assessed under this section shall be required to pay, in addition to such penalty and interest, the [United States](/usc/42/403.md?p=k) enforcement expenses, including but not limited to attorneys fees and costs incurred by the [United States](/usc/42/403.md?p=k) for collection proceedings and a quarterly nonpayment penalty for each quarter during which such failure to pay persists. Such nonpayment penalty shall be 10 percent of the aggregate amount of such [person](/usc/42/7602.md?p=e)’s outstanding penalties and nonpayment penalties accrued as of the beginning of such quarter.
- (e) **Penalty assessment criteria—**
- (1) In determining the amount of any penalty to be assessed under this section or [section 7604(a) of this title](/usc/42/7604.md?p=a), the [Administrator](/usc/42/7602.md?p=a) or the court, as appropriate, shall take into consideration (in addition to such other factors as justice may require) the size of the business, the economic impact of the penalty on the business, the violator’s full compliance history and good faith efforts to comply, the duration of the [violation](/usc/42/2000e–16a.md?p=c) as established by any credible evidence (including evidence other than the applicable test method), payment by the violator of penalties previously assessed for the same [violation](/usc/42/2000e–16a.md?p=c), the economic benefit of noncompliance, and the seriousness of the [violation](/usc/42/2000e–16a.md?p=c). The court shall not assess penalties for noncompliance with administrative subpoenas under [section 7607(a) of this title](/usc/42/7607.md?p=a), or actions under [section 7414 of this title](/usc/42/7414.md), where the violator had sufficient [cause](/usc/42/9908.md?p=c-2) to violate or fail or refuse to comply with such subpoena or action.
- (2) A penalty may be assessed for each day of [violation](/usc/42/2000e–16a.md?p=c). For purposes of determining the number of days of [violation](/usc/42/2000e–16a.md?p=c) for which a penalty may be assessed under subsection [(b)](#b) or [(d)(1)](#d-1) of this section, or [section 7604(a) of this title](/usc/42/7604.md?p=a), or an assessment may be made under [section 7420 of this title](/usc/42/7420.md), where the [Administrator](/usc/42/7602.md?p=a) or an [air pollution control agency](/usc/42/7602.md?p=b) has notified the source of the [violation](/usc/42/2000e–16a.md?p=c), and the plaintiff makes a prima facie showing that the conduct or events giving rise to the [violation](/usc/42/2000e–16a.md?p=c) are likely to have continued or recurred past the date of notice, the days of [violation](/usc/42/2000e–16a.md?p=c) shall be presumed to include the date of such notice and each and every day thereafter until the violator establishes that continuous compliance has been achieved, except to the extent that the violator can prove by a preponderance of the evidence that there were intervening days during which no [violation](/usc/42/2000e–16a.md?p=c) occurred or that the [violation](/usc/42/2000e–16a.md?p=c) was not continuing in nature.
- (f) **Awards—** The [Administrator](/usc/42/7602.md?p=a) may pay an award, not to exceed $10,000, to any [person](/usc/42/7602.md?p=e) who furnishes information or services which lead to a criminal conviction or a judicial or administrative civil penalty for any [violation](/usc/42/2000e–16a.md?p=c) of this subchapter or subchapter III, IV–A, V, or VI of this chapter enforced under this section. Such payment is subject to available appropriations for such purposes as provided in annual appropriation Acts. Any officer,[^3] or [employee](/usc/42/1320a–7h.md?p=e-7) of the [United States](/usc/42/403.md?p=k) or any [State](/usc/42/7602.md?p=d) or [local government](/usc/42/8401a.md) who furnishes information or renders service in the performance of an official duty is ineligible for payment under this subsection. The [Administrator](/usc/42/7602.md?p=a) may, by regulation, prescribe additional criteria for eligibility for such an award.
- (g) **Settlements; public participation—** At least 30 days before a consent order or settlement [agreement](/usc/42/1320b–8.md?p=a-3-A) of any kind under this chapter to which the [United States](/usc/42/403.md?p=k) is a party (other than [enforcement actions](/usc/42/247d–6d.md?p=c-5-B-i) under this section, [section 7420 of this title](/usc/42/7420.md), or subchapter II, whether or not involving civil or criminal penalties, or judgments subject to Department of Justice policy on public participation) is final or filed with a court, the [Administrator](/usc/42/7602.md?p=a) shall provide a reasonable opportunity by notice in the Federal Register to [persons](/usc/42/7602.md?p=e) who are not named as parties or intervenors to the action or matter to comment in writing. The [Administrator](/usc/42/7602.md?p=a) or the [Attorney General](/usc/42/14902.md?p=6), as appropriate, shall promptly consider any such written comments and may withdraw or withhold his consent to the proposed order or [agreement](/usc/42/1320b–8.md?p=a-3-A) if the comments disclose facts or considerations which indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of this chapter. Nothing in this subsection shall apply to civil or criminal penalties under this chapter.
- (h) **Operator—** For purposes of the provisions of this section and [section 7420 of this title](/usc/42/7420.md), the term “operator”, as used in such provisions, shall include any [person](/usc/42/7602.md?p=e) who is senior management personnel or a corporate officer. Except in the case of knowing and willful [violations](/usc/42/2000e–16a.md?p=c), such term shall not include any [person](/usc/42/7602.md?p=e) who is a stationary engineer or technician responsible for the operation, maintenance, repair, or monitoring of equipment and [facilities](/usc/42/11049.md?p=4) and who often has supervisory and [training](/usc/42/285e–2.md?p=b-2) duties but who is not senior management personnel or a corporate officer. Except in the case of knowing and willful [violations](/usc/42/2000e–16a.md?p=c), for purposes of [subsection (c)(4)](#c-4) of this section, the term “a person” shall not include an [employee](/usc/42/1320a–7h.md?p=e-7) who is carrying out his normal activities and who is not a part of senior management personnel or a corporate officer. Except in the case of knowing and willful [violations](/usc/42/2000e–16a.md?p=c), for purposes of paragraphs [(1)](#c-1), [(2)](#c-2), [(3)](#c-3), and [(5)](#c-5) of subsection (c) of this section the term “a person” shall not include an [employee](/usc/42/1320a–7h.md?p=e-7) who is carrying out his normal activities and who is acting under orders from the employer.
# §7414. Recordkeeping, inspections, monitoring, and entry
- (a) **Authority of Administrator or authorized representative—** For the purpose (i) of developing or assisting in the development of any implementation plan under [section 7410](/usc/42/7410.md) or [section 7411(d) of this title](/usc/42/7411.md?p=d), any [standard of performance](/usc/42/7602.md?p=l) under [section 7411 of this title](/usc/42/7411.md), any [emission standard](/usc/42/7602.md?p=k) under [section 7412 of this title](/usc/42/7412.md),,[^1] or any regulation of [solid waste](/usc/42/7546.md?p=a-1) combustion under [section 7429 of this title](/usc/42/7429.md), or any regulation under [section 7429 of this title](/usc/42/7429.md) (relating to [solid waste](/usc/42/7546.md?p=a-1) combustion), (ii) of determining whether any [person](/usc/42/7602.md?p=e) is in [violation](/usc/42/2000e–16a.md?p=c) of any such [standard](/usc/42/1320d.md?p=7) or any requirement of such a plan, or (iii) carrying out any provision of this chapter (except a provision of subchapter II with respect to a [manufacturer](/usc/42/300aa–33.md?p=3) of [new motor vehicles](/usc/42/7550.md?p=3) or [new motor vehicle engines](/usc/42/7550.md?p=3))—
- (1) the [Administrator](/usc/42/7602.md?p=a) may require any [person](/usc/42/7602.md?p=e) who owns or operates any emission source, who [manufactures](/usc/42/300aa–33.md?p=3) emission control equipment or process equipment, who the [Administrator](/usc/42/7602.md?p=a) believes may have information necessary for the purposes set forth in this subsection, or who is subject to any requirement of this chapter (other than a [manufacturer](/usc/42/300aa–33.md?p=3) subject to the provisions of section [7525(c)](/usc/42/7525.md?p=c) or [7542](/usc/42/7542.md) of this title with respect to a provision of subchapter II) on a one-time, periodic or continuous basis to—
- (A) establish and maintain such records;
- (B) make such reports;
- (C) install, use, and maintain such monitoring equipment, and use such audit procedures, or methods;
- (D) sample such emissions (in accordance with such procedures or methods, at such locations, at such intervals, during such periods and in such manner as the [Administrator](/usc/42/7602.md?p=a) shall prescribe);
- (E) keep records on control equipment parameters, production variables or other indirect data when direct monitoring of emissions is impractical;
- (F) submit compliance certifications in accordance with [subsection (a)(3)](#a-3); and
- (G) provide such other information as the [Administrator](/usc/42/7602.md?p=a) may reasonably require; and[^2]
- (2) the [Administrator](/usc/42/7602.md?p=a) or his authorized [representative](/usc/42/3058f.md?p=5), upon presentation of his credentials—
- (A) shall have a right of entry to, upon, or through any premises of such [person](/usc/42/7602.md?p=e) or in which any records required to be maintained under [paragraph (1)](#a-1) of this section are located, and
- (B) may at reasonable times have access to and copy any records, inspect any monitoring equipment or method required under [paragraph (1)](#a-1), and sample any emissions which such [person](/usc/42/7602.md?p=e) is required to sample under [paragraph (1)](#a-1).[^3]
- (3) The[^4] [Administrator](/usc/42/7602.md?p=a) shall in the case of any [person](/usc/42/7602.md?p=e) which is the [owner or operator](/usc/42/9601.md?p=20-B) of a [major stationary source](/usc/42/7602.md?p=j), and may, in the case of any other [person](/usc/42/7602.md?p=e), require enhanced monitoring and submission of compliance certifications. Compliance certifications shall include (A) identification of the applicable requirement that is the basis of the certification, (B) the method used for determining the compliance status of the source, (C) the compliance status, (D) whether compliance is continuous or intermittent, (E) such other facts as the [Administrator](/usc/42/7602.md?p=a) may require. Compliance certifications and monitoring data shall be subject to [subsection (c)](#c) of this section. Submission of a compliance certification shall in no way limit the [Administrator](/usc/42/7602.md?p=a)’s authorities to investigate or otherwise implement this chapter. The [Administrator](/usc/42/7602.md?p=a) shall promulgate rules to provide guidance and to implement this paragraph within 2 years after November 15, 1990.
- (b) **State enforcement—**
- (1) Each [State](/usc/42/7602.md?p=d) may develop and submit to the [Administrator](/usc/42/7602.md?p=a) a procedure for carrying out this section in such [State](/usc/42/7602.md?p=d). If the [Administrator](/usc/42/7602.md?p=a) finds the [State](/usc/42/7602.md?p=d) procedure is adequate, he may delegate to such [State](/usc/42/7602.md?p=d) any authority he has to carry out this section.
- (2) Nothing in this subsection shall prohibit the [Administrator](/usc/42/7602.md?p=a) from carrying out this section in a [State](/usc/42/7602.md?p=d).
- (c) **Availability of records, reports, and information to public; disclosure of trade secrets—** Any records, reports or information obtained under [subsection (a)](#a) shall be available to the public, except that upon a showing satisfactory to the [Administrator](/usc/42/7602.md?p=a) by any [person](/usc/42/7602.md?p=e) that records, reports, or information, or particular part thereof, (other than emission data) to which the [Administrator](/usc/42/7602.md?p=a) has access under this section if made public, would divulge methods or processes entitled to protection as trade secrets of such [person](/usc/42/7602.md?p=e), the [Administrator](/usc/42/7602.md?p=a) shall consider such record, report, or information or particular portion thereof confidential in accordance with the purposes of [section 1905 of title 18](/usc/18/1905.md), except that such record, report, or information may be disclosed to other officers, [employees](/usc/42/1320a–7h.md?p=e-7), or authorized [representatives](/usc/42/3058f.md?p=5) of the [United States](/usc/42/403.md?p=k) concerned with carrying out this chapter or when relevant in any proceeding under this chapter.
- (d) **Notice of proposed entry, inspection, or monitoring—**
- (1) In the case of any [emission standard](/usc/42/7602.md?p=k) or limitation or other requirement which is adopted by a [State](/usc/42/7602.md?p=d), as part of an [applicable implementation plan](/usc/42/7602.md?p=q) or as part of an order under [section 7413(d)](/usc/42/7413.md?p=d)[^5] of this title, before carrying out an entry, [inspection](/usc/42/4851b.md?p=12), or monitoring under [paragraph (2)](#a-2) of subsection (a) with respect to such [standard](/usc/42/1320d.md?p=7), limitation, or other requirement, the [Administrator](/usc/42/7602.md?p=a) (or his [representatives](/usc/42/3058f.md?p=5)) shall provide the [State](/usc/42/7602.md?p=d) [air pollution control agency](/usc/42/7602.md?p=b) with reasonable prior notice of such action, indicating the purpose of such action. No [State agency](/usc/42/1396r–8.md?p=k-9) which receives notice under this paragraph of an action proposed to be taken may use the information contained in the notice to inform the [person](/usc/42/7602.md?p=e) whose property is proposed to be affected of the proposed action. If the [Administrator](/usc/42/7602.md?p=a) has reasonable basis for believing that a [State agency](/usc/42/1396r–8.md?p=k-9) is so using or will so use such information, notice to the agency under this paragraph is not required until such time as the [Administrator](/usc/42/7602.md?p=a) determines the agency will no longer so use information contained in a notice under this paragraph. Nothing in this section shall be construed to require notification to any [State agency](/usc/42/1396r–8.md?p=k-9) of any action taken by the [Administrator](/usc/42/7602.md?p=a) with respect to any [standard](/usc/42/1320d.md?p=7), limitation, or other requirement which is not part of an [applicable implementation plan](/usc/42/7602.md?p=q) or which was promulgated by the [Administrator](/usc/42/7602.md?p=a) under [section 7410(c) of this title](/usc/42/7410.md?p=c).
- (2) Nothing in [paragraph (1)](#d-1) shall be construed to provide that any failure of the [Administrator](/usc/42/7602.md?p=a) to comply with the requirements of such paragraph shall be a defense in any [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i) brought by the [Administrator](/usc/42/7602.md?p=a) or shall make inadmissible as evidence in any such action any information or material obtained notwithstanding such failure to comply with such requirements.
# §7415. International air pollution
- (a) **Endangerment of public health or welfare in foreign countries from pollution emitted in United States—** Whenever the [Administrator](/usc/42/7602.md?p=a), upon receipt of reports, surveys or studies from any duly constituted international agency has reason to believe that any [air pollutant](/usc/42/7602.md?p=g) or [pollutants](/usc/42/1397h.md?p=c-4) emitted in the [United States](/usc/42/403.md?p=k) [cause](/usc/42/9908.md?p=c-2) or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare in a foreign country or whenever the Secretary of State requests him to do so with respect to such pollution which the Secretary of State alleges is of such a nature, the [Administrator](/usc/42/7602.md?p=a) shall give formal notification thereof to the [Governor](/usc/42/6372.md?p=1) of the [State](/usc/42/7602.md?p=d) in which such emissions originate.
- (b) **Prevention or elimination of endangerment—** The notice of the [Administrator](/usc/42/7602.md?p=a) shall be deemed to be a finding under [section 7410(a)(2)(H)(ii) of this title](/usc/42/7410.md?p=a-2-H-ii) which requires a plan revision with respect to so much of the [applicable implementation plan](/usc/42/7602.md?p=q) as is inadequate to prevent or eliminate the endangerment referred to in [subsection (a)](#a). Any foreign country so affected by such emission of [pollutant](/usc/42/1397h.md?p=c-4) or [pollutants](/usc/42/1397h.md?p=c-4) shall be invited to appear at any public hearing associated with any revision of the appropriate portion of the [applicable implementation plan](/usc/42/7602.md?p=q).
- (c) **Reciprocity—** This section shall apply only to a foreign country which the [Administrator](/usc/42/7602.md?p=a) determines has given the [United States](/usc/42/403.md?p=k) essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country by this section.
- (d) **Recommendations—** Recommendations issued following any abatement conference conducted prior to August 7, 1977, shall remain in effect with respect to any [pollutant](/usc/42/1397h.md?p=c-4) for which no national ambient air quality [standard](/usc/42/1320d.md?p=7) has been established under [section 7409 of this title](/usc/42/7409.md) unless the [Administrator](/usc/42/7602.md?p=a), after consultation with all agencies which were party to the conference, rescinds any such recommendation on grounds of obsolescence.
# §7416. Retention of State authority
Except as otherwise provided in sections [1857c–10(c)](/usc/42/1857c–10.md), [(e)](/usc/42/1857c–10.md), and [(f)](/usc/42/1857c–10.md) (as in effect before August 7, 1977), 7543, 7545(c)(4), and [7573](/usc/42/7573.md) of this title (preempting certain [State](/usc/42/7602.md?p=d) regulation of moving sources) nothing in this chapter shall preclude or deny the right of any [State](/usc/42/7602.md?p=d) or political subdivision thereof to adopt or enforce (1) any [standard](/usc/42/1320d.md?p=7) or limitation respecting emissions of [air pollutants](/usc/42/7602.md?p=g) or (2) any requirement respecting control or abatement of air pollution; except that if an [emission standard](/usc/42/7602.md?p=k) or limitation is in effect under an [applicable implementation plan](/usc/42/7602.md?p=q) or under [section 7411](/usc/42/7411.md) or [section 7412 of this title](/usc/42/7412.md), such [State](/usc/42/7602.md?p=d) or political subdivision may not adopt or enforce any [emission standard](/usc/42/7602.md?p=k) or limitation which is less stringent than the [standard](/usc/42/1320d.md?p=7) or limitation under such plan or section.
# §7417. Advisory committees
- (a) **Establishment; membership—** In order to obtain assistance in the development and implementation of the purposes of this chapter including air quality criteria, recommended control techniques, [standards](/usc/42/1320d.md?p=7), research and development, and to encourage the continued efforts on the part of industry to improve air quality and to develop economically feasible methods for the control and abatement of air pollution, the [Administrator](/usc/42/7602.md?p=a) shall from time to time establish [advisory committees](/usc/42/7703.md?p=9). Committee members shall include, but not be limited to, [persons](/usc/42/7602.md?p=e) who are knowledgeable concerning air quality from the standpoint of health, welfare, economics or technology.
- (b) **Compensation—** The members of any other [advisory committees](/usc/42/7703.md?p=9) appointed pursuant to this chapter who are not officers or [employees](/usc/42/1320a–7h.md?p=e-7) of the [United States](/usc/42/403.md?p=k) while attending conferences or meetings or while otherwise serving at the request of the [Administrator](/usc/42/7602.md?p=a), shall be entitled to receive compensation at a rate to be fixed by the [Administrator](/usc/42/7602.md?p=a), 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](/usc/5/5703.md) for [persons](/usc/42/7602.md?p=e) in the Government service employed intermittently.
- (c) **[^1] Consultations by Administrator—** Prior to—
- (1) issuing criteria for an [air pollutant](/usc/42/7602.md?p=g) under [section 7408(a)(2) of this title](/usc/42/7408.md?p=a-2),
- (2) publishing any list under [section 7411(b)(1)(A)](/usc/42/7411.md?p=b-1-A) or [section 7412(b)(1)(A)](/usc/42/7412.md)[^2] of this title,
- (3) publishing any [standard](/usc/42/1320d.md?p=7) under [section 7411](/usc/42/7411.md) or [section 7412 of this title](/usc/42/7412.md), or
- (4) publishing any regulation under [section 7521(a) of this title](/usc/42/7521.md?p=a),
the [Administrator](/usc/42/7602.md?p=a) shall, to the maximum extent practicable within the time provided, consult with appropriate [advisory committees](/usc/42/7703.md?p=9), [independence](/usc/42/242q–4.md?p=1-B) experts, and Federal departments and agencies.
# §7418. Control of pollution from Federal facilities
- (a) **General compliance—** Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or [facility](/usc/42/11049.md?p=4), or (2) engaged in any activity resulting, or which may result, in the discharge of [air pollutants](/usc/42/7602.md?p=g), and each officer, agent, or [employee](/usc/42/1320a–7h.md?p=e-7) thereof, shall be subject to, and comply with, all Federal, [State](/usc/42/7602.md?p=d), interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of air pollution in the same manner, and to the same extent as any nongovernmental entity. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement whatsoever), (B) to any requirement to pay a fee or charge imposed by any [State](/usc/42/7602.md?p=d) or local agency to defray the costs of its air pollution regulatory [program](/usc/42/274l–1.md?p=4), (C) to the exercise of any Federal, [State](/usc/42/7602.md?p=d), or local administrative authority, and (D) to any process and sanction, whether enforced in Federal, [State](/usc/42/7602.md?p=d), or local courts, or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or [employees](/usc/42/1320a–7h.md?p=e-7) under any law or rule of law. No officer, agent, or [employee](/usc/42/1320a–7h.md?p=e-7) of the [United States](/usc/42/403.md?p=k) shall be personally liable for any civil penalty for which he is not otherwise liable.
- (b) **Exemption—** The President may exempt any emission source of any department, agency, or instrumentality in the executive branch from compliance with such a requirement if he determines it to be in the paramount interest of the [United States](/usc/42/403.md?p=k) to do so, except that no exemption may be granted from [section 7411 of this title](/usc/42/7411.md), and an exemption from [section 7412 of this title](/usc/42/7412.md) may be granted only in accordance with [section 7412(i)(4) of this title](/usc/42/7412.md?p=i-4). No such exemption shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in excess of one year, but additional exemptions may be granted for periods of not to exceed one year upon the President’s making a new determination. In addition to any such exemption of a particular emission source, the President may, if he determines it to be in the paramount interest of the [United States](/usc/42/403.md?p=k) to do so, issue regulations exempting from compliance with the requirements of this section any weaponry, equipment, aircraft, vehicles, or other classes or [categories](/usc/42/1395w–4.md?p=j-1) of property which are owned or operated by the Armed Forces of the [United States](/usc/42/403.md?p=k) (including the Coast Guard) or by the National Guard of any [State](/usc/42/7602.md?p=d) and which are uniquely military in nature. The President shall reconsider the need for such regulations at three-year intervals. The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together with his reason for granting each such exemption.
- (c) **Government vehicles—** Each department, agency, and instrumentality of executive, legislative, and judicial branches of the Federal Government shall comply with all applicable provisions of a valid [inspection](/usc/42/4851b.md?p=12) and maintenance [program](/usc/42/274l–1.md?p=4) established under the provisions of subpart 2 of part D or subpart 3 of part D except for such vehicles that are considered military tactical vehicles.
- (d) **Vehicles operated on Federal installations—** Each department, agency, and instrumentality of executive, legislative, and judicial branches of the Federal Government having jurisdiction over any property or [facility](/usc/42/11049.md?p=4) shall require all [employees](/usc/42/1320a–7h.md?p=e-7) which operate [motor vehicles](/usc/42/13211.md?p=13) on the property or [facility](/usc/42/11049.md?p=4) to furnish proof of compliance with the applicable requirements of any vehicle [inspection](/usc/42/4851b.md?p=12) and maintenance [program](/usc/42/274l–1.md?p=4) established under the provisions of subpart 2 of part D or subpart 3 of part D for the [State](/usc/42/7602.md?p=d) in which such property or [facility](/usc/42/11049.md?p=4) is located (without regard to whether such vehicles are registered in the [State](/usc/42/7602.md?p=d)). The installation shall use one of the following methods to establish proof of compliance—
- (1) presentation by the vehicle [owner](/usc/42/13641.md?p=4) of a valid certificate of compliance from the vehicle [inspection](/usc/42/4851b.md?p=12) and maintenance [program](/usc/42/274l–1.md?p=4);
- (2) presentation by the vehicle [owner](/usc/42/13641.md?p=4) of proof of vehicle registration within the [geographic area](/usc/42/11360.md?p=9) covered by the vehicle [inspection](/usc/42/4851b.md?p=12) and maintenance [program](/usc/42/274l–1.md?p=4) (except for any [program](/usc/42/274l–1.md?p=4) whose enforcement mechanism is not through the denial of vehicle registration);
- (3) another method approved by the vehicle [inspection](/usc/42/4851b.md?p=12) and maintenance [program](/usc/42/274l–1.md?p=4) [administrator](/usc/42/7602.md?p=a).
# §7419. Primary nonferrous smelter orders
- (a) **Issuance; hearing; enforcement orders; statement of grounds for application; findings—**
- (1) Upon application by the [owner or operator](/usc/42/9601.md?p=20-B) of a primary nonferrous smelter, a primary nonferrous smelter order under [subsection (b)](#b) may be issued—
- (A) by the [Administrator](/usc/42/7602.md?p=a), after thirty days’ notice to the [State](/usc/42/7602.md?p=d), or
- (B) by the [State](/usc/42/7602.md?p=d) in which such source is located, but no such order issued by the [State](/usc/42/7602.md?p=d) shall take effect until the [Administrator](/usc/42/7602.md?p=a) determines that such order has been issued in accordance with the requirements of this chapter.
Not later than ninety days after submission by the [State](/usc/42/7602.md?p=d) to the [Administrator](/usc/42/7602.md?p=a) of notice of the issuance of a primary nonferrous smelter order under this section, the [Administrator](/usc/42/7602.md?p=a) shall determine whether or not such order has been issued by the [State](/usc/42/7602.md?p=d) in accordance with the requirements of this chapter. If the [Administrator](/usc/42/7602.md?p=a) determines that such order has not been issued in accordance with such requirements, he shall conduct a hearing respecting the reasonably available control technology for primary nonferrous smelters.
- (2)
- (A) An order issued under this section to a primary nonferrous smelter shall be referred to as a “primary nonferrous smelter order”. No primary nonferrous smelter may receive both an enforcement order under [section 7413(d)](/usc/42/7413.md?p=d)[^1] of this title and a primary nonferrous smelter order under this section.
- (B) Before any hearing conducted under this section, in the case of an application made by the [owner or operator](/usc/42/9601.md?p=20-B) of a primary nonferrous smelter for a second order under this section, the applicant shall furnish the [Administrator](/usc/42/7602.md?p=a) (or the [State](/usc/42/7602.md?p=d) as the case may be) with a statement of the grounds on which such application is based (including all supporting documents and information). The statement of the grounds for the proposed order shall be provided by the [Administrator](/usc/42/7602.md?p=a) or the [State](/usc/42/7602.md?p=d) in any case in which such [State](/usc/42/7602.md?p=d) or [Administrator](/usc/42/7602.md?p=a) is acting on its own [initiative](/usc/42/19131.md?p=1). Such statement (including such documents and information) shall be made available to the public for a thirty-day period before such hearing and shall be considered as part of such hearing. No primary nonferrous smelter order may be granted unless the applicant establishes that he meets the conditions required for the issuance of such order (or the [Administrator](/usc/42/7602.md?p=a) or [State](/usc/42/7602.md?p=d) establishes the meeting of such conditions when acting on their own [initiative](/usc/42/19131.md?p=1)).
- (C) Any decision with respect to the issuance of a primary nonferrous smelter order shall be accompanied by a concise statement of the findings and of the basis of such findings.
- (3) For the purposes of sections [7410](/usc/42/7410.md), [7604](/usc/42/7604.md), and [7607](/usc/42/7607.md) of this title, any order issued by the [State](/usc/42/7602.md?p=d) and in effect pursuant to this subsection shall become part of the [applicable implementation plan](/usc/42/7602.md?p=q).
- (b) **Prerequisites to issuance of orders—** A primary nonferrous smelter order under this section may be issued to a primary nonferrous smelter if—
- (1) such smelter is in existence on August 7, 1977;
- (2) the requirement of the [applicable implementation plan](/usc/42/7602.md?p=q) with respect to which the order is issued is an [emission limitation](/usc/42/7602.md?p=k) or [standard](/usc/42/1320d.md?p=7) for sulfur oxides which is necessary and intended to be itself sufficient to enable attainment and maintenance of national primary and secondary ambient air quality [standards](/usc/42/1320d.md?p=7) for sulfur oxides; and
- (3) such smelter is unable to comply with such requirement by the applicable date for compliance because no [means of emission limitation](/usc/42/7602.md?p=m) applicable to such smelter which will enable it to achieve compliance with such requirement has been adequately demonstrated to be reasonably available (as determined by the [Administrator](/usc/42/7602.md?p=a), taking into account the cost of compliance, non-air quality health and environmental impact, and [energy](/usc/42/6311.md?p=7) consideration).
- (c) **Second orders—**
- (1) A second order issued to a smelter under this section shall set forth compliance schedules containing increments of progress which require compliance with the requirement postponed as expeditiously as practicable. The increments of progress shall be limited to requiring compliance with [subsection (d)](#d) and, in the case of a second order, to procuring, installing, and operating the necessary [means of emission limitation](/usc/42/7602.md?p=m) as expeditiously as practicable after the [Administrator](/usc/42/7602.md?p=a) determines such means have been adequately demonstrated to be reasonably available within the meaning of [subsection (b)(3)](#b-3).
- (2) Not in excess of two primary nonferrous smelter orders may be issued under this section to any primary nonferrous smelter. The first such order issued to a smelter shall not result in the postponement of the requirement with respect to which such order is issued beyond January 1, 1983. The second such order shall not result in the postponement of such requirement beyond January 1, 1988.
- (d) **Interim measures; continuous emission reduction technology—**
- (1)
- (A) Each primary nonferrous smelter to which an order is issued under this section shall be required to use such interim measures for the period during which such order is in effect as may be necessary in the judgment of the [Administrator](/usc/42/7602.md?p=a) to assure attainment and maintenance of the national primary and secondary ambient air quality [standards](/usc/42/1320d.md?p=7) during such period, taking into account the aggregate effect on air quality of such order together with all variances, extensions, waivers, enforcement orders, [delayed compliance orders](/usc/42/7602.md?p=o) and primary nonferrous smelter orders previously issued under this chapter.
- (B) Such interim requirements shall include—
- (i) a requirement that the source to which the order applies comply with such reporting requirements and conduct such monitoring as the [Administrator](/usc/42/7602.md?p=a) determines may be necessary, and
- (ii) such measures as the [Administrator](/usc/42/7602.md?p=a) determines are necessary to avoid an imminent and substantial endangerment to health of [persons](/usc/42/7602.md?p=e).
- (C) Such interim measures shall also, except as provided in [paragraph (2)](#d-2), include continuous emission reduction technology. The [Administrator](/usc/42/7602.md?p=a) shall condition the use of any such interim measures upon the [agreement](/usc/42/1320b–8.md?p=a-3-A) of the [owner or operator](/usc/42/9601.md?p=20-B) of the smelter—
- (i) to comply with such conditions as the [Administrator](/usc/42/7602.md?p=a) determines are necessary to maximize the reliability and enforceability of such interim measures, as applied to the smelter, in attaining and maintaining the national ambient air quality [standards](/usc/42/1320d.md?p=7) to which the order relates, and
- (ii) to commit reasonable resources to research and development of appropriate emission control technology.
- (2) The requirement of [paragraph (1)](#d-1) for the use of continuous emission reduction technology may be waived with respect to a particular smelter by the [State](/usc/42/7602.md?p=d) or the [Administrator](/usc/42/7602.md?p=a), after notice and a hearing on the record, and upon a showing by the [owner or operator](/usc/42/9601.md?p=20-B) of the smelter that such requirement would be so costly as to necessitate permanent or prolonged temporary cessation of operations of the smelter. Upon application for such waiver, the [Administrator](/usc/42/7602.md?p=a) shall be notified and shall, within ninety days, hold a hearing on the record in accordance with [section 554 of title 5](/usc/5/554.md). At such hearing the [Administrator](/usc/42/7602.md?p=a) shall require the smelter involved to present information relating to any alleged cessation of operations and the detailed reasons or justifications therefor. On the basis of such hearing the [Administrator](/usc/42/7602.md?p=a) shall make findings of fact as to the effect of such requirement and on the alleged cessation of operations and shall make such recommendations as he deems appropriate. Such report, findings, and recommendations shall be available to the public, and shall be taken into account by the [State](/usc/42/7602.md?p=d) or the [Administrator](/usc/42/7602.md?p=a) in making the decision whether or not to grant such waiver.
- (3) In order to obtain information for purposes of a waiver under [paragraph (2)](#d-2), the [Administrator](/usc/42/7602.md?p=a) may, on his own motion, conduct an investigation and use the authority of [section 7621 of this title](/usc/42/7621.md).
- (4) In the case of any smelter which on August 7, 1977, uses continuous emission reduction technology and supplemental controls and which receives an initial primary nonferrous smelter order under this section, no additional continuous emission reduction technology shall be required as a condition of such order unless the [Administrator](/usc/42/7602.md?p=a) determines, at any time, after notice and public hearing, that such additional continuous emission reduction technology is adequately demonstrated to be reasonably available for the primary nonferrous smelter industry.
- (e) **Termination of orders—** At any time during which an order under this section applies, the [Administrator](/usc/42/7602.md?p=a) may enter upon a public hearing respecting the availability of technology. Any order under this section shall be terminated if the [Administrator](/usc/42/7602.md?p=a) determines on the record, after notice and public hearing, that the conditions upon which the order was based no longer exist. If the [owner or operator](/usc/42/9601.md?p=20-B) of the smelter to which the order is issued demonstrates that prompt termination of such order would result in undue hardship, the termination shall become effective at the earliest practicable date on which such undue hardship would not result, but in no event later than the date required under [subsection (c)](#c).
- (f) **Violation of requirements—** If the [Administrator](/usc/42/7602.md?p=a) determines that a smelter to which an order is issued under this section is in [violation](/usc/42/2000e–16a.md?p=c) of any requirement of subsection [(c)](#c) or [(d)](#d), he shall—
- (1) enforce such requirement under [section 7413 of this title](/usc/42/7413.md),
- (2) (after notice and opportunity for public hearing) revoke such order and enforce compliance with the requirement with respect to which such order was granted,
- (3) give notice of noncompliance and commence action under [section 7420 of this title](/usc/42/7420.md), or
- (4) take any appropriate combination of such actions.
# §7420. Noncompliance penalty
- (a) **Assessment and collection—**
- (1)
- (A) Not later than 6 months after August 7, 1977, and after notice and opportunity for a public hearing, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations requiring the assessment and collection of a noncompliance penalty against [persons](/usc/42/7602.md?p=e) referred to in [paragraph (2)(A)](#a-2-A).
- (B)
- (i) Each [State](/usc/42/7602.md?p=d) may develop and submit to the [Administrator](/usc/42/7602.md?p=a) a plan for carrying out this section in such [State](/usc/42/7602.md?p=d). If the [Administrator](/usc/42/7602.md?p=a) finds that the [State](/usc/42/7602.md?p=d) plan meets the requirements of this section, he may delegate to such [State](/usc/42/7602.md?p=d) any authority he has to carry out this section.
- (ii) Notwithstanding a delegation to a [State](/usc/42/7602.md?p=d) under [clause (i)](#a-1-B-i), the [Administrator](/usc/42/7602.md?p=a) may carry out this section in such [State](/usc/42/7602.md?p=d) under the circumstances described in [subsection (b)(2)(B)](#b-2-B).
- (2)
- (A) Except as provided in subparagraph (B) or (C) of this paragraph, the [State](/usc/42/7602.md?p=d) or the [Administrator](/usc/42/7602.md?p=a) shall assess and collect a noncompliance penalty against every [person](/usc/42/7602.md?p=e) who owns or operates—
- (i) a [major stationary source](/usc/42/7602.md?p=j) (other than a primary nonferrous smelter which has received a primary nonferrous smelter order under [section 7419 of this title](/usc/42/7419.md)), which is not in compliance with any [emission limitation](/usc/42/7602.md?p=k), [emission standard](/usc/42/7602.md?p=k) or compliance schedule under any [applicable implementation plan](/usc/42/7602.md?p=q) (whether or not such source is subject to a Federal or [State](/usc/42/7602.md?p=d) consent decree), or
- (ii) a [stationary source](/usc/42/7411.md?p=a-3) which is not in compliance with an [emission limitation](/usc/42/7602.md?p=k), [emission standard](/usc/42/7602.md?p=k), [standard of performance](/usc/42/7602.md?p=l), or other requirement established under section [7411](/usc/42/7411.md), [7477](/usc/42/7477.md), [7603](/usc/42/7603.md), or [7412](/usc/42/7412.md) of this title, or
- (iii) a [stationary source](/usc/42/7411.md?p=a-3) which is not in compliance with any requirement of subchapter IV–A, V, or VI of this chapter, or
- (iv) any source referred to in clause [(i)](#a-2-A-i), [(ii)](#a-2-A-ii), or [(iii)](#a-2-A-iii) (for which an extension, order, or suspension referred to in [subparagraph (B)](#a-2-B), or Federal or [State](/usc/42/7602.md?p=d) consent decree is in effect), or a primary nonferrous smelter which has received a primary nonferrous smelter order under [section 7419 of this title](/usc/42/7419.md) which is not in compliance with any interim emission control requirement or schedule of compliance under such extension, order, suspension, or consent decree.
For purposes of [subsection (d)(2)](#d-2), in the case of a penalty assessed with respect to a source referred to in clause (iii) of this subparagraph, the costs referred to in such [subsection (d)(2)](#d-2) shall be the economic value of noncompliance with the interim emission control requirement or the remaining steps in the schedule of compliance referred to in such clause.
- (B) Notwithstanding the requirements of subparagraph [(A)(i)](#a-2-A-i) and [(ii)](#a-2-A-ii), the [owner or operator](/usc/42/9601.md?p=20-B) of any source shall be exempted from the duty to pay a noncompliance penalty under such requirements with respect to that source if, in accordance with the procedures in [subsection (b)(5)](#b-5), the [owner or operator](/usc/42/9601.md?p=20-B) demonstrates that the failure of such source to comply with any such requirement is due solely to—
- (i) a conversion by such source from the burning of petroleum products or natural gas, or both, as the permanent primary [energy](/usc/42/6311.md?p=7) source to the burning of coal pursuant to an order under [section 7413(d)(5)](/usc/42/7413.md?p=d-5)[^1] of this title or [section 1857c–10](/usc/42/1857c–10.md)[^1] of this title (as in effect before August 7, 1977);
- (ii) in the case of a coal-burning source granted an extension under the second sentence of [section 1857c–10(c)(1)](/usc/42/1857c–10.md)[^1] of this title (as in effect before August 7, 1977), a prohibition from using petroleum products or natural gas or both, by reason of an order under the provisions of section [792(a)](/usc/15/792.md?p=a) and [(b)](/usc/15/792.md?p=b) of title 15 or under any legislation which amends or supersedes such provisions;
- (iii) the use of innovative technology sanctioned by an enforcement order under [section 7413(d)(4)](/usc/42/7413.md?p=d-4)[^1] of this title;
- (iv) an inability to comply with any such requirement, for which inability the source has received an order under [section 7413(d)](/usc/42/7413.md?p=d)[^1] of this title (or an order under [section 7413 of this title](/usc/42/7413.md) issued before August 7, 1977) which has the effect of permitting a delay or [violation](/usc/42/2000e–16a.md?p=c) of any requirement of this chapter (including a requirement of an [applicable implementation plan](/usc/42/7602.md?p=q)) which inability results from reasons entirely beyond the control of the [owner or operator](/usc/42/9601.md?p=20-B) of such source or of any entity controlling, controlled by, or under common control with the [owner or operator](/usc/42/9601.md?p=20-B) of such source; or
- (v) the conditions by reason of which a temporary emergency suspension is authorized under section [7410(f)](/usc/42/7410.md?p=f) or [(g)](/usc/42/7410.md?p=g) of this title.
An exemption under this subparagraph shall cease to be effective if the source fails to comply with the interim emission control requirements or schedules of compliance (including increments of progress) under any such extension, order, or suspension.
- (C) The [Administrator](/usc/42/7602.md?p=a) may, after notice and opportunity for public hearing, exempt any source from the requirements of this section with respect to a particular instance of noncompliance if he finds that such instance of noncompliance is de minimis in nature and in duration.
- (b) **Regulations—** Regulations under [subsection (a)](#a) shall—
- (1) permit the assessment and collection of such penalty by the [State](/usc/42/7602.md?p=d) if the [State](/usc/42/7602.md?p=d) has a delegation of authority in effect under [subsection (a)(1)(B)(i)](#a-1-B-i) of this section;
- (2) provide for the assessment and collection of such penalty by the [Administrator](/usc/42/7602.md?p=a), if—
- (A) the [State](/usc/42/7602.md?p=d) does not have a delegation of authority in effect under [subsection (a)(1)(B)(i)](#a-1-B-i), or
- (B) the [State](/usc/42/7602.md?p=d) has such a delegation in effect but fails with respect to any particular [person](/usc/42/7602.md?p=e) or source to assess or collect the penalty in accordance with the requirements of this section;
- (3) require the [States](/usc/42/7602.md?p=d), or in the event the [States](/usc/42/7602.md?p=d) fail to do so, the [Administrator](/usc/42/7602.md?p=a), to give a brief but reasonably specific notice of noncompliance under this section to each [person](/usc/42/7602.md?p=e) referred to in [subsection (a)(2)(A)](#a-2-A) with respect to each source owned or operated by such [person](/usc/42/7602.md?p=e) which is not in compliance as provided in such subsection, not later than July 1, 1979, or thirty days after the discovery of such noncompliance, whichever is later;
- (4) require each [person](/usc/42/7602.md?p=e) to whom notice is given under [paragraph (3)](#b-3) to—
- (A) calculate the amount of the penalty owed (determined in accordance with [subsection (d)(2)](#d-2)) and the schedule of payments (determined in accordance with [subsection (d)(3)](#d-3)) for each such source and, within forty-five days after the issuance of such notice or after the denial of a petition under [subparagraph (B)](#b-4-B), to submit that calculation and proposed schedule, together with the information necessary for an independent verification thereof, to the [State](/usc/42/7602.md?p=d) and to the [Administrator](/usc/42/7602.md?p=a), or
- (B) submit a petition, within forty–five days after the issuance of such notice, challenging such notice of noncompliance or alleging entitlement to an exemption under [subsection (a)(2)(B)](#a-2-B) with respect to a particular source;
- (5) require the [Administrator](/usc/42/7602.md?p=a) to provide a hearing on the record (within the meaning of subchapter II of [chapter 5](/usc/5/chptI-ch5.md) of title 5) and to make a decision on such petition (including findings of fact and conclusions of law) not later than ninety days after the receipt of any petition under [paragraph (4)(B)](#b-4-B), unless the [State](/usc/42/7602.md?p=d) agrees to provide a hearing which is substantially similar to such a hearing on the record and to make a decision on such petition (including such findings and conclusions) within such ninety-day period;
- (6)
- (A) authorize the [Administrator](/usc/42/7602.md?p=a) on his own [initiative](/usc/42/19131.md?p=1) to review the decision of the [State](/usc/42/7602.md?p=d) under [paragraph (5)](#b-5) and disapprove it if it is not in accordance with the requirements of this section, and (B) require the [Administrator](/usc/42/7602.md?p=a) to do so not later than sixty days after receipt of a petition under this subparagraph, notice, and public hearing and a showing by such petitioner that the [State](/usc/42/7602.md?p=d) decision under [paragraph (5)](#b-5) is not in accordance with the requirements of this section;
- (7) require payment, in accordance with [subsection (d)](#d), of the penalty by each [person](/usc/42/7602.md?p=e) to whom notice of noncompliance is given under [paragraph (3)](#b-3) with respect to each noncomplying source for which such notice is given unless there has been a final determination granting a petition under [paragraph (4)(B)](#b-4-B) with respect to such source;
- (8) authorize the [State](/usc/42/7602.md?p=d) or the [Administrator](/usc/42/7602.md?p=a) to adjust (and from time to time to readjust) the amount of the penalty assessment calculated or the payment schedule proposed by such [owner or operator](/usc/42/9601.md?p=20-B) under [paragraph (4)](#b-4), if the [Administrator](/usc/42/7602.md?p=a) finds after notice and opportunity for a hearing on the record that the penalty or schedule does not meet the requirements of this section; and
- (9) require a final adjustment of the penalty within 180 days after such source comes into compliance in accordance with [subsection (d)(4)](#d-4).
In any case in which the [State](/usc/42/7602.md?p=d) establishes a noncompliance penalty under this section, the [State](/usc/42/7602.md?p=d) shall provide notice thereof to the [Administrator](/usc/42/7602.md?p=a). A noncompliance penalty established by a [State](/usc/42/7602.md?p=d) under this section shall apply unless the [Administrator](/usc/42/7602.md?p=a), within ninety days after the date of receipt of notice of the [State](/usc/42/7602.md?p=d) penalty assessment under this section, objects in writing to the amount of the penalty as less than would be required to comply with guidelines established by the [Administrator](/usc/42/7602.md?p=a). If the [Administrator](/usc/42/7602.md?p=a) objects, he shall immediately establish a substitute noncompliance penalty applicable to such source.
- (c) **Contract to assist in determining amount of penalty assessment or payment schedule—** If the [owner or operator](/usc/42/9601.md?p=20-B) of any [stationary source](/usc/42/7411.md?p=a-3) to whom a notice is issued under [subsection (b)(3)](#b-3)—
- (1) does not submit a timely petition under [subsection (b)(4)(B)](#b-4-B), or
- (2) submits a petition under [subsection (b)(4)(B)](#b-4-B) which is denied, and
fails to submit a calculation of the penalty assessment, a schedule for payment, and the information necessary for independent verification thereof, the [State](/usc/42/7602.md?p=d) (or the [Administrator](/usc/42/7602.md?p=a), as the case may be) may enter into a contract with any [person](/usc/42/7602.md?p=e) who has no financial interest in the [owner or operator](/usc/42/9601.md?p=20-B) of the source (or in any [person](/usc/42/7602.md?p=e) controlling, controlled by or under common control with such source) to assist in determining the amount of the penalty assessment or payment schedule with respect to such source. The cost of carrying out such contract may be added to the penalty to be assessed against the [owner or operator](/usc/42/9601.md?p=20-B) of such source.
- (d) **Payment—**
- (1) All penalties assessed by the [Administrator](/usc/42/7602.md?p=a) under this section shall be paid to the [United States](/usc/42/403.md?p=k) Treasury. All penalties assessed by the [State](/usc/42/7602.md?p=d) under this section shall be paid to such [State](/usc/42/7602.md?p=d).
- (2) The amount of the penalty which shall be assessed and collected with respect to any source under this section shall be equal to—
- (A) the amount determined in accordance with regulations promulgated by the [Administrator](/usc/42/7602.md?p=a) under [subsection (a)](#a), which is no less than the economic value which a delay in compliance beyond July 1, 1979, may have for the [owner](/usc/42/13641.md?p=4) of such source, including the quarterly equivalent of the capital costs of compliance and debt service over a normal amortization period, not to exceed ten years, operation and maintenance costs foregone as a result of noncompliance, and any additional economic value which such a delay may have for the [owner or operator](/usc/42/9601.md?p=20-B) of such source, minus
- (B) the amount of any expenditure made by the [owner or operator](/usc/42/9601.md?p=20-B) of that source during any such quarter for the purpose of bringing that source into, and maintaining compliance with, such requirement, to the extent that such expenditures have not been taken into account in the calculation of the penalty under [subparagraph (A)](#d-2-A).
To the extent that any expenditure under [subparagraph (B)](#d-2-B) made during any quarter is not subtracted for such quarter from the costs under [subparagraph (A)](#d-2-A), such expenditure may be subtracted for any subsequent quarter from such costs. In no event shall the amount paid be less than the quarterly payment minus the amount attributed to actual cost of [construction](/usc/42/7479.md?p=2-C).
- (3)
- (A) The assessed penalty required under this section shall be paid in quarterly installments for the [period of covered noncompliance](#d-3-C). All quarterly payments (determined without regard to any adjustment or any subtraction under [paragraph (2)(B)](#d-2-B)) after the first payment shall be equal.
- (B) The first payment shall be due on the date six months after the date of issuance of the notice of noncompliance under [subsection (b)(3)](#b-3) with respect to any source or on January 1, 1980, whichever is later. Such first payment shall be in the amount of the quarterly installment for the upcoming quarter, plus the amount owed for any preceding period within the [period of covered noncompliance](#d-3-C) for such source.
- (C) For the purpose of this section, the term “period of covered noncompliance” means the period which begins—
- (i) two years after August 7, 1977, in the case of a source for which notice of noncompliance under [subsection (b)(3)](#b-3) is issued on or before the date two years after August 7, 1977, or
- (ii) on the date of issuance of the notice of noncompliance under [subsection (b)(3)](#b-3), in the case of a source for which such notice is issued after July 1, 1979,
and ending on the date on which such source comes into (or for the purpose of establishing the schedule of payments, is estimated to come into) compliance with such requirement.
- (4) Upon making a determination that a source with respect to which a penalty has been paid under this section is in compliance and is maintaining compliance with the applicable requirement, the [State](/usc/42/7602.md?p=d) (or the [Administrator](/usc/42/7602.md?p=a) as the case may be) shall review the actual expenditures made by the [owner or operator](/usc/42/9601.md?p=20-B) of such source for the purpose of attaining and maintaining compliance, and shall within 180 days after such source comes into compliance—
- (A) provide reimbursement with interest (to be paid by the [State](/usc/42/7602.md?p=d) or [Secretary](/usc/42/242q–4.md?p=2) of the Treasury, as the case may be) at appropriate prevailing rates (as determined by the [Secretary](/usc/42/242q–4.md?p=2) of the Treasury) for any overpayment by such [person](/usc/42/7602.md?p=e), or
- (B) assess and collect an additional payment with interest at appropriate prevailing rates (as determined by the [Secretary](/usc/42/242q–4.md?p=2) of the Treasury) for any underpayment by such [person](/usc/42/7602.md?p=e).
- (5) Any [person](/usc/42/7602.md?p=e) who fails to pay the amount of any penalty with respect to any source under this section on a timely basis shall be required to pay in addition a quarterly nonpayment penalty for each quarter during which such failure to pay persists. Such nonpayment penalty shall be in an amount equal to 20 percent of the aggregate amount of such [person](/usc/42/7602.md?p=e)’s penalties and nonpayment penalties with respect to such source which are unpaid as of the beginning of such quarter.
- (e) **Judicial review—** Any action pursuant to this section, including any objection of the [Administrator](/usc/42/7602.md?p=a) under the last sentence of [subsection (b)](#b), shall be considered a final action for purposes of judicial review of any penalty under [section 7607 of this title](/usc/42/7607.md).
- (f) **Other orders, payments, sanctions, or requirements—** Any orders, payments, sanctions, or other requirements under this section shall be in addition to any other permits, orders, payments, sanctions, or other requirements established under this chapter, and shall in no way affect any civil or criminal enforcement proceedings brought under any provision of this chapter or [State](/usc/42/7602.md?p=d) or local law.
- (g) **More stringent emission limitations or other requirements—** In the case of any [emission limitation](/usc/42/7602.md?p=k) or other requirement approved or promulgated by the [Administrator](/usc/42/7602.md?p=a) under this chapter after August 7, 1977, which is more stringent than the [emission limitation](/usc/42/7602.md?p=k) or requirement for the source in effect prior to such approval or promulgation, if any, or where there was no [emission limitation](/usc/42/7602.md?p=k) or requirement approved or promulgated before August 7, 1977, the date for imposition of the non-compliance penalty under this section, shall be either July 1, 1979, or the date on which the source is required to be in full compliance with such [emission limitation](/usc/42/7602.md?p=k) or requirement, whichever is later, but in no event later than three years after the approval or promulgation of such [emission limitation](/usc/42/7602.md?p=k) or requirement.
# §7421. Consultation
In carrying out the requirements of this chapter requiring [applicable implementation plans](/usc/42/7602.md?p=q) to contain—
- (1) any transportation controls, air quality maintenance plan requirements or preconstruction review of direct sources of air pollution, or
- (2) any measure referred to—
- (A) in part D (pertaining to nonattainment requirements), or
- (B) in part C (pertaining to prevention of significant deterioration),
and in carrying out the requirements of [section 7413(d)](/usc/42/7413.md?p=d)[^1] of this title (relating to certain enforcement orders), the [State](/usc/42/7602.md?p=d) shall provide a satisfactory process of consultation with general purpose [local governments](/usc/42/8401a.md), designated organizations of elected officials of [local governments](/usc/42/8401a.md) and any [Federal land manager](/usc/42/7602.md?p=i) having authority over Federal land to which the [State](/usc/42/7602.md?p=d) plan applies, effective with respect to any such requirement which is adopted more than one year after August 7, 1977, as part of such plan. Such process shall be in accordance with regulations promulgated by the [Administrator](/usc/42/7602.md?p=a) to assure adequate consultation. The [Administrator](/usc/42/7602.md?p=a) shall update as necessary the original regulations required and promulgated under this section (as in effect immediately before November 15, 1990) to ensure adequate consultation. Only a general purpose [unit of local government](/usc/42/6372.md?p=2), regional agency, or [council](/usc/42/300f.md?p=9) of governments adversely affected by action of the [Administrator](/usc/42/7602.md?p=a) approving any portion of a plan referred to in this subsection[^2] may petition for judicial review of such action on the basis of a [violation](/usc/42/2000e–16a.md?p=c) of the requirements of this section.
# §7422. Listing of certain unregulated pollutants
- (a) **Radioactive pollutants, cadmium, arsenic, and polycyclic organic matter—** Not later than one year after August 7, 1977 (two years for radioactive [pollutants](/usc/42/1397h.md?p=c-4)) and after notice and opportunity for public hearing, the [Administrator](/usc/42/7602.md?p=a) shall review all available relevant information and determine whether or not emissions of radioactive [pollutants](/usc/42/1397h.md?p=c-4) (including [source material](/usc/42/2014.md?p=z), [special nuclear material](/usc/42/2014.md?p=aa), and byproduct material), cadmium, arsenic and polycyclic organic matter into the ambient air will [cause](/usc/42/9908.md?p=c-2), or contribute to, air pollution which may reasonably be anticipated to endanger public health. If the [Administrator](/usc/42/7602.md?p=a) makes an affirmative determination with respect to any such substance, he shall simultaneously with such determination include such substance in the list published under section [7408(a)(1)](/usc/42/7408.md?p=a-1) or [7412(b)(1)(A)](/usc/42/7412.md)[^1] of this title (in the case of a substance which, in the judgment of the [Administrator](/usc/42/7602.md?p=a), [causes](/usc/42/9908.md?p=c-2), or contributes to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness), or shall include each [category](/usc/42/1395w–4.md?p=j-1) of [stationary sources](/usc/42/7411.md?p=a-3) emitting such substance in significant amounts in the list published under [section 7411(b)(1)(A) of this title](/usc/42/7411.md?p=b-1-A), or take any combination of such actions.
- (b) **Revision authority—** Nothing in [subsection (a)](#a) shall be construed to affect the authority of the [Administrator](/usc/42/7602.md?p=a) to revise any list referred to in [subsection (a)](#a) with respect to any substance (whether or not enumerated in [subsection (a)](#a)).
- (c) **Consultation with Nuclear Regulatory Commission; interagency agreement; notice and hearing—**
- (1) Before listing any [source material](/usc/42/2014.md?p=z), special nuclear,[^2] or byproduct material (or component or derivative thereof) as provided in [subsection (a)](#a), the [Administrator](/usc/42/7602.md?p=a) shall consult with the Nuclear Regulatory [Commission](/usc/42/2000ff.md?p=1).
- (2) Not later than six months after listing any such material (or component or derivative thereof) the [Administrator](/usc/42/7602.md?p=a) and the Nuclear Regulatory [Commission](/usc/42/2000ff.md?p=1) shall enter into an interagency [agreement](/usc/42/1320b–8.md?p=a-3-A) with respect to those sources or [facilities](/usc/42/11049.md?p=4) which are under the jurisdiction of the [Commission](/usc/42/2000ff.md?p=1). This [agreement](/usc/42/1320b–8.md?p=a-3-A) shall, to the maximum extent practicable consistent with this chapter, minimize duplication of effort and conserve administrative resources in the establishment, implementation, and enforcement of [emission limitations](/usc/42/7602.md?p=k), [standards](/usc/42/1320d.md?p=7) of performance, and other requirements and authorities (substantive and procedural) under this chapter respecting the emission of such material (or component or derivative thereof) from such sources or [facilities](/usc/42/11049.md?p=4).
- (3) In case of any [standard](/usc/42/1320d.md?p=7) or [emission limitation](/usc/42/7602.md?p=k) promulgated by the [Administrator](/usc/42/7602.md?p=a), under this chapter or by any [State](/usc/42/7602.md?p=d) (or the [Administrator](/usc/42/7602.md?p=a)) under any [applicable implementation plan](/usc/42/7602.md?p=q) under this chapter, if the Nuclear Regulatory [Commission](/usc/42/2000ff.md?p=1) determines, after notice and opportunity for public hearing that the application of such [standard](/usc/42/1320d.md?p=7) or limitation to a source or [facility](/usc/42/11049.md?p=4) within the jurisdiction of the [Commission](/usc/42/2000ff.md?p=1) would endanger public health or safety, such [standard](/usc/42/1320d.md?p=7) or limitation shall not apply to such [facilities](/usc/42/11049.md?p=4) or sources unless the President determines otherwise within ninety days from the date of such finding.
# §7423. Stack heights
- (a) **Heights in excess of good engineering practice; other dispersion techniques—** The degree of [emission limitation](/usc/42/7602.md?p=k) required for control of any [air pollutant](/usc/42/7602.md?p=g) under an [applicable implementation plan](/usc/42/7602.md?p=q) under this subchapter shall not be affected in any manner by—
- (1) so much of the stack height of any source as exceeds good engineering practice (as determined under regulations promulgated by the [Administrator](/usc/42/7602.md?p=a)), or
- (2) any other [dispersion technique](#b).
The preceding sentence shall not apply with respect to stack heights in existence before December 31, 1970, or [dispersion techniques](#b) implemented before such date. In establishing an [emission limitation](/usc/42/7602.md?p=k) for coal-fired steam electric generating [units](/usc/42/1395w–114b.md?p=g-2) which are subject to the provisions of [section 7418 of this title](/usc/42/7418.md) and which commenced operation before July 1, 1957, the effect of the entire stack height of stacks for which a [construction](/usc/42/7479.md?p=2-C) contract was awarded before February 8, 1974, may be taken into account.
- (b) **Dispersion technique—** For the purpose of this section, the term “dispersion technique” includes any intermittent or supplemental control of [air pollutants](/usc/42/7602.md?p=g) varying with atmospheric conditions.
- (c) **Regulations; good engineering practice—** Not later than six months after August 7, 1977, the [Administrator](/usc/42/7602.md?p=a), shall after notice and opportunity for public hearing, promulgate regulations to carry out this section. For purposes of this section, good engineering practice means, with respect to stack heights, the height necessary to insure that emissions from the stack do not result in excessive concentrations of any [air pollutant](/usc/42/7602.md?p=g) in the immediate vicinity of the source as a result of atmospheric downwash, eddies and wakes which may be created by the source itself, nearby structures or nearby terrain obstacles (as determined by the [Administrator](/usc/42/7602.md?p=a)). For purposes of this section such height shall not exceed two and a half times the height of such source unless the [owner or operator](/usc/42/9601.md?p=20-B) of the source demonstrates, after notice and opportunity for public hearing, to the satisfaction of the [Administrator](/usc/42/7602.md?p=a), that a greater height is necessary as provided under the preceding sentence. In no event may the [Administrator](/usc/42/7602.md?p=a) prohibit any increase in any stack height or restrict in any manner the stack height of any source.
# §7424. Assurance of adequacy of State plans
- (a) **State review of implementation plans which relate to major fuel burning sources—** As expeditiously as practicable but not later than one year after August 7, 1977, each [State](/usc/42/7602.md?p=d) shall review the provisions of its implementation plan which relate to major fuel burning sources and shall determine—
- (1) the extent to which compliance with requirements of such plan is dependent upon the use by major fuel burning [stationary sources](/usc/42/7411.md?p=a-3) of petroleum products or natural gas,
- (2) the extent to which such plan may reasonably be anticipated to be inadequate to meet the requirements of this chapter in such [State](/usc/42/7602.md?p=d) on a reliable and long-term basis by reason of its dependence upon the use of such fuels, and
- (3) the extent to which compliance with the requirements of such plan is dependent upon use of coal or coal derivatives which is not locally or regionally available.
Each [State](/usc/42/7602.md?p=d) shall submit the results of its review and its determination under this paragraph to the [Administrator](/usc/42/7602.md?p=a) promptly upon completion thereof.
- (b) **Plan revision—**
- (1) Not later than eighteen months after August 7, 1977, the [Administrator](/usc/42/7602.md?p=a) shall review the submissions of the [States](/usc/42/7602.md?p=d) under [subsection (a)](#a) and shall require each [State](/usc/42/7602.md?p=d) to revise its plan if, in the judgment of the [Administrator](/usc/42/7602.md?p=a), such plan revision is necessary to assure that such plan will be adequate to assure compliance with the requirements of this chapter in such [State](/usc/42/7602.md?p=d) on a reliable and long-term basis, taking into account the actual or potential prohibitions on use of petroleum products or natural gas, or both, under any other authority of law.
- (2) Before requiring a plan revision under this subsection, with respect to any [State](/usc/42/7602.md?p=d) the [Administrator](/usc/42/7602.md?p=a) shall take into account the report of the review conducted by such [State](/usc/42/7602.md?p=d) under [paragraph (1)](#b-1) and shall consult with the [Governor](/usc/42/6372.md?p=1) of the [State](/usc/42/7602.md?p=d) respecting such required revision.
# §7425. Measures to prevent economic disruption or unemployment
- (a) **Determination that action is necessary—** After notice and opportunity for a public hearing—
- (1) the [Governor](/usc/42/6372.md?p=1) of any [State](/usc/42/7602.md?p=d) in which a major fuel burning [stationary source](/usc/42/7411.md?p=a-3) referred to in this subsection (or class or [category](/usc/42/1395w–4.md?p=j-1) thereof) is located,
- (2) the [Administrator](/usc/42/7602.md?p=a), or
- (3) the President (or his designee),
may determine that action under [subsection (b)](#b) of this section is necessary to prevent or minimize significant local or regional economic disruption or unemployment which would otherwise result from use by such source (or class or [category](/usc/42/1395w–4.md?p=j-1)) of—
- (A) coal or coal derivatives other than locally or regionally available coal,
- (B) petroleum products,
- (C) natural gas, or
- (D) any combination of fuels referred to in [subparagraphs (A) through (C)](#a-A..a-C),
to comply with the requirements of a [State](/usc/42/7602.md?p=d) implementation plan.
- (b) **Use of locally or regionally available coal or coal derivatives to comply with implementation plan requirements—** Upon a determination under [subsection (a)](#a)—
- (1) such [Governor](/usc/42/6372.md?p=1), with the written consent of the President or his designee,
- (2) the President’s designee with the written consent of such [Governor](/usc/42/6372.md?p=1), or
- (3) the President
may by rule or order prohibit any such [major fuel burning stationary source (or class or category thereof)](/usc/42/6215.md?p=e) from using fuels other than [locally or regionally available coal or coal derivatives](#h) to comply with implementation plan requirements. In taking any action under this subsection, the [Governor](/usc/42/6372.md?p=1), the President, or the President’s designee as the case may be, shall take into account, the final cost to the consumer of such an action.
- (c) **Contracts; schedules—** The [Governor](/usc/42/6372.md?p=1), in the case of action under [subsection (b)(1)](#b-1), or the [Administrator](/usc/42/7602.md?p=a), in the case of an action under subsection [(b)(2)](#b-2) or [(3)](#b-3) shall, by rule or order, require each source to which such action applies to—
- (1) enter into long-term contracts of at least ten years in duration (except as the President or his designee may otherwise permit or require by rule or order for good [cause](/usc/42/9908.md?p=c-2)) for supplies of regionally available coal or coal derivatives,
- (2) enter into contracts to acquire any additional [means of emission limitation](/usc/42/7602.md?p=m) which the [Administrator](/usc/42/7602.md?p=a) or the [State](/usc/42/7602.md?p=d) determines may be necessary to comply with the requirements of this chapter while using such coal or coal derivatives as fuel, and
- (3) comply with such schedules (including increments of progress), timetables and other requirements as may be necessary to assure compliance with the requirements of this chapter.
Requirements under this subsection shall be established simultaneously with, and as a condition of, any action under [subsection (b)](#b).
- (d) **Existing or new major fuel burning stationary sources—** This section applies only to existing or new major fuel burning [stationary sources](/usc/42/7411.md?p=a-3)—
- (1) which have the design capacity to produce 250,000,000 Btu’s per hour (or its equivalent), as determined by the [Administrator](/usc/42/7602.md?p=a), and
- (2) which are not in compliance with the requirements of an [applicable implementation plan](/usc/42/7602.md?p=q) or which are prohibited from burning oil or natural gas, or both, under any other authority of law.
- (e) **Actions not to be deemed modifications of major fuel burning stationary sources—** Except as may otherwise be provided by rule by the [State](/usc/42/7602.md?p=d) or the [Administrator](/usc/42/7602.md?p=a) for good [cause](/usc/42/9908.md?p=c-2), any action required to be taken by a major fuel burning [stationary source](/usc/42/7411.md?p=a-3) under this section shall not be deemed to constitute a [modification](/usc/42/7501.md?p=4) for purposes of section [7411(a)(2)](/usc/42/7411.md?p=a-2) and [(4)](/usc/42/7411.md?p=a-4) of this title.
- (f) **Treatment of prohibitions, rules, or orders as requirements or parts of plans under other provisions—** For purposes of sections [7413](/usc/42/7413.md) and [7420](/usc/42/7420.md) of this title a prohibition under [subsection (b)](#b), and a corresponding rule or order under [subsection (c)](#c), shall be treated as a requirement of [section 7413 of this title](/usc/42/7413.md). For purposes of any plan (or portion thereof) promulgated under [section 7410(c) of this title](/usc/42/7410.md?p=c), any rule or order under [subsection (c)](#c) corresponding to a prohibition under [subsection (b)](#b), shall be treated as a part of such plan. For purposes of [section 7413 of this title](/usc/42/7413.md), a prohibition under [subsection (b)](#b), applicable to any source, and a corresponding rule or order under [subsection (c)](#c), shall be treated as part of the [applicable implementation plan](/usc/42/7602.md?p=q) for the [State](/usc/42/7602.md?p=d) in which subject source is located.
- (g) **Delegation of Presidential authority—** The President may delegate his authority under this section to an officer or [employee](/usc/42/1320a–7h.md?p=e-7) of the [United States](/usc/42/403.md?p=k) designated by him on a case-by-case basis or in any other manner he deems suitable.
- (h) **“Locally or regionally available coal or coal derivatives” defined—** For the purpose of this section the term “locally or regionally available coal or coal derivatives” means coal or coal derivatives which is, or can in the judgment of the [State](/usc/42/7602.md?p=d) or the [Administrator](/usc/42/7602.md?p=a) feasibly be, mined or produced in the local or regional area (as determined by the [Administrator](/usc/42/7602.md?p=a)) in which the major fuel burning [stationary source](/usc/42/7411.md?p=a-3) is located.
# §7426. Interstate pollution abatement
- (a) **Written notice to all nearby States—** Each [applicable implementation plan](/usc/42/7602.md?p=q) shall—
- (1) require each major proposed new (or [modified](/usc/42/7501.md?p=4)) source—
- (A) subject to part C (relating to significant deterioration of air quality) or
- (B) which may significantly contribute to levels of air pollution in excess of the national ambient air quality [standards](/usc/42/1320d.md?p=7) in any air quality control region outside the [State](/usc/42/7602.md?p=d) in which such source intends to locate (or make such [modification](/usc/42/7501.md?p=4)),
to provide written notice to all nearby [States](/usc/42/7602.md?p=d) the air pollution levels of which may be affected by such source at least sixty days prior to the date on which commencement of [construction](/usc/42/7479.md?p=2-C) is to be permitted by the [State](/usc/42/7602.md?p=d) providing notice, and
- (2) identify all major existing [stationary sources](/usc/42/7411.md?p=a-3) which may have the impact described in [paragraph (1)](#a-1) with respect to new or [modified](/usc/42/7501.md?p=4) sources and provide notice to all nearby [States](/usc/42/7602.md?p=d) of the identity of such sources not later than three months after August 7, 1977.
- (b) **Petition for finding that major sources emit or would emit prohibited air pollutants—** Any [State](/usc/42/7602.md?p=d) or political subdivision may petition the [Administrator](/usc/42/7602.md?p=a) for a finding that any [major source](/usc/42/7511a.md?p=b-1-A-ii-I) or group of [stationary sources](/usc/42/7411.md?p=a-3) emits or would emit any [air pollutant](/usc/42/7602.md?p=g) in [violation](/usc/42/2000e–16a.md?p=c) of the prohibition of [section 7410(a)(2)(D)(ii) of this title](/usc/42/7410.md?p=a-2-D-ii) or this section. Within 60 days after receipt of any petition under this subsection and after public hearing, the [Administrator](/usc/42/7602.md?p=a) shall make such a finding or deny the petition.
- (c) **Violations; allowable continued operation—** Notwithstanding any permit which may have been granted by the [State](/usc/42/7602.md?p=d) in which the source is located (or intends to locate), it shall be a [violation](/usc/42/2000e–16a.md?p=c) of this section and the [applicable implementation plan](/usc/42/7602.md?p=q) in such [State](/usc/42/7602.md?p=d)—
- (1) for any major proposed new (or [modified](/usc/42/7501.md?p=4)) source with respect to which a finding has been made under [subsection (b)](#b) to be constructed or to operate in [violation](/usc/42/2000e–16a.md?p=c) of the prohibition of [section 7410(a)(2)(D)(ii) of this title](/usc/42/7410.md?p=a-2-D-ii) or this section, or
- (2) for any major existing source to operate more than three months after such finding has been made with respect to it.
The [Administrator](/usc/42/7602.md?p=a) may permit the continued operation of a source referred to in [paragraph (2)](#c-2) beyond the expiration of such three-month period if such source complies with such [emission limitations](/usc/42/7602.md?p=k) and compliance schedules (containing increments of progress) as may be provided by the [Administrator](/usc/42/7602.md?p=a) to bring about compliance with the requirements contained in [section 7410(a)(2)(D)(ii) of this title](/usc/42/7410.md?p=a-2-D-ii) or this section as expeditiously as practicable, but in no case later than three years after the date of such finding. Nothing in the preceding sentence shall be construed to preclude any such source from being eligible for an enforcement order under [section 7413(d)](/usc/42/7413.md?p=d)[^1] of this title after the expiration of such period during which the [Administrator](/usc/42/7602.md?p=a) has permitted continuous operation.
# §7427. Public notification
- (a) **Warning signs; television, radio, or press notices or information—** Each [State](/usc/42/7602.md?p=d) plan shall contain measures which will be effective to notify the public during any calendar[^1] on a regular basis of instances or areas in which any national primary ambient air quality [standard](/usc/42/1320d.md?p=7) is exceeded or was exceeded during any portion of the preceding calendar year to advise the public of the health [hazards](/usc/42/5165f.md?p=a-3) associated with such pollution, and to enhance public awareness of the measures which can be taken to prevent such [standards](/usc/42/1320d.md?p=7) from being exceeded and the ways in which the public can participate in regulatory and other efforts to improve air quality. Such measures may include the posting of warning signs on interstate highway access points to metropolitan areas or television, radio, or press notices or information.
- (b) **Grants—** The [Administrator](/usc/42/7602.md?p=a) is authorized to make grants to [States](/usc/42/7602.md?p=d) to assist in carrying out the requirements of [subsection (a)](#a).
# §7428. State boards
- (a) [^1] Not later than the date one year after August 7, 1977, each [applicable implementation plan](/usc/42/7602.md?p=q) shall contain requirements that—
- (1) any [board](/usc/42/10261.md?p=2) or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their [income](/usc/42/292s.md?p=c-4) from [persons](/usc/42/7602.md?p=e) subject to permits or enforcement orders under this chapter, and
- (2) any potential conflicts of interest by members of such [board](/usc/42/10261.md?p=2) or body or the head of an executive agency with similar powers be adequately disclosed.
A [State](/usc/42/7602.md?p=d) may adopt any requirements respecting conflicts of interest for such [boards](/usc/42/10261.md?p=2) or bodies or heads of executive agencies, or any other entities which are more stringent than the requirements of paragraph [(1)](#a-1) and [(2)](#a-2), and the [Administrator](/usc/42/7602.md?p=a) shall approve any such more stringent requirements submitted as part of an implementation plan.
# §7429. Solid waste combustion
- (a) **New source performance standards—**
- (1) **In general—**
- (A) The [Administrator](/usc/42/7602.md?p=a) shall establish performance [standards](/usc/42/1320d.md?p=7) and other requirements pursuant to [section 7411 of this title](/usc/42/7411.md) and this section for each [category](/usc/42/1395w–4.md?p=j-1) of [solid waste incineration units](#g-1). Such [standards](/usc/42/1320d.md?p=7) shall include emissions limitations and other requirements applicable to new [units](/usc/42/1395w–114b.md?p=g-2) and guidelines (under [section 7411(d) of this title](/usc/42/7411.md?p=d) and this section) and other requirements applicable to existing [units](/usc/42/1395w–114b.md?p=g-2).
- (B) [Standards](/usc/42/1320d.md?p=7) under [section 7411 of this title](/usc/42/7411.md) and this section applicable to [solid waste incineration units](#g-1) with capacity greater than 250 tons per day combusting [municipal waste](#g-5) shall be promulgated not later than 12 months after November 15, 1990. Nothing in this subparagraph shall alter any schedule for the promulgation of [standards](/usc/42/1320d.md?p=7) applicable to such [units](/usc/42/1395w–114b.md?p=g-2) under [section 7411 of this title](/usc/42/7411.md) pursuant to any settlement and consent decree entered by the [Administrator](/usc/42/7602.md?p=a) before November 15, 1990: Provided, That, such [standards](/usc/42/1320d.md?p=7) are subsequently [modified](/usc/42/7501.md?p=4) pursuant to the schedule established in this subparagraph to include each of the requirements of this section.
- (C) [Standards](/usc/42/1320d.md?p=7) under [section 7411 of this title](/usc/42/7411.md) and this section applicable to [solid waste incineration units](#g-1) with capacity equal to or less than 250 tons per day combusting [municipal waste](#g-5) and [units](/usc/42/1395w–114b.md?p=g-2) combusting [hospital](/usc/42/1395dd.md?p=e-5) waste, [medical waste](#g-6) and infectious waste shall be promulgated not later than 24 months after November 15, 1990.
- (D) [Standards](/usc/42/1320d.md?p=7) under [section 7411 of this title](/usc/42/7411.md) and this section applicable to [solid waste incineration units](#g-1) combusting commercial or industrial waste shall be proposed not later than 36 months after November 15, 1990, and promulgated not later than 48 months after November 15, 1990.
- (E) Not later than 18 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall publish a schedule for the promulgation of [standards](/usc/42/1320d.md?p=7) under [section 7411 of this title](/usc/42/7411.md) and this section applicable to other [categories](/usc/42/1395w–4.md?p=j-1) of [solid waste incineration units](#g-1).
- (2) **Emissions standard—** [Standards](/usc/42/1320d.md?p=7) applicable to [solid waste incineration units](#g-1) promulgated under [section 7411 of this title](/usc/42/7411.md) and this section shall reflect the maximum degree of reduction in emissions of [air pollutants](/usc/42/7602.md?p=g) listed under section[^1] (a)(4) that the [Administrator](/usc/42/7602.md?p=a), taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and [energy](/usc/42/6311.md?p=7) requirements, determines is achievable for new or existing [units](/usc/42/1395w–114b.md?p=g-2) in each [category](/usc/42/1395w–4.md?p=j-1). The [Administrator](/usc/42/7602.md?p=a) may distinguish among classes, types (including mass-burn, refuse-derived fuel, modular and other types of [units](/usc/42/1395w–114b.md?p=g-2)), and sizes of [units](/usc/42/1395w–114b.md?p=g-2) within a [category](/usc/42/1395w–4.md?p=j-1) in establishing such [standards](/usc/42/1320d.md?p=7). The degree of reduction in emissions that is deemed achievable for new [units](/usc/42/1395w–114b.md?p=g-2) in a [category](/usc/42/1395w–4.md?p=j-1) shall not be less stringent than the emissions control that is achieved in practice by the best controlled similar [unit](/usc/42/1395w–114b.md?p=g-2), as determined by the [Administrator](/usc/42/7602.md?p=a). Emissions [standards](/usc/42/1320d.md?p=7) for existing [units](/usc/42/1395w–114b.md?p=g-2) in a [category](/usc/42/1395w–4.md?p=j-1) may be less stringent than [standards](/usc/42/1320d.md?p=7) for new [units](/usc/42/1395w–114b.md?p=g-2) in the same [category](/usc/42/1395w–4.md?p=j-1) but shall not be less stringent than the average emissions limitation achieved by the best performing 12 percent of [units](/usc/42/1395w–114b.md?p=g-2) in the [category](/usc/42/1395w–4.md?p=j-1) (excluding [units](/usc/42/1395w–114b.md?p=g-2) which first met lowest achievable emissions rates 18 months before the date such [standards](/usc/42/1320d.md?p=7) are proposed or 30 months before the date such [standards](/usc/42/1320d.md?p=7) are promulgated, whichever is later).
- (3) **Control methods and technologies—** [Standards](/usc/42/1320d.md?p=7) under [section 7411 of this title](/usc/42/7411.md) and this section applicable to [solid waste incineration units](#g-1) shall be based on methods and technologies for [removal](/usc/42/9601.md?p=23) or destruction of [pollutants](/usc/42/1397h.md?p=c-4) before, during, or after combustion, and shall incorporate for new [units](/usc/42/1395w–114b.md?p=g-2) siting requirements that minimize, on a site specific basis, to the maximum extent practicable, potential risks to public health or the environment.
- (4) **Numerical emissions limitations—** The performance [standards](/usc/42/1320d.md?p=7) promulgated under [section 7411 of this title](/usc/42/7411.md) and this section and applicable to [solid waste incineration units](#g-1) shall specify numerical [emission limitations](/usc/42/7602.md?p=k) for the following substances or mixtures: particulate matter (total and fine), opacity (as appropriate), sulfur dioxide, [hydrogen](/usc/42/16152.md?p=1) chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, and dioxins and dibenzofurans. The [Administrator](/usc/42/7602.md?p=a) may promulgate numerical emissions limitations or provide for the monitoring of postcombustion concentrations of surrogate substances, parameters or periods of residence time in excess of stated temperatures with respect to [pollutants](/usc/42/1397h.md?p=c-4) other than those listed in this paragraph.
- (5) **Review and revision—** Not later than 5 years following the initial promulgation of any performance [standards](/usc/42/1320d.md?p=7) and other requirements under this section and [section 7411 of this title](/usc/42/7411.md) applicable to a [category](/usc/42/1395w–4.md?p=j-1) of [solid waste incineration units](#g-1), and at 5 year intervals thereafter, the [Administrator](/usc/42/7602.md?p=a) shall review, and in accordance with this section and [section 7411 of this title](/usc/42/7411.md), revise such [standards](/usc/42/1320d.md?p=7) and requirements.
- (b) **Existing units—**
- (1) **Guidelines—** Performance [standards](/usc/42/1320d.md?p=7) under this section and [section 7411 of this title](/usc/42/7411.md) for [solid waste incineration units](#g-1) shall include guidelines promulgated pursuant to [section 7411(d) of this title](/usc/42/7411.md?p=d) and this section applicable to existing [units](/usc/42/1395w–114b.md?p=g-2). Such guidelines shall include, as provided in this section, each of the elements required by [subsection (a)](#a) (emissions limitations, notwithstanding any restriction in [section 7411(d) of this title](/usc/42/7411.md?p=d) regarding issuance of such limitations), [subsection (c)](#c) (monitoring), [subsection (d)](#d) (operator [training](/usc/42/285e–2.md?p=b-2)), [subsection (e)](#e) (permits), and [subsection (h)(4)](#h-4)[^2] (residual risk).
- (2) **State plans—** Not later than 1 year after the [Administrator](/usc/42/7602.md?p=a) promulgates guidelines for a [category](/usc/42/1395w–4.md?p=j-1) of [solid waste incineration units](#g-1), each [State](/usc/42/7602.md?p=d) in which [units](/usc/42/1395w–114b.md?p=g-2) in the [category](/usc/42/1395w–4.md?p=j-1) are operating shall submit to the [Administrator](/usc/42/7602.md?p=a) a plan to implement and enforce the guidelines with respect to such [units](/usc/42/1395w–114b.md?p=g-2). The [State](/usc/42/7602.md?p=d) plan shall be at least as protective as the guidelines promulgated by the [Administrator](/usc/42/7602.md?p=a) and shall provide that each [unit](/usc/42/1395w–114b.md?p=g-2) subject to the guidelines shall be in compliance with all requirements of this section not later than 3 years after the [State](/usc/42/7602.md?p=d) plan is approved by the [Administrator](/usc/42/7602.md?p=a) but not later than 5 years after the guidelines were promulgated. The [Administrator](/usc/42/7602.md?p=a) shall approve or disapprove any [State](/usc/42/7602.md?p=d) plan within 180 days of the submission, and if a plan is disapproved, the [Administrator](/usc/42/7602.md?p=a) shall [state](/usc/42/7602.md?p=d) the reasons for disapproval in writing. Any [State](/usc/42/7602.md?p=d) may modify and resubmit a plan which has been disapproved by the [Administrator](/usc/42/7602.md?p=a).
- (3) **Federal plan—** The [Administrator](/usc/42/7602.md?p=a) shall develop, implement and enforce a plan for [existing solid waste incineration units](#g-4) within any [category](/usc/42/1395w–4.md?p=j-1) located in any [State](/usc/42/7602.md?p=d) which has not submitted an approvable plan under this subsection with respect to [units](/usc/42/1395w–114b.md?p=g-2) in such [category](/usc/42/1395w–4.md?p=j-1) within 2 years after the date on which the [Administrator](/usc/42/7602.md?p=a) promulgated the relevant guidelines. Such plan shall assure that each [unit](/usc/42/1395w–114b.md?p=g-2) subject to the plan is in compliance with all provisions of the guidelines not later than 5 years after the date the relevant guidelines are promulgated.
- (c) **Monitoring—** The [Administrator](/usc/42/7602.md?p=a) shall, as part of each performance [standard](/usc/42/1320d.md?p=7) promulgated pursuant to [subsection (a)](#a) and [section 7411 of this title](/usc/42/7411.md), promulgate regulations requiring the [owner or operator](/usc/42/9601.md?p=20-B) of each [solid waste incineration unit](#g-1)—
- (1) to monitor emissions from the [unit](/usc/42/1395w–114b.md?p=g-2) at the point at which such emissions are emitted into the ambient air (or within the stack, combustion chamber or pollution control equipment, as appropriate) and at such other points as necessary to protect public health and the environment;
- (2) to monitor such other parameters relating to the operation of the [unit](/usc/42/1395w–114b.md?p=g-2) and its pollution control technology as the [Administrator](/usc/42/7602.md?p=a) determines are appropriate; and
- (3) to report the results of such monitoring.
Such regulations shall contain provisions regarding the frequency of monitoring, test methods and procedures validated on [solid waste incineration units](#g-1), and the form and frequency of reports containing the results of monitoring and shall require that any monitoring reports or test results indicating an exceedance of any [standard](/usc/42/1320d.md?p=7) under this section shall be reported separately and in a manner that facilitates review for purposes of [enforcement actions](/usc/42/247d–6d.md?p=c-5-B-i). Such regulations shall require that copies of the results of such monitoring be maintained on file at the [facility](/usc/42/11049.md?p=4) concerned and that copies shall be made available for [inspection](/usc/42/4851b.md?p=12) and copying by interested members of the public during business hours.
- (d) **Operator training—** Not later than 24 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall develop and promote a model [State](/usc/42/7602.md?p=d) [program](/usc/42/274l–1.md?p=4) for the [training](/usc/42/285e–2.md?p=b-2) and certification of [solid waste incineration unit](#g-1) operators and high-capacity fossil fuel fired plant operators. The [Administrator](/usc/42/7602.md?p=a) may authorize any [State](/usc/42/7602.md?p=d) to implement a model [program](/usc/42/274l–1.md?p=4) for the [training](/usc/42/285e–2.md?p=b-2) of [solid waste incineration unit](#g-1) operators and high-capacity fossil fuel fired plant operators, if the [State](/usc/42/7602.md?p=d) has adopted a [program](/usc/42/274l–1.md?p=4) which is at least as effective as the model [program](/usc/42/274l–1.md?p=4) developed by the [Administrator](/usc/42/7602.md?p=a). Beginning on the date 36 months after the date on which performance [standards](/usc/42/1320d.md?p=7) and guidelines are promulgated under [subsection (a)](#a) and [section 7411 of this title](/usc/42/7411.md) for any [category](/usc/42/1395w–4.md?p=j-1) of [solid waste incineration units](#g-1) it shall be unlawful to operate any [unit](/usc/42/1395w–114b.md?p=g-2) in the [category](/usc/42/1395w–4.md?p=j-1) unless each [person](/usc/42/7602.md?p=e) with control over processes affecting emissions from such [unit](/usc/42/1395w–114b.md?p=g-2) has satisfactorily completed a [training](/usc/42/285e–2.md?p=b-2) [program](/usc/42/274l–1.md?p=4) meeting the requirements established by the [Administrator](/usc/42/7602.md?p=a) under this subsection.
- (e) **Permits—** Beginning (1) 36 months after the promulgation of a performance [standard](/usc/42/1320d.md?p=7) under [subsection (a)](#a) and [section 7411 of this title](/usc/42/7411.md) applicable to a [category](/usc/42/1395w–4.md?p=j-1) of [solid waste incineration units](#g-1), or (2) the effective date of a permit [program](/usc/42/274l–1.md?p=4) under subchapter V in the [State](/usc/42/7602.md?p=d) in which the [unit](/usc/42/1395w–114b.md?p=g-2) is located, whichever is later, each [unit](/usc/42/1395w–114b.md?p=g-2) in the [category](/usc/42/1395w–4.md?p=j-1) shall operate pursuant to a permit issued under this subsection and subchapter V. Permits required by this subsection may be renewed according to the provisions of subchapter V. Notwithstanding any other provision of this chapter, each permit for a [solid waste incineration unit](#g-1) combusting [municipal waste](#g-5) issued under this chapter shall be issued for a period of up to 12 years and shall be reviewed every 5 years after date of issuance or reissuance. Each permit shall continue in effect after the date of issuance until the date of termination, unless the [Administrator](/usc/42/7602.md?p=a) or [State](/usc/42/7602.md?p=d) determines that the [unit](/usc/42/1395w–114b.md?p=g-2) is not in compliance with all [standards](/usc/42/1320d.md?p=7) and conditions contained in the permit. Such determination shall be made at regular intervals during the term of the permit, such intervals not to exceed 5 years, and only after public comment and public hearing. No permit for a [solid waste incineration unit](#g-1) may be issued under this chapter by an agency, instrumentality or [person](/usc/42/7602.md?p=e) that is also responsible, in whole or part, for the design and [construction](/usc/42/7479.md?p=2-C) or operation of the [unit](/usc/42/1395w–114b.md?p=g-2). Notwithstanding any other provision of this subsection, the [Administrator](/usc/42/7602.md?p=a) or the [State](/usc/42/7602.md?p=d) shall require the [owner or operator](/usc/42/9601.md?p=20-B) of any [unit](/usc/42/1395w–114b.md?p=g-2) to comply with emissions limitations or implement any other measures, if the [Administrator](/usc/42/7602.md?p=a) or the [State](/usc/42/7602.md?p=d) determines that emissions in the absence of such limitations or measures may reasonably be anticipated to endanger public health or the environment. The [Administrator](/usc/42/7602.md?p=a)’s determination under the preceding sentence is a discretionary decision.
- (f) **Effective date and enforcement—**
- (1) **New units—** Performance [standards](/usc/42/1320d.md?p=7) and other requirements promulgated pursuant to this section and [section 7411 of this title](/usc/42/7411.md) and applicable to [new solid waste incineration units](#g-2) shall be effective as of the date 6 months after the date of promulgation.
- (2) **Existing units—** Performance [standards](/usc/42/1320d.md?p=7) and other requirements promulgated pursuant to this section and [section 7411 of this title](/usc/42/7411.md) and applicable to [existing solid waste incineration units](#g-4) shall be effective as expeditiously as practicable after approval of a [State](/usc/42/7602.md?p=d) plan under [subsection (b)(2)](#b-2) (or promulgation of a plan by the [Administrator](/usc/42/7602.md?p=a) under [subsection (b)(3)](#b-3)) but in no event later than 3 years after the [State](/usc/42/7602.md?p=d) plan is approved or 5 years after the date such [standards](/usc/42/1320d.md?p=7) or requirements are promulgated, whichever is earlier.
- (3) **Prohibition—** After the effective date of any performance [standard](/usc/42/1320d.md?p=7), [emission limitation](/usc/42/7602.md?p=k) or other requirement promulgated pursuant to this section and [section 7411 of this title](/usc/42/7411.md), it shall be unlawful for any [owner or operator](/usc/42/9601.md?p=20-B) of any [solid waste incineration unit](#g-1) to which such [standard](/usc/42/1320d.md?p=7), limitation or requirement applies to operate such [unit](/usc/42/1395w–114b.md?p=g-2) in [violation](/usc/42/2000e–16a.md?p=c) of such limitation, [standard](/usc/42/1320d.md?p=7) or requirement or for any other [person](/usc/42/7602.md?p=e) to violate an applicable requirement of this section.
- (4) **Coordination with other authorities—** For purposes of sections [7411(e)](/usc/42/7411.md?p=e), [7413](/usc/42/7413.md), [7414](/usc/42/7414.md), [7416](/usc/42/7416.md), [7420](/usc/42/7420.md), [7603](/usc/42/7603.md), [7604](/usc/42/7604.md), [7607](/usc/42/7607.md) of this title and other provisions for the enforcement of this chapter, each performance [standard](/usc/42/1320d.md?p=7), [emission limitation](/usc/42/7602.md?p=k) or other requirement established pursuant to this section by the [Administrator](/usc/42/7602.md?p=a) or a [State](/usc/42/7602.md?p=d) or [local government](/usc/42/8401a.md), shall be treated in the same manner as a [standard of performance](/usc/42/7602.md?p=l) under [section 7411 of this title](/usc/42/7411.md) which is an [emission limitation](/usc/42/7602.md?p=k).
- (g) **Definitions—** For purposes of section 306 of the Clean Air Act Amendments of 1990 and this section only—
- (1) **Solid waste incineration unit—** The term “solid waste incineration unit” means a distinct operating [unit](/usc/42/1395w–114b.md?p=g-2) of any [facility](/usc/42/11049.md?p=4) which combusts any [solid waste](#g-6) material from commercial or industrial establishments or the general public (including [single](/usc/42/2304.md?p=m) and multiple residences, hotels, and motels). Such term does not include incinerators or other [units](/usc/42/1395w–114b.md?p=g-2) required to have a permit under section 3005 of the [Solid Waste](#g-6) Disposal Act [[42 U.S.C. 6925](/usc/42/6925.md)]. The term “solid waste incineration unit” does not include (A) materials recovery [facilities](/usc/42/11049.md?p=4) (including primary or secondary smelters) which combust waste for the primary purpose of recovering metals, (B) qualifying small power production [facilities](/usc/42/11049.md?p=4), as defined in [section 796(17)(C) of title 16](/usc/16/796.md?p=17-C), or qualifying cogeneration [facilities](/usc/42/11049.md?p=4), as defined in [section 796(18)(B) of title 16](/usc/16/796.md?p=18-B), which burn homogeneous waste (such as [units](/usc/42/1395w–114b.md?p=g-2) which burn tires or used oil, but not including refuse-derived fuel) for the production of electric [energy](/usc/42/6311.md?p=7) or in the case of qualifying cogeneration [facilities](/usc/42/11049.md?p=4) which burn homogeneous waste for the production of electric [energy](/usc/42/6311.md?p=7) and steam or forms of useful [energy](/usc/42/6311.md?p=7) (such as heat) which are used for industrial, commercial, heating or cooling purposes, or (C) air curtain incinerators provided that such incinerators only burn wood wastes, yard wastes and clean lumber and that such air curtain incinerators comply with opacity limitations to be established by the [Administrator](/usc/42/7602.md?p=a) by rule.
- (2) **New solid waste incineration unit—** The term “new solid waste incineration unit” means a [solid waste incineration unit](#g-1) the [construction](/usc/42/7479.md?p=2-C) of which is commenced after the [Administrator](/usc/42/7602.md?p=a) proposes requirements under this section establishing emissions [standards](/usc/42/1320d.md?p=7) or other requirements which would be applicable to such [unit](/usc/42/1395w–114b.md?p=g-2) or a [modified solid waste incineration unit](#g-3).
- (3) **Modified solid waste incineration unit—** The term “modified solid waste incineration unit” means a [solid waste incineration unit](#g-1) at which [modifications](/usc/42/7501.md?p=4) have occurred after the effective date of a [standard](/usc/42/1320d.md?p=7) under [subsection (a)](#a) if (A) the cumulative cost of the [modifications](/usc/42/7501.md?p=4), over the life of the [unit](/usc/42/1395w–114b.md?p=g-2), exceed 50 per centum of the original cost of [construction](/usc/42/7479.md?p=2-C) and installation of the [unit](/usc/42/1395w–114b.md?p=g-2) (not including the cost of any land purchased in connection with such [construction](/usc/42/7479.md?p=2-C) or installation) updated to current costs, or (B) the [modification](/usc/42/7501.md?p=4) is a physical change in or change in the method of operation of the [unit](/usc/42/1395w–114b.md?p=g-2) which increases the amount of any [air pollutant](/usc/42/7602.md?p=g) emitted by the [unit](/usc/42/1395w–114b.md?p=g-2) for which [standards](/usc/42/1320d.md?p=7) have been established under this section or [section 7411 of this title](/usc/42/7411.md).
- (4) **Existing solid waste incineration unit—** The term “existing solid waste incineration unit” means a [solid waste](#g-6) [unit](/usc/42/1395w–114b.md?p=g-2) which is not a new or [modified solid waste incineration unit](#g-3).
- (5) **Municipal waste—** The term “municipal waste” means refuse (and refuse-derived fuel) collected from the general public and from residential, commercial, institutional, and industrial sources consisting of paper, wood, yard wastes, food wastes, plastics, leather, rubber, and other combustible materials and non-combustible materials such as metal, glass and rock, provided that: (A) the term does not include industrial process wastes or [medical wastes](#g-6) that are segregated from such other wastes; and (B) an incineration [unit](/usc/42/1395w–114b.md?p=g-2) shall not be considered to be combusting municipal waste for purposes of [section 7411 of this title](/usc/42/7411.md) or this section if it combusts a fuel feed stream, 30 percent or less of the weight of which is comprised, in aggregate, of municipal waste.
- (6) **Other terms—** The terms “solid waste” and “medical waste” shall have the meanings established by the [Administrator](/usc/42/7602.md?p=a) pursuant to the Solid Waste Disposal Act [[42 U.S.C. 6901](/usc/42/6901.md) et seq.].
- (h) **Other authority—**
- (1) **State authority—** Nothing in this section shall preclude or deny the right of any [State](/usc/42/7602.md?p=d) or political subdivision thereof to adopt or enforce any regulation, requirement, limitation or [standard](/usc/42/1320d.md?p=7) relating to [solid waste incineration units](#g-1) that is more stringent than a regulation, requirement, limitation or [standard](/usc/42/1320d.md?p=7) in effect under this section or under any other provision of this chapter.
- (2) **Other authority under this chapter—** Nothing in this section shall diminish the authority of the [Administrator](/usc/42/7602.md?p=a) or a [State](/usc/42/7602.md?p=d) to establish any other requirements applicable to [solid waste incineration units](#g-1) under any other authority of law, including the authority to establish for any [air pollutant](/usc/42/7602.md?p=g) a national ambient air quality [standard](/usc/42/1320d.md?p=7), except that no [solid waste incineration unit](#g-1) subject to performance [standards](/usc/42/1320d.md?p=7) under this section and [section 7411 of this title](/usc/42/7411.md) shall be subject to [standards](/usc/42/1320d.md?p=7) under [section 7412(d) of this title](/usc/42/7412.md?p=d).
- (3) **Residual risk—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate [standards](/usc/42/1320d.md?p=7) under [section 7412(f) of this title](/usc/42/7412.md?p=f) for a [category](/usc/42/1395w–4.md?p=j-1) of [solid waste incineration units](#g-1), if promulgation of such [standards](/usc/42/1320d.md?p=7) is required under [section 7412(f) of this title](/usc/42/7412.md?p=f). For purposes of this[^3] preceding sentence only—
- (A) the performance [standards](/usc/42/1320d.md?p=7) under [subsection (a)](#a) and [section 7411 of this title](/usc/42/7411.md) applicable to a [category](/usc/42/1395w–4.md?p=j-1) of [solid waste incineration units](#g-1) shall be deemed [standards](/usc/42/1320d.md?p=7) under [section 7412(d)(2) of this title](/usc/42/7412.md?p=d-2), and
- (B) the [Administrator](/usc/42/7602.md?p=a) shall consider and regulate, if required, the [pollutants](/usc/42/1397h.md?p=c-4) listed under [subsection (a)(4)](#a-4) and no others.
- (4) **Acid rain—** A [solid waste incineration unit](#g-1) shall not be a utility [unit](/usc/42/1395w–114b.md?p=g-2) as defined in subchapter IV–A: Provided, That, more than 80 per centum of its annual average fuel consumption measured on a Btu basis, during a period or periods to be determined by the [Administrator](/usc/42/7602.md?p=a), is from a fuel (including any waste burned as a fuel) other than a fossil fuel.
- (5) **Requirements of parts C and D—** No requirement of an [applicable implementation plan](/usc/42/7602.md?p=q) under [section 7475 of this title](/usc/42/7475.md) (relating to [construction](/usc/42/7479.md?p=2-C) of [facilities](/usc/42/11049.md?p=4) in regions identified pursuant to section [7407(d)(1)(A)(ii)](/usc/42/7407.md?p=d-1-A-ii) or [(iii)](/usc/42/7407.md) of this title) or under [section 7502(c)(5) of this title](/usc/42/7502.md?p=c-5) (relating to permits for [construction](/usc/42/7479.md?p=2-C) and operation in [nonattainment areas](/usc/42/7501.md?p=2)) may be used to weaken the [standards](/usc/42/1320d.md?p=7) in effect under this section.
# §7430. Emission factors
Within 6 months after November 15, 1990, and at least every 3 years thereafter, the [Administrator](/usc/42/7602.md?p=a) shall review and, if necessary, revise, the methods (“emission factors”) used for purposes of this chapter to estimate the quantity of emissions of carbon monoxide, volatile organic compounds, and oxides of nitrogen from sources of such [air pollutants](/usc/42/7602.md?p=g) (including area sources and mobile sources). In addition, the [Administrator](/usc/42/7602.md?p=a) shall establish emission factors for sources for which no such methods have previously been established by the [Administrator](/usc/42/7602.md?p=a). The [Administrator](/usc/42/7602.md?p=a) shall permit any [person](/usc/42/7602.md?p=e) to demonstrate improved emissions estimating techniques, and following approval of such techniques, the [Administrator](/usc/42/7602.md?p=a) shall authorize the use of such techniques. Any such technique may be approved only after appropriate public participation. Until the [Administrator](/usc/42/7602.md?p=a) has completed the revision required by this section, nothing in this section shall be construed to affect the validity of emission factors established by the [Administrator](/usc/42/7602.md?p=a) before November 15, 1990.
# §7431. Land use authority
Nothing in this chapter constitutes an infringement on the existing authority of counties and [cities](/usc/42/12902.md?p=11) to plan or control land use, and nothing in this chapter provides or transfers authority over such land use.
# §7432. Clean heavy-duty vehicles
- (a) **Appropriations—**
- (1) **In general—** In addition to amounts otherwise available, there is appropriated to the [Administrator](/usc/42/7602.md?p=a) for fiscal year 2022, out of any money in the Treasury not otherwise appropriated, $600,000,000, to remain available until September 30, 2031, to carry out this section.
- (2) **Nonattainment areas—** In addition to amounts otherwise available, there is appropriated to the [Administrator](/usc/42/7602.md?p=a) for fiscal year 2022, out of any money in the Treasury not otherwise appropriated, $400,000,000, to remain available until September 30, 2031, to make awards under this section to [eligible recipients](#d-2) and to [eligible contractors](#d-1) that propose to replace [eligible vehicles](#d-3) to serve 1 or more communities located in an air quality area designated pursuant to [section 7407 of this title](/usc/42/7407.md) as nonattainment for any [air pollutant](/usc/42/7602.md?p=g).
- (3) **Reservation—** Of the [funds](/usc/42/12854.md?p=3) appropriated by [paragraph (1)](#a-1), the [Administrator](/usc/42/7602.md?p=a) shall reserve 3 percent for administrative costs necessary to carry out this section.
- (b) **Program—** Beginning not later than 180 days after August 16, 2022, the [Administrator](/usc/42/7602.md?p=a) shall implement a [program](/usc/42/274l–1.md?p=4) to make awards of grants and rebates to [eligible recipients](#d-2), and to make awards of contracts to [eligible contractors](#d-1) for providing rebates, for up to 100 percent of costs for—
- (1) the incremental costs of replacing an [eligible vehicle](#d-3) that is not a [zero-emission vehicle](#d-5) with a [zero-emission vehicle](#d-5), as determined by the [Administrator](/usc/42/7602.md?p=a) based on the market value of the vehicles;
- (2) purchasing, installing, operating, and maintaining infrastructure needed to charge, fuel, or maintain [zero-emission vehicles](#d-5);
- (3) workforce development and [training](/usc/42/285e–2.md?p=b-2) to support the maintenance, charging, fueling, and operation of [zero-emission vehicles](#d-5); and
- (4) planning and technical activities to support the adoption and deployment of [zero-emission vehicles](#d-5).
- (c) **Applications—** To seek an award under this section, an [eligible recipient](#d-2) or [eligible contractor](#d-1) shall submit to the [Administrator](/usc/42/7602.md?p=a) an application at such time, in such manner, and containing such information as the [Administrator](/usc/42/7602.md?p=a) shall prescribe.
- (d) **Definitions—** For purposes of this section:
- (1) **Eligible contractor—** The term “eligible contractor” means a contractor that has the capacity—
- (A) to sell, lease, license, or contract for service [zero-emission vehicles](#d-5), or charging or other equipment needed to charge, fuel, or maintain [zero-emission vehicles](#d-5), to individuals or entities that own, lease, license, or contract for service an [eligible vehicle](#d-3); or
- (B) to arrange financing for such a sale, lease, license, or contract for service.
- (2) **Eligible recipient—** The term “eligible recipient” means—
- (A) a [State](/usc/42/7602.md?p=d);
- (B) a [municipality](/usc/42/7602.md?p=f);
- (C) an [Indian tribe](/usc/42/7602.md?p=r); or
- (D) a nonprofit [school](/usc/42/6372.md?p=1) transportation association.
- (3) **Eligible vehicle—** The term “eligible vehicle” means a Class 6 or Class 7 heavy-duty vehicle as defined in [section 1037.801 of title 40, Code of Federal Regulations](/cfr/40/1037.801.md) (as in effect on August 16, 2022).
- (4) **Greenhouse gas—** The term “greenhouse gas” means the [air pollutants](/usc/42/7602.md?p=g) carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride.
- (5) **Zero-emission vehicle—** The term “zero-emission vehicle” means a vehicle that has a drivetrain that produces, under any possible operational mode or condition, zero exhaust emissions of—
- (A) any [air pollutant](/usc/42/7602.md?p=g) that is listed pursuant to [section 7408(a) of this title](/usc/42/7408.md?p=a) (or any precursor to such an [air pollutant](/usc/42/7602.md?p=g)); and
- (B) any [greenhouse gas](#d-4).
# §7433. Grants to reduce air pollution at ports
- (a) **Appropriations—**
- (1) **General assistance—** In addition to amounts otherwise available, there is appropriated to the [Administrator](/usc/42/7602.md?p=a) for fiscal year 2022, out of any money in the Treasury not otherwise appropriated, $2,250,000,000, to remain available until September 30, 2027, to award rebates and grants to [eligible recipients](#d-1) on a competitive basis—
- (A) to purchase or install [zero-emission port equipment or technology](#d-4) for use at, or to directly serve, one or more ports;
- (B) to conduct any relevant planning or permitting in connection with the purchase or installation of such [zero-emission port equipment or technology](#d-4); and
- (C) to develop [qualified climate action plans](#d-3).
- (2) **Nonattainment areas—** In addition to amounts otherwise available, there is appropriated to the [Administrator](/usc/42/7602.md?p=a) for fiscal year 2022, out of any money in the Treasury not otherwise appropriated, $750,000,000, to remain available until September 30, 2027, to award rebates and grants to [eligible recipients](#d-1) to carry out activities described in [paragraph (1)](#a-1) with respect to ports located in air quality areas designated pursuant to [section 7407 of this title](/usc/42/7407.md) as nonattainment for an [air pollutant](/usc/42/7602.md?p=g).
- (b) **Limitation—** [Funds](/usc/42/12854.md?p=3) awarded under this section shall not be used by any [recipient](/usc/42/2996a.md?p=6) or subrecipient to purchase or install [zero-emission port equipment or technology](#d-4) that will not be located at, or directly serve, the one or more ports involved.
- (c) **Administration of funds—** Of the [funds](/usc/42/12854.md?p=3) made available by this section, the [Administrator](/usc/42/7602.md?p=a) shall reserve 2 percent for administrative costs necessary to carry out this section.
- (d) **Definitions—** In this section:
- (1) **Eligible recipient—** The term “eligible recipient” means—
- (A) a port authority;
- (B) a [State](/usc/42/7602.md?p=d), regional, local, or Tribal agency that has jurisdiction over a port authority or a port;
- (C) an [air pollution control agency](/usc/42/7602.md?p=b); or
- (D) a [private entity](/usc/42/12181.md?p=6) that—
- (i) applies for a grant under this section in partnership with an entity described in any of [subparagraphs (A) through (C)](#d-1-A..d-1-C); and
- (ii) owns, operates, or uses the [facilities](/usc/42/11049.md?p=4), cargo-handling equipment, transportation equipment, or related technology of a port.
- (2) **Greenhouse gas—** The term “greenhouse gas” means the [air pollutants](/usc/42/7602.md?p=g) carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride.
- (3) **Qualified climate action plan—** The term “qualified climate action plan” means a detailed and strategic plan that—
- (A) establishes goals, implementation strategies, and accounting and [inventory](/usc/42/4370m.md?p=14) [practices](/usc/42/17061.md?p=19) to reduce emissions at one or more ports of—
- (i) [greenhouse gases](#d-2);
- (ii) an [air pollutant](/usc/42/7602.md?p=g) that is listed pursuant to [section 7408(a) of this title](/usc/42/7408.md?p=a) (or any precursor to such an [air pollutant](/usc/42/7602.md?p=g)); and
- (iii) hazardous [air pollutants](/usc/42/7602.md?p=g);
- (B) includes a strategy to collaborate with, communicate with, and address potential effects on low-[income](/usc/42/292s.md?p=c-4) and disadvantaged near-port communities and other stakeholders that may be affected by implementation of the plan; and
- (C) describes how an [eligible recipient](#d-1) has implemented or will implement measures to increase the [resilience](/usc/42/300j–19a.md?p=l-1) of the one or more ports involved.
- (4) **Zero-emission port equipment or technology—** The term “zero-emission port equipment or technology” means human-operated equipment or human-maintained technology that—
- (A) produces zero emissions of any [air pollutant](/usc/42/7602.md?p=g) that is listed pursuant to [section 7408(a) of this title](/usc/42/7408.md?p=a) (or any precursor to such an [air pollutant](/usc/42/7602.md?p=g)) and any [greenhouse gas](#d-2) other than water vapor; or
- (B) captures 100 percent of the emissions described in [subparagraph (A)](#d-4-A) that are produced by an ocean-going vessel at berth.
# [§7434. Repealed. Pub. L. 119–21, title VI, § 60002, July 4, 2025, 139 Stat. 154 — repealed]
# §7435. Low emissions electricity program
- (a) **Appropriation—** In addition to amounts otherwise available, there is appropriated to the [Administrator](/usc/42/7602.md?p=a) for fiscal year 2022, out of any money in the Treasury not otherwise appropriated, to remain available until September 30, 2031—
- (1) $17,000,000 for consumer-related education and partnerships with respect to reductions in [greenhouse gas](#c) emissions that result from domestic electricity generation and use;
- (2) $17,000,000 for education, technical assistance, and partnerships within low-[income](/usc/42/292s.md?p=c-4) and disadvantaged communities with respect to reductions in [greenhouse gas](#c) emissions that result from domestic electricity generation and use;
- (3) $17,000,000 for industry-related outreach, technical assistance, and partnerships with respect to reductions in [greenhouse gas](#c) emissions that result from domestic electricity generation and use;
- (4) $17,000,000 for outreach and technical assistance to, and partnerships with, [State](/usc/42/7602.md?p=d), Tribal, and [local governments](/usc/42/8401a.md) with respect to reductions in [greenhouse gas](#c) emissions that result from domestic electricity generation and use;
- (5) $1,000,000 to assess, not later than 1 year after August 16, 2022, the reductions in [greenhouse gas](#c) emissions that result from changes in domestic electricity generation and use that are anticipated to occur on an annual basis through fiscal year 2031; and
- (6) $18,000,000 to ensure that reductions in [greenhouse gas](#c) emissions are achieved through use of the existing authorities of this chapter, incorporating the assessment under [paragraph (5)](#a-5).
- (b) **Administration of funds—** Of the amounts made available under [subsection (a)](#a), the [Administrator](/usc/42/7602.md?p=a) shall reserve 2 percent for the administrative costs necessary to carry out activities pursuant to that subsection.
- (c) **Definition of greenhouse gas—** In this section, the term “greenhouse gas” means the [air pollutants](/usc/42/7602.md?p=g) carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride.
# §7436. Methane emissions and waste reduction incentive program for petroleum and natural gas systems
- (a) **Incentives for methane mitigation and monitoring—** In addition to amounts otherwise available, there is appropriated to the [Administrator](/usc/42/7602.md?p=a) for fiscal year 2022, out of any money in the Treasury not otherwise appropriated, $850,000,000, to remain available until September 30, 2028—
- (1) for grants, rebates, contracts, loans, and other activities of the Environmental Protection Agency for the purposes of providing financial and technical assistance to [owners](/usc/42/13641.md?p=4) and operators of [applicable facilities](#d) to prepare and submit [greenhouse gas](#i) reports under [subpart W of part 98 of title 40, Code of Federal Regulations](/cfr/40/part98-subpartW.md);
- (2) for grants, rebates, contracts, loans, and other activities of the Environmental Protection Agency authorized under subsections (a) through (c) of [section 7403 of this title](/usc/42/7403.md) for methane emissions monitoring;
- (3) for grants, rebates, contracts, loans, and other activities of the Environmental Protection Agency for the purposes of providing financial and technical assistance to reduce methane and other [greenhouse gas](#i) emissions from petroleum and natural gas systems, mitigate legacy air pollution from petroleum and natural gas systems, and provide funding for—
- (A) improving climate resiliency of communities and petroleum and natural gas systems;
- (B) improving and deploying industrial equipment and processes that reduce methane and other [greenhouse gas](#i) emissions and waste;
- (C) supporting innovation in reducing methane and other [greenhouse gas](#i) emissions and waste from petroleum and natural gas systems;
- (D) permanently shutting in and plugging wells on non-Federal land;
- (E) mitigating health effects of methane and other [greenhouse gas](#i) emissions, and legacy air pollution from petroleum and natural gas systems in low-[income](/usc/42/292s.md?p=c-4) and disadvantaged communities; and
- (F) supporting environmental restoration; and
- (4) to cover all direct and indirect costs required to administer this section, prepare [inventories](/usc/42/4370m.md?p=14), gather empirical data, and track emissions.
- (b) **Incentives for methane mitigation from conventional wells—** In addition to amounts otherwise available, there is appropriated to the [Administrator](/usc/42/7602.md?p=a) for fiscal year 2022, out of any money in the Treasury not otherwise appropriated, $700,000,000, to remain available until September 30, 2028, for activities described in [paragraphs (1) through (4)](#a-1..a-4) of subsection (a) at marginal conventional wells.
- (c) **Waste emissions charge—** The [Administrator](/usc/42/7602.md?p=a) shall impose and collect a charge on methane emissions that exceed an applicable waste emissions threshold under [subsection (f)](#f) from an [owner or operator](/usc/42/9601.md?p=20-B) of an [applicable facility](#d) that reports more than 25,000 metric tons of carbon dioxide equivalent of [greenhouse gases](#i) emitted per year pursuant to [subpart W of part 98 of title 40, Code of Federal Regulations](/cfr/40/part98-subpartW.md), regardless of the reporting threshold under that subpart.
- (d) **Applicable facility—** For purposes of this section, the term “applicable facility” means a [facility](/usc/42/11049.md?p=4) within the following industry segments, as defined in [subpart W of part 98 of title 40, Code of Federal Regulations](/cfr/40/part98-subpartW.md):
- (1) Offshore petroleum and natural gas production.
- (2) Onshore petroleum and natural gas production.
- (3) Onshore natural gas processing.
- (4) Onshore natural gas transmission compression.
- (5) Underground natural gas storage.
- (6) Liquefied natural gas storage.
- (7) Liquefied natural gas [import](/usc/42/6311.md?p=7) and export equipment.
- (8) Onshore petroleum and natural gas gathering and boosting.
- (9) Onshore natural gas transmission pipeline.
- (e) **Charge amount—** The amount of a charge under [subsection (c)](#c) for an [applicable facility](#d) shall be equal to the product obtained by multiplying—
- (1) the number of metric tons of methane emissions reported pursuant to [subpart W of part 98 of title 40, Code of Federal Regulations](/cfr/40/part98-subpartW.md), for the [applicable facility](#d) that exceed the applicable annual waste emissions threshold listed in [subsection (f)](#f) during the previous reporting period; and
- (2)
- (A) $900 for emissions reported for calendar year 2024;
- (B) $1,200 for emissions reported for calendar year 2025; or
- (C) $1,500 for emissions reported for calendar year 2026 and each year thereafter.
- (f) **Waste emissions threshold—**
- (1) **Petroleum and natural gas production—** With respect to imposing and collecting the charge under [subsection (c)](#c) for an [applicable facility](#d) in an industry segment listed in paragraph [(1)](#d-1) or [(2)](#d-2) of subsection (d), the [Administrator](/usc/42/7602.md?p=a) shall impose and collect the charge on the reported metric tons of methane emissions from such [facility](/usc/42/11049.md?p=4) that exceed—
- (A) 0.20 percent of the natural gas sent to sale from such [facility](/usc/42/11049.md?p=4); or
- (B) 10 metric tons of methane per million barrels of oil sent to sale from such [facility](/usc/42/11049.md?p=4), if such [facility](/usc/42/11049.md?p=4) sent no natural gas to sale.
- (2) **Nonproduction petroleum and natural gas systems—** With respect to imposing and collecting the charge under [subsection (c)](#c) for an [applicable facility](#d) in an industry segment listed in paragraph [(3)](#d-3), [(6)](#d-6), [(7)](#d-7), or [(8)](#d-8) of subsection (d), the [Administrator](/usc/42/7602.md?p=a) shall impose and collect the charge on the reported metric tons of methane emissions that exceed 0.05 percent of the natural gas sent to sale from or through such [facility](/usc/42/11049.md?p=4).
- (3) **Natural gas transmission—** With respect to imposing and collecting the charge under [subsection (c)](#c) for an [applicable facility](#d) in an industry segment listed in paragraph [(4)](#d-4), [(5)](#d-5), or [(9)](#d-9) of subsection (d), the [Administrator](/usc/42/7602.md?p=a) shall impose and collect the charge on the reported metric tons of methane emissions that exceed 0.11 percent of the natural gas sent to sale from or through such [facility](/usc/42/11049.md?p=4).
- (4) **Common ownership or control—** In calculating the total emissions charge obligation for [facilities](/usc/42/11049.md?p=4) under common ownership or control, the [Administrator](/usc/42/7602.md?p=a) shall allow for the netting of emissions by reducing the total obligation to account for [facility](/usc/42/11049.md?p=4) emissions levels that are below the applicable thresholds within and across all applicable segments identified in [subsection (d)](#d).
- (5) **Exemption—** Charges shall not be imposed pursuant to [paragraph (1)](#f-1) on emissions that exceed the waste emissions threshold specified in such paragraph if such emissions are caused by unreasonable delay, as determined by the [Administrator](/usc/42/7602.md?p=a), in environmental permitting of gathering or transmission infrastructure necessary for offtake of increased volume as a result of methane emissions mitigation implementation.
- (6) **Exemption for regulatory compliance—**
- (A) **In general—** Charges shall not be imposed pursuant to [subsection (c)](#c) on an [applicable facility](#d) that is subject to and in compliance with methane emissions requirements pursuant to subsections (b) and (d) of [section 7411 of this title](/usc/42/7411.md) upon a determination by the [Administrator](/usc/42/7602.md?p=a) that—
- (i) methane emissions [standards](/usc/42/1320d.md?p=7) and plans pursuant to subsections (b) and (d) of [section 7411 of this title](/usc/42/7411.md) have been approved and are in effect in all [States](/usc/42/7602.md?p=d) with respect to the [applicable facilities](#d); and
- (ii) compliance with the requirements described in [clause (i)](#f-6-A-i) will result in equivalent or greater [emissions reductions](/usc/42/17114.md?p=a-3) as would be achieved by the proposed rule of the [Administrator](/usc/42/7602.md?p=a) entitled “[Standards](/usc/42/1320d.md?p=7) of Performance for New, Reconstructed, and [Modified](/usc/42/7501.md?p=4) Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review” (86 Fed. Reg. 63110 (November 15, 2021)), if such rule had been finalized and implemented.
- (B) **Resumption of charge—** If the conditions in clause [(i)](#f-6-A-i) or [(ii)](#f-6-A-ii) of subparagraph (A) cease to apply after the [Administrator](/usc/42/7602.md?p=a) has made the determination in that subparagraph, the [applicable facility](#d) will again be subject to the charge under [subsection (c)](#c) beginning in the first calendar year in which the conditions in either clause [(i)](#i) or (ii) of that subparagraph are no longer met.
- (7) **Plugged wells—** Charges shall not be imposed with respect to the emissions rate from any well that has been permanently shut-in and plugged in the previous year in accordance with all applicable closure requirements, as determined by the [Administrator](/usc/42/7602.md?p=a).
- (g) **Period—** The charge under [subsection (c)](#c) shall be imposed and collected beginning with respect to emissions reported for calendar year 2034 and for each year thereafter.
- (h) **Reporting—** Not later than 2 years after August 16, 2022, the [Administrator](/usc/42/7602.md?p=a) shall revise the requirements of [subpart W of part 98 of title 40, Code of Federal Regulations](/cfr/40/part98-subpartW.md), to ensure the reporting under such subpart, and calculation of charges under subsections [(e)](#e) and [(f)](#f) of this section, are based on empirical data, including data collected pursuant to [subsection (a)(4)](#a-4), accurately reflect the total methane emissions and waste emissions from the [applicable facilities](#d), and allow [owners](/usc/42/13641.md?p=4) and operators of [applicable facilities](#d) to submit empirical emissions data, in a manner to be prescribed by the [Administrator](/usc/42/7602.md?p=a), to demonstrate the extent to which a charge under [subsection (c)](#c) is owed.
- (i) **Definition of greenhouse gas—** In this section, the term “greenhouse gas” means the [air pollutants](/usc/42/7602.md?p=g) carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride.
# §7437. Greenhouse gas air pollution plans and implementation grants
- (a) **Appropriations—**
- (1) **Greenhouse gas air pollution planning grants—** In addition to amounts otherwise available, there is appropriated to the [Administrator](/usc/42/7602.md?p=a) for fiscal year 2022, out of any amounts in the Treasury not otherwise appropriated, $250,000,000, to remain available until September 30, 2031, to carry out [subsection (b)](#b).
- (2) **Greenhouse gas air pollution implementation grants—** In addition to amounts otherwise available, there is appropriated to the [Administrator](/usc/42/7602.md?p=a) for fiscal year 2022, out of any amounts in the Treasury not otherwise appropriated, $4,750,000,000, to remain available until September 30, 2026, to carry out [subsection (c)](#c).
- (3) **Administrative costs—** Of the [funds](/usc/42/12854.md?p=3) made available under [paragraph (2)](#a-2), the [Administrator](/usc/42/7602.md?p=a) shall reserve 3 percent for administrative costs necessary to carry out this section, to provide technical assistance to [eligible entities](/usc/42/296.md?p=1), to develop a plan that could be used as a model by grantees in developing a plan under [subsection (b)](#b), and to model the effects of plans described in this section.
- (b) **Greenhouse gas air pollution planning grants—** The [Administrator](/usc/42/7602.md?p=a) shall make a grant to at least one [eligible entity](#d-1) in each [State](/usc/42/7602.md?p=d) for the costs of developing a plan for the reduction of [greenhouse gas](#d-2) air pollution to be submitted with an application for a grant under [subsection (c)](#c). Each such plan shall include [programs](/usc/42/274l–1.md?p=4), policies, measures, and [projects](/usc/42/11360.md?p=20) that will achieve or facilitate the reduction of [greenhouse gas](#d-2) air pollution. Not later than 270 days after August 16, 2022, the [Administrator](/usc/42/7602.md?p=a) shall publish a funding opportunity announcement for grants under this subsection.
- (c) **Greenhouse gas air pollution reduction implementation grants—**
- (1) **In general—** The [Administrator](/usc/42/7602.md?p=a) shall competitively award grants to [eligible entities](/usc/42/296.md?p=1) to implement plans developed under [subsection (b)](#b).
- (2) **Application—** To apply for a grant under this subsection, an [eligible entity](#d-1) shall submit to the [Administrator](/usc/42/7602.md?p=a) an application at such time, in such manner, and containing such information as the [Administrator](/usc/42/7602.md?p=a) shall require, which such application shall include information regarding the degree to which [greenhouse gas](#d-2) air pollution is projected to be reduced in total and with respect to low-[income](/usc/42/292s.md?p=c-4) and disadvantaged communities.
- (3) **Terms and conditions—** The [Administrator](/usc/42/7602.md?p=a) shall make [funds](/usc/42/12854.md?p=3) available to a grantee under this subsection in such amounts, upon such a schedule, and subject to such conditions based on its performance in implementing its plan submitted under this section and in achieving projected [greenhouse gas](#d-2) air pollution reduction, as determined by the [Administrator](/usc/42/7602.md?p=a).
- (d) **Definitions—** In this section:
- (1) **Eligible entity—** The term “eligible entity” means—
- (A) a [State](/usc/42/7602.md?p=d);
- (B) an [air pollution control agency](/usc/42/7602.md?p=b);
- (C) a [municipality](/usc/42/7602.md?p=f);
- (D) an [Indian tribe](/usc/42/7602.md?p=r); and
- (E) a group of one or more entities listed in [subparagraphs (A) through (D)](#d-1-A..d-1-D).
- (2) **Greenhouse gas—** The term “greenhouse gas” means the [air pollutants](/usc/42/7602.md?p=g) carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride.
# §7438. Environmental and climate justice block grants
- (a) **Appropriation—** In addition to amounts otherwise available, there is appropriated to the [Administrator](/usc/42/7602.md?p=a) for fiscal year 2022, out of any money in the Treasury not otherwise appropriated—
- (1) $2,800,000,000 to remain available until September 30, 2026, to award grants for the activities described in [subsection (b)](#b); and
- (2) $200,000,000 to remain available until September 30, 2026, to provide technical assistance to [eligible entities](/usc/42/296.md?p=1) related to grants awarded under this section.
- (b) **Grants—**
- (1) **In general—** The [Administrator](/usc/42/7602.md?p=a) shall use amounts made available under [subsection (a)(1)](#a-1) to award grants for periods of up to 3 years to [eligible entities](/usc/42/296.md?p=1) to carry out activities described in [paragraph (2)](#b-2) that benefit disadvantaged communities, as defined by the [Administrator](/usc/42/7602.md?p=a).
- (2) **Eligible activities—** An [eligible entity](#b-3) may use a grant awarded under this subsection for—
- (A) community-led air and other pollution monitoring, prevention, and remediation, and investments in low- and zero-emission and resilient technologies and related infrastructure and workforce development that help reduce [greenhouse gas](#d) emissions and other [air pollutants](/usc/42/7602.md?p=g);
- (B) mitigating climate and health risks from urban heat islands, extreme heat, wood heater emissions, and wildfire events;
- (C) climate resiliency and adaptation;
- (D) reducing indoor toxics and indoor air pollution; or
- (E) facilitating engagement of disadvantaged communities in [State](/usc/42/7602.md?p=d) and Federal advisory groups, workshops, rulemakings, and other public processes.
- (3) **Eligible entities—** In this subsection, the term “eligible entity” means—
- (A) a partnership between—
- (i) an [Indian tribe](/usc/42/7602.md?p=r), a [local government](/usc/42/8401a.md), or an [institution of higher education](/usc/42/6371h–1.md?p=a-4); and
- (ii) a community-based nonprofit organization;
- (B) a community-based nonprofit organization; or
- (C) a partnership of community-based nonprofit organizations.
- (c) **Administrative costs—** The [Administrator](/usc/42/7602.md?p=a) shall reserve 7 percent of the amounts made available under [subsection (a)](#a) for administrative costs to carry out this section.
- (d) **Definition of greenhouse gas—** In this section, the term “greenhouse gas” means the [air pollutants](/usc/42/7602.md?p=g) carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride.
# [§§7450 to 7459. Repealed. Pub. L. 101–549, title VI, § 601, Nov. 15, 1990, 104 Stat. 2648 — repealed]
# §7470. Congressional declaration of purpose
The purposes of this part are as follows:
- (1) to protect public health and welfare from any actual or potential adverse effect which in the [Administrator](/usc/42/7602.md?p=a)’s judgment may reasonably be anticipate[^1] to occur from air pollution or from exposures to [pollutants](/usc/42/1397h.md?p=c-4) in other media, which [pollutants](/usc/42/1397h.md?p=c-4) originate as emissions to the ambient air)[^2], notwithstanding attainment and maintenance of all national ambient air quality [standards](/usc/42/1320d.md?p=7);
- (2) to preserve, protect, and enhance the air quality in national parks, national wilderness areas, national monuments, national seashores, and other areas of special national or regional natural, recreational, scenic, or historic value;
- (3) to insure that economic growth will occur in a manner consistent with the preservation of existing clean air resources;
- (4) to assure that emissions from any source in any [State](/usc/42/7602.md?p=d) will not interfere with any portion of the [applicable implementation plan](/usc/42/7602.md?p=q) to prevent significant deterioration of air quality for any other [State](/usc/42/7602.md?p=d); and
- (5) to assure that any decision to permit increased air pollution in any area to which this section applies is made only after careful evaluation of all the consequences of such a decision and after adequate procedural opportunities for informed public participation in the decisionmaking process.
# §7471. Plan requirements
In accordance with the policy of [section 7401(b)(1) of this title](/usc/42/7401.md?p=b-1), each [applicable implementation plan](/usc/42/7602.md?p=q) shall contain [emission limitations](/usc/42/7602.md?p=k) and such other measures as may be necessary, as determined under regulations promulgated under this part, to prevent significant deterioration of air quality in each region (or portion thereof) designated pursuant to [section 7407 of this title](/usc/42/7407.md) as attainment or unclassifiable.
# §7472. Initial classifications
- (a) **Areas designated as class I—** Upon the enactment of this part, all—
- (1) international parks,
- (2) national wilderness areas which exceed 5,000 acres in size,
- (3) national memorial parks which exceed 5,000 acres in size, and
- (4) national parks which exceed six thousand acres in size,
and which are in existence on August 7, 1977, shall be class I areas and may not be redesignated. All areas which were redesignated as class I under regulations promulgated before August 7, 1977, shall be class I areas which may be redesignated as provided in this part. The extent of the areas designated as Class I under this section shall conform to any changes in the boundaries of such areas which have occurred subsequent to August 7, 1977, or which may occur subsequent to November 15, 1990.
- (b) **Areas designated as class II—** All areas in such [State](/usc/42/7602.md?p=d) designated pursuant to [section 7407(d) of this title](/usc/42/7407.md?p=d) as attainment or unclassifiable which are not established as class I under [subsection (a)](#a) shall be class II areas unless redesignated under [section 7474 of this title](/usc/42/7474.md).
# §7473. Increments and ceilings
- (a) **Sulfur oxide and particulate matter; requirement that maximum allowable increases and maximum allowable concentrations not be exceeded—** In the case of sulfur oxide and particulate matter, each [applicable implementation plan](/usc/42/7602.md?p=q) shall contain measures assuring that maximum allowable increases over [baseline concentrations](/usc/42/7479.md?p=4) of, and maximum allowable concentrations of, such [pollutant](/usc/42/1397h.md?p=c-4) shall not be exceeded. In the case of any maximum allowable increase (except an allowable increase specified under [section 7475(d)(2)(C)(iv) of this title](/usc/42/7475.md?p=d-2-C-iv)) for a [pollutant](/usc/42/1397h.md?p=c-4) based on concentrations permitted under national ambient air quality [standards](/usc/42/1320d.md?p=7) for any period other than an annual period, such regulations shall permit such maximum allowable increase to be exceeded during one such period per year.
- (b) **Maximum allowable increases in concentrations over baseline concentrations—**
- (1) For any class I area, the maximum allowable increase in concentrations of sulfur dioxide and particulate matter over the [baseline concentration](/usc/42/7479.md?p=4) of such [pollutants](/usc/42/1397h.md?p=c-4) shall not exceed the following amounts:
| [Pollutant](/usc/42/1397h.md?p=c-4) | Maximum allowable increase (in micrograms per cubic meter) |
| --- | --- |
| Particulate matter: | |
| Annual geometric mean | 5 |
| Twenty-four-hour maximum | 10 |
| Sulfur dioxide: | |
| Annual arithmetic mean | 2 |
| Twenty-four-hour maximum | 5 |
| Three-hour maximum | 25 |
- (2) For any class II area, the maximum allowable increase in concentrations of sulfur dioxide and particulate matter over the [baseline concentration](/usc/42/7479.md?p=4) of such [pollutants](/usc/42/1397h.md?p=c-4) shall not exceed the following amounts:
| [Pollutant](/usc/42/1397h.md?p=c-4) | Maximum allowable increase (in micrograms per cubic meter) |
| --- | --- |
| Particulate matter: | |
| Annual geometric mean | 19 |
| Twenty-four-hour maximum | 37 |
| Sulfur dioxide: | |
| Annual arithmetic mean | 20 |
| Twenty-four-hour maximum | 91 |
| Three-hour maximum | 512 |
- (3) For any class III area, the maximum allowable increase in concentrations of sulfur dioxide and particulate matter over the [baseline concentration](/usc/42/7479.md?p=4) of such [pollutants](/usc/42/1397h.md?p=c-4) shall not exceed the following amounts:
| [Pollutant](/usc/42/1397h.md?p=c-4) | Maximum allowable increase (in micrograms per cubic meter) |
| --- | --- |
| Particulate matter: | |
| Annual geometric mean | 37 |
| Twenty-four-hour maximum | 75 |
| Sulfur dioxide: | |
| Annual arithmetic mean | 40 |
| Twenty-four-hour maximum | 182 |
| Three-hour maximum | 700 |
- (4) The maximum allowable concentration of any [air pollutant](/usc/42/7602.md?p=g) in any area to which this part applies shall not exceed a concentration for such [pollutant](/usc/42/1397h.md?p=c-4) for each period of exposure equal to—
- (A) the concentration permitted under the national secondary ambient air quality [standard](/usc/42/1320d.md?p=7), or
- (B) the concentration permitted under the national primary ambient air quality [standard](/usc/42/1320d.md?p=7),
whichever concentration is lowest for such [pollutant](/usc/42/1397h.md?p=c-4) for such period of exposure.
- (c) **Orders or rules for determining compliance with maximum allowable increases in ambient concentrations of air pollutants—**
- (1) In the case of any [State](/usc/42/7602.md?p=d) which has a plan approved by the [Administrator](/usc/42/7602.md?p=a) for purposes of carrying out this part, the [Governor](/usc/42/6372.md?p=1) of such [State](/usc/42/7602.md?p=d) may, after notice and opportunity for public hearing, issue orders or promulgate rules providing that for purposes of determining compliance with the maximum allowable increases in ambient concentrations of an [air pollutant](/usc/42/7602.md?p=g), the following concentrations of such [pollutant](/usc/42/1397h.md?p=c-4) shall not be taken into account:
- (A) concentrations of such [pollutant](/usc/42/1397h.md?p=c-4) attributable to the increase in emissions from [stationary sources](/usc/42/7411.md?p=a-3) which have converted from the use of petroleum products, or natural gas, or both, by reason of an order which is in effect under the provisions of sections [792(a)](/usc/15/792.md?p=a) and [(b)](/usc/15/792.md?p=b) of title 15 (or any subsequent legislation which supersedes such provisions) over the emissions from such sources before the effective date of such order.[^1]
- (B) the concentrations of such [pollutant](/usc/42/1397h.md?p=c-4) attributable to the increase in emissions from [stationary sources](/usc/42/7411.md?p=a-3) which have converted from using natural gas by reason of a natural gas curtailment pursuant to a natural gas curtailment plan in effect pursuant to the Federal Power Act [[16 U.S.C. 791a](/usc/16/791a.md) et seq.] over the emissions from such sources before the effective date of such plan,
- (C) concentrations of particulate matter attributable to the increase in emissions from [construction](/usc/42/7479.md?p=2-C) or other temporary emission-related activities, and
- (D) the increase in concentrations attributable to new sources outside the [United States](/usc/42/403.md?p=k) over the concentrations attributable to existing sources which are included in the [baseline concentration](/usc/42/7479.md?p=4) determined in accordance with [section 7479(4) of this title](/usc/42/7479.md?p=4).
- (2) No action taken with respect to a source under paragraph [(1)(A)](#c-1-A) or [(1)(B)](#c-1-B) shall apply more than five years after the effective date of the order referred to in [paragraph (1)(A)](#c-1-A) or the plan referred to in [paragraph (1)(B)](#c-1-B), whichever is applicable. If both such order and plan are applicable, no such action shall apply more than five years after the later of such effective dates.
- (3) No action under this subsection shall take effect unless the [Governor](/usc/42/6372.md?p=1) submits the order or rule providing for such exclusion to the [Administrator](/usc/42/7602.md?p=a) and the [Administrator](/usc/42/7602.md?p=a) determines that such order or rule is in compliance with the provisions of this subsection.
# §7474. Area redesignation
- (a) **Authority of States to redesignate areas—** Except as otherwise provided under [subsection (c)](#c), a [State](/usc/42/7602.md?p=d) may redesignate such areas as it deems appropriate as class I areas. The following areas may be redesignated only as class I or II:
- (1) an area which exceeds ten thousand acres in size and is a national monument, a national primitive area, a national preserve, a national recreation area, a national wild and scenic river, a national wildlife refuge, a national lakeshore or seashore, and
- (2) a national park or national wilderness area established after August 7, 1977, which exceeds ten thousand acres in size.
The extent of the areas referred to in paragraph[^1] (1) and (2) shall conform to any changes in the boundaries of such areas which have occurred subsequent to August 7, 1977, or which may occur subsequent to November 15, 1990. Any area (other than an area referred to in paragraph [(1)](#a-1) or [(2)](#a-2) or an area established as class I under the first sentence of [section 7472(a) of this title](/usc/42/7472.md?p=a)) may be redesignated by the [State](/usc/42/7602.md?p=d) as class III if—
- (A) such redesignation has been specifically approved by the [Governor](/usc/42/6372.md?p=1) of the [State](/usc/42/7602.md?p=d), after consultation with the appropriate Committees of the legislature if it is in session or with the leadership of the legislature if it is not in session (unless [State](/usc/42/7602.md?p=d) law provides that such redesignation must be specifically approved by [State](/usc/42/7602.md?p=d) legislation) and if general purpose [units](/usc/42/1395w–114b.md?p=g-2) of [local government](/usc/42/8401a.md) representing a majority of the residents of the area so redesignated enact legislation (including for such [units](/usc/42/1395w–114b.md?p=g-2) of [local government](/usc/42/8401a.md) resolutions where appropriate) concurring in the [State](/usc/42/7602.md?p=d)’s redesignation;
- (B) such redesignation will not [cause](/usc/42/9908.md?p=c-2), or contribute to, concentrations of any [air pollutant](/usc/42/7602.md?p=g) which exceed any maximum allowable increase or maximum allowable concentration permitted under the classification of any other area; and
- (C) such redesignation otherwise meets the requirements of this part.
[Subparagraph (A)](#a-A) of this paragraph shall not apply to area redesignations by [Indian tribes](/usc/42/7602.md?p=r).
- (b) **Notice and hearing; notice to Federal land manager; written comments and recommendations; regulations; disapproval of redesignation—**
- (1)
- (A) Prior to redesignation of any area under this part, notice shall be afforded and public hearings shall be conducted in areas proposed to be redesignated and in areas which may be affected by the proposed redesignation. Prior to any such public hearing a satisfactory description and analysis of the health, environmental, economic, social, and [energy](/usc/42/6311.md?p=7) effects of the proposed redesignation shall be prepared and made available for public [inspection](/usc/42/4851b.md?p=12) and prior to any such redesignation, the description and analysis of such effects shall be reviewed and examined by the redesignating authorities.
- (B) Prior to the issuance of notice under [subparagraph (A)](#b-1-A) respecting the redesignation of any area under this subsection, if such area includes any Federal lands, the [State](/usc/42/7602.md?p=d) shall provide written notice to the appropriate [Federal land manager](/usc/42/7602.md?p=i) and afford adequate opportunity (but not in excess of 60 days) to confer with the [State](/usc/42/7602.md?p=d) respecting the intended notice of redesignation and to submit written comments and recommendations with respect to such intended notice of redesignation. In redesignating any area under this section with respect to which any [Federal land manager](/usc/42/7602.md?p=i) has submitted written comments and recommendations, the [State](/usc/42/7602.md?p=d) shall publish a list of any inconsistency between such redesignation and such recommendations and an explanation of such inconsistency (together with the reasons for making such redesignation against the recommendation of the [Federal land manager](/usc/42/7602.md?p=i)).
- (C) The [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations not later than six months after August 7, 1977, to assure, insofar as practicable, that prior to any public hearing on redesignation of any area, there shall be available for public [inspection](/usc/42/4851b.md?p=12) any specific plans for any new or [modified](/usc/42/7501.md?p=4) [major emitting facility](/usc/42/7479.md?p=1) which may be permitted to be constructed and operated only if the area in question is designated or redesignated as class III.
- (2) The [Administrator](/usc/42/7602.md?p=a) may disapprove the redesignation of any area only if he finds, after notice and opportunity for public hearing, that such redesignation does not meet the procedural requirements of this section or is inconsistent with the requirements of [section 7472(a) of this title](/usc/42/7472.md?p=a) or of [subsection (a)](#a) of this section. If any such disapproval occurs, the classification of the area shall be that which was in effect prior to the redesignation which was disapproved.
- (c) **Indian reservations—** Lands within the exterior boundaries of reservations of federally recognized [Indian tribes](/usc/42/7602.md?p=r) may be redesignated only by the appropriate [Indian](/usc/42/6862.md?p=6) governing body. Such [Indian](/usc/42/6862.md?p=6) governing body shall be subject in all respect to the provisions of [subsection (e)](#e).
- (d) **Review of national monuments, primitive areas, and national preserves—** The [Federal Land Manager](/usc/42/7602.md?p=i) shall review all national monuments, primitive areas, and national preserves, and shall recommend any appropriate areas for redesignation as class I where air quality related values are important attributes of the area. The [Federal Land Manager](/usc/42/7602.md?p=i) shall report such recommendations, within[^2] supporting analysis, to the Congress and the affected [States](/usc/42/7602.md?p=d) within one year after August 7, 1977. The [Federal Land Manager](/usc/42/7602.md?p=i) shall consult with the appropriate [States](/usc/42/7602.md?p=d) before making such recommendations.
- (e) **Resolution of disputes between State and Indian tribes—** If any [State](/usc/42/7602.md?p=d) affected by the redesignation of an area by an [Indian tribe](/usc/42/7602.md?p=r) or any [Indian tribe](/usc/42/7602.md?p=r) affected by the redesignation of an area by a [State](/usc/42/7602.md?p=d) disagrees with such redesignation of any area, or if a permit is proposed to be issued for any new [major emitting facility](/usc/42/7479.md?p=1) proposed for [construction](/usc/42/7479.md?p=2-C) in any [State](/usc/42/7602.md?p=d) which the [Governor](/usc/42/6372.md?p=1) of an affected [State](/usc/42/7602.md?p=d) or governing body of an affected [Indian tribe](/usc/42/7602.md?p=r) determines will [cause](/usc/42/9908.md?p=c-2) or contribute to a cumulative change in air quality in excess of that allowed in this part within the affected [State](/usc/42/7602.md?p=d) or tribal reservation, the [Governor](/usc/42/6372.md?p=1) or [Indian](/usc/42/6862.md?p=6) ruling body may request the [Administrator](/usc/42/7602.md?p=a) to enter into negotiations with the parties involved to resolve such dispute. If requested by any [State](/usc/42/7602.md?p=d) or [Indian tribe](/usc/42/7602.md?p=r) involved, the [Administrator](/usc/42/7602.md?p=a) shall make a recommendation to resolve the dispute and protect the air quality related values of the lands involved. If the parties involved do not reach [agreement](/usc/42/1320b–8.md?p=a-3-A), the [Administrator](/usc/42/7602.md?p=a) shall resolve the dispute and his determination, or the results of [agreements](/usc/42/1320b–8.md?p=a-3-A) reached through other means, shall become part of the applicable plan and shall be enforceable as part of such plan. In resolving such disputes relating to area redesignation, the [Administrator](/usc/42/7602.md?p=a) shall consider the extent to which the lands involved are of sufficient size to allow effective air quality management or have air quality related values of such an area.
# §7475. Preconstruction requirements
- (a) **Major emitting facilities on which construction is commenced—** No [major emitting facility](/usc/42/7479.md?p=1) on which [construction](/usc/42/7479.md?p=2-C) is [commenced](/usc/42/7479.md?p=2-A) after August 7, 1977, may be constructed in any area to which this part applies unless—
- (1) a permit has been issued for such proposed [facility](/usc/42/11049.md?p=4) in accordance with this part setting forth [emission limitations](/usc/42/7602.md?p=k) for such [facility](/usc/42/11049.md?p=4) which conform to the requirements of this part;
- (2) the proposed permit has been subject to a review in accordance with this section, the required analysis has been conducted in accordance with regulations promulgated by the [Administrator](/usc/42/7602.md?p=a), and a public hearing has been held with opportunity for interested [persons](/usc/42/7602.md?p=e) including [representatives](/usc/42/3058f.md?p=5) of the [Administrator](/usc/42/7602.md?p=a) to appear and submit written or oral presentations on the air quality impact of such source, alternatives thereto, control technology requirements, and other appropriate considerations;
- (3) the [owner or operator](/usc/42/9601.md?p=20-B) of such [facility](/usc/42/11049.md?p=4) demonstrates, as required pursuant to [section 7410(j) of this title](/usc/42/7410.md?p=j), that emissions from [construction](/usc/42/7479.md?p=2-C) or operation of such [facility](/usc/42/11049.md?p=4) will not [cause](/usc/42/9908.md?p=c-2), or contribute to, air pollution in excess of any (A) maximum allowable increase or maximum allowable concentration for any [pollutant](/usc/42/1397h.md?p=c-4) in any area to which this part applies more than one time per year, (B) national ambient air quality [standard](/usc/42/1320d.md?p=7) in any air quality control region, or (C) any other applicable [emission standard](/usc/42/7602.md?p=k) or [standard of performance](/usc/42/7602.md?p=l) under this chapter;
- (4) the proposed [facility](/usc/42/11049.md?p=4) is subject to the best available control technology for each [pollutant](/usc/42/1397h.md?p=c-4) subject to regulation under this chapter emitted from, or which results from, such [facility](/usc/42/11049.md?p=4);
- (5) the provisions of [subsection (d)](#d) with respect to protection of class I areas have been complied with for such [facility](/usc/42/11049.md?p=4);
- (6) there has been an analysis of any air quality impacts projected for the area as a result of growth associated with such [facility](/usc/42/11049.md?p=4);
- (7) the [person](/usc/42/7602.md?p=e) who owns or operates, or proposes to own or operate, a [major emitting facility](/usc/42/7479.md?p=1) for which a permit is required under this part agrees to conduct such monitoring as may be necessary to determine the effect which emissions from any such [facility](/usc/42/11049.md?p=4) may have, or is having, on air quality in any area which may be affected by emissions from such source; and
- (8) in the case of a source which proposes to construct in a class III area, emissions from which would [cause](/usc/42/9908.md?p=c-2) or contribute to exceeding the maximum allowable increments applicable in a class II area and where no [standard](/usc/42/1320d.md?p=7) under [section 7411 of this title](/usc/42/7411.md) has been promulgated subsequent to August 7, 1977, for such source [category](/usc/42/1395w–4.md?p=j-1), the [Administrator](/usc/42/7602.md?p=a) 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)](#a-3) shall not apply to maximum allowable increases for class II areas in the case of an expansion or [modification](/usc/42/7501.md?p=4) of a [major emitting facility](/usc/42/7479.md?p=1) which is in existence on August 7, 1977, whose allowable emissions of [air pollutants](/usc/42/7602.md?p=g), after compliance with [subsection (a)(4)](#a-4), will be less than fifty tons per year and for which the [owner or operator](/usc/42/9601.md?p=20-B) of such [facility](/usc/42/11049.md?p=4) demonstrates that emissions of particulate matter and sulfur oxides will not [cause](/usc/42/9908.md?p=c-2) or contribute to ambient air quality levels in excess of the national secondary ambient air quality [standard](/usc/42/1320d.md?p=7) for either of such [pollutants](/usc/42/1397h.md?p=c-4).
- (c) **Permit applications—** Any completed permit application under [section 7410 of this title](/usc/42/7410.md) for a [major emitting facility](/usc/42/7479.md?p=1) in any area to which this part applies shall be granted or denied not later than one year after the date of filing of such completed application.
- (d) **Action taken on permit applications; notice; adverse impact on air quality related values; variance; emission limitations—**
- (1) Each [State](/usc/42/7602.md?p=d) shall transmit to the [Administrator](/usc/42/7602.md?p=a) a copy of each permit application relating to a [major emitting facility](/usc/42/7479.md?p=1) received by such [State](/usc/42/7602.md?p=d) and provide notice to the [Administrator](/usc/42/7602.md?p=a) of every action related to the consideration of such permit.
- (2)
- (A) The [Administrator](/usc/42/7602.md?p=a) shall provide notice of the permit application to the [Federal Land Manager](/usc/42/7602.md?p=i) and the Federal official charged with direct responsibility for management of any lands within a class I area which may be affected by emissions from the proposed [facility](/usc/42/11049.md?p=4).
- (B) The [Federal Land Manager](/usc/42/7602.md?p=i) and the Federal official charged with direct responsibility for management of such lands shall have an affirmative responsibility to protect the air quality related values (including visibility) of any such lands within a class I area and to consider, in consultation with the [Administrator](/usc/42/7602.md?p=a), whether a proposed [major emitting facility](/usc/42/7479.md?p=1) will have an adverse impact on such values.
- (C)
- (i) In any case where the Federal official charged with direct responsibility for management of any lands within a class I area or the [Federal Land Manager](/usc/42/7602.md?p=i) of such lands, or the [Administrator](/usc/42/7602.md?p=a), or the [Governor](/usc/42/6372.md?p=1) of an adjacent [State](/usc/42/7602.md?p=d) containing such a class I area files a notice alleging that emissions from a proposed [major emitting facility](/usc/42/7479.md?p=1) may [cause](/usc/42/9908.md?p=c-2) or contribute to a change in the air quality in such area and identifying the potential adverse impact of such change, a permit shall not be issued unless the [owner or operator](/usc/42/9601.md?p=20-B) of such [facility](/usc/42/11049.md?p=4) demonstrates that emissions of particulate matter and sulfur dioxide will not [cause](/usc/42/9908.md?p=c-2) or contribute to concentrations which exceed the maximum allowable increases for a class I area.
- (ii) In any case where the [Federal Land Manager](/usc/42/7602.md?p=i) demonstrates to the satisfaction of the [State](/usc/42/7602.md?p=d) that the emissions from such [facility](/usc/42/11049.md?p=4) will have an adverse impact on the air quality-related values (including visibility) of such lands, notwithstanding the fact that the change in air quality resulting from emissions from such [facility](/usc/42/11049.md?p=4) will not [cause](/usc/42/9908.md?p=c-2) or contribute to concentrations which exceed the maximum allowable increases for a class I area, a permit shall not be issued.
- (iii) In any case where the [owner or operator](/usc/42/9601.md?p=20-B) of such [facility](/usc/42/11049.md?p=4) demonstrates to the satisfaction of the [Federal Land Manager](/usc/42/7602.md?p=i), and the [Federal Land Manager](/usc/42/7602.md?p=i) so certifies, that the emissions from such [facility](/usc/42/11049.md?p=4) will have no adverse impact on the air quality-related values of such lands (including visibility), notwithstanding the fact that the change in air quality resulting from emissions from such [facility](/usc/42/11049.md?p=4) will [cause](/usc/42/9908.md?p=c-2) or contribute to concentrations which exceed the maximum allowable increases for class I areas, the [State](/usc/42/7602.md?p=d) may issue a permit.
- (iv) In the case of a permit issued pursuant to [clause (iii)](#d-2-C-iii), such [facility](/usc/42/11049.md?p=4) shall comply with such [emission limitations](/usc/42/7602.md?p=k) under such permit as may be necessary to assure that emissions of sulfur oxides and particulates from such [facility](/usc/42/11049.md?p=4) will not [cause](/usc/42/9908.md?p=c-2) or contribute to concentrations of such [pollutant](/usc/42/1397h.md?p=c-4) which exceed the following maximum allowable increases over the [baseline concentration](/usc/42/7479.md?p=4) for such [pollutants](/usc/42/1397h.md?p=c-4):
| | Maximum allowable increase (in micrograms per cubic meter) |
| --- | --- |
| Particulate matter: | |
| Annual geometric mean | 19 |
| Twenty-four-hour maximum | 37 |
| Sulfur dioxide: | |
| Annual arithmetic mean | 20 |
| Twenty-four-hour maximum | 91 |
| Three-hour maximum | 325 |
- (D)
- (i) In any case where the [owner or operator](/usc/42/9601.md?p=20-B) of a proposed [major emitting facility](/usc/42/7479.md?p=1) who has been denied a certification under [subparagraph (C)(iii)](#d-2-C-iii) demonstrates to the satisfaction of the [Governor](/usc/42/6372.md?p=1), after notice and public hearing, and the [Governor](/usc/42/6372.md?p=1) finds, that the [facility](/usc/42/11049.md?p=4) cannot be constructed by reason of any maximum allowable increase for sulfur dioxide for periods of twenty-four hours or less applicable to any class I area and, in the case of Federal mandatory class I areas, that a variance under this clause will not adversely affect the air quality related values of the area (including visibility), the [Governor](/usc/42/6372.md?p=1), after consideration of the [Federal Land Manager](/usc/42/7602.md?p=i)’s recommendation (if any) and subject to his concurrence, may grant a variance from such maximum allowable increase. If such variance is granted, a permit may be issued to such source pursuant to the requirements of this subparagraph.
- (ii) In any case in which the [Governor](/usc/42/6372.md?p=1) recommends a variance under this subparagraph in which the [Federal Land Manager](/usc/42/7602.md?p=i) does not concur, the recommendations of the [Governor](/usc/42/6372.md?p=1) and the [Federal Land Manager](/usc/42/7602.md?p=i) shall be transmitted to the President. The President may approve the [Governor](/usc/42/6372.md?p=1)’s recommendation if he finds that such variance is in the national interest. No Presidential finding shall be reviewable in any court. The variance shall take effect if the President approves the [Governor](/usc/42/6372.md?p=1)’s recommendations. The President shall approve or disapprove such recommendation within ninety days after his receipt of the recommendations of the [Governor](/usc/42/6372.md?p=1) and the [Federal Land Manager](/usc/42/7602.md?p=i).
- (iii) In the case of a permit issued pursuant to this subparagraph, such [facility](/usc/42/11049.md?p=4) shall comply with such [emission limitations](/usc/42/7602.md?p=k) under such permit as may be necessary to assure that emissions of sulfur oxides from such [facility](/usc/42/11049.md?p=4) will not (during any day on which the otherwise applicable maximum allowable increases are exceeded) [cause](/usc/42/9908.md?p=c-2) or contribute to concentrations which exceed the following maximum allowable increases for such areas over the [baseline concentration](/usc/42/7479.md?p=4) for such [pollutant](/usc/42/1397h.md?p=c-4) and to assure that such emissions will not [cause](/usc/42/9908.md?p=c-2) or contribute to concentrations which exceed the otherwise applicable maximum allowable increases for periods of exposure of 24 hours or less on more than 18 days during any annual period:
| MAXIMUM ALLOWABLE INCREASE | | |
| --- | --- | --- |
| (In micrograms per cubic meter) | | |
| Period of exposure | Low
terrain areas | High
terrain areas |
| 24-hr maximum | 36 | 62 |
| 3-hr maximum | 130 | 221 |
- (iv) For purposes of [clause (iii)](#d-2-D-iii), the term “high terrain area” means with respect to any [facility](/usc/42/11049.md?p=4), any area having an elevation of 900 feet or more above the base of the stack of such [facility](/usc/42/11049.md?p=4), and the term “low terrain area” means any area other than a high terrain area.
- (e) **Analysis; continuous air quality monitoring data; regulations; model adjustments—**
- (1) The review provided for in [subsection (a)](#a) shall be preceded by an analysis in accordance with regulations of the [Administrator](/usc/42/7602.md?p=a), promulgated under this subsection, which may be conducted by the [State](/usc/42/7602.md?p=d) (or any general purpose [unit of local government](/usc/42/6372.md?p=2)) or by the [major emitting facility](/usc/42/7479.md?p=1) applying for such permit, of the ambient air quality at the proposed site and in areas which may be affected by emissions from such [facility](/usc/42/11049.md?p=4) for each [pollutant](/usc/42/1397h.md?p=c-4) subject to regulation under this chapter which will be emitted from such [facility](/usc/42/11049.md?p=4).
- (2) Effective one year after August 7, 1977, the analysis required by this subsection shall include continuous air quality monitoring data gathered for purposes of determining whether emissions from such [facility](/usc/42/11049.md?p=4) will exceed the maximum allowable increases or the maximum allowable concentration permitted under this part. Such data shall be gathered over a period of one calendar year preceding the date of application for a permit under this part unless the [State](/usc/42/7602.md?p=d), in accordance with regulations promulgated by the [Administrator](/usc/42/7602.md?p=a), determines that a complete and adequate analysis for such purposes may be accomplished in a shorter period. The results of such analysis shall be available at the time of the public hearing on the application for such permit.
- (3) The [Administrator](/usc/42/7602.md?p=a) shall within six months after August 7, 1977, promulgate regulations respecting the analysis required under this subsection which regulations—
- (A) shall not require the use of any automatic or uniform buffer zone or zones,
- (B) shall require an analysis of the ambient air quality, climate and meteorology, terrain, soils and vegetation, and visibility at the site of the proposed [major emitting facility](/usc/42/7479.md?p=1) and in the area potentially affected by the emissions from such [facility](/usc/42/11049.md?p=4) for each [pollutant](/usc/42/1397h.md?p=c-4) regulated under this chapter which will be emitted from, or which results from the [construction](/usc/42/7479.md?p=2-C) or operation of, such [facility](/usc/42/11049.md?p=4), the size and nature of the proposed [facility](/usc/42/11049.md?p=4), the degree of continuous emission reduction which could be achieved by such [facility](/usc/42/11049.md?p=4), and such other factors as may be relevant in determining the effect of emissions from a proposed [facility](/usc/42/11049.md?p=4) on any air quality control region,
- (C) shall require the results of such analysis shall be available at the time of the public hearing on the application for such permit, and
- (D) shall specify with reasonable particularity each air quality model or models to be used under specified sets of conditions for purposes of this part.
Any model or models designated under such regulations may be adjusted upon a determination, after notice and opportunity for public hearing, by the [Administrator](/usc/42/7602.md?p=a) that such adjustment is necessary to take into account unique terrain or meteorological characteristics of an area potentially affected by emissions from a source applying for a permit required under this part.
# §7476. Other pollutants
- (a) **Hydrocarbons, carbon monoxide, petrochemical oxidants, and nitrogen oxides—** In the case of the [pollutants](/usc/42/1397h.md?p=c-4) hydrocarbons, carbon monoxide, photochemical oxidants, and nitrogen oxides, the [Administrator](/usc/42/7602.md?p=a) shall conduct a study and not later than two years after August 7, 1977, promulgate regulations to prevent the significant deterioration of air quality which would result from the emissions of such [pollutants](/usc/42/1397h.md?p=c-4). In the case of [pollutants](/usc/42/1397h.md?p=c-4) for which national ambient air quality [standards](/usc/42/1320d.md?p=7) are promulgated after August 7, 1977, he shall promulgate such regulations not more than 2 years after the date of promulgation of such [standards](/usc/42/1320d.md?p=7).
- (b) **Effective date of regulations—** Regulations referred to in [subsection (a)](#a) shall become effective one year after the date of promulgation. Within 21 months after such date of promulgation such plan revision shall be submitted to the [Administrator](/usc/42/7602.md?p=a) who shall approve or disapprove the plan within 25 months after such date or[^1] promulgation in the same manner as required under [section 7410 of this title](/usc/42/7410.md).
- (c) **Contents of regulations—** Such regulations shall provide specific numerical measures against which permit applications may be evaluated, a framework for stimulating improved control technology, protection of air quality values, and fulfill the goals and purposes set forth in [section 7401](/usc/42/7401.md) and [section 7470 of this title](/usc/42/7470.md).
- (d) **Specific measures to fulfill goals and purposes—** The regulations of the [Administrator](/usc/42/7602.md?p=a) under [subsection (a)](#a) shall provide specific measures at least as effective as the increments established in [section 7473 of this title](/usc/42/7473.md) to fulfill such goals and purposes, and may contain air quality increments, emission density requirements, or other measures.
- (e) **Area classification plan not required—** With respect to any [air pollutant](/usc/42/7602.md?p=g) for which a national ambient air quality [standard](/usc/42/1320d.md?p=7) is established other than sulfur oxides or particulate matter, an area classification plan shall not be required under this section if the implementation plan adopted by the [State](/usc/42/7602.md?p=d) and submitted for the [Administrator](/usc/42/7602.md?p=a)’s approval or promulgated by the [Administrator](/usc/42/7602.md?p=a) under [section 7410(c) of this title](/usc/42/7410.md?p=c) contains other provisions which when considered as a whole, the [Administrator](/usc/42/7602.md?p=a) finds will carry out the purposes in [section 7470 of this title](/usc/42/7470.md) at least as effectively as an area classification plan for such [pollutant](/usc/42/1397h.md?p=c-4). Such other provisions referred to in the preceding sentence need not require the establishment of maximum allowable increases with respect to such [pollutant](/usc/42/1397h.md?p=c-4) for any area to which this section applies.
- (f) **PM–10 increments—** The [Administrator](/usc/42/7602.md?p=a) is authorized to substitute, for the maximum allowable increases in particulate matter specified in [section 7473(b) of this title](/usc/42/7473.md?p=b) and [section 7475(d)(2)(C)(iv) of this title](/usc/42/7475.md?p=d-2-C-iv), maximum allowable increases in particulate matter with an aerodynamic diameter smaller than or equal to 10 micrometers. Such substituted maximum allowable increases shall be of equal stringency in effect as those specified in the provisions for which they are substituted. Until the [Administrator](/usc/42/7602.md?p=a) promulgates regulations under the authority of this subsection, the current maximum allowable increases in concentrations of particulate matter shall remain in effect.
# §7477. Enforcement
The [Administrator](/usc/42/7602.md?p=a) shall, and a [State](/usc/42/7602.md?p=d) may, take such measures, including issuance of an order, or seeking injunctive relief, as necessary to prevent the [construction](/usc/42/7479.md?p=2-C) or [modification](/usc/42/7501.md?p=4) of a [major emitting facility](/usc/42/7479.md?p=1) which does not conform to the requirements of this part, or which is proposed to be constructed in any area designated pursuant to [section 7407(d) of this title](/usc/42/7407.md?p=d) as attainment or unclassifiable and which is not subject to an implementation plan which meets the requirements of this part.
# §7478. Period before plan approval
- (a) **Existing regulations to remain in effect—** Until such time as an [applicable implementation plan](/usc/42/7602.md?p=q) is in effect for any area, which plan meets the requirements of this part to prevent significant deterioration of air quality with respect to any [air pollutant](/usc/42/7602.md?p=g), applicable regulations under this chapter prior to August 7, 1977, shall remain in effect to prevent significant deterioration of air quality in any such area for any such [pollutant](/usc/42/1397h.md?p=c-4) except as otherwise provided in [subsection (b)](#b).
- (b) **Regulations deemed amended; construction commenced after June 1, 1975—** If any regulation in effect prior to August 7, 1977, to prevent significant deterioration of air quality would be inconsistent with the requirements of [section 7472(a)](/usc/42/7472.md?p=a), [section 7473(b)](/usc/42/7473.md?p=b) or [section 7474(a) of this title](/usc/42/7474.md?p=a), then such regulations shall be deemed amended so as to conform with such requirements. In the case of a [facility](/usc/42/11049.md?p=4) on which [construction](/usc/42/7479.md?p=2-C) was [commenced](/usc/42/7479.md?p=2-A) (in accordance with the definition of “[commenced](/usc/42/7479.md?p=2-A)” in [section 7479(2) of this title](/usc/42/7479.md?p=2)) after June 1, 1975, and prior to August 7, 1977, the review and permitting of such [facility](/usc/42/11049.md?p=4) shall be in accordance with the regulations for the prevention of significant deterioration in effect prior to August 7, 1977.
# §7479. Definitions
For purposes of this part—
- (1) The term “major emitting facility” means any of the following [stationary sources](/usc/42/7411.md?p=a-3) of [air pollutants](/usc/42/7602.md?p=g) which emit, or have the potential to emit, one hundred tons per year or more of any [air pollutant](/usc/42/7602.md?p=g) from the following types of [stationary sources](/usc/42/7411.md?p=a-3): fossil-fuel fired steam electric plants of more than two hundred and fifty million British thermal [units](/usc/42/1395w–114b.md?p=g-2) per hour heat input, coal cleaning plants (thermal dryers), kraft pulp mills, Portland Cement plants, primary zinc smelters, iron and steel mill plants, primary aluminum ore reduction plants, primary copper smelters, municipal incinerators capable of charging more than fifty tons of refuse per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum refineries, lime plants, phosphate rock processing plants, coke oven batteries, sulfur recovery plants, carbon black plants (furnace process), primary lead smelters, fuel conversion plants, sintering plants, secondary metal production [facilities](/usc/42/11049.md?p=4), chemical process plants, fossil-fuel boilers of more than two hundred and fifty million British thermal [units](/usc/42/1395w–114b.md?p=g-2) per hour heat input, petroleum storage and transfer [facilities](/usc/42/11049.md?p=4) with a capacity exceeding three hundred thousand barrels, taconite ore processing [facilities](/usc/42/11049.md?p=4), glass fiber processing plants, charcoal production [facilities](/usc/42/11049.md?p=4). Such term also includes any other source with the potential to emit two hundred and fifty tons per year or more of any [air pollutant](/usc/42/7602.md?p=g). This term shall not include new or [modified](/usc/42/7501.md?p=4) [facilities](/usc/42/11049.md?p=4) which are nonprofit health or education institutions which have been exempted by the [State](/usc/42/7602.md?p=d).
- (2)
- (A) The term “commenced” as applied to [construction](#2-C) of a [major emitting facility](#1) means that the [owner or operator](/usc/42/9601.md?p=20-B) has obtained all necessary preconstruction approvals or permits required by Federal, [State](/usc/42/7602.md?p=d), or local air pollution emissions and air quality laws or regulations and either has (i) begun, or caused to begin, a continuous [program](/usc/42/274l–1.md?p=4) of physical on-site [construction](#2-C) of the [facility](/usc/42/11049.md?p=4) or (ii) entered into binding [agreements](/usc/42/1320b–8.md?p=a-3-A) or contractual obligations, which cannot be canceled or [modified](/usc/42/7501.md?p=4) without substantial loss to the [owner or operator](/usc/42/9601.md?p=20-B), to undertake a [program](/usc/42/274l–1.md?p=4) of [construction](#2-C) of the [facility](/usc/42/11049.md?p=4) to be completed within a reasonable time.
- (B) The term “necessary preconstruction approvals or permits” means those permits or approvals, required by the permitting authority as a precondition to undertaking any activity under clauses (i) or (ii) of subparagraph (A) of this paragraph.
- (C) The term “construction” when used in connection with any source or [facility](/usc/42/11049.md?p=4), includes the [modification](/usc/42/7501.md?p=4) (as defined in [section 7411(a) of this title](/usc/42/7411.md?p=a)) of any source or [facility](/usc/42/11049.md?p=4).
- (3) The term “best available control technology” means an [emission limitation](/usc/42/7602.md?p=k) based on the maximum degree of reduction of each [pollutant](/usc/42/1397h.md?p=c-4) subject to regulation under this chapter emitted from or which results from any [major emitting facility](#1), which the permitting authority, on a case-by-case basis, taking into account [energy](/usc/42/6311.md?p=7), environmental, and economic impacts and other costs, determines is achievable for such [facility](/usc/42/11049.md?p=4) through application of production processes and available methods, systems, and techniques, including fuel cleaning, clean fuels, or [treatment](/usc/42/11851.md?p=11) or innovative fuel combustion techniques for control of each such [pollutant](/usc/42/1397h.md?p=c-4). In no event shall application of “best available control technology” result in emissions of any [pollutants](/usc/42/1397h.md?p=c-4) which will exceed the emissions allowed by any applicable [standard](/usc/42/1320d.md?p=7) established pursuant to section [7411](/usc/42/7411.md) or [7412](/usc/42/7412.md) of this title. Emissions from any source utilizing clean fuels, or any other means, to comply with this paragraph shall not be allowed to increase above levels that would have been required under this paragraph as it existed prior to November 15, 1990.
- (4) The term “baseline concentration” means, with respect to a [pollutant](/usc/42/1397h.md?p=c-4), the ambient concentration levels which exist at the time of the first application for a permit in an area subject to this part, based on air quality data available in the Environmental Protection Agency or a [State](/usc/42/7602.md?p=d) [air pollution control agency](/usc/42/7602.md?p=b) and on such monitoring data as the permit applicant is required to submit. Such ambient concentration levels shall take into account all projected emissions in, or which may affect, such area from any [major emitting facility](#1) on which [construction](#2-C) [commenced](#2-A) prior to January 6, 1975, but which has not begun operation by the date of the baseline air quality concentration determination. Emissions of sulfur oxides and particulate matter from any [major emitting facility](#1) on which [construction](#2-C) [commenced](#2-A) after January 6, 1975, shall not be included in the baseline and shall be counted against the maximum allowable increases in [pollutant](/usc/42/1397h.md?p=c-4) concentrations established under this part.
# §7491. Visibility protection for Federal class I areas
- (a) **Impairment of visibility; list of areas; study and report—**
- (1) Congress hereby declares as a national goal the prevention of any future, and the remedying of any existing, [impairment of visibility](#g-6) in [mandatory class I Federal areas](#g-5) which impairment results from [manmade air pollution](#g-3).
- (2) Not later than six months after August 7, 1977, the [Secretary](/usc/42/242q–4.md?p=2) of the Interior in consultation with other [Federal land managers](/usc/42/7602.md?p=i) shall review all [mandatory class I Federal areas](#g-5) and identify those where visibility is an important value of the area. From time to time the [Secretary](/usc/42/242q–4.md?p=2) of the Interior may revise such identifications. Not later than one year after August 7, 1977, the [Administrator](/usc/42/7602.md?p=a) shall, after consultation with the [Secretary](/usc/42/242q–4.md?p=2) of the Interior, promulgate a list of [mandatory class I Federal areas](#g-5) in which he determines visibility is an important value.
- (3) Not later than eighteen months after August 7, 1977, the [Administrator](/usc/42/7602.md?p=a) shall complete a study and report to Congress on available methods for implementing the national goal set forth in [paragraph (1)](#a-1). Such report shall include recommendations for—
- (A) methods for identifying, characterizing, determining, quantifying, and measuring [visibility impairment](#g-6) in Federal areas referred to in [paragraph (1)](#a-1), and
- (B) modeling techniques (or other methods) for determining the extent to which [manmade air pollution](#g-3) may reasonably be anticipated to [cause](/usc/42/9908.md?p=c-2) or contribute to such impairment, and
- (C) methods for preventing and remedying such [manmade air pollution](#g-3) and resulting [visibility impairment](#g-6).
Such report shall also identify the classes or [categories](/usc/42/1395w–4.md?p=j-1) of sources and the types of [air pollutants](/usc/42/7602.md?p=g) which, alone or in conjunction with other sources or [pollutants](/usc/42/1397h.md?p=c-4), may reasonably be anticipated to [cause](/usc/42/9908.md?p=c-2) or contribute significantly to [impairment of visibility](#g-6).
- (4) Not later than twenty-four months after August 7, 1977, and after notice and public hearing, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations to assure (A) reasonable progress toward meeting the national goal specified in paragraph [(1)](#a-1), and (B) compliance with the requirements of this section.
- (b) **Regulations—** Regulations under [subsection (a)(4)](#a-4) shall—
- (1) provide guidelines to the [States](/usc/42/7602.md?p=d), taking into account the recommendations under [subsection (a)(3)](#a-3) on appropriate techniques and methods for implementing this section (as provided in [subparagraphs (A) through (C)](#a-3-A..a-3-C) of such [subsection (a)(3)](#a-3)), and
- (2) require each [applicable implementation plan](/usc/42/7602.md?p=q) for a [State](/usc/42/7602.md?p=d) in which any area listed by the [Administrator](/usc/42/7602.md?p=a) under [subsection (a)(2)](#a-2) is located (or for a [State](/usc/42/7602.md?p=d) the emissions from which may reasonably be anticipated to [cause](/usc/42/9908.md?p=c-2) or contribute to any [impairment of visibility](#g-6) in any such area) to contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress toward meeting the national goal specified in [subsection (a)](#a), including—
- (A) except as otherwise provided pursuant to [subsection (c)](#c), a requirement that each [major stationary source](#g-7) which is in existence on August 7, 1977, but which has not been in operation for more than fifteen years as of such date, and which, as determined by the [State](/usc/42/7602.md?p=d) (or the [Administrator](/usc/42/7602.md?p=a) in the case of a plan promulgated under [section 7410(c) of this title](/usc/42/7410.md?p=c)) emits any [air pollutant](/usc/42/7602.md?p=g) which may reasonably be anticipated to [cause](/usc/42/9908.md?p=c-2) or contribute to any [impairment of visibility](#g-6) in any such area, shall procure, install, and operate, [as expeditiously as practicable](#g-4) (and maintain thereafter) the best available retrofit technology, as determined by the [State](/usc/42/7602.md?p=d) (or the [Administrator](/usc/42/7602.md?p=a) in the case of a plan promulgated under [section 7410(c) of this title](/usc/42/7410.md?p=c)) for controlling emissions from such source for the purpose of eliminating or reducing any such impairment, and
- (B) a long-term (ten to fifteen years) strategy for making reasonable progress toward meeting the national goal specified in [subsection (a)](#a).
In the case of a fossil-fuel fired generating powerplant having a total generating capacity in excess of 750 megawatts, the [emission limitations](/usc/42/7602.md?p=k) required under this paragraph shall be determined pursuant to guidelines, promulgated by the [Administrator](/usc/42/7602.md?p=a) under [paragraph (1)](#b-1).
- (c) **Exemptions—**
- (1) The [Administrator](/usc/42/7602.md?p=a) may, by rule, after notice and opportunity for public hearing, exempt any [major stationary source](#g-7) from the requirement of [subsection (b)(2)(A)](#b-2-A), upon his determination that such source does not or will not, by itself or in combination with other sources, emit any [air pollutant](/usc/42/7602.md?p=g) which may reasonably be anticipated to [cause](/usc/42/9908.md?p=c-2) or contribute to a significant [impairment of visibility](#g-6) in any mandatory class I Federal area.
- (2) Paragraph (1) of this subsection shall not be applicable to any fossil-fuel fired powerplant with total design capacity of 750 megawatts or more, unless the [owner or operator](/usc/42/9601.md?p=20-B) of any such plant demonstrates to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that such powerplant is located at such distance from all areas listed by the [Administrator](/usc/42/7602.md?p=a) under [subsection (a)(2)](#a-2) that such powerplant does not or will not, by itself or in combination with other sources, emit any [air pollutant](/usc/42/7602.md?p=g) which may reasonably be anticipated to [cause](/usc/42/9908.md?p=c-2) or contribute to significant [impairment of visibility](#g-6) in any such area.
- (3) An exemption under this subsection shall be effective only upon concurrence by the appropriate [Federal land manager](/usc/42/7602.md?p=i) or managers with the [Administrator](/usc/42/7602.md?p=a)’s determination under this subsection.
- (d) **Consultations with appropriate Federal land managers—** Before holding the public hearing on the proposed revision of an [applicable implementation plan](/usc/42/7602.md?p=q) to meet the requirements of this section, the [State](/usc/42/7602.md?p=d) (or the [Administrator](/usc/42/7602.md?p=a), in the case of a plan promulgated under [section 7410(c) of this title](/usc/42/7410.md?p=c)) shall consult in [person](/usc/42/7602.md?p=e) with the appropriate [Federal land manager](/usc/42/7602.md?p=i) or managers and shall include a summary of the conclusions and recommendations of the [Federal land managers](/usc/42/7602.md?p=i) in the notice to the public.
- (e) **Buffer zones—** In promulgating regulations under this section, the [Administrator](/usc/42/7602.md?p=a) shall not require the use of any automatic or uniform buffer zone or zones.
- (f) **Nondiscretionary duty—** For purposes of [section 7604(a)(2) of this title](/usc/42/7604.md?p=a-2), the meeting of the national goal specified in [subsection (a)(1)](#a-1) by any specific date or dates shall not be considered a “nondiscretionary duty” of the [Administrator](/usc/42/7602.md?p=a).
- (g) **Definitions—** For the purpose of this section—
- (1) in determining reasonable progress there shall be taken into consideration the costs of compliance, the time necessary for compliance, and the [energy](/usc/42/6311.md?p=7) and nonair quality environmental impacts of compliance, and the remaining useful life of any existing source subject to such requirements;
- (2) in determining best available retrofit technology the [State](/usc/42/7602.md?p=d) (or the [Administrator](/usc/42/7602.md?p=a) in determining [emission limitations](/usc/42/7602.md?p=k) which reflect such technology) shall take into consideration the costs of compliance, the [energy](/usc/42/6311.md?p=7) and nonair quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology;
- (3) the term “manmade air pollution” means air pollution which results directly or indirectly from human activities;
- (4) the term “as expeditiously as practicable” means as expeditiously as practicable but in no event later than five years after the date of approval of a plan revision under this section (or the date of promulgation of such a plan revision in the case of action by the [Administrator](/usc/42/7602.md?p=a) under [section 7410(c) of this title](/usc/42/7410.md?p=c) for purposes of this section);
- (5) the term “mandatory class I Federal areas” means Federal areas which may not be designated as other than class I under this part;
- (6) the terms “visibility impairment” and “impairment of visibility” shall include reduction in visual range and atmospheric discoloration; and
- (7) the term “major stationary source” means the following types of [stationary sources](/usc/42/7411.md?p=a-3) with the potential to emit 250 tons or more of any [pollutant](/usc/42/1397h.md?p=c-4): fossil-fuel fired steam electric plants of more than 250 million British thermal [units](/usc/42/1395w–114b.md?p=g-2) per hour heat input, coal cleaning plants (thermal dryers), kraft pulp mills, Portland Cement plants, primary zinc smelters, iron and steel mill plants, primary aluminum ore reduction plants, primary copper smelters, municipal incinerators capable of charging more than 250 tons of refuse per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum refineries, lime plants, phosphate rock processing plants, coke oven batteries, sulfur recovery plants, carbon black plants (furnace process), primary lead smelters, fuel conversion plants, sintering plants, secondary metal production [facilities](/usc/42/11049.md?p=4), chemical process plants, fossil-fuel boilers of more than 250 million British thermal [units](/usc/42/1395w–114b.md?p=g-2) per hour heat input, petroleum storage and transfer [facilities](/usc/42/11049.md?p=4) with a capacity exceeding 300,000 barrels, taconite ore processing [facilities](/usc/42/11049.md?p=4), glass fiber processing plants, charcoal production [facilities](/usc/42/11049.md?p=4).
# §7492. Visibility
- (a) **Studies—**
- (1) The [Administrator](/usc/42/7602.md?p=a), in conjunction with the National Park Service and other appropriate Federal agencies, shall conduct research to identify and evaluate sources and source regions of both visibility impairment and regions that provide predominantly clean air in class I areas. A total of $8,000,000 per year for 5 years is authorized to be appropriated for the Environmental Protection Agency and the other Federal agencies to conduct this research. The research shall include—
- (A) expansion of current visibility related monitoring in class I areas;
- (B) assessment of current sources of visibility impairing pollution and clean air corridors;
- (C) adaptation of regional air quality models for the assessment of visibility;
- (D) studies of atmospheric chemistry and physics of visibility.
- (2) Based on the findings available from the research required in [subsection (a)(1)](#a-1) as well as other available scientific and technical data, studies, and other available information pertaining to visibility source-receptor relationships, the [Administrator](/usc/42/7602.md?p=a) shall conduct an assessment and evaluation that identifies, to the extent possible, sources and source regions of visibility impairment including natural sources as well as source regions of clear air for class I areas. The [Administrator](/usc/42/7602.md?p=a) shall produce interim findings from this study within 3 years after November 15, 1990.
- (b) **Impacts of other provisions—** Within 24 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall conduct an assessment of the progress and improvements in visibility in class I areas that are likely to result from the implementation of the provisions of the Clean Air Act Amendments of 1990 other than the provisions of this section. Every 5 years thereafter the [Administrator](/usc/42/7602.md?p=a) shall conduct an assessment of actual progress and improvement in visibility in class I areas. The [Administrator](/usc/42/7602.md?p=a) shall prepare a written report on each assessment and transmit copies of these reports to the appropriate committees of Congress.
- (c) **Establishment of visibility transport regions and commissions—**
- (1) **Authority to establish visibility transport regions—** Whenever, upon the [Administrator](/usc/42/7602.md?p=a)’s motion or by petition from the [Governors](/usc/42/6372.md?p=1) of at least two affected [States](/usc/42/7602.md?p=d), the [Administrator](/usc/42/7602.md?p=a) has reason to believe that the current or projected interstate transport of [air pollutants](/usc/42/7602.md?p=g) from one or more [States](/usc/42/7602.md?p=d) contributes significantly to visibility impairment in class I areas located in the affected [States](/usc/42/7602.md?p=d), the [Administrator](/usc/42/7602.md?p=a) may establish a transport region for such [pollutants](/usc/42/1397h.md?p=c-4) that includes such [States](/usc/42/7602.md?p=d). The [Administrator](/usc/42/7602.md?p=a), upon the [Administrator](/usc/42/7602.md?p=a)’s own motion or upon petition from the [Governor](/usc/42/6372.md?p=1) of any affected [State](/usc/42/7602.md?p=d), or upon the recommendations of a transport [commission](/usc/42/2000ff.md?p=1) established under [subsection (b)](#b) of this section[^1] may—
- (A) add any [State](/usc/42/7602.md?p=d) or portion of a [State](/usc/42/7602.md?p=d) to a visibility transport region when the [Administrator](/usc/42/7602.md?p=a) determines that the interstate transport of [air pollutants](/usc/42/7602.md?p=g) from such [State](/usc/42/7602.md?p=d) significantly contributes to visibility impairment in a class I area located within the transport region, or
- (B) [remove](/usc/42/9601.md?p=23) any [State](/usc/42/7602.md?p=d) or portion of a [State](/usc/42/7602.md?p=d) from the region whenever the [Administrator](/usc/42/7602.md?p=a) has reason to believe that the control of emissions in that [State](/usc/42/7602.md?p=d) or portion of the [State](/usc/42/7602.md?p=d) pursuant to this section will not significantly contribute to the protection or enhancement of visibility in any class I area in the region.
- (2) **Visibility transport commissions—** Whenever the [Administrator](/usc/42/7602.md?p=a) establishes a transport region under [subsection (c)(1)](#c-1), the [Administrator](/usc/42/7602.md?p=a) shall establish a transport [commission](/usc/42/2000ff.md?p=1) comprised of (as a minimum) each of the following members:
- (A) the [Governor](/usc/42/6372.md?p=1) of each [State](/usc/42/7602.md?p=d) in the Visibility Transport Region, or the [Governor](/usc/42/6372.md?p=1)’s designee;
- (B) The[^2] [Administrator](/usc/42/7602.md?p=a) or the [Administrator](/usc/42/7602.md?p=a)’s designee; and
- (C) A[^2] [representative](/usc/42/3058f.md?p=5) of each Federal agency charged with the direct management of each class I area or areas within the Visibility Transport Region.
- (3) **Ex officio members—** All [representatives](/usc/42/3058f.md?p=5) of the Federal Government shall be ex officio members.
- (4) **Chapter 10 of title 5—** The visibility transport [commissions](/usc/42/2000ff.md?p=1) shall be exempt from the requirements of [chapter 10](/usc/5/chptI-ch10.md) of title 5.
- (d) **Duties of visibility transport commissions—** A Visibility Transport [Commission](/usc/42/2000ff.md?p=1)—
- (1) shall assess the scientific and technical data, studies, and other currently available information, including studies conducted pursuant to [subsection (a)(1)](#a-1), pertaining to adverse impacts on visibility from potential or projected growth in emissions from sources located in the Visibility Transport Region; and
- (2) shall, within 4 years of establishment, issue a report to the [Administrator](/usc/42/7602.md?p=a) recommending what measures, if any, should be taken under this chapter to remedy such adverse impacts. The report required by this subsection shall address at least the following measures:
- (A) the establishment of clean air corridors, in which additional restrictions on increases in emissions may be appropriate to protect visibility in affected class I areas;
- (B) the imposition of the requirements of part D of this subchapter affecting the [construction](/usc/42/7479.md?p=2-C) of new [major stationary sources](/usc/42/7602.md?p=j) or major [modifications](/usc/42/7501.md?p=4) to existing sources in such clean air corridors specifically including the alternative siting analysis provisions of [section 7503(a)(5) of this title](/usc/42/7503.md?p=a-5); and
- (C) the promulgation of regulations under [section 7491 of this title](/usc/42/7491.md) to address long range strategies for addressing regional haze which impairs visibility in affected class I areas.
- (e) **Duties of Administrator—**
- (1) The [Administrator](/usc/42/7602.md?p=a) shall, taking into account the studies pursuant to [subsection (a)(1)](#a-1) and the reports pursuant to [subsection (d)(2)](#d-2) and any other relevant information, within eighteen months of receipt of the report referred to in [subsection (d)(2)](#d-2) of this section, carry out the [Administrator](/usc/42/7602.md?p=a)’s regulatory responsibilities under [section 7491 of this title](/usc/42/7491.md), including criteria for measuring “reasonable progress” toward the national goal.
- (2) Any regulations promulgated under [section 7491 of this title](/usc/42/7491.md) pursuant to this subsection shall require affected [States](/usc/42/7602.md?p=d) to revise within 12 months their implementation plans under [section 7410 of this title](/usc/42/7410.md) to contain such emission limits, schedules of compliance, and other measures as may be necessary to carry out regulations promulgated pursuant to this subsection.
- (f) **Grand Canyon visibility transport commission—** The [Administrator](/usc/42/7602.md?p=a) pursuant to [subsection (c)(1)](#c-1) shall, within 12 months, establish a visibility transport [commission](/usc/42/2000ff.md?p=1) for the region affecting the visibility of the Grand Canyon National Park.
# §7501. Definitions
For the purpose of this part—
- (1) **Reasonable further progress.—** The term “reasonable further progress” means such annual incremental reductions in emissions of the relevant [air pollutant](/usc/42/7602.md?p=g) as are required by this part or may reasonably be required by the [Administrator](/usc/42/7602.md?p=a) for the purpose of ensuring attainment of the applicable national ambient air quality [standard](/usc/42/1320d.md?p=7) by the applicable date.
- (2) **Nonattainment area.—** The term “nonattainment area” means, for any [air pollutant](/usc/42/7602.md?p=g), an area which is designated “nonattainment” with respect to that [pollutant](/usc/42/1397h.md?p=c-4) within the meaning of [section 7407(d) of this title](/usc/42/7407.md?p=d).
- (3) The term “lowest achievable emission rate” means for any source, that rate of emissions which reflects—
- (A) the most stringent [emission limitation](/usc/42/7602.md?p=k) which is contained in the implementation plan of any [State](/usc/42/7602.md?p=d) for such class or [category](/usc/42/1395w–4.md?p=j-1) of source, unless the [owner or operator](/usc/42/9601.md?p=20-B) of the proposed source demonstrates that such limitations are not achievable, or
- (B) the most stringent [emission limitation](/usc/42/7602.md?p=k) which is achieved in practice by such class or [category](/usc/42/1395w–4.md?p=j-1) of source, whichever is more stringent.
In no event shall the application of this term permit a proposed new or [modified](#4) source to emit any [pollutant](/usc/42/1397h.md?p=c-4) in excess of the amount allowable under applicable new source [standards](/usc/42/1320d.md?p=7) of performance.
- (4) The terms “modifications” and “modified” mean the same as the term “modification” as used in [section 7411(a)(4) of this title](/usc/42/7411.md?p=a-4).
# §7502. Nonattainment plan provisions in general
- (a) **Classifications and attainment dates—**
- (1) **Classifications—**
- (A) On or after the date the [Administrator](/usc/42/7602.md?p=a) promulgates the designation of an area as a [nonattainment area](/usc/42/7501.md?p=2) pursuant to [section 7407(d) of this title](/usc/42/7407.md?p=d) with respect to any national ambient air quality [standard](/usc/42/1320d.md?p=7) (or any revised [standard](/usc/42/1320d.md?p=7), including a revision of any [standard](/usc/42/1320d.md?p=7) in effect on November 15, 1990), the [Administrator](/usc/42/7602.md?p=a) may classify the area for the purpose of applying an attainment date pursuant to [paragraph (2)](#a-2), and for other purposes. In determining the appropriate classification, if any, for a [nonattainment area](/usc/42/7501.md?p=2), the [Administrator](/usc/42/7602.md?p=a) may consider such factors as the severity of nonattainment in such area and the availability and feasibility of the pollution control measures that the [Administrator](/usc/42/7602.md?p=a) believes may be necessary to provide for attainment of such [standard](/usc/42/1320d.md?p=7) in such area.
- (B) The [Administrator](/usc/42/7602.md?p=a) shall publish a notice in the Federal Register announcing each classification under [subparagraph (A)](#a-1-A), except the [Administrator](/usc/42/7602.md?p=a) shall provide an opportunity for at least 30 days for written comment. Such classification shall not be subject to the provisions of [sections 553 through 557](/usc/5/553..557.md) of title 5 (concerning notice and comment) and shall not be subject to judicial review until the [Administrator](/usc/42/7602.md?p=a) takes final action under subsection (k) or (l) of [section 7410 of this title](/usc/42/7410.md) (concerning action on plan submissions) or [section 7509 of this title](/usc/42/7509.md) (concerning sanctions) with respect to any plan submissions required by virtue of such classification.
- (C) This paragraph shall not apply with respect to [nonattainment areas](/usc/42/7501.md?p=2) for which classifications are specifically provided under other provisions of this part.
- (2) **Attainment dates for nonattainment areas—**
- (A) The attainment date for an area designated nonattainment with respect to a national primary ambient air quality [standard](/usc/42/1320d.md?p=7) shall be the date by which attainment can be achieved as expeditiously as practicable, but no later than 5 years from the date such area was designated nonattainment under [section 7407(d) of this title](/usc/42/7407.md?p=d), except that the [Administrator](/usc/42/7602.md?p=a) may extend the attainment date to the extent the [Administrator](/usc/42/7602.md?p=a) determines appropriate, for a period no greater than 10 years from the date of designation as nonattainment, considering the severity of nonattainment and the availability and feasibility of pollution control measures.
- (B) The attainment date for an area designated nonattainment with respect to a secondary national ambient air quality [standard](/usc/42/1320d.md?p=7) shall be the date by which attainment can be achieved as expeditiously as practicable after the date such area was designated nonattainment under [section 7407(d) of this title](/usc/42/7407.md?p=d).
- (C) Upon application by any [State](/usc/42/7602.md?p=d), the [Administrator](/usc/42/7602.md?p=a) may extend for 1 additional year (hereinafter referred to as the “Extension Year”) the attainment date determined by the [Administrator](/usc/42/7602.md?p=a) under subparagraph [(A)](#a-2-A) or [(B)](#a-2-B) if—
- (i) the [State](/usc/42/7602.md?p=d) has complied with all requirements and commitments pertaining to the area in the [applicable implementation plan](/usc/42/7602.md?p=q), and
- (ii) in accordance with guidance published by the [Administrator](/usc/42/7602.md?p=a), no more than a minimal number of exceedances of the relevant national ambient air quality [standard](/usc/42/1320d.md?p=7) has occurred in the area in the year preceding the Extension Year.
No more than 2 one-year extensions may be issued under this subparagraph for a [single](/usc/42/2304.md?p=m) [nonattainment area](/usc/42/7501.md?p=2).
- (D) This paragraph shall not apply with respect to [nonattainment areas](/usc/42/7501.md?p=2) for which attainment dates are specifically provided under other provisions of this part.
- (b) **Schedule for plan submissions—** At the time the [Administrator](/usc/42/7602.md?p=a) promulgates the designation of an area as nonattainment with respect to a national ambient air quality [standard](/usc/42/1320d.md?p=7) under [section 7407(d) of this title](/usc/42/7407.md?p=d), the [Administrator](/usc/42/7602.md?p=a) shall establish a schedule according to which the [State](/usc/42/7602.md?p=d) containing such area shall submit a plan or plan revision (including the plan items) meeting the applicable requirements of [subsection (c)](#c) and [section 7410(a)(2) of this title](/usc/42/7410.md?p=a-2). Such schedule shall at a minimum, include a date or dates, extending no later than 3 years from the date of the nonattainment designation, for the submission of a plan or plan revision (including the plan items) meeting the applicable requirements of [subsection (c)](#c) and [section 7410(a)(2) of this title](/usc/42/7410.md?p=a-2).
- (c) **Nonattainment plan provisions—** The plan provisions (including plan items) required to be submitted under this part shall comply with each of the following:
- (1) **In general—** Such plan provisions shall provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment of the national primary ambient air quality [standards](/usc/42/1320d.md?p=7).
- (2) **RFP—** Such plan provisions shall require [reasonable further progress](/usc/42/7501.md?p=1).
- (3) **Inventory—** Such plan provisions shall include a comprehensive, accurate, current [inventory](/usc/42/4370m.md?p=14) of actual emissions from all sources of the relevant [pollutant](/usc/42/1397h.md?p=c-4) or [pollutants](/usc/42/1397h.md?p=c-4) in such area, including such periodic revisions as the [Administrator](/usc/42/7602.md?p=a) may determine necessary to assure that the requirements of this part are met.
- (4) **Identification and quantification—** Such plan provisions shall expressly identify and quantify the emissions, if any, of any such [pollutant](/usc/42/1397h.md?p=c-4) or [pollutants](/usc/42/1397h.md?p=c-4) which will be allowed, in accordance with [section 7503(a)(1)(B) of this title](/usc/42/7503.md?p=a-1-B), from the [construction](/usc/42/7479.md?p=2-C) and operation of major new or [modified](/usc/42/7501.md?p=4) [stationary sources](/usc/42/7411.md?p=a-3) in each such area. The plan shall demonstrate to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that the emissions quantified for this purpose will be consistent with the achievement of [reasonable further progress](/usc/42/7501.md?p=1) and will not interfere with attainment of the applicable national ambient air quality [standard](/usc/42/1320d.md?p=7) by the applicable attainment date.
- (5) **Permits for new and modified major stationary sources—** Such plan provisions shall require permits for the [construction](/usc/42/7479.md?p=2-C) and operation of new or [modified](/usc/42/7501.md?p=4) [major stationary sources](/usc/42/7602.md?p=j) anywhere in the [nonattainment area](/usc/42/7501.md?p=2), in accordance with [section 7503 of this title](/usc/42/7503.md).
- (6) **Other measures—** Such plan provisions shall include enforceable [emission limitations](/usc/42/7602.md?p=k), and such other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emission rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to provide for attainment of such [standard](/usc/42/1320d.md?p=7) in such area by the applicable attainment date specified in this part.
- (7) **Compliance with section 7410(a)(2)—** Such plan provisions shall also meet the applicable provisions of [section 7410(a)(2) of this title](/usc/42/7410.md?p=a-2).
- (8) **Equivalent techniques—** Upon application by any [State](/usc/42/7602.md?p=d), the [Administrator](/usc/42/7602.md?p=a) may allow the use of equivalent modeling, emission [inventory](/usc/42/4370m.md?p=14), and planning procedures, unless the [Administrator](/usc/42/7602.md?p=a) determines that the proposed techniques are, in the aggregate, less effective than the methods specified by the [Administrator](/usc/42/7602.md?p=a).
- (9) **Contingency measures—** Such plan shall provide for the implementation of specific measures to be undertaken if the area fails to make [reasonable further progress](/usc/42/7501.md?p=1), or to attain the national primary ambient air quality [standard](/usc/42/1320d.md?p=7) by the attainment date applicable under this part. Such measures shall be included in the plan revision as contingency measures to take effect in any such case without further action by the [State](/usc/42/7602.md?p=d) or the [Administrator](/usc/42/7602.md?p=a).
- (d) **Plan revisions required in response to finding of plan inadequacy—** Any plan revision for a [nonattainment area](/usc/42/7501.md?p=2) which is required to be submitted in response to a finding by the [Administrator](/usc/42/7602.md?p=a) pursuant to [section 7410(k)(5) of this title](/usc/42/7410.md?p=k-5) (relating to calls for plan revisions) must correct the plan deficiency (or deficiencies) specified by the [Administrator](/usc/42/7602.md?p=a) and meet all other applicable plan requirements of [section 7410 of this title](/usc/42/7410.md) and this part. The [Administrator](/usc/42/7602.md?p=a) may reasonably adjust the dates otherwise applicable under such requirements to such revision (except for attainment dates that have not yet elapsed), to the extent necessary to achieve a consistent application of such requirements. In order to facilitate submittal by the [States](/usc/42/7602.md?p=d) of adequate and approvable plans consistent with the applicable requirements of this chapter, the [Administrator](/usc/42/7602.md?p=a) shall, as appropriate and from time to time, issue written guidelines, interpretations, and information to the [States](/usc/42/7602.md?p=d) which shall be available to the public, taking into consideration any such guidelines, interpretations, or information provided before November 15, 1990.
- (e) **Future modification of standard—** If the [Administrator](/usc/42/7602.md?p=a) relaxes a national primary ambient air quality [standard](/usc/42/1320d.md?p=7) after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall, within 12 months after the relaxation, promulgate requirements applicable to all areas which have not attained that [standard](/usc/42/1320d.md?p=7) as of the date of such relaxation. Such requirements shall provide for controls which are not less stringent than the controls applicable to areas designated nonattainment before such relaxation.
# §7503. Permit requirements
- (a) **In general—** The permit [program](/usc/42/274l–1.md?p=4) required by [section 7502(b)(6)](/usc/42/7502.md)[^1] of this title shall provide that permits to construct and operate may be issued if—
- (1) in accordance with regulations issued by the [Administrator](/usc/42/7602.md?p=a) for the determination of baseline emissions in a manner consistent with the assumptions underlying the [applicable implementation plan](/usc/42/7602.md?p=q) approved under [section 7410 of this title](/usc/42/7410.md) and this part, the permitting agency determines that—
- (A) by the time the source is to commence operation, sufficient offsetting [emissions reductions](/usc/42/17114.md?p=a-3) have been obtained, such that total allowable emissions from existing sources in the region, from new or [modified](/usc/42/7501.md?p=4) sources which are not [major emitting facilities](/usc/42/7602.md?p=j), and from the proposed source will be sufficiently less than total emissions from existing sources (as determined in accordance with the regulations under this paragraph) prior to the application for such permit to construct or modify so as to represent (when considered together with the plan provisions required under [section 7502 of this title](/usc/42/7502.md)) [reasonable further progress](/usc/42/7501.md?p=1) (as defined in [section 7501 of this title](/usc/42/7501.md)); or
- (B) in the case of a new or [modified](/usc/42/7501.md?p=4) [major stationary source](/usc/42/7602.md?p=j) which is located in a zone (within the [nonattainment area](/usc/42/7501.md?p=2)) identified by the [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Housing](/usc/42/1490p–2.md?p=r-3) and Urban Development, as a zone to which economic development should be targeted, that emissions of such [pollutant](/usc/42/1397h.md?p=c-4) resulting from the proposed new or [modified](/usc/42/7501.md?p=4) [major stationary source](/usc/42/7602.md?p=j) will not [cause](/usc/42/9908.md?p=c-2) or contribute to emissions levels which exceed the allowance permitted for such [pollutant](/usc/42/1397h.md?p=c-4) for such area from new or [modified](/usc/42/7501.md?p=4) [major stationary sources](/usc/42/7602.md?p=j) under [section 7502(c) of this title](/usc/42/7502.md?p=c);
- (2) the proposed source is required to comply with the [lowest achievable emission rate](/usc/42/7501.md?p=3);
- (3) the [owner or operator](/usc/42/9601.md?p=20-B) of the proposed new or [modified](/usc/42/7501.md?p=4) source has demonstrated that all [major stationary sources](/usc/42/7602.md?p=j) owned or operated by such [person](/usc/42/7602.md?p=e) (or by any entity controlling, controlled by, or under common control with such [person](/usc/42/7602.md?p=e)) in such [State](/usc/42/7602.md?p=d) are subject to [emission limitations](/usc/42/7602.md?p=k) and are in compliance, or on a schedule for compliance, with all applicable [emission limitations](/usc/42/7602.md?p=k) and [standards](/usc/42/1320d.md?p=7) under this chapter; and[^2]
- (4) the [Administrator](/usc/42/7602.md?p=a) has not determined that the [applicable implementation plan](/usc/42/7602.md?p=q) is not being adequately implemented for the [nonattainment area](/usc/42/7501.md?p=2) in which the proposed source is to be constructed or [modified](/usc/42/7501.md?p=4) in accordance with the requirements of this part; and
- (5) an analysis of alternative sites, sizes, production processes, and environmental control techniques for such proposed source demonstrates that benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, [construction](/usc/42/7479.md?p=2-C), or [modification](/usc/42/7501.md?p=4).
Any emission reductions required as a precondition of the issuance of a permit under [paragraph (1)](#a-1) shall be federally enforceable before such permit may be issued.
- (b) **Prohibition on use of old growth allowances—** Any growth allowance included in an [applicable implementation plan](/usc/42/7602.md?p=q) to meet the requirements of [section 7502(b)(5) of this title](/usc/42/7502.md) (as in effect immediately before November 15, 1990) shall not be valid for use in any area that received or receives a notice under [section 7410(a)(2)(H)(ii) of this title](/usc/42/7410.md?p=a-2-H-ii) (as in effect immediately before November 15, 1990) or under [section 7410(k)(1) of this title](/usc/42/7410.md?p=k-1) that its [applicable implementation plan](/usc/42/7602.md?p=q) containing such allowance is substantially inadequate.
- (c) **Offsets—**
- (1) The [owner or operator](/usc/42/9601.md?p=20-B) of a new or [modified](/usc/42/7501.md?p=4) [major stationary source](/usc/42/7602.md?p=j) may comply with any offset requirement in effect under this part for increased emissions of any [air pollutant](/usc/42/7602.md?p=g) only by obtaining emission reductions of such [air pollutant](/usc/42/7602.md?p=g) from the same source or other sources in the same [nonattainment area](/usc/42/7501.md?p=2), except that the [State](/usc/42/7602.md?p=d) may allow the [owner or operator](/usc/42/9601.md?p=20-B) of a source to obtain such emission reductions in another [nonattainment area](/usc/42/7501.md?p=2) if (A) the other area has an equal or higher nonattainment classification than the area in which the source is located and (B) emissions from such other area contribute to a [violation](/usc/42/2000e–16a.md?p=c) of the national ambient air quality [standard](/usc/42/1320d.md?p=7) in the [nonattainment area](/usc/42/7501.md?p=2) in which the source is located. Such emission reductions shall be, by the time a new or [modified](/usc/42/7501.md?p=4) source commences operation, in effect and enforceable and shall assure that the total tonnage of increased emissions of the [air pollutant](/usc/42/7602.md?p=g) from the new or [modified](/usc/42/7501.md?p=4) source shall be offset by an equal or greater reduction, as applicable, in the actual emissions of such [air pollutant](/usc/42/7602.md?p=g) from the same or other sources in the area.
- (2) Emission reductions otherwise required by this chapter shall not be creditable as [emissions reductions](/usc/42/17114.md?p=a-3) for purposes of any such offset requirement. Incidental emission reductions which are not otherwise required by this chapter shall be creditable as emission reductions for such purposes if such emission reductions meet the requirements of [paragraph (1)](#c-1).
- (d) **Control technology information—** The [State](/usc/42/7602.md?p=d) shall provide that control technology information from permits issued under this section will be promptly submitted to the [Administrator](/usc/42/7602.md?p=a) for purposes of making such information available through the RACT/BACT/LAER clearinghouse to other [States](/usc/42/7602.md?p=d) and to the general public.
- (e) **Rocket engines or motors—** The permitting authority of a [State](/usc/42/7602.md?p=d) shall allow a source to offset by alternative or innovative means emission increases from rocket engine and motor firing, and cleaning related to such firing, at an existing or [modified](/usc/42/7501.md?p=4) [major source](/usc/42/7511a.md?p=b-1-A-ii-I) that tests rocket engines or motors under the following conditions:
- (1) Any [modification](/usc/42/7501.md?p=4) proposed is solely for the purpose of expanding the testing of rocket engines or motors at an existing source that is permitted to test such engines on November 15, 1990.
- (2) The source demonstrates to the satisfaction of the permitting authority of the [State](/usc/42/7602.md?p=d) that it has used all reasonable means to obtain and utilize offsets, as determined on an annual basis, for the emissions increases beyond allowable levels, that all available offsets are being used, and that sufficient offsets are not available to the source.
- (3) The source has obtained a written finding from the Department of Defense, Department of Transportation, National Aeronautics and Space Administration or other appropriate Federal agency, that the testing of rocket motors or engines at the [facility](/usc/42/11049.md?p=4) is required for a [program](/usc/42/274l–1.md?p=4) essential to the national security.
- (4) The source will comply with an alternative measure, imposed by the permitting authority, designed to offset any emission increases beyond permitted levels not directly offset by the source. In lieu of imposing any alternative offset measures, the permitting authority may impose an emissions fee to be paid to such authority of a [State](/usc/42/7602.md?p=d) which shall be an amount no greater than 1.5 times the average cost of [stationary source](/usc/42/7411.md?p=a-3) control measures adopted in that area during the previous 3 years. The permitting authority shall utilize the fees in a manner that maximizes the [emissions reductions](/usc/42/17114.md?p=a-3) in that area.
# §7504. Planning procedures
- (a) **In general—** For any ozone, carbon monoxide, or [PM–10](/usc/42/7602.md?p=t) [nonattainment area](/usc/42/7501.md?p=2), the [State](/usc/42/7602.md?p=d) containing such area and elected officials of affected [local governments](/usc/42/8401a.md) shall, before the date required for submittal of the [inventory](/usc/42/4370m.md?p=14) described under sections [7511a(a)(1)](/usc/42/7511a.md?p=a-1) and [7512a(a)(1)](/usc/42/7512a.md?p=a-1) of this title, jointly review and update as necessary the planning procedures adopted pursuant to this subsection as in effect immediately before November 15, 1990, or develop new planning procedures pursuant to this subsection, as appropriate. In preparing such procedures the [State](/usc/42/7602.md?p=d) and local elected officials shall determine which elements of a revised implementation plan will be developed, adopted, and implemented (through means including enforcement) by the [State](/usc/42/7602.md?p=d) and which by [local governments](/usc/42/8401a.md) or regional agencies, or any combination of [local governments](/usc/42/8401a.md), regional agencies, or the [State](/usc/42/7602.md?p=d). The implementation plan required by this part shall be prepared by an organization certified by the [State](/usc/42/7602.md?p=d), in consultation with elected officials of [local governments](/usc/42/8401a.md) and in accordance with the determination under the second sentence of this subsection. Such organization shall include elected officials of [local governments](/usc/42/8401a.md) in the affected area, and [representatives](/usc/42/3058f.md?p=5) of the [State](/usc/42/7602.md?p=d) air quality planning agency, the [State](/usc/42/7602.md?p=d) transportation planning agency, the metropolitan planning organization designated to conduct the continuing, cooperative and comprehensive transportation planning process for the area under [section 134 of title 23](/usc/23/134.md), the organization responsible for the air quality maintenance planning process under regulations implementing this chapter, and any other organization with responsibilities for developing, submitting, or implementing the plan required by this part. Such organization may be one that carried out these functions before November 15, 1990.
- (b) **Coordination—** The preparation of implementation plan provisions and subsequent plan revisions under the continuing transportation-air quality planning process described in [section 7408(e) of this title](/usc/42/7408.md?p=e) shall be coordinated with the continuing, cooperative and comprehensive transportation planning process required under [section 134 of title 23](/usc/23/134.md), and such planning processes shall take into account the requirements of this part.
- (c) **Joint planning—** In the case of a [nonattainment area](/usc/42/7501.md?p=2) that is included within more than one [State](/usc/42/7602.md?p=d), the affected [States](/usc/42/7602.md?p=d) may jointly, through interstate [compact](/usc/42/2021b.md?p=4) or otherwise, undertake and implement all or part of the planning procedures described in this section.
# §7505. Environmental Protection Agency grants
- (a) **Plan revision development costs—** The [Administrator](/usc/42/7602.md?p=a) shall make grants to any organization of local elected officials with transportation or air quality maintenance planning responsibilities recognized by the [State](/usc/42/7602.md?p=d) under [section 7504(a) of this title](/usc/42/7504.md?p=a) for payment of the reasonable costs of developing a plan revision under this part.
- (b) **Uses of grant funds—** The amount granted to any organization under [subsection (a)](#a) shall be 100 percent of any additional costs of developing a plan revision under this part for the first two fiscal years following receipt of the grant under this paragraph, and shall supplement any [funds](/usc/42/12854.md?p=3) available under Federal law to such organization for transportation or air quality maintenance planning. Grants under this section shall not be used for [construction](/usc/42/7479.md?p=2-C).
# §7505a. Maintenance plans
- (a) **Plan revision—** Each [State](/usc/42/7602.md?p=d) which submits a request under [section 7407(d) of this title](/usc/42/7407.md?p=d) for redesignation of a [nonattainment area](/usc/42/7501.md?p=2) for any [air pollutant](/usc/42/7602.md?p=g) as an area which has attained the national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for that [air pollutant](/usc/42/7602.md?p=g) shall also submit a revision of the applicable [State](/usc/42/7602.md?p=d) implementation plan to provide for the maintenance of the national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for such [air pollutant](/usc/42/7602.md?p=g) in the area concerned for at least 10 years after the redesignation. The plan shall contain such additional measures, if any, as may be necessary to ensure such maintenance.
- (b) **Subsequent plan revisions—** 8 years after redesignation of any area as an attainment area under [section 7407(d) of this title](/usc/42/7407.md?p=d), the [State](/usc/42/7602.md?p=d) shall submit to the [Administrator](/usc/42/7602.md?p=a) an additional revision of the applicable [State](/usc/42/7602.md?p=d) implementation plan for maintaining the national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for 10 years after the expiration of the 10-year period referred to in [subsection (a)](#a).
- (c) **Nonattainment requirements applicable pending plan approval—** Until such plan revision is approved and an area is redesignated as attainment for any area designated as a [nonattainment area](/usc/42/7501.md?p=2), the requirements of this part shall continue in force and effect with respect to such area.
- (d) **Contingency provisions—** Each plan revision submitted under this section shall contain such contingency provisions as the [Administrator](/usc/42/7602.md?p=a) deems necessary to assure that the [State](/usc/42/7602.md?p=d) will promptly correct any [violation](/usc/42/2000e–16a.md?p=c) of the [standard](/usc/42/1320d.md?p=7) which occurs after the redesignation of the area as an attainment area. Such provisions shall include a requirement that the [State](/usc/42/7602.md?p=d) will implement all measures with respect to the control of the [air pollutant](/usc/42/7602.md?p=g) concerned which were contained in the [State](/usc/42/7602.md?p=d) implementation plan for the area before redesignation of the area as an attainment area. The failure of any area redesignated as an attainment area to maintain the national ambient air quality [standard](/usc/42/1320d.md?p=7) concerned shall not result in a requirement that the [State](/usc/42/7602.md?p=d) revise its [State](/usc/42/7602.md?p=d) implementation plan unless the [Administrator](/usc/42/7602.md?p=a), in the [Administrator](/usc/42/7602.md?p=a)’s discretion, requires the [State](/usc/42/7602.md?p=d) to submit a revised [State](/usc/42/7602.md?p=d) implementation plan.
# §7506. Limitations on certain Federal assistance
- (a) **, (b) Repealed. Pub. L. 101–549, title I, § 110(4), Nov. 15, 1990, 104 Stat. 2470—**
- (c) **Activities not conforming to approved or promulgated plans—**
- (1) No department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated under [section 7410 of this title](/usc/42/7410.md). No metropolitan planning organization designated under [section 134 of title 23](/usc/23/134.md), shall give its approval to any [project](/usc/42/11360.md?p=20), [program](/usc/42/274l–1.md?p=4), or plan which does not conform to an implementation plan approved or promulgated under [section 7410 of this title](/usc/42/7410.md). The assurance of conformity to such an implementation plan shall be an affirmative responsibility of the head of such department, agency, or instrumentality. Conformity to an implementation plan means—
- (A) conformity to an implementation plan’s purpose of eliminating or reducing the severity and number of [violations](/usc/42/2000e–16a.md?p=c) of the national ambient air quality [standards](/usc/42/1320d.md?p=7) and achieving expeditious attainment of such [standards](/usc/42/1320d.md?p=7); and
- (B) that such activities will not—
- (i) [cause](/usc/42/9908.md?p=c-2) or contribute to any new [violation](/usc/42/2000e–16a.md?p=c) of any [standard](/usc/42/1320d.md?p=7) in any area;
- (ii) increase the frequency or severity of any existing [violation](/usc/42/2000e–16a.md?p=c) of any [standard](/usc/42/1320d.md?p=7) in any area; or
- (iii) delay timely attainment of any [standard](/usc/42/1320d.md?p=7) or any required interim emission reductions or other milestones in any area.
The determination of conformity shall be based on the most recent estimates of emissions, and such estimates shall be determined from the most recent population, employment, travel and congestion estimates as determined by the metropolitan planning organization or other agency authorized to make such estimates.
- (2) Any transportation plan or [program](/usc/42/274l–1.md?p=4) developed pursuant to [title 23](/usc/23.md) or [chapter 53](/usc/49/chstIII-ch53.md) of title 49 shall implement the transportation provisions of any [applicable implementation plan](/usc/42/7602.md?p=q) approved under this chapter applicable to all or part of the area covered by such transportation plan or [program](/usc/42/274l–1.md?p=4). No Federal agency may approve, accept or [fund](/usc/42/12854.md?p=3) any transportation plan, [program](/usc/42/274l–1.md?p=4) or [project](/usc/42/11360.md?p=20) unless such plan, [program](/usc/42/274l–1.md?p=4) or [project](/usc/42/11360.md?p=20) has been found to conform to any [applicable implementation plan](/usc/42/7602.md?p=q) in effect under this chapter. In particular—
- (A) no transportation plan or transportation improvement [program](/usc/42/274l–1.md?p=4) may be adopted by a metropolitan planning organization designated under [title 23](/usc/23.md) or [chapter 53](/usc/49/chstIII-ch53.md) of title 49, or be found to be in conformity by a metropolitan planning organization until a final determination has been made that emissions expected from implementation of such plans and [programs](/usc/42/274l–1.md?p=4) are consistent with estimates of emissions from [motor vehicles](/usc/42/13211.md?p=13) and necessary [emissions reductions](/usc/42/17114.md?p=a-3) contained in the [applicable implementation plan](/usc/42/7602.md?p=q), and that the plan or [program](/usc/42/274l–1.md?p=4) will conform to the requirements of [paragraph (1)(B)](#c-1-B);
- (B) no metropolitan planning organization or other [recipient](/usc/42/2996a.md?p=6) of [funds](/usc/42/12854.md?p=3) under [title 23](/usc/23.md) or [chapter 53](/usc/49/chstIII-ch53.md) of title 49 shall adopt or approve a transportation improvement [program](/usc/42/274l–1.md?p=4) of [projects](/usc/42/11360.md?p=20) until it determines that such [program](/usc/42/274l–1.md?p=4) provides for timely implementation of transportation control measures consistent with schedules included in the [applicable implementation plan](/usc/42/7602.md?p=q);
- (C) a transportation [project](/usc/42/11360.md?p=20) may be adopted or approved by a metropolitan planning organization or any [recipient](/usc/42/2996a.md?p=6) of [funds](/usc/42/12854.md?p=3) designated under [title 23](/usc/23.md) or [chapter 53](/usc/49/chstIII-ch53.md) of title 49, or found in conformity by a metropolitan planning organization or approved, accepted, or funded by the Department of Transportation only if it meets either the requirements of [subparagraph (D)](#c-2-D) or the following requirements—
- (i) such a [project](/usc/42/11360.md?p=20) comes from a conforming plan and [program](/usc/42/274l–1.md?p=4);
- (ii) the design concept and scope of such [project](/usc/42/11360.md?p=20) have not changed significantly since the conformity finding regarding the plan and [program](/usc/42/274l–1.md?p=4) from which the [project](/usc/42/11360.md?p=20) derived; and
- (iii) the design concept and scope of such [project](/usc/42/11360.md?p=20) at the time of the conformity determination for the [program](/usc/42/274l–1.md?p=4) was adequate to determine emissions.
- (D) Any [project](/usc/42/11360.md?p=20) not referred to in [subparagraph (C)](#c-2-C) shall be treated as conforming to the [applicable implementation plan](/usc/42/7602.md?p=q) only if it is demonstrated that the projected emissions from such [project](/usc/42/11360.md?p=20), when considered together with emissions projected for the conforming transportation plans and [programs](/usc/42/274l–1.md?p=4) within the [nonattainment area](/usc/42/7501.md?p=2), do not [cause](/usc/42/9908.md?p=c-2) such plans and [programs](/usc/42/274l–1.md?p=4) to exceed the emission reduction projections and schedules assigned to such plans and [programs](/usc/42/274l–1.md?p=4) in the [applicable implementation plan](/usc/42/7602.md?p=q).
- (E) The appropriate metropolitan planning organization shall redetermine conformity of existing transportation plans and [programs](/usc/42/274l–1.md?p=4) not later than 2 years after the date on which the [Administrator](/usc/42/7602.md?p=a)—
- (i) finds a [motor vehicle](/usc/42/13211.md?p=13) emissions budget to be adequate in accordance with [section 93.118(e)(4) of title 40, Code of Federal Regulations](/cfr/40/93.118.md?p=e-4) (as in effect on October 1, 2004);
- (ii) approves an implementation plan that establishes a [motor vehicle](/usc/42/13211.md?p=13) emissions budget if that budget has not yet been determined to be adequate in accordance with [clause (i)](#c-2-E-i); or
- (iii) promulgates an implementation plan that establishes or revises a [motor vehicle](/usc/42/13211.md?p=13) emissions budget.
- (3) Until such time as the implementation plan revision referred to in [paragraph (4)(C)](#c-4-C)[^1] is approved, conformity of such plans, [programs](/usc/42/274l–1.md?p=4), and [projects](/usc/42/11360.md?p=20) will be demonstrated if—
- (A) the transportation plans and [programs](/usc/42/274l–1.md?p=4)—
- (i) are consistent with the most recent estimates of mobile source emissions;
- (ii) provide for the expeditious implementation of transportation control measures in the [applicable implementation plan](/usc/42/7602.md?p=q); and
- (iii) with respect to ozone and carbon monoxide [nonattainment areas](/usc/42/7501.md?p=2), contribute to annual [emissions reductions](/usc/42/17114.md?p=a-3) consistent with sections [7511a(b)(1)](/usc/42/7511a.md?p=b-1) and [7512a(a)(7)](/usc/42/7512a.md?p=a-7) of this title; and
- (B) the transportation [projects](/usc/42/11360.md?p=20)—
- (i) come from a conforming transportation plan and [program](/usc/42/274l–1.md?p=4) as defined in [subparagraph (A)](#c-3-A) or for 12 months after November 15, 1990, from a transportation [program](/usc/42/274l–1.md?p=4) found to conform within 3 years prior to November 15, 1990; and
- (ii) in carbon monoxide [nonattainment areas](/usc/42/7501.md?p=2), eliminate or reduce the severity and number of [violations](/usc/42/2000e–16a.md?p=c) of the carbon monoxide [standards](/usc/42/1320d.md?p=7) in the area substantially affected by the [project](/usc/42/11360.md?p=20).
With regard to [subparagraph (B)(ii)](#c-3-B-ii), such determination may be made as part of either the conformity determination for the transportation [program](/usc/42/274l–1.md?p=4) or for the individual [project](/usc/42/11360.md?p=20) taken as a whole during the environmental review phase of [project](/usc/42/11360.md?p=20) development.
- (4) **Criteria and procedures for determining conformity.—**
- (A) **In general.—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate, and periodically update, criteria and procedures for determining conformity (except in the case of transportation plans, [programs](/usc/42/274l–1.md?p=4), and [projects](/usc/42/11360.md?p=20)) of, and for keeping the [Administrator](/usc/42/7602.md?p=a) informed about, the activities referred to in [paragraph (1)](#c-1).
- (B) **Transportation plans, programs, and projects.—** The [Administrator](/usc/42/7602.md?p=a), with the concurrence of the [Secretary](/usc/42/242q–4.md?p=2) of Transportation, shall promulgate, and periodically update, criteria and procedures for demonstrating and assuring conformity in the case of transportation plans, [programs](/usc/42/274l–1.md?p=4), and [projects](/usc/42/11360.md?p=20).
- (C) **Civil action to compel promulgation.—** A civil action may be brought against the [Administrator](/usc/42/7602.md?p=a) and the [Secretary](/usc/42/242q–4.md?p=2) of Transportation under [section 7604 of this title](/usc/42/7604.md) to compel promulgation of such criteria and procedures and the Federal district court shall have jurisdiction to order such promulgation.
- (D) The procedures and criteria shall, at a minimum—
- (i) address the consultation procedures to be undertaken by metropolitan planning organizations and the [Secretary](/usc/42/242q–4.md?p=2) of Transportation with [State](/usc/42/7602.md?p=d) and local air quality agencies and State departments of transportation before such organizations and the [Secretary](/usc/42/242q–4.md?p=2) make conformity determinations;
- (ii) address the appropriate frequency for making conformity determinations, but the frequency for making conformity determinations on updated transportation plans and [programs](/usc/42/274l–1.md?p=4) shall be every 4 years, except in a case in which—
- (I) the metropolitan planning organization elects to update a transportation plan or [program](/usc/42/274l–1.md?p=4) more frequently; or
- (II) the metropolitan planning organization is required to determine conformity in accordance with [paragraph (2)(E)](#c-2-E); and
- (iii) address how conformity determinations will be made with respect to maintenance plans.
- (E) **Inclusion of criteria and procedures in sip.—** Not later than 2 years after August 10, 2005, the procedures under [subparagraph (A)](#c-4-A) shall include a requirement that each [State](/usc/42/7602.md?p=d) include in the [State](/usc/42/7602.md?p=d) implementation plan criteria and procedures for consultation required by [subparagraph (D)(i)](#c-4-D-i), and enforcement and enforceability (pursuant to sections [93.125(c)](/cfr/40/93.125.md?p=c) and [93.122(a)(4)(ii)](/cfr/40/93.122.md?p=a-4-ii) of title 40, Code of Federal Regulations) in accordance with the [Administrator](/usc/42/7602.md?p=a)’s criteria and procedures for consultation, enforcement and enforceability.
- (F) Compliance with the rules of the [Administrator](/usc/42/7602.md?p=a) for determining the conformity of transportation plans, [programs](/usc/42/274l–1.md?p=4), and [projects](/usc/42/11360.md?p=20) funded or approved under [title 23](/usc/23.md) or [chapter 53](/usc/49/chstIII-ch53.md) of title 49 to [State](/usc/42/7602.md?p=d) or [Federal implementation plans](/usc/42/7602.md?p=y) shall not be required for traffic signal synchronization [projects](/usc/42/11360.md?p=20) prior to the funding, approval or implementation of such [projects](/usc/42/11360.md?p=20). The supporting regional emissions analysis for any conformity determination made with respect to a transportation plan, [program](/usc/42/274l–1.md?p=4), or [project](/usc/42/11360.md?p=20) shall consider the effect on emissions of any such [project](/usc/42/11360.md?p=20) funded, approved, or implemented prior to the conformity determination.
- (5) **Applicability.—** This subsection shall apply only with respect to—
- (A) a [nonattainment area](/usc/42/7501.md?p=2) and each [pollutant](/usc/42/1397h.md?p=c-4) for which the area is designated as a [nonattainment area](/usc/42/7501.md?p=2); and
- (B) an area that was designated as a [nonattainment area](/usc/42/7501.md?p=2) but that was later redesignated by the [Administrator](/usc/42/7602.md?p=a) as an attainment area and that is required to develop a maintenance plan under [section 7505a of this title](/usc/42/7505a.md) with respect to the specific [pollutant](/usc/42/1397h.md?p=c-4) for which the area was designated nonattainment.
- (6) Notwithstanding paragraph 5,[^2] this subsection shall not apply with respect to an area designated nonattainment under [section 7407(d)(1) of this title](/usc/42/7407.md?p=d-1) until 1 year after that area is first designated nonattainment for a specific national ambient air quality [standard](/usc/42/1320d.md?p=7). This paragraph only applies with respect to the national ambient air quality [standard](/usc/42/1320d.md?p=7) for which an area is newly designated nonattainment and does not affect the area’s requirements with respect to all other national ambient air quality [standards](/usc/42/1320d.md?p=7) for which the area is designated nonattainment or has been redesignated from nonattainment to attainment with a maintenance plan pursuant to [section 7505a](/usc/42/7505a.md)[^1] of this title (including any pre-existing national ambient air quality [standard](/usc/42/1320d.md?p=7) for a [pollutant](/usc/42/1397h.md?p=c-4) for which a new or revised [standard](/usc/42/1320d.md?p=7) has been issued).
- (7) **Conformity horizon for transportation plans.—**
- (A) **In general.—** Each conformity determination required under this section for a transportation plan under [section 134(i) of title 23](/usc/23/134.md?p=i) or [section 5303(i) of title 49](/usc/49/5303.md?p=i) shall require a demonstration of conformity for the period ending on either the final year of the transportation plan, or at the election of the metropolitan planning organization, after consultation with the [air pollution control agency](#c-7-E) and solicitation of public comments and consideration of such comments, the longest of the following periods:
- (i) The first 10-year period of any such transportation plan.
- (ii) The latest year in the implementation plan applicable to the area that contains a [motor vehicle](/usc/42/13211.md?p=13) emission budget.
- (iii) The year after the completion date of a regionally significant [project](/usc/42/11360.md?p=20) if the [project](/usc/42/11360.md?p=20) is included in the transportation improvement [program](/usc/42/274l–1.md?p=4) or the [project](/usc/42/11360.md?p=20) requires approval before the subsequent conformity determination.
- (B) **Regional emissions analysis.—** The conformity determination shall be accompanied by a regional emissions analysis for the last year of the transportation plan and for any year shown to exceed emission budgets by a prior analysis, if such year extends beyond the applicable period as determined under [subparagraph (A)](#c-7-A).
- (C) **Exception.—** In any case in which an area has a revision to an implementation plan under [section 7505a(b) of this title](/usc/42/7505a.md?p=b) and the [Administrator](/usc/42/7602.md?p=a) has found the [motor vehicles](/usc/42/13211.md?p=13) emissions budgets from that revision to be adequate in accordance with [section 93.118(e)(4) of title 40, Code of Federal Regulations](/cfr/40/93.118.md?p=e-4) (as in effect on October 1, 2004), or has approved the revision, the demonstration of conformity at the election of the metropolitan planning organization, after consultation with the [air pollution control agency](#c-7-E) and solicitation of public comments and consideration of such comments, shall be required to extend only through the last year of the implementation plan required under [section 7505a(b) of this title](/usc/42/7505a.md?p=b).
- (D) **Effect of election.—** Any election by a metropolitan planning organization under this paragraph shall continue in effect until the metropolitan planning organization elects otherwise.
- (E) **Air pollution control agency defined.—** In this paragraph, the term “air pollution control agency” means an air pollution control agency (as defined in [section 7602(b) of this title](/usc/42/7602.md?p=b)) that is responsible for developing plans or controlling air pollution within the area covered by a transportation plan.
- (8) **Substitution of transportation control measures.—**
- (A) **In general.—** Transportation control measures that are specified in an implementation plan may be replaced or added to the implementation plan with alternate or additional transportation control measures—
- (i) if the substitute measures achieve equivalent or greater [emissions reductions](/usc/42/17114.md?p=a-3) than the control measure to be replaced, as demonstrated with an emissions impact analysis that is consistent with the current methodology used for evaluating the replaced control measure in the implementation plan;
- (ii) if the substitute control measures are implemented—
- (I) in accordance with a schedule that is consistent with the schedule provided for control measures in the implementation plan; or
- (II) if the implementation plan date for implementation of the control measure to be replaced has passed, as soon as practicable after the implementation plan date but not later than the date on which emission reductions are necessary to achieve the purpose of the implementation plan;
- (iii) if the substitute and additional control measures are accompanied with evidence of adequate personnel and funding and authority under [State](/usc/42/7602.md?p=d) or local law to implement, monitor, and enforce the control measures;
- (iv) if the substitute and additional control measures were developed through a collaborative process that included—
- (I) participation by [representatives](/usc/42/3058f.md?p=5) of all affected jurisdictions (including local [air pollution control agencies](/usc/42/7602.md?p=b), the [State](/usc/42/7602.md?p=d) [air pollution control agency](/usc/42/7602.md?p=b), and [State](/usc/42/7602.md?p=d) and local transportation agencies);
- (II) consultation with the [Administrator](/usc/42/7602.md?p=a); and
- (III) reasonable public notice and opportunity for comment; and
- (v) if the metropolitan planning organization, [State](/usc/42/7602.md?p=d) [air pollution control agency](/usc/42/7602.md?p=b), and the [Administrator](/usc/42/7602.md?p=a) concur with the equivalency of the substitute or additional control measures.
- (B) **Adoption.—**
- (i) Concurrence by the metropolitan planning organization, [State](/usc/42/7602.md?p=d) [air pollution control agency](/usc/42/7602.md?p=b) and the [Administrator](/usc/42/7602.md?p=a) as required by [subparagraph (A)(v)](#c-8-A-v) shall constitute adoption of the substitute or additional control measures so long as the requirements of subparagraphs [(A)(i)](#c-8-A-i), [(A)(ii)](#c-8-A-ii), [(A)(iii)](#c-8-A-iii) and [(A)(iv)](#c-8-A-iv) are met.
- (ii) Once adopted, the substitute or additional control measures become, by operation of law, part of the [State](/usc/42/7602.md?p=d) implementation plan and become federally enforceable.
- (iii) Within 90 days of its concurrence under [subparagraph (A)(v)](#c-8-A-v), the [State](/usc/42/7602.md?p=d) [air pollution control agency](/usc/42/7602.md?p=b) shall submit the substitute or additional control measure to the [Administrator](/usc/42/7602.md?p=a) for incorporation in the codification of the [applicable implementation plan](/usc/42/7602.md?p=q). Nothwithstanding[^3] any other provision of this chapter, no additional [State](/usc/42/7602.md?p=d) process shall be necessary to support such revision to the applicable plan.
- (C) **No requirement for express permission.—** The substitution or addition of a transportation control measure in accordance with this paragraph and the funding or approval of such a control measure shall not be contingent on the existence of any provision in the [applicable implementation plan](/usc/42/7602.md?p=q) that expressly permits such a substitution or addition.
- (D) **No requirement for new conformity determination.—** The substitution or addition of a transportation control measure in accordance with this paragraph shall not require—
- (i) a new conformity determination for the transportation plan; or
- (ii) a revision of the implementation plan.
- (E) **Continuation of control measure being replaced.—** A control measure that is being replaced by a substitute control measure under this paragraph shall remain in effect until the substitute control measure is adopted by the [State](/usc/42/7602.md?p=d) pursuant to [subparagraph (B)](#c-8-B).
- (F) **Effect of adoption.—** Adoption of a substitute control measure shall constitute rescission of the previously applicable control measure.
- (9) **Lapse of conformity.—** If a conformity determination required under this subsection for a transportation plan under [section 134(i) of title 23](/usc/23/134.md?p=i) or [section 5303(i) of title 49](/usc/49/5303.md?p=i) or a transportation improvement [program](/usc/42/274l–1.md?p=4) under [section 134(j)](/usc/23/134.md?p=j) of such title 23 or under [section 5303(j)](/usc/42/5303.md) of such title 49 is not made by the applicable deadline and such failure is not corrected by additional measures to either reduce [motor vehicle](/usc/42/13211.md?p=13) emissions sufficient to demonstrate compliance with the requirements of this subsection within 12 months after such deadline or other measures sufficient to correct such failures, the transportation plan shall [lapse](#c-10).
- (10) **Lapse.—** In this subsection, the term “lapse” means that the conformity determination for a transportation plan or transportation improvement [program](/usc/42/274l–1.md?p=4) has expired, and thus there is no currently conforming transportation plan or transportation improvement [program](/usc/42/274l–1.md?p=4).
- (d) **Priority of achieving and maintaining national primary ambient air quality standards—** Each department, agency, or instrumentality of the Federal Government having authority to conduct or support any [program](/usc/42/274l–1.md?p=4) with air-quality related transportation consequences shall give priority in the exercise of such authority, consistent with statutory requirements for [allocation](/usc/42/2021b.md?p=2) among [States](/usc/42/7602.md?p=d) or other jurisdictions, to the implementation of those portions of plans prepared under this section to achieve and maintain the national primary ambient air-quality [standard](/usc/42/1320d.md?p=7). This paragraph extends to, but is not limited to, authority exercised under [chapter 53](/usc/49/chstIII-ch53.md) of title 49, [title 23](/usc/23.md), and the [Housing](/usc/42/1490p–2.md?p=r-3) and Urban Development Act.
# §7506a. Interstate transport commissions
- (a) **Authority to establish interstate transport regions—** Whenever, on the [Administrator](/usc/42/7602.md?p=a)’s own motion or by petition from the [Governor](/usc/42/6372.md?p=1) of any [State](/usc/42/7602.md?p=d), the [Administrator](/usc/42/7602.md?p=a) has reason to believe that the interstate transport of [air pollutants](/usc/42/7602.md?p=g) from one or more [States](/usc/42/7602.md?p=d) contributes significantly to a [violation](/usc/42/2000e–16a.md?p=c) of a national ambient air quality [standard](/usc/42/1320d.md?p=7) in one or more other [States](/usc/42/7602.md?p=d), the [Administrator](/usc/42/7602.md?p=a) may establish, by rule, a transport region for such [pollutant](/usc/42/1397h.md?p=c-4) that includes such [States](/usc/42/7602.md?p=d). The [Administrator](/usc/42/7602.md?p=a), on the [Administrator](/usc/42/7602.md?p=a)’s own motion or upon petition from the [Governor](/usc/42/6372.md?p=1) of any [State](/usc/42/7602.md?p=d), or upon the recommendation of a transport [commission](/usc/42/2000ff.md?p=1) established under [subsection (b)](#b), may—
- (1) add any [State](/usc/42/7602.md?p=d) or portion of a [State](/usc/42/7602.md?p=d) to any region established under this subsection whenever the [Administrator](/usc/42/7602.md?p=a) has reason to believe that the interstate transport of [air pollutants](/usc/42/7602.md?p=g) from such [State](/usc/42/7602.md?p=d) significantly contributes to a [violation](/usc/42/2000e–16a.md?p=c) of the [standard](/usc/42/1320d.md?p=7) in the transport region, or
- (2) [remove](/usc/42/9601.md?p=23) any [State](/usc/42/7602.md?p=d) or portion of a [State](/usc/42/7602.md?p=d) from the region whenever the [Administrator](/usc/42/7602.md?p=a) has reason to believe that the control of emissions in that [State](/usc/42/7602.md?p=d) or portion of the [State](/usc/42/7602.md?p=d) pursuant to this section will not significantly contribute to the attainment of the [standard](/usc/42/1320d.md?p=7) in any area in the region.
The [Administrator](/usc/42/7602.md?p=a) shall approve or disapprove any such petition or recommendation within 18 months of its receipt. The [Administrator](/usc/42/7602.md?p=a) shall establish appropriate proceedings for public participation regarding such petitions and motions, including notice and comment.
- (b) **Transport commissions—**
- (1) **Establishment—** Whenever the [Administrator](/usc/42/7602.md?p=a) establishes a transport region under [subsection (a)](#a), the [Administrator](/usc/42/7602.md?p=a) shall establish a transport [commission](/usc/42/2000ff.md?p=1) comprised of (at a minimum) each of the following members:
- (A) The [Governor](/usc/42/6372.md?p=1) of each [State](/usc/42/7602.md?p=d) in the region or the designee of each such [Governor](/usc/42/6372.md?p=1).
- (B) The [Administrator](/usc/42/7602.md?p=a) or the [Administrator](/usc/42/7602.md?p=a)’s designee.
- (C) The Regional [Administrator](/usc/42/7602.md?p=a) (or the [Administrator](/usc/42/7602.md?p=a)’s designee) for each Regional [Office](/usc/42/3058f.md?p=1) for each Environmental Protection Agency Region affected by the transport region concerned.
- (D) An air pollution control official representing each [State](/usc/42/7602.md?p=d) in the region, appointed by the [Governor](/usc/42/6372.md?p=1).
Decisions of, and recommendations and requests to, the [Administrator](/usc/42/7602.md?p=a) by each transport [commission](/usc/42/2000ff.md?p=1) may be made only by a majority vote of all members other than the [Administrator](/usc/42/7602.md?p=a) and the Regional [Administrators](/usc/42/7602.md?p=a) (or designees thereof).
- (2) **Recommendations—** The transport [commission](/usc/42/2000ff.md?p=1) shall assess the degree of interstate transport of the [pollutant](/usc/42/1397h.md?p=c-4) or precursors to the [pollutant](/usc/42/1397h.md?p=c-4) throughout the transport region, assess strategies for mitigating the interstate pollution, and recommend to the [Administrator](/usc/42/7602.md?p=a) such measures as the [Commission](/usc/42/2000ff.md?p=1) determines to be necessary to ensure that the plans for the relevant [States](/usc/42/7602.md?p=d) meet the requirements of [section 7410(a)(2)(D) of this title](/usc/42/7410.md?p=a-2-D). Such [commission](/usc/42/2000ff.md?p=1) shall not be subject to the provisions of [chapter 10](/usc/5/chptI-ch10.md) of title 5.
- (c) **Commission requests—** A transport [commission](/usc/42/2000ff.md?p=1) established under [subsection (b)](#b) may request the [Administrator](/usc/42/7602.md?p=a) to issue a finding under [section 7410(k)(5) of this title](/usc/42/7410.md?p=k-5) that the implementation plan for one or more of the [States](/usc/42/7602.md?p=d) in the transport region is substantially inadequate to meet the requirements of [section 7410(a)(2)(D) of this title](/usc/42/7410.md?p=a-2-D). The [Administrator](/usc/42/7602.md?p=a) shall approve, disapprove, or partially approve and partially disapprove such a request within 18 months of its receipt and, to the extent the [Administrator](/usc/42/7602.md?p=a) approves such request, issue the finding under [section 7410(k)(5) of this title](/usc/42/7410.md?p=k-5) at the time of such approval. In acting on such request, the [Administrator](/usc/42/7602.md?p=a) shall provide an opportunity for public participation and shall address each specific recommendation made by the [commission](/usc/42/2000ff.md?p=1). Approval or disapproval of such a request shall constitute final agency action within the meaning of [section 7607(b) of this title](/usc/42/7607.md?p=b).
# §7507. New motor vehicle emission standards in nonattainment areas
Notwithstanding [section 7543(a) of this title](/usc/42/7543.md?p=a), any [State](/usc/42/7602.md?p=d) which has plan provisions approved under this part may adopt and enforce for any model year [standards](/usc/42/1320d.md?p=7) relating to control of emissions from [new motor vehicles](/usc/42/7550.md?p=3) or [new motor vehicle engines](/usc/42/7550.md?p=3) and take such other actions as are referred to in [section 7543(a) of this title](/usc/42/7543.md?p=a) respecting such vehicles if—
- (1) such [standards](/usc/42/1320d.md?p=7) are identical to the California [standards](/usc/42/1320d.md?p=7) for which a waiver has been granted for such model year, and
- (2) California and such [State](/usc/42/7602.md?p=d) adopt such [standards](/usc/42/1320d.md?p=7) at least two years before commencement of such model year (as determined by regulations of the [Administrator](/usc/42/7602.md?p=a)).
Nothing in this section or in subchapter II of this chapter shall be construed as authorizing any such [State](/usc/42/7602.md?p=d) to prohibit or limit, directly or indirectly, the [manufacture](/usc/42/300aa–33.md?p=3) or sale of a [new motor vehicle](/usc/42/7550.md?p=3) or [motor vehicle](/usc/42/13211.md?p=13) engine that is certified in California as meeting California [standards](/usc/42/1320d.md?p=7), or to take any action of any kind to create, or have the effect of creating, a [motor vehicle](/usc/42/13211.md?p=13) or [motor vehicle](/usc/42/13211.md?p=13) engine different than a [motor vehicle](/usc/42/13211.md?p=13) or engine certified in California under California [standards](/usc/42/1320d.md?p=7) (a “third vehicle”) or otherwise create such a “third vehicle”.
# §7508. Guidance documents
The [Administrator](/usc/42/7602.md?p=a) shall issue guidance documents under [section 7408 of this title](/usc/42/7408.md) for purposes of assisting [States](/usc/42/7602.md?p=d) in implementing requirements of this part respecting the [lowest achievable emission rate](/usc/42/7501.md?p=3). Such a document shall be published not later than nine months after August 7, 1977, and shall be revised at least every two years thereafter.
# §7509. Sanctions and consequences of failure to attain
- (a) **State failure—** For any implementation plan or plan revision required under this part (or required in response to a finding of substantial inadequacy as described in [section 7410(k)(5) of this title](/usc/42/7410.md?p=k-5)), if the [Administrator](/usc/42/7602.md?p=a)—
- (1) finds that a [State](/usc/42/7602.md?p=d) has failed, for an area designated nonattainment under [section 7407(d) of this title](/usc/42/7407.md?p=d), to submit a plan, or to submit 1 or more of the elements (as determined by the [Administrator](/usc/42/7602.md?p=a)) required by the provisions of this chapter applicable to such an area, or has failed to make a submission for such an area that satisfies the minimum criteria established in relation to any such element under [section 7410(k) of this title](/usc/42/7410.md?p=k),
- (2) disapproves a submission under [section 7410(k) of this title](/usc/42/7410.md?p=k), for an area designated nonattainment under [section 7407 of this title](/usc/42/7407.md), based on the submission’s failure to meet one or more of the elements required by the provisions of this chapter applicable to such an area,
- (3)
- (A) determines that a [State](/usc/42/7602.md?p=d) has failed to make any submission as may be required under this chapter, other than one described under paragraph [(1)](#a-1) or [(2)](#a-2), including an adequate maintenance plan, or has failed to make any submission, as may be required under this chapter, other than one described under paragraph [(1)](#a-1) or [(2)](#a-2), that satisfies the minimum criteria established in relation to such submission under [section 7410(k)(1)(A) of this title](/usc/42/7410.md?p=k-1-A), or
- (B) disapproves in whole or in part a submission described under [subparagraph (A)](#a-3-A), or
- (4) finds that any requirement of an approved plan (or approved part of a plan) is not being implemented,
unless such deficiency has been corrected within 18 months after the finding, disapproval, or determination referred to in paragraphs [(1)](#a-1), [(2)](#a-2), [(3)](#a-3), and [(4)](#a-4), one of the sanctions referred to in [subsection (b)](#b) shall apply, as selected by the [Administrator](/usc/42/7602.md?p=a), until the [Administrator](/usc/42/7602.md?p=a) determines that the [State](/usc/42/7602.md?p=d) has come into compliance, except that if the [Administrator](/usc/42/7602.md?p=a) finds a lack of good faith, sanctions under both [paragraph (1)](#a-1) and [paragraph (2)](#b-2) of subsection (b) shall apply until the [Administrator](/usc/42/7602.md?p=a) determines that the [State](/usc/42/7602.md?p=d) has come into compliance. If the [Administrator](/usc/42/7602.md?p=a) has selected one of such sanctions and the deficiency has not been corrected within 6 months thereafter, sanctions under both [paragraph (1)](#a-1) and [paragraph (2)](#b-2) of subsection (b) shall apply until the [Administrator](/usc/42/7602.md?p=a) determines that the [State](/usc/42/7602.md?p=d) has come into compliance. In addition to any other sanction applicable as provided in this section, the [Administrator](/usc/42/7602.md?p=a) may withhold all or part of the grants for support of air pollution planning and control [programs](/usc/42/274l–1.md?p=4) that the [Administrator](/usc/42/7602.md?p=a) may award under [section 7405 of this title](/usc/42/7405.md).
- (b) **Sanctions—** The sanctions available to the [Administrator](/usc/42/7602.md?p=a) as provided in [subsection (a)](#a) are as follows:
- (1) **Highway sanctions—**
- (A) The [Administrator](/usc/42/7602.md?p=a) may impose a prohibition, applicable to a [nonattainment area](/usc/42/7501.md?p=2), on the approval by the [Secretary](/usc/42/242q–4.md?p=2) of Transportation of any [projects](/usc/42/11360.md?p=20) or the awarding by the [Secretary](/usc/42/242q–4.md?p=2) of any grants, under [title 23](/usc/23.md) other than [projects](/usc/42/11360.md?p=20) or grants for safety where the [Secretary](/usc/42/242q–4.md?p=2) determines, based on accident or other appropriate data submitted by the [State](/usc/42/7602.md?p=d), that the principal purpose of the [project](/usc/42/11360.md?p=20) is an improvement in safety to resolve a demonstrated safety problem and likely will result in a significant reduction in, or avoidance of, accidents. Such prohibition shall become effective upon the selection by the [Administrator](/usc/42/7602.md?p=a) of this sanction.
- (B) In addition to safety, [projects](/usc/42/11360.md?p=20) or grants that may be approved by the [Secretary](/usc/42/242q–4.md?p=2), notwithstanding the prohibition in [subparagraph (A)](#b-1-A), are the following—
- (i) capital [programs](/usc/42/274l–1.md?p=4) for public transit;
- (ii) [construction](/usc/42/7479.md?p=2-C) or restriction of certain roads or lanes solely for the use of passenger buses or high occupancy vehicles;
- (iii) planning for requirements for employers to reduce [employee](/usc/42/1320a–7h.md?p=e-7) work-trip-related vehicle emissions;
- (iv) highway ramp metering, traffic signalization, and related [programs](/usc/42/274l–1.md?p=4) that improve traffic flow and achieve a net emission reduction;
- (v) fringe and transportation corridor parking [facilities](/usc/42/11049.md?p=4) serving multiple occupancy vehicle [programs](/usc/42/274l–1.md?p=4) or transit operations;
- (vi) [programs](/usc/42/274l–1.md?p=4) to limit or restrict vehicle use in downtown areas or other areas of emission concentration particularly during periods of peak use, through road use charges, tolls, parking surcharges, or other pricing mechanisms, vehicle restricted zones or periods, or vehicle registration [programs](/usc/42/274l–1.md?p=4);
- (vii) [programs](/usc/42/274l–1.md?p=4) for breakdown and accident scene management, nonrecurring congestion, and vehicle information systems, to reduce congestion and emissions; and
- (viii) such other transportation-related [programs](/usc/42/274l–1.md?p=4) as the [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of Transportation, finds would improve air quality and would not encourage [single](/usc/42/2304.md?p=m) occupancy vehicle capacity.
In considering such measures, the [State](/usc/42/7602.md?p=d) should seek to ensure adequate access to downtown, other commercial, and residential areas, and avoid increasing or relocating emissions and congestion rather than reducing them.
- (2) **Offsets—** In applying the emissions offset requirements of [section 7503 of this title](/usc/42/7503.md) to new or [modified](/usc/42/7501.md?p=4) sources or emissions [units](/usc/42/1395w–114b.md?p=g-2) for which a permit is required under this part, the ratio of emission reductions to increased emissions shall be at least 2 to 1.
- (c) **Notice of failure to attain—**
- (1) As expeditiously as practicable after the applicable attainment date for any [nonattainment area](/usc/42/7501.md?p=2), but not later than 6 months after such date, the [Administrator](/usc/42/7602.md?p=a) shall determine, based on the area’s air quality as of the attainment date, whether the area attained the [standard](/usc/42/1320d.md?p=7) by that date.
- (2) Upon making the determination under [paragraph (1)](#c-1), the [Administrator](/usc/42/7602.md?p=a) shall publish a notice in the Federal Register containing such determination and identifying each area that the [Administrator](/usc/42/7602.md?p=a) has determined to have failed to attain. The [Administrator](/usc/42/7602.md?p=a) may revise or supplement such determination at any time based on more complete information or analysis concerning the area’s air quality as of the attainment date.
- (d) **Consequences for failure to attain—**
- (1) Within 1 year after the [Administrator](/usc/42/7602.md?p=a) publishes the notice under [subsection (c)(2)](#c-2) (relating to notice of failure to attain), each [State](/usc/42/7602.md?p=d) containing a [nonattainment area](/usc/42/7501.md?p=2) shall submit a revision to the [applicable implementation plan](/usc/42/7602.md?p=q) meeting the requirements of paragraph (2) of this subsection.
- (2) The revision required under [paragraph (1)](#d-1) shall meet the requirements of [section 7410 of this title](/usc/42/7410.md) and [section 7502 of this title](/usc/42/7502.md). In addition, the revision shall include such additional measures as the [Administrator](/usc/42/7602.md?p=a) may reasonably prescribe, including all measures that can be feasibly implemented in the area in light of technological achievability, costs, and any nonair quality and other air quality-related health and environmental impacts.
- (3) The attainment date applicable to the revision required under [paragraph (1)](#d-1) shall be the same as provided in the provisions of [section 7502(a)(2) of this title](/usc/42/7502.md?p=a-2), except that in applying such provisions the phrase “from the date of the notice under [section 7509(c)(2) of this title](#c-2)” shall be substituted for the phrase “from the date such area was designated nonattainment under [section 7407(d) of this title](/usc/42/7407.md?p=d)” and for the phrase “from the date of designation as nonattainment”.
# §7509a. International border areas
- (a) **Implementation plans and revisions—** Notwithstanding any other provision of law, an implementation plan or plan revision required under this chapter shall be approved by the [Administrator](/usc/42/7602.md?p=a) if—
- (1) such plan or revision meets all the requirements applicable to it under the[^1] chapter other than a requirement that such plan or revision demonstrate attainment and maintenance of the relevant national ambient air quality [standards](/usc/42/1320d.md?p=7) by the attainment date specified under the applicable provision of this chapter, or in a regulation promulgated under such provision, and
- (2) the submitting [State](/usc/42/7602.md?p=d) establishes to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that the implementation plan of such [State](/usc/42/7602.md?p=d) would be adequate to attain and maintain the relevant national ambient air quality [standards](/usc/42/1320d.md?p=7) by the attainment date specified under the applicable provision of this chapter, or in a regulation promulgated under such provision, but for emissions emanating from outside of the [United States](/usc/42/403.md?p=k).
- (b) **Attainment of ozone levels—** Notwithstanding any other provision of law, any [State](/usc/42/7602.md?p=d) that establishes to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that, with respect to an ozone [nonattainment area](/usc/42/7501.md?p=2) in such [State](/usc/42/7602.md?p=d), such [State](/usc/42/7602.md?p=d) would have attained the national ambient air quality [standard](/usc/42/1320d.md?p=7) for ozone by the applicable attainment date, but for emissions emanating from outside of the [United States](/usc/42/403.md?p=k), shall not be subject to the provisions of section [7511(a)(2)](/usc/42/7511.md?p=a-2) or [(5)](/usc/42/7511.md?p=a-5) of this title or [section 7511d of this title](/usc/42/7511d.md).
- (c) **Attainment of carbon monoxide levels—** Notwithstanding any other provision of law, any [State](/usc/42/7602.md?p=d) that establishes to the satisfaction of the [Administrator](/usc/42/7602.md?p=a), with respect to a carbon monoxide [nonattainment area](/usc/42/7501.md?p=2) in such [State](/usc/42/7602.md?p=d), that such [State](/usc/42/7602.md?p=d) has attained the national ambient air quality [standard](/usc/42/1320d.md?p=7) for carbon monoxide by the applicable attainment date, but for emissions emanating from outside of the [United States](/usc/42/403.md?p=k), shall not be subject to the provisions of section [7512(b)(2)](/usc/42/7512.md?p=b-2) or [(9)](/usc/42/7512.md)[^2] of this title.
- (d) **Attainment of PM–10 levels—** Notwithstanding any other provision of law, any [State](/usc/42/7602.md?p=d) that establishes to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that, with respect to a [PM–10](/usc/42/7602.md?p=t) [nonattainment area](/usc/42/7501.md?p=2) in such [State](/usc/42/7602.md?p=d), such [State](/usc/42/7602.md?p=d) would have attained the national ambient air quality [standard](/usc/42/1320d.md?p=7) for carbon monoxide by the applicable attainment date, but for emissions emanating from outside the [United States](/usc/42/403.md?p=k), shall not be subject to the provisions of [section 7513(b)(2) of this title](/usc/42/7513.md?p=b-2).
# §7511. Classifications and attainment dates
- (a) **Classification and attainment dates for 1989 nonattainment areas—**
- (1) Each area designated nonattainment for ozone pursuant to [section 7407(d) of this title](/usc/42/7407.md?p=d) shall be classified at the time of such designation, under table 1, by operation of law, as a Marginal Area, a Moderate Area, a Serious Area, a Severe Area, or an Extreme Area based on the design value for the area. The design value shall be calculated according to the interpretation methodology issued by the [Administrator](/usc/42/7602.md?p=a) most recently before November 15, 1990. For each area classified under this subsection, the [primary standard attainment date](/usc/42/7602.md?p=n) for ozone shall be as expeditiously as practicable but not later than the date provided in table 1.
| TABLE 1 | | |
| --- | --- | --- |
| Area class | Design value* | Primary [standard](/usc/42/1320d.md?p=7)
attainment date** |
| Marginal | 0.121 up to 0.138 | 3 years after November 15, 1990 |
| Moderate | 0.138 up to 0.160 | 6 years after November 15, 1990 |
| Serious | 0.160 up to 0.180 | 9 years after November 15, 1990 |
| Severe | 0.180 up to 0.280 | 15 years after November 15, 1990 |
| Extreme | 0.280 and above | 20 years after November 15, 1990 |
| *The design value is measured in parts per million (ppm). | | |
| **The [primary standard attainment date](/usc/42/7602.md?p=n) is measured from November 15, 1990. | | |
- (2) Notwithstanding table 1, in the case of a severe area with a 1988 ozone design value between 0.190 and 0.280 ppm, the attainment date shall be 17 years (in lieu of 15 years) after November 15, 1990.
- (3) At the time of publication of the notice under [section 7407(d)(4) of this title](/usc/42/7407.md?p=d-4) (relating to area designations) for each ozone [nonattainment area](/usc/42/7501.md?p=2), the [Administrator](/usc/42/7602.md?p=a) shall publish a notice announcing the classification of such ozone [nonattainment area](/usc/42/7501.md?p=2). The provisions of [section 7502(a)(1)(B) of this title](/usc/42/7502.md?p=a-1-B) (relating to lack of notice and comment and judicial review) shall apply to such classification.
- (4) If an area classified under [paragraph (1)](#a-1) (Table 1) would have been classified in another [category](/usc/42/1395w–4.md?p=j-1) if the design value in the area were 5 percent greater or 5 percent less than the level on which such classification was based, the [Administrator](/usc/42/7602.md?p=a) may, in the [Administrator](/usc/42/7602.md?p=a)’s discretion, within 90 days after the initial classification, by the procedure required under [paragraph (3)](#a-3), adjust the classification to place the area in such other [category](/usc/42/1395w–4.md?p=j-1). In making such adjustment, the [Administrator](/usc/42/7602.md?p=a) may consider the number of exceedances of the national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for ozone in the area, the level of pollution transport between the area and other affected areas, including both intrastate and interstate transport, and the mix of sources and [air pollutants](/usc/42/7602.md?p=g) in the area.
- (5) Upon application by any [State](/usc/42/7602.md?p=d), the [Administrator](/usc/42/7602.md?p=a) may extend for 1 additional year (hereinafter referred to as the “Extension Year”) the date specified in table 1 of paragraph (1) of this subsection if—
- (A) the [State](/usc/42/7602.md?p=d) has complied with all requirements and commitments pertaining to the area in the [applicable implementation plan](/usc/42/7602.md?p=q), and
- (B) no more than 1 exceedance of the national ambient air quality [standard](/usc/42/1320d.md?p=7) level for ozone has occurred in the area in the year preceding the Extension Year.
No more than 2 one-year extensions may be issued under this paragraph for a [single](/usc/42/2304.md?p=m) [nonattainment area](/usc/42/7501.md?p=2).
- (b) **New designations and reclassifications—**
- (1) **New designations to nonattainment—** Any area that is designated attainment or unclassifiable for ozone under [section 7407(d)(4) of this title](/usc/42/7407.md?p=d-4), and that is subsequently redesignated to nonattainment for ozone under [section 7407(d)(3) of this title](/usc/42/7407.md?p=d-3), shall, at the time of the redesignation, be classified by operation of law in accordance with table 1 under [subsection (a)](#a). Upon its classification, the area shall be subject to the same requirements under [section 7410 of this title](/usc/42/7410.md), subpart 1 of this part, and this subpart that would have applied had the area been so classified at the time of the notice under [subsection (a)(3)](#a-3), except that any absolute, fixed date applicable in connection with any such requirement is extended by operation of law by a period equal to the length of time between November 15, 1990, and the date the area is classified under this paragraph.
- (2) **Reclassification upon failure to attain—**
- (A) Within 6 months following the applicable attainment date (including any extension thereof) for an ozone [nonattainment area](/usc/42/7501.md?p=2), the [Administrator](/usc/42/7602.md?p=a) shall determine, based on the area’s design value (as of the attainment date), whether the area attained the [standard](/usc/42/1320d.md?p=7) by that date. Except for any Severe or Extreme area, any area that the [Administrator](/usc/42/7602.md?p=a) finds has not attained the [standard](/usc/42/1320d.md?p=7) by that date shall be reclassified by operation of law in accordance with table 1 of [subsection (a)](#a) to the higher of—
- (i) the next higher classification for the area, or
- (ii) the classification applicable to the area’s design value as determined at the time of the notice required under [subparagraph (B)](#b-B).
No area shall be reclassified as Extreme under clause (ii).
- (B) The [Administrator](/usc/42/7602.md?p=a) shall publish a notice in the Federal Register, no later than 6 months following the attainment date, identifying each area that the [Administrator](/usc/42/7602.md?p=a) has determined under subparagraph (A) as having failed to attain and identifying the reclassification, if any, described under subparagraph (A).
- (3) **Voluntary reclassification—** The [Administrator](/usc/42/7602.md?p=a) shall grant the request of any [State](/usc/42/7602.md?p=d) to reclassify a [nonattainment area](/usc/42/7501.md?p=2) in that [State](/usc/42/7602.md?p=d) in accordance with table 1 of [subsection (a)](#a) to a higher classification. The [Administrator](/usc/42/7602.md?p=a) shall publish a notice in the Federal Register of any such request and of action by the [Administrator](/usc/42/7602.md?p=a) granting the request.
- (4) **Failure of Severe Areas to attain standard—**
- (A) If any Severe Area fails to achieve the national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for ozone by the applicable attainment date (including any extension thereof), the fee provisions under [section 7511d of this title](/usc/42/7511d.md) shall apply within the area, the percent reduction requirements of section [7511a(c)(2)(B)](/usc/42/7511a.md?p=c-2-B) and [(C)](/usc/42/7511a.md?p=c-2-C) of this title (relating to [reasonable further progress](/usc/42/7501.md?p=1) demonstration and NOx control) shall continue to apply to the area, and the [State](/usc/42/7602.md?p=d) shall demonstrate that such percent reduction has been achieved in each 3-year interval after such failure until the [standard](/usc/42/1320d.md?p=7) is attained. Any failure to make such a demonstration shall be subject to the sanctions provided under this part.
- (B) In addition to the requirements of [subparagraph (A)](#b-4-A), if the ozone design value for a Severe Area referred to in [subparagraph (A)](#b-4-A) is above 0.140 ppm for the year of the applicable attainment date, or if the area has failed to achieve its most recent milestone under [section 7511a(g) of this title](/usc/42/7511a.md?p=g), the new source review requirements applicable under this subpart in Extreme Areas shall apply in the area and the term[^1] “[major source](/usc/42/7511a.md?p=b-1-A-ii-I)” and “[major stationary source](/usc/42/7602.md?p=j)” shall have the same meaning as in Extreme Areas.
- (C) In addition to the requirements of [subparagraph (A)](#b-4-A) for those areas referred to in [subparagraph (A)](#b-4-A) and not covered by [subparagraph (B)](#b-4-B), the provisions referred to in [subparagraph (B)](#b-4-B) shall apply after 3 years from the applicable attainment date unless the area has attained the [standard](/usc/42/1320d.md?p=7) by the end of such 3-year period.
- (D) If, after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) modifies the method of determining compliance with the national primary ambient air quality [standard](/usc/42/1320d.md?p=7), a design value or other indicator comparable to 0.140 in terms of its relationship to the [standard](/usc/42/1320d.md?p=7) shall be used in lieu of 0.140 for purposes of applying the provisions of subparagraphs [(B)](#b-4-B) and [(C)](#b-4-C).
- (c) **References to terms—**
- (1) Any reference in this subpart to a “Marginal Area”, a “Moderate Area”, a “Serious Area”, a “Severe Area”, or an “Extreme Area” shall be considered a reference to a Marginal Area, a Moderate Area, a Serious Area, a Severe Area, or an Extreme Area as respectively classified under this section.
- (2) Any reference in this subpart to “next higher classification” or comparable terms shall be considered a reference to the classification related to the next higher set of design values in table 1.
# §7511a. Plan submissions and requirements
- (a) **Marginal Areas—** Each [State](/usc/42/7602.md?p=d) in which all or part of a Marginal Area is located shall, with respect to the Marginal Area (or portion thereof, to the extent specified in this subsection), submit to the [Administrator](/usc/42/7602.md?p=a) the [State](/usc/42/7602.md?p=d) implementation plan revisions (including the plan items) described under this subsection except to the extent the [State](/usc/42/7602.md?p=d) has made such submissions as of November 15, 1990.
- (1) **Inventory—** Within 2 years after November 15, 1990, the [State](/usc/42/7602.md?p=d) shall submit a comprehensive, accurate, current [inventory](/usc/42/4370m.md?p=14) of actual emissions from all sources, as described in [section 7502(c)(3) of this title](/usc/42/7502.md?p=c-3), in accordance with guidance provided by the [Administrator](/usc/42/7602.md?p=a).
- (2) **Corrections to the State implementation plan—** Within the periods prescribed in this paragraph, the [State](/usc/42/7602.md?p=d) shall submit a revision to the [State](/usc/42/7602.md?p=d) implementation plan that meets the following requirements—
- (A) **Reasonably available control technology corrections—** For any Marginal Area (or, within the [Administrator](/usc/42/7602.md?p=a)’s discretion, portion thereof) the [State](/usc/42/7602.md?p=d) shall submit, within 6 months of the date of classification under [section 7511(a) of this title](/usc/42/7511.md?p=a), a revision that includes such provisions to correct requirements in (or add requirements to) the plan concerning reasonably available control technology as were required under [section 7502(b) of this title](/usc/42/7502.md?p=b) (as in effect immediately before November 15, 1990), as interpreted in guidance issued by the [Administrator](/usc/42/7602.md?p=a) under [section 7408 of this title](/usc/42/7408.md) before November 15, 1990.
- (B) **Savings clause for vehicle inspection and maintenance—**
- (i) For any Marginal Area (or, within the [Administrator](/usc/42/7602.md?p=a)’s discretion, portion thereof), the plan for which already includes, or was required by [section 7502(b)(11)(B) of this title](/usc/42/7502.md) (as in effect immediately before November 15, 1990) to have included, a specific schedule for implementation of a vehicle emission control [inspection](/usc/42/4851b.md?p=12) and maintenance [program](/usc/42/274l–1.md?p=4), the [State](/usc/42/7602.md?p=d) shall submit, immediately after November 15, 1990, a revision that includes any provisions necessary to provide for a vehicle [inspection](/usc/42/4851b.md?p=12) and maintenance [program](/usc/42/274l–1.md?p=4) of no less stringency than that of either the [program](/usc/42/274l–1.md?p=4) defined in House Report Numbered 95–294, 95th Congress, 1st Session, 281–291 (1977) as interpreted in guidance of the [Administrator](/usc/42/7602.md?p=a) issued pursuant to [section 7502(b)(11)(B) of this title](/usc/42/7502.md) (as in effect immediately before November 15, 1990) or the [program](/usc/42/274l–1.md?p=4) already included in the plan, whichever is more stringent.
- (ii) Within 12 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall review, revise, update, and republish in the Federal Register the guidance for the [States](/usc/42/7602.md?p=d) for [motor vehicle](/usc/42/13211.md?p=13) [inspection](/usc/42/4851b.md?p=12) and maintenance [programs](/usc/42/274l–1.md?p=4) required by this chapter, taking into consideration the [Administrator](/usc/42/7602.md?p=a)’s investigations and audits of such [program](/usc/42/274l–1.md?p=4). The guidance shall, at a minimum, cover the frequency of [inspections](/usc/42/4851b.md?p=12), the types of vehicles to be inspected (which shall include leased vehicles that are registered in the [nonattainment area](/usc/42/7501.md?p=2)), vehicle maintenance by [owners](/usc/42/13641.md?p=4) and operators, audits by the [State](/usc/42/7602.md?p=d), the test method and measures, including whether centralized or decentralized, [inspection](/usc/42/4851b.md?p=12) methods and procedures, quality of [inspection](/usc/42/4851b.md?p=12), components covered, assurance that a vehicle subject to a recall notice from a [manufacturer](/usc/42/300aa–33.md?p=3) has complied with that notice, and effective implementation and enforcement, including ensuring that any retesting of a vehicle after a failure shall include proof of corrective action and providing for denial of vehicle registration in the case of tampering or misfueling. The guidance which shall be incorporated in the applicable [State](/usc/42/7602.md?p=d) implementation plans by the [States](/usc/42/7602.md?p=d) shall provide the [States](/usc/42/7602.md?p=d) with continued reasonable flexibility to fashion effective, reasonable, and fair [programs](/usc/42/274l–1.md?p=4) for the affected consumer. No later than 2 years after the [Administrator](/usc/42/7602.md?p=a) promulgates regulations under [section 7521(m)(3) of this title](/usc/42/7521.md?p=m-3) (relating to emission control diagnostics), the [State](/usc/42/7602.md?p=d) shall submit a revision to such [program](/usc/42/274l–1.md?p=4) to meet any requirements that the [Administrator](/usc/42/7602.md?p=a) may prescribe under that section.
- (C) **Permit programs—** Within 2 years after November 15, 1990, the [State](/usc/42/7602.md?p=d) shall submit a revision that includes each of the following:
- (i) Provisions to require permits, in accordance with sections [7502(c)(5)](/usc/42/7502.md?p=c-5) and [7503](/usc/42/7503.md) of this title, for the [construction](/usc/42/7479.md?p=2-C) and operation of each new or [modified](/usc/42/7501.md?p=4) [major stationary source](/usc/42/7602.md?p=j) (with respect to ozone) to be located in the area.
- (ii) Provisions to correct requirements in (or add requirements to) the plan concerning permit [programs](/usc/42/274l–1.md?p=4) as were required under [section 7502(b)(6) of this title](/usc/42/7502.md) (as in effect immediately before November 15, 1990), as interpreted in regulations of the [Administrator](/usc/42/7602.md?p=a) promulgated as of November 15, 1990.
- (3) **Periodic inventory—**
- (A) **General requirement—** No later than the end of each 3-year period after submission of the [inventory](/usc/42/4370m.md?p=14) under [paragraph (1)](#a-1) until the area is redesignated to attainment, the [State](/usc/42/7602.md?p=d) shall submit a revised [inventory](/usc/42/4370m.md?p=14) meeting the requirements of [subsection (a)(1)](#a-1).
- (B) **Emissions statements—**
- (i) Within 2 years after November 15, 1990, the [State](/usc/42/7602.md?p=d) shall submit a revision to the [State](/usc/42/7602.md?p=d) implementation plan to require that the [owner or operator](/usc/42/9601.md?p=20-B) of each [stationary source](/usc/42/7411.md?p=a-3) of oxides of nitrogen or volatile organic compounds provide the [State](/usc/42/7602.md?p=d) with a statement, in such form as the [Administrator](/usc/42/7602.md?p=a) may prescribe (or accept an equivalent alternative developed by the [State](/usc/42/7602.md?p=d)), for classes or [categories](/usc/42/1395w–4.md?p=j-1) of sources, showing the actual emissions of oxides of nitrogen and volatile organic compounds from that source. The first such statement shall be submitted within 3 years after November 15, 1990. Subsequent statements shall be submitted at least every year thereafter. The statement shall contain a certification that the information contained in the statement is accurate to the best knowledge of the individual certifying the statement.
- (ii) The [State](/usc/42/7602.md?p=d) may waive the application of [clause (i)](#a-3-B-i) to any class or [category](/usc/42/1395w–4.md?p=j-1) of [stationary sources](/usc/42/7411.md?p=a-3) which emit less than 25 tons per year of volatile organic compounds or oxides of nitrogen if the [State](/usc/42/7602.md?p=d), in its submissions under subparagraphs[^1] (1) or (3)(A), provides an [inventory](/usc/42/4370m.md?p=14) of emissions from such class or [category](/usc/42/1395w–4.md?p=j-1) of sources, based on the use of the emission factors established by the [Administrator](/usc/42/7602.md?p=a) or other methods acceptable to the [Administrator](/usc/42/7602.md?p=a).
- (4) **General offset requirement—** For purposes of satisfying the emission offset requirements of this part, the ratio of total emission reductions of volatile organic compounds to total increased emissions of such [air pollutant](/usc/42/7602.md?p=g) shall be at least 1.1 to 1.
The [Administrator](/usc/42/7602.md?p=a) may, in the [Administrator](/usc/42/7602.md?p=a)’s discretion, require [States](/usc/42/7602.md?p=d) to submit a schedule for submitting any of the revisions or other items required under this subsection. The requirements of this subsection shall apply in lieu of any requirement that the [State](/usc/42/7602.md?p=d) submit a demonstration that the [applicable implementation plan](/usc/42/7602.md?p=q) provides for attainment of the ozone [standard](/usc/42/1320d.md?p=7) by the applicable attainment date in any Marginal Area. [Section 7502(c)(9) of this title](/usc/42/7502.md?p=c-9) (relating to contingency measures) shall not apply to Marginal Areas.
- (b) **Moderate Areas—** Each [State](/usc/42/7602.md?p=d) in which all or part of a Moderate Area is located shall, with respect to the Moderate Area, make the submissions described under [subsection (a)](#a) of this section (relating to Marginal Areas), and shall also submit the revisions to the [applicable implementation plan](/usc/42/7602.md?p=q) described under this subsection.
- (1) **Plan provisions for reasonable further progress—**
- (A) **General rule—**
- (i) By no later than 3 years after November 15, 1990, the [State](/usc/42/7602.md?p=d) shall submit a revision to the [applicable implementation plan](/usc/42/7602.md?p=q) to provide for volatile organic compound emission reductions, within 6 years after November 15, 1990, of at least 15 percent from [baseline emissions](#b-1-B), accounting for any growth in emissions after 1990. Such plan shall provide for such specific annual reductions in emissions of volatile organic compounds and oxides of nitrogen as necessary to attain the national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for ozone by the attainment date applicable under this chapter. This subparagraph shall not apply in the case of oxides of nitrogen for those areas for which the [Administrator](/usc/42/7602.md?p=a) determines (when the [Administrator](/usc/42/7602.md?p=a) approves the plan or plan revision) that additional reductions of oxides of nitrogen would not contribute to attainment.
- (ii) A percentage less than 15 percent may be used for purposes of [clause (i)](#b-1-A-i) in the case of any [State](/usc/42/7602.md?p=d) which demonstrates to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that—
- (I) new source review provisions are applicable in the [nonattainment areas](/usc/42/7501.md?p=2) in the same manner and to the same extent as required under [subsection (e)](#e) in the case of Extreme Areas (with the exception that, in applying such provisions, the terms “major source” and “[major stationary source](/usc/42/7602.md?p=j)” shall include (in addition to the sources described in [section 7602 of this title](/usc/42/7602.md)) any [stationary source](/usc/42/7411.md?p=a-3) or group of sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 5 tons per year of volatile organic compounds);
- (II) reasonably available control technology is required for all existing [major sources](#b-1-A-ii-I) (as defined in [subclause (I)](#b-1-A-ii-I)); and
- (III) the plan reflecting a lesser percentage than 15 percent includes all measures that can feasibly be implemented in the area, in light of technological achievability.
To qualify for a lesser percentage under this clause, a [State](/usc/42/7602.md?p=d) must demonstrate to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that the plan for the area includes the measures that are achieved in practice by sources in the same source [category](/usc/42/1395w–4.md?p=j-1) in [nonattainment areas](/usc/42/7501.md?p=2) of the next higher [category](/usc/42/1395w–4.md?p=j-1).
- (B) **Baseline emissions—** For purposes of [subparagraph (A)](#b-1-A), the term “baseline emissions” means the total amount of actual [VOC](/usc/42/7602.md?p=s) or NOx emissions from all anthropogenic sources in the area during the calendar year 1990, excluding emissions that would be eliminated under the regulations described in clauses [(i)](#b-1-D-i) and [(ii)](#b-1-D-ii) of subparagraph (D).
- (C) **General rule for creditability of reductions—** Except as provided under [subparagraph (D)](#b-1-D), [emissions reductions](/usc/42/17114.md?p=a-3) are creditable toward the 15 percent required under [subparagraph (A)](#b-1-A) to the extent they have actually occurred, as of 6 years after November 15, 1990, from the implementation of measures required under the [applicable implementation plan](/usc/42/7602.md?p=q), rules promulgated by the [Administrator](/usc/42/7602.md?p=a), or a permit under subchapter V.
- (D) **Limits on creditability of reductions—** Emission reductions from the following measures are not creditable toward the 15 percent reductions required under [subparagraph (A)](#b-1-A):
- (i) Any measure relating to [motor vehicle](/usc/42/13211.md?p=13) exhaust or evaporative emissions promulgated by the [Administrator](/usc/42/7602.md?p=a) by January 1, 1990.
- (ii) Regulations concerning Reid Vapor Pressure promulgated by the [Administrator](/usc/42/7602.md?p=a) by November 15, 1990, or required to be promulgated under [section 7545(h) of this title](/usc/42/7545.md?p=h).
- (iii) Measures required under [subsection (a)(2)(A)](#a-2-A) (concerning corrections to implementation plans prescribed under guidance by the [Administrator](/usc/42/7602.md?p=a)).
- (iv) Measures required under [subsection (a)(2)(B)](#a-2-B) to be submitted immediately after November 15, 1990 (concerning corrections to [motor vehicle](/usc/42/13211.md?p=13) [inspection](/usc/42/4851b.md?p=12) and maintenance [programs](/usc/42/274l–1.md?p=4)).
- (2) **Reasonably available control technology—** The [State](/usc/42/7602.md?p=d) shall submit a revision to the [applicable implementation plan](/usc/42/7602.md?p=q) to include provisions to require the implementation of reasonably available control technology under [section 7502(c)(1) of this title](/usc/42/7502.md?p=c-1) with respect to each of the following:
- (A) Each [category](/usc/42/1395w–4.md?p=j-1) of [VOC](/usc/42/7602.md?p=s) sources in the area covered by a [CTG](/usc/42/7602.md?p=u) document issued by the [Administrator](/usc/42/7602.md?p=a) between November 15, 1990, and the date of attainment.
- (B) All [VOC](/usc/42/7602.md?p=s) sources in the area covered by any [CTG](/usc/42/7602.md?p=u) issued before November 15, 1990.
- (C) All other [major stationary sources](/usc/42/7602.md?p=j) of [VOCs](/usc/42/7602.md?p=s) that are located in the area.
Each revision described in [subparagraph (A)](#b-2-A) shall be submitted within the period set forth by the [Administrator](/usc/42/7602.md?p=a) in issuing the relevant [CTG](/usc/42/7602.md?p=u) document. The revisions with respect to sources described in subparagraphs [(B)](#b-2-B) and [(C)](#b-2-C) shall be submitted by 2 years after November 15, 1990, and shall provide for the implementation of the required measures as expeditiously as practicable but no later than May 31, 1995.
- (3) **Gasoline vapor recovery—**
- (A) **General rule—** Not later than 2 years after November 15, 1990, the [State](/usc/42/7602.md?p=d) shall submit a revision to the [applicable implementation plan](/usc/42/7602.md?p=q) to require all [owners](/usc/42/13641.md?p=4) or operators of gasoline dispensing systems to install and operate, by the date prescribed under [subparagraph (B)](#b-3-B), a system for gasoline vapor recovery of emissions from the fueling of [motor vehicles](/usc/42/13211.md?p=13). The [Administrator](/usc/42/7602.md?p=a) shall issue guidance as appropriate as to the effectiveness of such system. This subparagraph shall apply only to [facilities](/usc/42/11049.md?p=4) which sell more than 10,000 gallons of gasoline per month (50,000 gallons per month in the case of an independent small business marketer of gasoline as defined in [section 7625–1](/usc/42/7625–1.md)[^2] of this title).
- (B) **Effective date—** The date required under [subparagraph (A)](#b-3-A) shall be—
- (i) 6 months after the [adoption date](#b-3-C), in the case of gasoline dispensing [facilities](/usc/42/11049.md?p=4) for which [construction](/usc/42/7479.md?p=2-C) commenced after November 15, 1990;
- (ii) one year after the [adoption date](#b-3-C), in the case of gasoline dispensing [facilities](/usc/42/11049.md?p=4) which dispense at least 100,000 gallons of gasoline per month, based on average monthly sales for the 2-year period before the [adoption date](#b-3-C); or
- (iii) 2 years after the [adoption date](#b-3-C), in the case of all other gasoline dispensing [facilities](/usc/42/11049.md?p=4).
Any gasoline dispensing [facility](/usc/42/11049.md?p=4) described under both [clause (i)](#b-3-B-i) and [clause (ii)](#b-3-B-ii) shall meet the requirements of [clause (i)](#b-3-B-i).
- (C) **Reference to terms—** For purposes of this paragraph, any reference to the term “adoption date” shall be considered a reference to the date of adoption by the [State](/usc/42/7602.md?p=d) of requirements for the installation and operation of a system for gasoline vapor recovery of emissions from the fueling of [motor vehicles](/usc/42/13211.md?p=13).
- (4) **Motor vehicle inspection and maintenance—** For all Moderate Areas, the [State](/usc/42/7602.md?p=d) shall submit, immediately after November 15, 1990, a revision to the [applicable implementation plan](/usc/42/7602.md?p=q) that includes provisions necessary to provide for a vehicle [inspection](/usc/42/4851b.md?p=12) and maintenance [program](/usc/42/274l–1.md?p=4) as described in [subsection (a)(2)(B)](#a-2-B) (without regard to whether or not the area was required by [section 7502(b)(11)(B) of this title](/usc/42/7502.md) (as in effect immediately before November 15, 1990) to have included a specific schedule for implementation of such a [program](/usc/42/274l–1.md?p=4)).
- (5) **General offset requirement—** For purposes of satisfying the emission offset requirements of this part, the ratio of total emission reductions of volatile organic compounds to total increase[^3] emissions of such [air pollutant](/usc/42/7602.md?p=g) shall be at least 1.15 to 1.
- (c) **Serious Areas—** Except as otherwise specified in [paragraph (4)](#c-4), each [State](/usc/42/7602.md?p=d) in which all or part of a Serious Area is located shall, with respect to the Serious Area (or portion thereof, to the extent specified in this subsection), make the submissions described under [subsection (b)](#b) (relating to Moderate Areas), and shall also submit the revisions to the [applicable implementation plan](/usc/42/7602.md?p=q) (including the plan items) described under this subsection. For any Serious Area, the terms “major source” and “major stationary source” include (in addition to the sources described in [section 7602 of this title](/usc/42/7602.md)) any [stationary source](/usc/42/7411.md?p=a-3) or group of sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 50 tons per year of volatile organic compounds.
- (1) **Enhanced monitoring—** In order to obtain more comprehensive and [representative](/usc/42/3058f.md?p=5) data on ozone air pollution, not later than 18 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate rules, after notice and public comment, for enhanced monitoring of ozone, oxides of nitrogen, and volatile organic compounds. The rules shall, among other things, cover the location and maintenance of monitors. Immediately following the promulgation of rules by the [Administrator](/usc/42/7602.md?p=a) relating to enhanced monitoring, the [State](/usc/42/7602.md?p=d) shall commence such actions as may be necessary to adopt and implement a [program](/usc/42/274l–1.md?p=4) based on such rules, to improve monitoring for ambient concentrations of ozone, oxides of nitrogen and volatile organic compounds and to improve monitoring of emissions of oxides of nitrogen and volatile organic compounds. Each [State](/usc/42/7602.md?p=d) implementation plan for the area shall contain measures to improve the ambient monitoring of such [air pollutants](/usc/42/7602.md?p=g).
- (2) **Attainment and reasonable further progress demonstrations—** Within 4 years after November 15, 1990, the [State](/usc/42/7602.md?p=d) shall submit a revision to the [applicable implementation plan](/usc/42/7602.md?p=q) that includes each of the following:
- (A) **Attainment demonstration—** A demonstration that the plan, as revised, will provide for attainment of the ozone national ambient air quality [standard](/usc/42/1320d.md?p=7) by the applicable attainment date. This attainment demonstration must be based on photochemical grid modeling or any other analytical method determined by the [Administrator](/usc/42/7602.md?p=a), in the [Administrator](/usc/42/7602.md?p=a)’s discretion, to be at least as effective.
- (B) **Reasonable further progress demonstration—** A demonstration that the plan, as revised, will result in [VOC](/usc/42/7602.md?p=s) [emissions reductions](/usc/42/17114.md?p=a-3) from the baseline emissions described in [subsection (b)(1)(B)](#b-1-B) equal to the following amount averaged over each consecutive 3-year period beginning 6 years after November 15, 1990, until the attainment date:
- (i) at least 3 percent of baseline emissions each year; or
- (ii) an amount less than 3 percent of such baseline emissions each year, if the [State](/usc/42/7602.md?p=d) demonstrates to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that the plan reflecting such lesser amount includes all measures that can feasibly be implemented in the area, in light of technological achievability.
To lessen the 3 percent requirement under [clause (ii)](#c-2-B-ii), a [State](/usc/42/7602.md?p=d) must demonstrate to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that the plan for the area includes the measures that are achieved in practice by sources in the same source [category](/usc/42/1395w–4.md?p=j-1) in [nonattainment areas](/usc/42/7501.md?p=2) of the next higher classification. Any determination to lessen the 3 percent requirement shall be reviewed at each milestone under [subsection (g)](#g) and revised to reflect such new measures (if any) achieved in practice by sources in the same [category](/usc/42/1395w–4.md?p=j-1) in any [State](/usc/42/7602.md?p=d), allowing a reasonable time to implement such measures. The emission reductions described in this subparagraph shall be calculated in accordance with subsection [(b)(1)(C)](#b-1-C) and [(D)](#b-1-D) (concerning creditability of reductions). The reductions creditable for the period beginning 6 years after November 15, 1990, shall include reductions that occurred before such period, computed in accordance with [subsection (b)(1)](#b-1), that exceed the 15-percent amount of reductions required under [subsection (b)(1)(A)](#b-1-A).
- (C) **NOx control—** The revision may contain, in lieu of the demonstration required under [subparagraph (B)](#c-2-B), a demonstration to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that the [applicable implementation plan](/usc/42/7602.md?p=q), as revised, provides for reductions of emissions of [VOC](/usc/42/7602.md?p=s)’s and oxides of nitrogen (calculated according to the creditability provisions of subsection [(b)(1)(C)](#b-1-C) and [(D)](#b-1-D)), that would result in a reduction in ozone concentrations at least equivalent to that which would result from the amount of [VOC](/usc/42/7602.md?p=s) emission reductions required under [subparagraph (B)](#c-2-B). Within 1 year after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall issue guidance concerning the conditions under which NOx control may be substituted for [VOC](/usc/42/7602.md?p=s) control or may be combined with [VOC](/usc/42/7602.md?p=s) control in order to maximize the reduction in ozone air pollution. In accord with such guidance, a lesser percentage of [VOCs](/usc/42/7602.md?p=s) may be accepted as an adequate demonstration for purposes of this subsection.
- (3) **Enhanced vehicle inspection and maintenance program—**
- (A) **Requirement for submission—** Within 2 years after November 15, 1990, the [State](/usc/42/7602.md?p=d) shall submit a revision to the [applicable implementation plan](/usc/42/7602.md?p=q) to provide for an enhanced [program](/usc/42/274l–1.md?p=4) to reduce hydrocarbon emissions and NOx emissions from in-use [motor vehicles](/usc/42/13211.md?p=13) registered in each urbanized area (in the [nonattainment area](/usc/42/7501.md?p=2)), as defined by the Bureau of the Census, with a 1980 population of 200,000 or more.
- (B) **Effective date of State programs; guidance—** The [State](/usc/42/7602.md?p=d) [program](/usc/42/274l–1.md?p=4) required under [subparagraph (A)](#c-3-A) shall take effect no later than 2 years from November 15, 1990, and shall comply in all respects with guidance published in the Federal Register (and from time to time revised) by the [Administrator](/usc/42/7602.md?p=a) for enhanced vehicle [inspection](/usc/42/4851b.md?p=12) and maintenance [programs](/usc/42/274l–1.md?p=4). Such guidance shall include—
- (i) a performance [standard](/usc/42/1320d.md?p=7) achievable by a [program](/usc/42/274l–1.md?p=4) combining emission testing, including on-road emission testing, with [inspection](/usc/42/4851b.md?p=12) to detect tampering with emission control devices and misfueling for all light-duty vehicles and all light-duty trucks subject to [standards](/usc/42/1320d.md?p=7) under [section 7521 of this title](/usc/42/7521.md); and
- (ii) [program](/usc/42/274l–1.md?p=4) administration features necessary to reasonably assure that adequate management resources, tools, and [practices](/usc/42/17061.md?p=19) are in place to attain and maintain the performance [standard](/usc/42/1320d.md?p=7).
Compliance with the performance [standard](/usc/42/1320d.md?p=7) under [clause (i)](#c-3-B-i) shall be determined using a method to be established by the [Administrator](/usc/42/7602.md?p=a).
- (C) **State program—** The [State](/usc/42/7602.md?p=d) [program](/usc/42/274l–1.md?p=4) required under [subparagraph (A)](#c-3-A) shall include, at a minimum, each of the following elements—
- (i) Computerized emission analyzers, including on-road testing devices.
- (ii) No waivers for vehicles and parts covered by the emission control performance warranty as provided for in [section 7541(b) of this title](/usc/42/7541.md?p=b) unless a warranty remedy has been denied in writing, or for tampering-related repairs.
- (iii) In view of the air quality purpose of the [program](/usc/42/274l–1.md?p=4), if, for any vehicle, waivers are permitted for emissions-related repairs not covered by warranty, an expenditure to qualify for the waiver of an amount of $450 or more for such repairs (adjusted annually as determined by the [Administrator](/usc/42/7602.md?p=a) on the basis of the Consumer Price Index in the same manner as provided in subchapter V).
- (iv) Enforcement through denial of vehicle registration (except for any [program](/usc/42/274l–1.md?p=4) in operation before November 15, 1990, whose enforcement mechanism is demonstrated to the [Administrator](/usc/42/7602.md?p=a) to be more effective than the applicable vehicle registration [program](/usc/42/274l–1.md?p=4) in assuring that noncomplying vehicles are not operated on public roads).
- (v) Annual emission testing and necessary adjustment, repair, and maintenance, unless the [State](/usc/42/7602.md?p=d) demonstrates to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that a biennial [inspection](/usc/42/4851b.md?p=12), in combination with other features of the [program](/usc/42/274l–1.md?p=4) which exceed the requirements of this chapter, will result in emission reductions which equal or exceed the reductions which can be obtained through such annual [inspections](/usc/42/4851b.md?p=12).
- (vi) Operation of the [program](/usc/42/274l–1.md?p=4) on a centralized basis, unless the [State](/usc/42/7602.md?p=d) demonstrates to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that a decentralized [program](/usc/42/274l–1.md?p=4) will be equally effective. An electronically connected testing system, a licensing system, or other measures (or any combination thereof) may be considered, in accordance with criteria established by the [Administrator](/usc/42/7602.md?p=a), as equally effective for such purposes.
- (vii) [Inspection](/usc/42/4851b.md?p=12) of emission control diagnostic systems and the maintenance or repair of malfunctions or system deterioration identified by or affecting such diagnostics systems.
Each [State](/usc/42/7602.md?p=d) shall biennially prepare a report to the [Administrator](/usc/42/7602.md?p=a) which assesses the emission reductions achieved by the [program](/usc/42/274l–1.md?p=4) required under this paragraph based on data collected during [inspection](/usc/42/4851b.md?p=12) and repair of vehicles. The methods used to assess the emission reductions shall be those established by the [Administrator](/usc/42/7602.md?p=a).
- (4) **Clean-fuel vehicle programs—**
- (A) Except to the extent that substitute provisions have been approved by the [Administrator](/usc/42/7602.md?p=a) under [subparagraph (B)](#c-4-B), the [State](/usc/42/7602.md?p=d) shall submit to the [Administrator](/usc/42/7602.md?p=a), within 42 months of November 15, 1990, a revision to the [applicable implementation plan](/usc/42/7602.md?p=q) for each area described under part C of subchapter II to include such measures as may be necessary to ensure the effectiveness of the applicable provisions of the clean-fuel vehicle [program](/usc/42/274l–1.md?p=4) prescribed under part C of subchapter II, including all measures necessary to make the use of clean alternative fuels in clean-fuel vehicles (as defined in part C of subchapter II) economic from the standpoint of vehicle [owners](/usc/42/13641.md?p=4). Such a revision shall also be submitted for each area that opts into the clean fuel-vehicle [program](/usc/42/274l–1.md?p=4) as provided in part C of subchapter II.
- (B) The [Administrator](/usc/42/7602.md?p=a) shall approve, as a substitute for all or a portion of the clean-fuel vehicle [program](/usc/42/274l–1.md?p=4) prescribed under part C of subchapter II, any revision to the relevant [applicable implementation plan](/usc/42/7602.md?p=q) that in the [Administrator](/usc/42/7602.md?p=a)’s judgment will achieve long-term reductions in ozone-producing and toxic air emissions equal to those achieved under part C of subchapter II, or the percentage thereof attributable to the portion of the clean-fuel vehicle [program](/usc/42/274l–1.md?p=4) for which the revision is to substitute. The [Administrator](/usc/42/7602.md?p=a) may approve such revision only if it consists exclusively of provisions other than those required under this chapter for the area. Any [State](/usc/42/7602.md?p=d) seeking approval of such revision must submit the revision to the [Administrator](/usc/42/7602.md?p=a) within 24 months of November 15, 1990. The [Administrator](/usc/42/7602.md?p=a) shall approve or disapprove any such revision within 30 months of November 15, 1990. The [Administrator](/usc/42/7602.md?p=a) shall publish the revision submitted by a [State](/usc/42/7602.md?p=d) in the Federal Register upon receipt. Such notice shall constitute a notice of proposed rulemaking on whether or not to approve such revision and shall be deemed to comply with the requirements concerning notices of proposed rulemaking contained in [sections 553 through 557](/usc/5/553..557.md) of title 5 (related to notice and comment). Where the [Administrator](/usc/42/7602.md?p=a) approves such revision for any area, the [State](/usc/42/7602.md?p=d) need not submit the revision required by [subparagraph (A)](#c-4-A) for the area with respect to the portions of the Federal clean-fuel vehicle [program](/usc/42/274l–1.md?p=4) for which the [Administrator](/usc/42/7602.md?p=a) has approved the revision as a substitute.
- (C) If the [Administrator](/usc/42/7602.md?p=a) determines, under [section 7509 of this title](/usc/42/7509.md), that the [State](/usc/42/7602.md?p=d) has failed to submit any portion of the [program](/usc/42/274l–1.md?p=4) required under [subparagraph (A)](#c-4-A), then, in addition to any sanctions available under [section 7509 of this title](/usc/42/7509.md), the [State](/usc/42/7602.md?p=d) may not receive credit, in any demonstration of attainment or [reasonable further progress](/usc/42/7501.md?p=1) for the area, for any emission reductions from implementation of the corresponding aspects of the Federal clean-fuel vehicle requirements established in part C of subchapter II.
- (5) **Transportation control—**
- (A) [^4] Beginning 6 years after November 15, 1990, and each third year thereafter, the [State](/usc/42/7602.md?p=d) shall submit a demonstration as to whether current aggregate vehicle mileage, aggregate vehicle emissions, congestion levels, and other relevant parameters are consistent with those used for the area’s demonstration of attainment. Where such parameters and emissions levels exceed the levels projected for purposes of the area’s attainment demonstration, the [State](/usc/42/7602.md?p=d) shall within 18 months develop and submit a revision of the [applicable implementation plan](/usc/42/7602.md?p=q) that includes a transportation control measures [program](/usc/42/274l–1.md?p=4) consisting of measures from, but not limited to, [section 7408(f) of this title](/usc/42/7408.md?p=f) that will reduce emissions to levels that are consistent with emission levels projected in such demonstration. In considering such measures, the [State](/usc/42/7602.md?p=d) should ensure adequate access to downtown, other commercial, and residential areas and should avoid measures that increase or relocate emissions and congestion rather than reduce them. Such revision shall be developed in accordance with guidance issued by the [Administrator](/usc/42/7602.md?p=a) pursuant to [section 7408(e) of this title](/usc/42/7408.md?p=e) and with the requirements of [section 7504(b) of this title](/usc/42/7504.md?p=b) and shall include implementation and funding schedules that achieve expeditious [emissions reductions](/usc/42/17114.md?p=a-3) in accordance with implementation plan projections.
- (6) **De minimis rule—** The new source review provisions under this part shall ensure that increased emissions of volatile organic compounds resulting from any physical change in, or change in the method of operation of, a [stationary source](/usc/42/7411.md?p=a-3) located in the area shall not be considered de minimis for purposes of determining the applicability of the permit requirements established by this chapter unless the increase in net emissions of such [air pollutant](/usc/42/7602.md?p=g) from such source does not exceed 25 tons when aggregated with all other net increases in emissions from the source over any period of 5 consecutive calendar years which includes the calendar year in which such increase occurred.
- (7) **Special rule for modifications of sources emitting less than 100 tons—** In the case of any [major stationary source](#c) of volatile organic compounds located in the area (other than a source which emits or has the potential to emit 100 tons or more of volatile organic compounds per year), whenever any change (as described in [section 7411(a)(4) of this title](/usc/42/7411.md?p=a-4)) at that source results in any increase (other than a de minimis increase) in emissions of volatile organic compounds from any discrete operation, [unit](/usc/42/1395w–114b.md?p=g-2), or other [pollutant](/usc/42/1397h.md?p=c-4) emitting activity at the source, such increase shall be considered a [modification](/usc/42/7501.md?p=4) for purposes of [section 7502(c)(5) of this title](/usc/42/7502.md?p=c-5) and [section 7503(a) of this title](/usc/42/7503.md?p=a), except that such increase shall not be considered a [modification](/usc/42/7501.md?p=4) for such purposes if the [owner or operator](/usc/42/9601.md?p=20-B) of the source elects to offset the increase by a greater reduction in emissions of volatile organic compounds concerned from other operations, [units](/usc/42/1395w–114b.md?p=g-2), or activities within the source at an internal offset ratio of at least 1.3 to 1. If the [owner or operator](/usc/42/9601.md?p=20-B) does not make such election, such change shall be considered a [modification](/usc/42/7501.md?p=4) for such purposes, but in applying [section 7503(a)(2) of this title](/usc/42/7503.md?p=a-2) in the case of any such [modification](/usc/42/7501.md?p=4), the best available control technology (BACT), as defined in [section 7479 of this title](/usc/42/7479.md), shall be substituted for the [lowest achievable emission rate](/usc/42/7501.md?p=3) (LAER). The [Administrator](/usc/42/7602.md?p=a) shall establish and publish policies and procedures for implementing the provisions of this paragraph.
- (8) **Special rule for modifications of sources emitting 100 tons or more—** In the case of any [major stationary source](#c) of volatile organic compounds located in the area which emits or has the potential to emit 100 tons or more of volatile organic compounds per year, whenever any change (as described in [section 7411(a)(4) of this title](/usc/42/7411.md?p=a-4)) at that source results in any increase (other than a de minimis increase) in emissions of volatile organic compounds from any discrete operation, [unit](/usc/42/1395w–114b.md?p=g-2), or other [pollutant](/usc/42/1397h.md?p=c-4) emitting activity at the source, such increase shall be considered a [modification](/usc/42/7501.md?p=4) for purposes of [section 7502(c)(5) of this title](/usc/42/7502.md?p=c-5) and [section 7503(a) of this title](/usc/42/7503.md?p=a), except that if the [owner or operator](/usc/42/9601.md?p=20-B) of the source elects to offset the increase by a greater reduction in emissions of volatile organic compounds from other operations, [units](/usc/42/1395w–114b.md?p=g-2), or activities within the source at an internal offset ratio of at least 1.3 to 1, the requirements of [section 7503(a)(2) of this title](/usc/42/7503.md?p=a-2) (concerning the [lowest achievable emission rate](/usc/42/7501.md?p=3) (LAER)) shall not apply.
- (9) **Contingency provisions—** In addition to the contingency provisions required under [section 7502(c)(9) of this title](/usc/42/7502.md?p=c-9), the plan revision shall provide for the implementation of specific measures to be undertaken if the area fails to meet any applicable milestone. Such measures shall be included in the plan revision as contingency measures to take effect without further action by the [State](/usc/42/7602.md?p=d) or the [Administrator](/usc/42/7602.md?p=a) upon a failure by the [State](/usc/42/7602.md?p=d) to meet the applicable milestone.
- (10) **General offset requirement—** For purposes of satisfying the emission offset requirements of this part, the ratio of total emission reductions of volatile organic compounds to total increase emissions of such [air pollutant](/usc/42/7602.md?p=g) shall be at least 1.2 to 1.
Any reference to “attainment date” in [subsection (b)](#b), which is incorporated by reference into this subsection, shall refer to the attainment date for serious areas.
- (d) **Severe Areas—** Each [State](/usc/42/7602.md?p=d) in which all or part of a Severe Area is located shall, with respect to the Severe Area, make the submissions described under [subsection (c)](#c) (relating to Serious Areas), and shall also submit the revisions to the [applicable implementation plan](/usc/42/7602.md?p=q) (including the plan items) described under this subsection. For any Severe Area, the terms “major source” and “major stationary source” include (in addition to the sources described in [section 7602 of this title](/usc/42/7602.md)) any [stationary source](/usc/42/7411.md?p=a-3) or group of sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 25 tons per year of volatile organic compounds.
- (1) **Vehicle miles traveled—**
- (A) Within 2 years after November 15, 1990, the [State](/usc/42/7602.md?p=d) shall submit a revision that identifies and adopts specific enforceable transportation control strategies and transportation control measures to offset any growth in emissions from growth in vehicle miles traveled or numbers of vehicle trips in such area and to attain reduction in [motor vehicle](/usc/42/13211.md?p=13) emissions as necessary, in combination with other emission reduction requirements of this subpart, to comply with the requirements of subsection[^5] (b)(2)(B) and (c)(2)(B) (pertaining to periodic [emissions reduction](/usc/42/17114.md?p=a-3) requirements). The [State](/usc/42/7602.md?p=d) shall consider measures specified in [section 7408(f) of this title](/usc/42/7408.md?p=f), and choose from among and implement such measures as necessary to demonstrate attainment with the national ambient air quality [standards](/usc/42/1320d.md?p=7); in considering such measures, the [State](/usc/42/7602.md?p=d) should ensure adequate access to downtown, other commercial, and residential areas and should avoid measures that increase or relocate emissions and congestion rather than reduce them.
- (B) The [State](/usc/42/7602.md?p=d) may also, in its discretion, submit a revision at any time requiring employers in such area to implement [programs](/usc/42/274l–1.md?p=4) to reduce work-related vehicle trips and miles travelled by [employees](/usc/42/1320a–7h.md?p=e-7). Such revision shall be developed in accordance with guidance issued by the [Administrator](/usc/42/7602.md?p=a) pursuant to [section 7408(f) of this title](/usc/42/7408.md?p=f) and may require that employers in such area increase average passenger occupancy per vehicle in commuting trips between home and the workplace during peak travel periods. The guidance of the [Administrator](/usc/42/7602.md?p=a) may specify average vehicle occupancy rates which vary for locations within a [nonattainment area](/usc/42/7501.md?p=2) (suburban, center [city](/usc/42/12902.md?p=11), business district) or among [nonattainment areas](/usc/42/7501.md?p=2) reflecting existing occupancy rates and the availability of high occupancy modes. Any [State](/usc/42/7602.md?p=d) required to submit a revision under this subparagraph (as in effect before December 23, 1995) containing provisions requiring employers to reduce work-related vehicle trips and miles travelled by [employees](/usc/42/1320a–7h.md?p=e-7) may, in accordance with [State](/usc/42/7602.md?p=d) law, [remove](/usc/42/9601.md?p=23) such provisions from the implementation plan, or withdraw its submission, if the [State](/usc/42/7602.md?p=d) notifies the [Administrator](/usc/42/7602.md?p=a), in writing, that the [State](/usc/42/7602.md?p=d) has undertaken, or will undertake, one or more alternative methods that will achieve emission reductions equivalent to those to be achieved by the removed or withdrawn provisions.
- (2) **Offset requirement—** For purposes of satisfying the offset requirements pursuant to this part, the ratio of total emission reductions of [VOCs](/usc/42/7602.md?p=s) to total increased emissions of such [air pollutant](/usc/42/7602.md?p=g) shall be at least 1.3 to 1, except that if the [State](/usc/42/7602.md?p=d) plan requires all existing [major sources](#d) in the [nonattainment area](/usc/42/7501.md?p=2) to use best available control technology (as defined in [section 7479(3) of this title](/usc/42/7479.md?p=3)) for the control of volatile organic compounds, the ratio shall be at least 1.2 to 1.
- (3) **Enforcement under section 7511d—** By December 31, 2000, the [State](/usc/42/7602.md?p=d) shall submit a plan revision which includes the provisions required under [section 7511d of this title](/usc/42/7511d.md).
Any reference to the term “attainment date” in subsection [(b)](#b) or [(c)](#c), which is incorporated by reference into this [subsection (d)](#d), shall refer to the attainment date for Severe Areas.
- (e) **Extreme Areas—** Each [State](/usc/42/7602.md?p=d) in which all or part of an Extreme Area is located shall, with respect to the Extreme Area, make the submissions described under [subsection (d)](#d) (relating to Severe Areas), and shall also submit the revisions to the [applicable implementation plan](/usc/42/7602.md?p=q) (including the plan items) described under this subsection. The provisions of [clause (ii)](#c-2-B-ii) of subsection (c)(2)(B) (relating to reductions of less than 3 percent), the provisions of paragaphs[^6] (6), (7) and (8) of [subsection (c)](#c) (relating to de minimus[^7] rule and [modification](/usc/42/7501.md?p=4) of sources), and the provisions of [clause (ii)](#b-1-A-ii) of subsection (b)(1)(A) (relating to reductions of less than 15 percent) shall not apply in the case of an Extreme Area. For any Extreme Area, the terms “major source” and “major stationary source” includes[^8] (in addition to the sources described in [section 7602 of this title](/usc/42/7602.md)) any [stationary source](/usc/42/7411.md?p=a-3) or group of sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 10 tons per year of volatile organic compounds.
- (1) **Offset requirement—** For purposes of satisfying the offset requirements pursuant to this part, the ratio of total emission reductions of [VOCs](/usc/42/7602.md?p=s) to total increased emissions of such [air pollutant](/usc/42/7602.md?p=g) shall be at least 1.5 to 1, except that if the [State](/usc/42/7602.md?p=d) plan requires all existing [major sources](#e) in the [nonattainment area](/usc/42/7501.md?p=2) to use best available control technology (as defined in [section 7479(3) of this title](/usc/42/7479.md?p=3)) for the control of volatile organic compounds, the ratio shall be at least 1.2 to 1.
- (2) **Modifications—** Any change (as described in [section 7411(a)(4) of this title](/usc/42/7411.md?p=a-4)) at a [major stationary source](#e) which results in any increase in emissions from any discrete operation, [unit](/usc/42/1395w–114b.md?p=g-2), or other [pollutant](/usc/42/1397h.md?p=c-4) emitting activity at the source shall be considered a [modification](/usc/42/7501.md?p=4) for purposes of [section 7502(c)(5) of this title](/usc/42/7502.md?p=c-5) and [section 7503(a) of this title](/usc/42/7503.md?p=a), except that for purposes of complying with the offset requirement pursuant to [section 7503(a)(1) of this title](/usc/42/7503.md?p=a-1), any such increase shall not be considered a [modification](/usc/42/7501.md?p=4) if the [owner or operator](/usc/42/9601.md?p=20-B) of the source elects to offset the increase by a greater reduction in emissions of the [air pollutant](/usc/42/7602.md?p=g) concerned from other discrete operations, [units](/usc/42/1395w–114b.md?p=g-2), or activities within the source at an internal offset ratio of at least 1.3 to 1. The offset requirements of this part shall not be applicable in Extreme Areas to a [modification](/usc/42/7501.md?p=4) of an existing source if such [modification](/usc/42/7501.md?p=4) consists of installation of equipment required to comply with the [applicable implementation plan](/usc/42/7602.md?p=q), permit, or this chapter.
- (3) **Use of clean fuels or advanced control technology—** For Extreme Areas, a plan revision shall be submitted within 3 years after November 15, 1990, to require, effective 8 years after November 15, 1990, that each new, [modified](/usc/42/7501.md?p=4), and existing electric utility and industrial and commercial boiler which emits more than 25 tons per year of oxides of nitrogen—
- (A) burn as its [primary fuel](#e-3) natural gas, methanol, or ethanol (or a comparably low polluting fuel), or
- (B) use advanced control technology (such as catalytic control technology or other comparably effective control methods) for reduction of emissions of oxides of nitrogen.
For purposes of this subsection, the term “primary fuel” means the fuel which is used 90 percent or more of the operating time. This paragraph shall not apply during any natural gas supply emergency (as defined in title III of the Natural Gas Policy Act of 1978 [[15 U.S.C. 3361](/usc/15/3361.md) et seq.]).
- (4) **Traffic control measures during heavy traffic hours—** For Extreme Areas, each implementation plan revision under this subsection may contain provisions establishing traffic control measures applicable during heavy traffic hours to reduce the use of high polluting vehicles or heavy-duty vehicles, notwithstanding any other provision of law.
- (5) **New technologies—** The [Administrator](/usc/42/7602.md?p=a) may, in accordance with [section 7410 of this title](/usc/42/7410.md), approve provisions of an implementation plan for an Extreme Area which anticipate development of new control techniques or improvement of existing control technologies, and an attainment demonstration based on such provisions, if the [State](/usc/42/7602.md?p=d) demonstrates to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that—
- (A) such provisions are not necessary to achieve the incremental emission reductions required during the first 10 years after November 15, 1990; and
- (B) the [State](/usc/42/7602.md?p=d) has submitted enforceable commitments to develop and adopt contingency measures to be implemented as set forth herein if the anticipated technologies do not achieve planned reductions.
Such contingency measures shall be submitted to the [Administrator](/usc/42/7602.md?p=a) no later than 3 years before proposed implementation of the plan provisions and approved or disapproved by the [Administrator](/usc/42/7602.md?p=a) in accordance with [section 7410 of this title](/usc/42/7410.md). The contingency measures shall be adequate to produce emission reductions sufficient, in conjunction with other approved plan provisions, to achieve the periodic emission reductions required by subsection [(b)(1)](#b-1) or [(c)(2)](#c-2) and attainment by the applicable dates. If the [Administrator](/usc/42/7602.md?p=a) determines that an Extreme Area has failed to achieve an emission reduction requirement set forth in subsection [(b)(1)](#b-1) or [(c)(2)](#c-2), and that such failure is due in whole or part to an inability to fully implement provisions approved pursuant to this subsection, the [Administrator](/usc/42/7602.md?p=a) shall require the [State](/usc/42/7602.md?p=d) to implement the contingency measures to the extent necessary to assure compliance with subsections [(b)(1)](#b-1) and [(c)(2)](#c-2).
Any reference to the term “attainment date” in subsection [(b)](#b), [(c)](#c), or [(d)](#d) which is incorporated by reference into this subsection, shall refer to the attainment date for Extreme Areas.
- (f) **NOx requirements—**
- (1) The plan provisions required under this subpart for [major stationary sources](/usc/42/7602.md?p=j) of volatile organic compounds shall also apply to [major stationary sources](/usc/42/7602.md?p=j) (as defined in [section 7602 of this title](/usc/42/7602.md) and subsections [(c)](#c), [(d)](#d), and [(e)](#e) of this section) of oxides of nitrogen. This subsection shall not apply in the case of oxides of nitrogen for those sources for which the [Administrator](/usc/42/7602.md?p=a) determines (when the [Administrator](/usc/42/7602.md?p=a) approves a plan or plan revision) that net air quality benefits are greater in the absence of reductions of oxides of nitrogen from the sources concerned. This subsection shall also not apply in the case of oxides of nitrogen for—
- (A) [nonattainment areas](/usc/42/7501.md?p=2) not within an ozone transport region under [section 7511c of this title](/usc/42/7511c.md), if the [Administrator](/usc/42/7602.md?p=a) determines (when the [Administrator](/usc/42/7602.md?p=a) approves a plan or plan revision) that additional reductions of oxides of nitrogen would not contribute to attainment of the national ambient air quality [standard](/usc/42/1320d.md?p=7) for ozone in the area, or
- (B) [nonattainment areas](/usc/42/7501.md?p=2) within such an ozone transport region if the [Administrator](/usc/42/7602.md?p=a) determines (when the [Administrator](/usc/42/7602.md?p=a) approves a plan or plan revision) that additional reductions of oxides of nitrogen would not produce net ozone air quality benefits in such region.
The [Administrator](/usc/42/7602.md?p=a) shall, in the [Administrator](/usc/42/7602.md?p=a)’s determinations, consider the study required under [section 7511f of this title](/usc/42/7511f.md).
- (2)
- (A) If the [Administrator](/usc/42/7602.md?p=a) determines that excess reductions in emissions of NOx would be achieved under [paragraph (1)](#f-1), the [Administrator](/usc/42/7602.md?p=a) may limit the application of [paragraph (1)](#f-1) to the extent necessary to avoid achieving such excess reductions.
- (B) For purposes of this paragraph, excess reductions in emissions of NOx are emission reductions for which the [Administrator](/usc/42/7602.md?p=a) determines that net air quality benefits are greater in the absence of such reductions. Alternatively, for purposes of this paragraph, excess reductions in emissions of NOx are, for—
- (i) [nonattainment areas](/usc/42/7501.md?p=2) not within an ozone transport region under [section 7511c of this title](/usc/42/7511c.md), emission reductions that the [Administrator](/usc/42/7602.md?p=a) determines would not contribute to attainment of the national ambient air quality [standard](/usc/42/1320d.md?p=7) for ozone in the area, or
- (ii) [nonattainment areas](/usc/42/7501.md?p=2) within such ozone transport region, emission reductions that the [Administrator](/usc/42/7602.md?p=a) determines would not produce net ozone air quality benefits in such region.
- (3) At any time after the final report under [section 7511f of this title](/usc/42/7511f.md) is submitted to Congress, a [person](/usc/42/7602.md?p=e) may petition the [Administrator](/usc/42/7602.md?p=a) for a determination under paragraph [(1)](#f-1) or [(2)](#f-2) with respect to any [nonattainment area](/usc/42/7501.md?p=2) or any ozone transport region under [section 7511c of this title](/usc/42/7511c.md). The [Administrator](/usc/42/7602.md?p=a) shall grant or deny such petition within 6 months after its filing with the [Administrator](/usc/42/7602.md?p=a).
- (g) **Milestones—**
- (1) **Reductions in emissions—** 6 years after November 15, 1990, and at intervals of every 3 years thereafter, the [State](/usc/42/7602.md?p=d) shall determine whether each [nonattainment area](/usc/42/7501.md?p=2) (other than an area classified as Marginal or Moderate) has achieved a reduction in emissions during the preceding intervals equivalent to the total emission reductions required to be achieved by the end of such interval pursuant to [subsection (b)(1)](#b-1) and the corresponding requirements of subsections [(c)(2)(B)](#c-2-B) and [(C)](#c-2-C), [(d)](#d), and [(e)](#e). Such reduction shall be referred to in this section as an applicable milestone.
- (2) **Compliance demonstration—** For each [nonattainment area](/usc/42/7501.md?p=2) referred to in [paragraph (1)](#g-1), not later than 90 days after the date on which an applicable milestone occurs (not including an attainment date on which a milestone occurs in cases where the [standard](/usc/42/1320d.md?p=7) has been attained), each [State](/usc/42/7602.md?p=d) in which all or part of such area is located shall submit to the [Administrator](/usc/42/7602.md?p=a) a demonstration that the milestone has been met. A demonstration under this paragraph shall be submitted in such form and manner, and shall contain such information and analysis, as the [Administrator](/usc/42/7602.md?p=a) shall require, by rule. The [Administrator](/usc/42/7602.md?p=a) shall determine whether or not a [State](/usc/42/7602.md?p=d)’s demonstration is adequate within 90 days after the [Administrator](/usc/42/7602.md?p=a)’s receipt of a demonstration which contains the information and analysis required by the [Administrator](/usc/42/7602.md?p=a).
- (3) **Serious and Severe Areas; State election—** If a [State](/usc/42/7602.md?p=d) fails to submit a demonstration under [paragraph (2)](#g-2) for any Serious or Severe Area within the required period or if the [Administrator](/usc/42/7602.md?p=a) determines that the area has not met any applicable milestone, the [State](/usc/42/7602.md?p=d) shall elect, within 90 days after such failure or determination—
- (A) to have the area reclassified to the next higher classification,
- (B) to implement specific additional measures adequate, as determined by the [Administrator](/usc/42/7602.md?p=a), to meet the next milestone as provided in the applicable contingency plan, or
- (C) to adopt an economic incentive [program](/usc/42/274l–1.md?p=4) as described in [paragraph (4)](#g-4).
If the [State](/usc/42/7602.md?p=d) makes an election under [subparagraph (B)](#g-3-B), the [Administrator](/usc/42/7602.md?p=a) shall, within 90 days after the election, review such plan and shall, if the [Administrator](/usc/42/7602.md?p=a) finds the contingency plan inadequate, require further measures necessary to meet such milestone. Once the [State](/usc/42/7602.md?p=d) makes an election, it shall be deemed accepted by the [Administrator](/usc/42/7602.md?p=a) as meeting the election requirement. If the [State](/usc/42/7602.md?p=d) fails to make an election required under this paragraph within the required 90-day period or within 6 months thereafter, the area shall be reclassified to the next higher classification by operation of law at the expiration of such 6-month period. Within 12 months after the date required for the [State](/usc/42/7602.md?p=d) to make an election, the [State](/usc/42/7602.md?p=d) shall submit a revision of the [applicable implementation plan](/usc/42/7602.md?p=q) for the area that meets the requirements of this paragraph. The [Administrator](/usc/42/7602.md?p=a) shall review such plan revision and approve or disapprove the revision within 9 months after the date of its submission.
- (4) **Economic incentive program—**
- (A) An economic incentive [program](/usc/42/274l–1.md?p=4) under this paragraph shall be consistent with rules published by the [Administrator](/usc/42/7602.md?p=a) and sufficient, in combination with other elements of the [State](/usc/42/7602.md?p=d) plan, to achieve the next milestone. The [State](/usc/42/7602.md?p=d) [program](/usc/42/274l–1.md?p=4) may include a nondiscriminatory system, consistent with applicable law regarding interstate [commerce](/usc/42/6311.md?p=7), of [State](/usc/42/7602.md?p=d) established emissions fees or a system of marketable permits, or a system of [State](/usc/42/7602.md?p=d) fees on sale or [manufacture](/usc/42/300aa–33.md?p=3) of products the use of which contributes to ozone formation, or any combination of the foregoing or other similar measures. The [program](/usc/42/274l–1.md?p=4) may also include incentives and requirements to reduce vehicle emissions and vehicle miles traveled in the area, including any of the transportation control measures identified in [section 7408(f) of this title](/usc/42/7408.md?p=f).
- (B) Within 2 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall publish rules for the [programs](/usc/42/274l–1.md?p=4) to be adopted pursuant to [subparagraph (A)](#g-4-A). Such rules shall include model plan provisions which may be adopted for reducing emissions from permitted [stationary sources](/usc/42/7411.md?p=a-3), area sources, and mobile sources. The guidelines shall require that any revenues generated by the plan provisions adopted pursuant to [subparagraph (A)](#g-4-A) shall be used by the [State](/usc/42/7602.md?p=d) for any of the following:
- (i) Providing incentives for achieving emission reductions.
- (ii) Providing assistance for the development of innovative technologies for the control of ozone air pollution and for the development of lower-polluting solvents and surface coatings. Such assistance shall not provide for the payment of more than 75 percent of either the costs of any [project](/usc/42/11360.md?p=20) to develop such a technology or the costs of development of a lower-polluting solvent or surface coating.
- (iii) Funding the administrative costs of [State](/usc/42/7602.md?p=d) [programs](/usc/42/274l–1.md?p=4) under this chapter. Not more than 50 percent of such revenues may be used for purposes of this clause.
- (5) **Extreme Areas—** If a [State](/usc/42/7602.md?p=d) fails to submit a demonstration under [paragraph (2)](#g-2) for any Extreme Area within the required period, or if the [Administrator](/usc/42/7602.md?p=a) determines that the area has not met any applicable milestone, the [State](/usc/42/7602.md?p=d) shall, within 9 months after such failure or determination, submit a plan revision to implement an economic incentive [program](/usc/42/274l–1.md?p=4) which meets the requirements of [paragraph (4)](#g-4). The [Administrator](/usc/42/7602.md?p=a) shall review such plan revision and approve or disapprove the revision within 9 months after the date of its submission.
- (h) **Rural transport areas—**
- (1) Notwithstanding any other provision of [section 7511 of this title](/usc/42/7511.md) or this section, a [State](/usc/42/7602.md?p=d) containing an ozone [nonattainment area](/usc/42/7501.md?p=2) that does not include, and is not adjacent to, any part of a Metropolitan Statistical Area or, where one exists, a Consolidated Metropolitan Statistical Area (as defined by the [United States](/usc/42/403.md?p=k) Bureau of the Census), which area is treated by the [Administrator](/usc/42/7602.md?p=a), in the [Administrator](/usc/42/7602.md?p=a)’s discretion, as a rural transport area within the meaning of [paragraph (2)](#h-2), shall be treated by operation of law as satisfying the requirements of this section if it makes the submissions required under [subsection (a)](#a) of this section (relating to marginal areas).
- (2) The [Administrator](/usc/42/7602.md?p=a) may treat an ozone [nonattainment area](/usc/42/7501.md?p=2) as a rural transport area if the [Administrator](/usc/42/7602.md?p=a) finds that sources of [VOC](/usc/42/7602.md?p=s) (and, where the [Administrator](/usc/42/7602.md?p=a) determines relevant, NOx) emissions within the area do not make a significant contribution to the ozone concentrations measured in the area or in other areas.
- (i) **Reclassified areas—** Each [State](/usc/42/7602.md?p=d) containing an ozone [nonattainment area](/usc/42/7501.md?p=2) reclassified under [section 7511(b)(2) of this title](/usc/42/7511.md?p=b-2) shall meet such requirements of [subsections (b) through (d)](#b..d) of this section as may be applicable to the area as reclassified, according to the schedules prescribed in connection with such requirements, except that the [Administrator](/usc/42/7602.md?p=a) may adjust any applicable deadlines (other than attainment dates) to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions.
- (j) **Multi-State ozone nonattainment areas—**
- (1) **Coordination among States—** Each [State](/usc/42/7602.md?p=d) in which there is located a portion of a [single](/usc/42/2304.md?p=m) ozone [nonattainment area](/usc/42/7501.md?p=2) which covers more than one [State](/usc/42/7602.md?p=d) (hereinafter in this section referred to as a “multi-[State](/usc/42/7602.md?p=d) ozone [nonattainment area](/usc/42/7501.md?p=2)”) shall—
- (A) take all reasonable steps to coordinate, substantively and procedurally, the revisions and implementation of [State](/usc/42/7602.md?p=d) implementation plans applicable to the [nonattainment area](/usc/42/7501.md?p=2) concerned; and
- (B) use photochemical grid modeling or any other analytical method determined by the [Administrator](/usc/42/7602.md?p=a), in his discretion, to be at least as effective.
The [Administrator](/usc/42/7602.md?p=a) may not approve any revision of a [State](/usc/42/7602.md?p=d) implementation plan submitted under this part for a [State](/usc/42/7602.md?p=d) in which part of a multi-[State](/usc/42/7602.md?p=d) ozone [nonattainment area](/usc/42/7501.md?p=2) is located if the plan revision for that [State](/usc/42/7602.md?p=d) fails to comply with the requirements of this subsection.
- (2) **Failure to demonstrate attainment—** If any [State](/usc/42/7602.md?p=d) in which there is located a portion of a multi-[State](/usc/42/7602.md?p=d) ozone [nonattainment area](/usc/42/7501.md?p=2) fails to provide a demonstration of attainment of the national ambient air quality [standard](/usc/42/1320d.md?p=7) for ozone in that portion within the required period, the [State](/usc/42/7602.md?p=d) may petition the [Administrator](/usc/42/7602.md?p=a) to make a finding that the [State](/usc/42/7602.md?p=d) would have been able to make such demonstration but for the failure of one or more other [States](/usc/42/7602.md?p=d) in which other portions of the area are located to commit to the implementation of all measures required under this section (relating to plan submissions and requirements for ozone [nonattainment areas](/usc/42/7501.md?p=2)). If the [Administrator](/usc/42/7602.md?p=a) makes such finding, the provisions of [section 7509 of this title](/usc/42/7509.md) (relating to sanctions) shall not apply, by reason of the failure to make such demonstration, in the portion of the multi-[State](/usc/42/7602.md?p=d) ozone [nonattainment area](/usc/42/7501.md?p=2) within the [State](/usc/42/7602.md?p=d) submitting such petition.
# §7511b. Federal ozone measures
- (a) **Control techniques guidelines for VOC sources—** Within 3 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall issue control techniques guidelines, in accordance with [section 7408 of this title](/usc/42/7408.md), for 11 [categories](/usc/42/1395w–4.md?p=j-1) of [stationary sources](/usc/42/7411.md?p=a-3) of [VOC](/usc/42/7602.md?p=s) emissions for which such guidelines have not been issued as of November 15, 1990, not including the [categories](/usc/42/1395w–4.md?p=j-1) referred to in paragraphs [(3)](#b-3) and [(4)](#b-4) of subsection (b) of this section. The [Administrator](/usc/42/7602.md?p=a) may issue such additional control techniques guidelines as the [Administrator](/usc/42/7602.md?p=a) deems necessary.
- (b) **Existing and new CTGS—**
- (1) Within 36 months after November 15, 1990, and periodically thereafter, the [Administrator](/usc/42/7602.md?p=a) shall review and, if necessary, update control technique guidance issued under [section 7408 of this title](/usc/42/7408.md) before November 15, 1990.
- (2) In issuing the guidelines the [Administrator](/usc/42/7602.md?p=a) shall give priority to those [categories](/usc/42/1395w–4.md?p=j-1) which the [Administrator](/usc/42/7602.md?p=a) considers to make the most significant contribution to the formation of ozone air pollution in ozone [nonattainment areas](/usc/42/7501.md?p=2), including hazardous waste [treatment](/usc/42/11851.md?p=11), storage, and [disposal](/usc/42/2021b.md?p=7) [facilities](/usc/42/11049.md?p=4) which are permitted under subtitle C of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6921](/usc/42/6921.md) et seq.]. Thereafter the [Administrator](/usc/42/7602.md?p=a) shall periodically review and, if necessary, revise such guidelines.
- (3) Within 3 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall issue control techniques guidelines in accordance with [section 7408 of this title](/usc/42/7408.md) to reduce the aggregate emissions of volatile organic compounds into the ambient air from aerospace coatings and solvents. Such control techniques guidelines shall, at a minimum, be adequate to reduce aggregate emissions of volatile organic compounds into the ambient air from the application of such coatings and solvents to such level as the [Administrator](/usc/42/7602.md?p=a) determines may be achieved through the adoption of best available control measures. Such control technology guidance shall provide for such reductions in such increments and on such schedules as the [Administrator](/usc/42/7602.md?p=a) determines to be reasonable, but in no event later than 10 years after the final issuance of such control technology guidance. In developing control technology guidance under this subsection, the [Administrator](/usc/42/7602.md?p=a) shall consult with the [Secretary](/usc/42/242q–4.md?p=2) of Defense, the [Secretary](/usc/42/242q–4.md?p=2) of Transportation, and the [Administrator](/usc/42/7602.md?p=a) of the National Aeronautics and Space Administration with regard to the establishment of specifications for such coatings. In evaluating [VOC](/usc/42/7602.md?p=s) reduction strategies, the guidance shall take into account the applicable requirements of [section 7412 of this title](/usc/42/7412.md) and the need to protect stratospheric ozone.
- (4) Within 3 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall issue control techniques guidelines in accordance with [section 7408 of this title](/usc/42/7408.md) to reduce the aggregate emissions of volatile organic compounds and [PM–10](/usc/42/7602.md?p=t) into the ambient air from paints, coatings, and solvents used in shipbuilding operations and ship repair. Such control techniques guidelines shall, at a minimum, be adequate to reduce aggregate emissions of volatile organic compounds and [PM–10](/usc/42/7602.md?p=t) into the ambient air from the [removal](/usc/42/9601.md?p=23) or application of such paints, coatings, and solvents to such level as the [Administrator](/usc/42/7602.md?p=a) determines may be achieved through the adoption of the best available control measures. Such control techniques guidelines shall provide for such reductions in such increments and on such schedules as the [Administrator](/usc/42/7602.md?p=a) determines to be reasonable, but in no event later than 10 years after the final issuance of such control technology guidance. In developing control techniques guidelines under this subsection, the [Administrator](/usc/42/7602.md?p=a) shall consult with the appropriate Federal agencies.
- (c) **Alternative control techniques—** Within 3 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall issue technical documents which identify alternative controls for all [categories](/usc/42/1395w–4.md?p=j-1) of [stationary sources](/usc/42/7411.md?p=a-3) of volatile organic compounds and oxides of nitrogen which emit, or have the potential to emit 25 tons per year or more of such [air pollutant](/usc/42/7602.md?p=g). The [Administrator](/usc/42/7602.md?p=a) shall revise and update such documents as the [Administrator](/usc/42/7602.md?p=a) determines necessary.
- (d) **Guidance for evaluating cost-effectiveness—** Within 1 year after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall provide guidance to the [States](/usc/42/7602.md?p=d) to be used in evaluating the relative cost-effectiveness of various options for the control of emissions from existing [stationary sources](/usc/42/7411.md?p=a-3) of [air pollutants](/usc/42/7602.md?p=g) which contribute to nonattainment of the national ambient air quality [standards](/usc/42/1320d.md?p=7) for ozone.
- (e) **Control of emissions from certain sources—**
- (1) **Definitions—** For purposes of this subsection—
- (A) **Best available controls—** The term “best available controls” means the degree of [emissions reduction](/usc/42/17114.md?p=a-3) that the [Administrator](/usc/42/7602.md?p=a) determines, on the basis of technological and economic feasibility, health, environmental, and [energy](/usc/42/6311.md?p=7) impacts, is achievable through the application of the most effective equipment, measures, processes, methods, systems or techniques, including chemical reformulation, product or feedstock substitution, repackaging, and directions for use, consumption, storage, or [disposal](/usc/42/2021b.md?p=7).
- (B) **Consumer or commercial product—** The term “consumer or commercial product” means any substance, product (including paints, coatings, and solvents), or article (including any container or packaging) held by any [person](/usc/42/7602.md?p=e), the use, consumption, storage, [disposal](/usc/42/2021b.md?p=7), destruction, or decomposition of which may result in the [release](/usc/42/9601.md?p=22) of volatile organic compounds. The term does not include fuels or fuel additives regulated under [section 7545 of this title](/usc/42/7545.md), or [motor vehicles](/usc/42/13211.md?p=13), non-road vehicles, and non-road engines as defined under [section 7550 of this title](/usc/42/7550.md).
- (C) **Regulated entities—** The term “regulated entities” means—
- (i) [manufacturers](/usc/42/300aa–33.md?p=3), processors, wholesale distributors, or importers of [consumer or commercial products](#e-1-B) for sale or distribution in interstate [commerce](/usc/42/6311.md?p=7) in the [United States](/usc/42/403.md?p=k); or
- (ii) [manufacturers](/usc/42/300aa–33.md?p=3), processors, wholesale distributors, or importers that supply the entities listed under [clause (i)](#e-1-C-i) with such products for sale or distribution in interstate [commerce](/usc/42/6311.md?p=7) in the [United States](/usc/42/403.md?p=k).
- (2) **Study and report—**
- (A) **Study—** The [Administrator](/usc/42/7602.md?p=a) shall conduct a study of the emissions of volatile organic compounds into the ambient air from consumer and commercial products (or any combination thereof) in order to—
- (i) determine their potential to contribute to ozone levels which violate the national ambient air quality [standard](/usc/42/1320d.md?p=7) for ozone; and
- (ii) establish criteria for regulating consumer and commercial products or classes or [categories](/usc/42/1395w–4.md?p=j-1) thereof which shall be subject to control under this subsection.
The study shall be completed and a report submitted to Congress not later than 3 years after November 15, 1990.
- (B) **Consideration of certain factors—** In establishing the criteria under [subparagraph (A)(ii)](#e-2-A-ii), the [Administrator](/usc/42/7602.md?p=a) shall take into consideration each of the following:
- (i) The uses, benefits, and commercial demand of consumer and commercial products.
- (ii) The health or safety functions (if any) served by such consumer and commercial products.
- (iii) Those consumer and commercial products which emit highly reactive volatile organic compounds into the ambient air.
- (iv) Those consumer and commercial products which are subject to the most [cost-effective](/usc/42/1396e.md?p=e-2) controls.
- (v) The availability of alternatives (if any) to such consumer and commercial products which are of comparable costs, considering health, safety, and environmental impacts.
- (3) **Regulations to require emission reductions—**
- (A) **In general—** Upon submission of the final report under [paragraph (2)](#e-2), the [Administrator](/usc/42/7602.md?p=a) shall list those [categories](/usc/42/1395w–4.md?p=j-1) of [consumer or commercial products](#e-1-B) that the [Administrator](/usc/42/7602.md?p=a) determines, based on the study, account for at least 80 percent of the [VOC](/usc/42/7602.md?p=s) emissions, on a reactivity-adjusted basis, from [consumer or commercial products](#e-1-B) in areas that violate the [NAAQS](/usc/42/7602.md?p=u) for ozone. Credit toward the 80 percent emissions calculation shall be given for emission reductions from [consumer or commercial products](#e-1-B) made after November 15, 1990. At such time, the [Administrator](/usc/42/7602.md?p=a) shall divide the list into 4 groups establishing priorities for regulation based on the criteria established in [paragraph (2)](#e-2). Every 2 years after promulgating such list, the [Administrator](/usc/42/7602.md?p=a) shall regulate one group of [categories](/usc/42/1395w–4.md?p=j-1) until all 4 groups are regulated. The regulations shall require [best available controls](#e-1-A) as defined in this section. Such regulations may exempt health use products for which the [Administrator](/usc/42/7602.md?p=a) determines there is no suitable substitute. In order to carry out this section, the [Administrator](/usc/42/7602.md?p=a) may, by regulation, control or prohibit any activity, including the [manufacture](/usc/42/300aa–33.md?p=3) or introduction into [commerce](/usc/42/6311.md?p=7), offering for sale, or sale of any [consumer or commercial product](#e-1-B) which results in emission of volatile organic compounds into the ambient air.
- (B) **Regulated entities—** Regulations under this subsection may be imposed only with respect to [regulated entities](#e-1-C).
- (C) **Use of CTGS—** For any [consumer or commercial product](#e-1-B) the [Administrator](/usc/42/7602.md?p=a) may issue control techniques guidelines under this chapter in lieu of regulations required under [subparagraph (A)](#e-3-A) if the [Administrator](/usc/42/7602.md?p=a) determines that such guidance will be substantially as effective as regulations in reducing emissions of volatile organic compounds which contribute to ozone levels in areas which violate the national ambient air quality [standard](/usc/42/1320d.md?p=7) for ozone.
- (4) **Systems of regulation—** The regulations under this subsection may include any system or systems of regulation as the [Administrator](/usc/42/7602.md?p=a) may deem appropriate, including requirements for registration and labeling, self-monitoring and reporting, prohibitions, limitations, or economic incentives (including marketable permits and auctions of emissions rights) concerning the [manufacture](/usc/42/300aa–33.md?p=3), processing, distribution, use, consumption, or [disposal](/usc/42/2021b.md?p=7) of the product.
- (5) **Special fund—** Any amounts collected by the [Administrator](/usc/42/7602.md?p=a) under such regulations shall be deposited in a special [fund](/usc/42/12854.md?p=3) in the [United States](/usc/42/403.md?p=k) Treasury for licensing and other services, which thereafter shall be available until expended, subject to annual appropriation Acts, solely to carry out the activities of the [Administrator](/usc/42/7602.md?p=a) for which such fees, charges, or collections are established or made.
- (6) **Enforcement—** Any regulation established under this subsection shall be treated, for purposes of enforcement of this chapter, as a [standard](/usc/42/1320d.md?p=7) under [section 7411 of this title](/usc/42/7411.md) and any [violation](/usc/42/2000e–16a.md?p=c) of such regulation shall be treated as a [violation](/usc/42/2000e–16a.md?p=c) of a requirement of [section 7411(e) of this title](/usc/42/7411.md?p=e).
- (7) **State administration—** Each [State](/usc/42/7602.md?p=d) may develop and submit to the [Administrator](/usc/42/7602.md?p=a) a procedure under [State](/usc/42/7602.md?p=d) law for implementing and enforcing regulations promulgated under this subsection. If the [Administrator](/usc/42/7602.md?p=a) finds the [State](/usc/42/7602.md?p=d) procedure is adequate, the [Administrator](/usc/42/7602.md?p=a) shall approve such procedure. Nothing in this paragraph shall prohibit the [Administrator](/usc/42/7602.md?p=a) from enforcing any applicable regulations under this subsection.
- (8) **Size, etc.** No regulations regarding the size, shape, or labeling of a product may be promulgated, unless the [Administrator](/usc/42/7602.md?p=a) determines such regulations to be useful in meeting any national ambient air quality [standard](/usc/42/1320d.md?p=7).
- (9) **State consultation—** Any [State](/usc/42/7602.md?p=d) which proposes regulations other than those adopted under this subsection shall consult with the [Administrator](/usc/42/7602.md?p=a) regarding whether any other [State](/usc/42/7602.md?p=d) or local subdivision has promulgated or is promulgating regulations on any products covered under this part. The [Administrator](/usc/42/7602.md?p=a) shall establish a clearinghouse of information, studies, and regulations proposed and promulgated regarding products covered under this subsection and disseminate such information collected as requested by [State](/usc/42/7602.md?p=d) or local subdivisions.
- (f) **Tank vessel standards—**
- (1) **Schedule for standards—**
- (A) Within 2 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of the Department in which the Coast Guard is operating, shall promulgate [standards](/usc/42/1320d.md?p=7) applicable to the emission of [VOCs](/usc/42/7602.md?p=s) and any other [air pollutant](/usc/42/7602.md?p=g) from loading and unloading of tank vessels (as that term is defined in [section 2101 of title 46](/usc/46/2101.md)) which the [Administrator](/usc/42/7602.md?p=a) finds [causes](/usc/42/9908.md?p=c-2), or contributes to, air pollution that may be reasonably anticipated to endanger public health or welfare. Such [standards](/usc/42/1320d.md?p=7) shall require the application of reasonably available control technology, considering costs, any nonair-quality benefits, environmental impacts, [energy](/usc/42/6311.md?p=7) requirements and safety factors associated with alternative control techniques. To the extent practicable such [standards](/usc/42/1320d.md?p=7) shall apply to loading and unloading [facilities](/usc/42/11049.md?p=4) and not to tank vessels.
- (B) Any regulation prescribed under this subsection (and any revision thereof) shall take effect after such period as the [Administrator](/usc/42/7602.md?p=a) finds (after consultation with the [Secretary](/usc/42/242q–4.md?p=2) of the department[^1] in which the Coast Guard is operating) necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period, except that the effective date shall not be more than 2 years after promulgation of such regulations.
- (2) **Regulations on equipment safety—** Within 6 months after November 15, 1990, the [Secretary](/usc/42/242q–4.md?p=2) of the Department in which the Coast Guard is operating shall issue regulations to ensure the safety of the equipment and operations which are to control emissions from the loading and unloading of tank vessels, under [section 3703 of title 46](/usc/46/3703.md) and section 1225[^2] of [title 33](/usc/33.md). The [standards](/usc/42/1320d.md?p=7) promulgated by the [Administrator](/usc/42/7602.md?p=a) under [paragraph (1)](#f-1) and the regulations issued by a [State](/usc/42/7602.md?p=d) or political subdivision regarding emissions from the loading and unloading of tank vessels shall be consistent with the regulations regarding safety of the Department in which the Coast Guard is operating.
- (3) **Agency authority—**
- (A) The [Administrator](/usc/42/7602.md?p=a) shall ensure compliance with the tank vessel [emission standards](/usc/42/7602.md?p=k) prescribed under [paragraph (1)(A)](#f-1-A). The [Secretary](/usc/42/242q–4.md?p=2) of the Department in which the Coast Guard is operating shall also ensure compliance with the tank vessel [standards](/usc/42/1320d.md?p=7) prescribed under [paragraph (1)(A)](#f-1-A).
- (B) The [Secretary](/usc/42/242q–4.md?p=2) of the Department in which the Coast Guard is operating shall ensure compliance with the regulations issued under [paragraph (2)](#f-2).
- (4) **State or local standards—** After the [Administrator](/usc/42/7602.md?p=a) promulgates [standards](/usc/42/1320d.md?p=7) under this section, no [State](/usc/42/7602.md?p=d) or political subdivision thereof may adopt or attempt to enforce any [standard](/usc/42/1320d.md?p=7) respecting emissions from tank vessels subject to regulation under [paragraph (1)](#f-1) unless such [standard](/usc/42/1320d.md?p=7) is no less stringent than the [standards](/usc/42/1320d.md?p=7) promulgated under [paragraph (1)](#f-1).
- (5) **Enforcement—** Any [standard](/usc/42/1320d.md?p=7) established under [paragraph (1)(A)](#f-1-A) shall be treated, for purposes of enforcement of this chapter, as a [standard](/usc/42/1320d.md?p=7) under [section 7411 of this title](/usc/42/7411.md) and any [violation](/usc/42/2000e–16a.md?p=c) of such [standard](/usc/42/1320d.md?p=7) shall be treated as a [violation](/usc/42/2000e–16a.md?p=c) of a requirement of [section 7411(e) of this title](/usc/42/7411.md?p=e).
- (g) **Ozone design value study—** The [Administrator](/usc/42/7602.md?p=a) shall conduct a study of whether the methodology in use by the Environmental Protection Agency as of November 15, 1990, for establishing a design value for ozone provides a reasonable indicator of the ozone air quality of ozone [nonattainment areas](/usc/42/7501.md?p=2). The [Administrator](/usc/42/7602.md?p=a) shall obtain input from [States](/usc/42/7602.md?p=d), local subdivisions thereof, and others. The study shall be completed and a report submitted to Congress not later than 3 years after November 15, 1990. The results of the study shall be subject to peer and public review before submitting it to Congress.
- (h) **Vehicles entering ozone nonattainment areas—**
- (1) **Authority regarding ozone inspection and maintenance testing—**
- (A) **In general—** No noncommercial [motor vehicle](/usc/42/13211.md?p=13) registered in a foreign country and operated by a [United States](/usc/42/403.md?p=k) citizen or by an alien who is a permanent resident of the [United States](/usc/42/403.md?p=k), or who holds a visa for the purposes of employment or educational study in the [United States](/usc/42/403.md?p=k), may enter a [covered ozone nonattainment area](#h-5) from a foreign country bordering the [United States](/usc/42/403.md?p=k) and contiguous to the [nonattainment area](/usc/42/7501.md?p=2) more than twice in a [single](/usc/42/2304.md?p=m) calendar-month period, if [State](/usc/42/7602.md?p=d) law has requirements for the [inspection](/usc/42/4851b.md?p=12) and maintenance of such vehicles under the [applicable implementation plan](/usc/42/7602.md?p=q) in the [nonattainment area](/usc/42/7501.md?p=2).
- (B) **Applicability—** [Subparagraph (A)](#h-1-A) shall not apply if the operator presents documentation at the [United States](/usc/42/403.md?p=k) border entry point establishing that the vehicle has complied with such [inspection](/usc/42/4851b.md?p=12) and maintenance requirements as are in effect and are applicable to [motor vehicles](/usc/42/13211.md?p=13) of the same type and model year.
- (2) **Sanctions for violations—** The President may impose and collect from the operator of any [motor vehicle](/usc/42/13211.md?p=13) who violates, or attempts to violate, [paragraph (1)](#h-1) a civil penalty of not more than $200 for the second [violation](/usc/42/2000e–16a.md?p=c) or attempted [violation](/usc/42/2000e–16a.md?p=c) and $400 for the third and each subsequent [violation](/usc/42/2000e–16a.md?p=c) or attempted [violation](/usc/42/2000e–16a.md?p=c).
- (3) **State election—** The prohibition set forth in [paragraph (1)](#h-1) shall not apply in any [State](/usc/42/7602.md?p=d) that elects to be exempt from the prohibition. Such an election shall take effect upon the President’s receipt of written notice from the [Governor](/usc/42/6372.md?p=1) of the [State](/usc/42/7602.md?p=d) notifying the President of such election.
- (4) **Alternative approach—** The prohibition set forth in [paragraph (1)](#h-1) shall not apply in a [State](/usc/42/7602.md?p=d), and the President may implement an alternative approach, if—
- (A) the [Governor](/usc/42/6372.md?p=1) of the [State](/usc/42/7602.md?p=d) submits to the President a written description of an alternative approach to facilitate the compliance, by some or all foreign-registered [motor vehicles](/usc/42/13211.md?p=13), with the [motor vehicle](/usc/42/13211.md?p=13) [inspection](/usc/42/4851b.md?p=12) and maintenance requirements that are—
- (i) related to emissions of [air pollutants](/usc/42/7602.md?p=g);
- (ii) in effect under the [applicable implementation plan](/usc/42/7602.md?p=q) in the [covered ozone nonattainment area](#h-5); and
- (iii) applicable to [motor vehicles](/usc/42/13211.md?p=13) of the same types and model years as the foreign-registered [motor vehicles](/usc/42/13211.md?p=13); and
- (B) the President approves the alternative approach as facilitating compliance with the [motor vehicle](/usc/42/13211.md?p=13) [inspection](/usc/42/4851b.md?p=12) and maintenance requirements referred to in [subparagraph (A)](#h-4-A).
- (5) **Definition of covered ozone nonattainment area—** In this section, the term “covered ozone nonattainment area” means a Serious Area, as classified under [section 7511 of this title](/usc/42/7511.md) as of October 27, 1998.
# §7511c. Control of interstate ozone air pollution
- (a) **Ozone transport regions—** A [single](/usc/42/2304.md?p=m) transport region for ozone (within the meaning of [section 7506a(a) of this title](/usc/42/7506a.md?p=a)), comprised of the [States](/usc/42/7602.md?p=d) of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and the Consolidated Metropolitan Statistical Area that includes the District of Columbia, is hereby established by operation of law. The provisions of section [7506a(a)(1)](/usc/42/7506a.md?p=a-1) and [(2)](/usc/42/7506a.md?p=a-2) of this title shall apply with respect to the transport region established under this section and any other transport region established for ozone, except to the extent inconsistent with the provisions of this section. The [Administrator](/usc/42/7602.md?p=a) shall convene the [commission](/usc/42/2000ff.md?p=1) required (under [section 7506a(b) of this title](/usc/42/7506a.md?p=b)) as a result of the establishment of such region within 6 months of November 15, 1990.
- (b) **Plan provisions for States in ozone transport regions—**
- (1) In accordance with [section 7410 of this title](/usc/42/7410.md), not later than 2 years after November 15, 1990 (or 9 months after the subsequent inclusion of a [State](/usc/42/7602.md?p=d) in a transport region established for ozone), each [State](/usc/42/7602.md?p=d) included within a transport region established for ozone shall submit a [State](/usc/42/7602.md?p=d) implementation plan or revision thereof to the [Administrator](/usc/42/7602.md?p=a) which requires the following—
- (A) that each area in such [State](/usc/42/7602.md?p=d) that is in an ozone transport region, and that is a metropolitan statistical area or part thereof with a population of 100,000 or more comply with the provisions of [section 7511a(c)(2)(A) of this title](/usc/42/7511a.md?p=c-2-A) (pertaining to enhanced vehicle [inspection](/usc/42/4851b.md?p=12) and maintenance [programs](/usc/42/274l–1.md?p=4)); and
- (B) implementation of reasonably available control technology with respect to all sources of volatile organic compounds in the [State](/usc/42/7602.md?p=d) covered by a control techniques guideline issued before or after November 15, 1990.
- (2) Within 3 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall complete a study identifying control measures capable of achieving emission reductions comparable to those achievable through vehicle refueling controls contained in [section 7511a(b)(3) of this title](/usc/42/7511a.md?p=b-3), and such measures or such vehicle refueling controls shall be implemented in accordance with the provisions of this section. Notwithstanding other deadlines in this section, the [applicable implementation plan](/usc/42/7602.md?p=q) shall be revised to reflect such measures within 1 year of completion of the study. For purposes of this section any [stationary source](/usc/42/7411.md?p=a-3) that emits or has the potential to emit at least 50 tons per year of volatile organic compounds shall be considered a [major stationary source](/usc/42/7602.md?p=j) and subject to the requirements which would be applicable to [major stationary sources](/usc/42/7602.md?p=j) if the area were classified as a Moderate [nonattainment area](/usc/42/7501.md?p=2).
- (c) **Additional control measures—**
- (1) **Recommendations—** Upon petition of any [State](/usc/42/7602.md?p=d) within a transport region established for ozone, and based on a majority vote of the [Governors](/usc/42/6372.md?p=1) on the [Commission](/usc/42/2000ff.md?p=1)[^1] (or their designees), the [Commission](/usc/42/2000ff.md?p=1)[^1] may, after notice and opportunity for public comment, develop recommendations for additional control measures to be applied within all or a part of such transport region if the [commission](/usc/42/2000ff.md?p=1) determines such measures are necessary to bring any area in such region into attainment by the dates provided by this subpart. The [commission](/usc/42/2000ff.md?p=1) shall transmit such recommendations to the [Administrator](/usc/42/7602.md?p=a).
- (2) **Notice and review—** Whenever the [Administrator](/usc/42/7602.md?p=a) receives recommendations prepared by a [commission](/usc/42/2000ff.md?p=1) pursuant to [paragraph (1)](#c-1) (the date of receipt of which shall hereinafter in this section be referred to as the “receipt date”), the [Administrator](/usc/42/7602.md?p=a) shall—
- (A) immediately publish in the Federal Register a notice stating that the recommendations are available and provide an opportunity for public hearing within 90 days beginning on the receipt date; and
- (B) commence a review of the recommendations to determine whether the control measures in the recommendations are necessary to bring any area in such region into attainment by the dates provided by this subpart and are otherwise consistent with this chapter.
- (3) **Consultation—** In undertaking the review required under [paragraph (2)(B)](#c-2-B), the [Administrator](/usc/42/7602.md?p=a) shall consult with members of the [commission](/usc/42/2000ff.md?p=1) of the affected [States](/usc/42/7602.md?p=d) and shall take into account the data, views, and comments received pursuant to [paragraph (2)(A)](#c-2-A).
- (4) **Approval and disapproval—** Within 9 months after the receipt date, the [Administrator](/usc/42/7602.md?p=a) shall (A) determine whether to approve, disapprove, or partially disapprove and partially approve the recommendations; (B) notify the [commission](/usc/42/2000ff.md?p=1) in writing of such approval, disapproval, or partial disapproval; and (C) publish such determination in the Federal Register. If the [Administrator](/usc/42/7602.md?p=a) disapproves or partially disapproves the recommendations, the [Administrator](/usc/42/7602.md?p=a) shall specify—
- (i) why any disapproved additional control measures are not necessary to bring any area in such region into attainment by the dates provided by this subpart or are otherwise not consistent with the[^2] chapter; and
- (ii) recommendations concerning equal or more effective actions that could be taken by the [commission](/usc/42/2000ff.md?p=1) to conform the disapproved portion of the recommendations to the requirements of this section.
- (5) **Finding—** Upon approval or partial approval of recommendations submitted by a [commission](/usc/42/2000ff.md?p=1), the [Administrator](/usc/42/7602.md?p=a) shall issue to each [State](/usc/42/7602.md?p=d) which is included in the transport region and to which a requirement of the approved plan applies, a finding under [section 7410(k)(5) of this title](/usc/42/7410.md?p=k-5) that the implementation plan for such [State](/usc/42/7602.md?p=d) is inadequate to meet the requirements of [section 7410(a)(2)(D) of this title](/usc/42/7410.md?p=a-2-D). Such finding shall require each such [State](/usc/42/7602.md?p=d) to revise its implementation plan to include the approved additional control measures within one year after the finding is issued.
- (d) **Best available air quality monitoring and modeling—** For purposes of this section, not later than 6 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate criteria for purposes of determining the contribution of sources in one area to concentrations of ozone in another area which is a [nonattainment area](/usc/42/7501.md?p=2) for ozone. Such criteria shall require that the best available air quality monitoring and modeling techniques be used for purposes of making such determinations.
# §7511d. Enforcement for Severe and Extreme ozone nonattainment areas for failure to attain
- (a) **General rule—** Each implementation plan revision required under section [7511a(d)](/usc/42/7511a.md?p=d) and [(e)](/usc/42/7511a.md?p=e) of this title (relating to the attainment plan for Severe and Extreme ozone [nonattainment areas](/usc/42/7501.md?p=2)) shall provide that, if the area to which such plan revision applies has failed to attain the national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for ozone by the applicable attainment date, each [major stationary source](/usc/42/7602.md?p=j) of [VOCs](/usc/42/7602.md?p=s) located in the area shall, except as otherwise provided under [subsection (c)](#c), pay a fee to the [State](/usc/42/7602.md?p=d) as a penalty for such failure, computed in accordance with [subsection (b)](#b), for each calendar year beginning after the attainment date, until the area is redesignated as an attainment area for ozone. Each such plan revision should include procedures for assessment and collection of such fees.
- (b) **Computation of fee—**
- (1) **Fee amount—** The fee shall equal $5,000, adjusted in accordance with [paragraph (3)](#b-3), per ton of [VOC](/usc/42/7602.md?p=s) emitted by the source during the calendar year in excess of 80 percent of the baseline amount, computed under [paragraph (2)](#b-2).
- (2) **Baseline amount—** For purposes of this section, the baseline amount shall be computed, in accordance with such guidance as the [Administrator](/usc/42/7602.md?p=a) may provide, as the lower of the amount of actual [VOC](/usc/42/7602.md?p=s) emissions (“actuals”) or [VOC](/usc/42/7602.md?p=s) emissions allowed under the permit applicable to the source (or, if no such permit has been issued for the attainment year, the amount of [VOC](/usc/42/7602.md?p=s) emissions allowed under the [applicable implementation plan](/usc/42/7602.md?p=q) (“allowables”)) during the attainment year. Notwithstanding the preceding sentence, the [Administrator](/usc/42/7602.md?p=a) may issue guidance authorizing the baseline amount to be determined in accordance with the lower of average actuals or average allowables, determined over a period of more than one calendar year. Such guidance may provide that such average calculation for a specific source may be used if that source’s emissions are irregular, cyclical, or otherwise vary significantly from year to year.
- (3) **Annual adjustment—** The fee amount under [paragraph (1)](#b-1) shall be adjusted annually, beginning in the year beginning after 1990, in accordance with [section 7661a(b)(3)(B)(v) of this title](/usc/42/7661a.md?p=b-3-B-v) (relating to inflation adjustment).
- (c) **Exception—** Notwithstanding any provision of this section, no source shall be required to pay any fee under [subsection (a)](#a) with respect to emissions during any year that is treated as an Extension Year under [section 7511(a)(5) of this title](/usc/42/7511.md?p=a-5).
- (d) **Fee collection by Administrator—** If the [Administrator](/usc/42/7602.md?p=a) has found that the fee provisions of the implementation plan do not meet the requirements of this section, or if the [Administrator](/usc/42/7602.md?p=a) makes a finding that the [State](/usc/42/7602.md?p=d) is not administering and enforcing the fee required under this section, the [Administrator](/usc/42/7602.md?p=a) shall, in addition to any other action authorized under this subchapter, collect, in accordance with procedures promulgated by the [Administrator](/usc/42/7602.md?p=a), the unpaid fees required under [subsection (a)](#a). If the [Administrator](/usc/42/7602.md?p=a) makes such a finding under [section 7509(a)(4) of this title](/usc/42/7509.md?p=a-4), the [Administrator](/usc/42/7602.md?p=a) may collect fees for periods before the determination, plus interest computed in accordance with [section 6621(a)(2) of title 26](/usc/26/6621.md?p=a-2) (relating to computation of interest on underpayment of Federal taxes), to the extent the [Administrator](/usc/42/7602.md?p=a) finds such fees have not been paid to the [State](/usc/42/7602.md?p=d). The provisions of clauses (ii) through (iii) of [section 7661a(b)(3)(C) of this title](/usc/42/7661a.md?p=b-3-C) (relating to penalties and use of the [funds](/usc/42/12854.md?p=3), respectively) shall apply with respect to fees collected under this subsection.
- (e) **Exemptions for certain small areas—** For areas with a total population under 200,000 which fail to attain the [standard](/usc/42/1320d.md?p=7) by the applicable attainment date, no sanction under this section or under any other provision of this chapter shall apply if the area can demonstrate, consistent with guidance issued by the [Administrator](/usc/42/7602.md?p=a), that attainment in the area is prevented because of ozone or ozone precursors transported from other areas. The prohibition applies only in cases in which the area has met all requirements and implemented all measures applicable to the area under this chapter.
# §7511e. Transitional areas
If an area designated as an ozone [nonattainment area](/usc/42/7501.md?p=2) as of November 15, 1990, has not violated the national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for ozone for the 36-month period commencing on January 1, 1987, and ending on December 31, 1989, the [Administrator](/usc/42/7602.md?p=a) shall suspend the application of the requirements of this subpart to such area until December 31, 1991. By June 30, 1992, the [Administrator](/usc/42/7602.md?p=a) shall determine by order, based on the area’s design value as of the attainment date, whether the area attained such [standard](/usc/42/1320d.md?p=7) by December 31, 1991. If the [Administrator](/usc/42/7602.md?p=a) determines that the area attained the [standard](/usc/42/1320d.md?p=7), the [Administrator](/usc/42/7602.md?p=a) shall require, as part of the order, the [State](/usc/42/7602.md?p=d) to submit a maintenance plan for the area within 12 months of such determination. If the [Administrator](/usc/42/7602.md?p=a) determines that the area failed to attain the [standard](/usc/42/1320d.md?p=7), the [Administrator](/usc/42/7602.md?p=a) shall, by June 30, 1992, designate the area as nonattainment under [section 7407(d)(4) of this title](/usc/42/7407.md?p=d-4).
# §7511f. NO[x](#sub) and VOC study
The [Administrator](/usc/42/7602.md?p=a), in conjunction with the National Academy of Sciences, shall conduct a study on the role of ozone precursors in tropospheric ozone formation and control. The study shall examine the roles of NOx and [VOC](/usc/42/7602.md?p=s) emission reductions, the extent to which NOx reductions may contribute (or be counterproductive) to achievement of attainment in different [nonattainment areas](/usc/42/7501.md?p=2), the sensitivity of ozone to the control of NOx, the availability and extent of controls for NOx, the role of biogenic [VOC](/usc/42/7602.md?p=s) emissions, and the basic information required for air quality models. The study shall be completed and a proposed report made public for 30 days comment within 1 year of November 15, 1990, and a final report shall be submitted to Congress within 15 months after November 15, 1990. The [Administrator](/usc/42/7602.md?p=a) shall utilize all available information and studies, as well as develop additional information, in conducting the study required by this section.
# §7512. Classification and attainment dates
- (a) **Classification by operation of law and attainment dates for nonattainment areas—**
- (1) Each area designated nonattainment for carbon monoxide pursuant to [section 7407(d) of this title](/usc/42/7407.md?p=d) shall be classified at the time of such designation under table 1, by operation of law, as a Moderate Area or a Serious Area based on the design value for the area. The design value shall be calculated according to the interpretation methodology issued by the [Administrator](/usc/42/7602.md?p=a) most recently before November 15, 1990. For each area classified under this subsection, the [primary standard attainment date](/usc/42/7602.md?p=n) for carbon monoxide shall be as expeditiously as practicable but not later than the date provided in table 1:
| TABLE 3[^1] | | |
| --- | --- | --- |
| Area
classification | Design value | [Primary standard attainment date](/usc/42/7602.md?p=n) |
| Moderate | 9.1–16.4 ppm | December 31, 1995 |
| Serious | 16.5 and above | December 31, 2000 |
- (2) At the time of publication of the notice required under [section 7407 of this title](/usc/42/7407.md) (designating carbon monoxide [nonattainment areas](/usc/42/7501.md?p=2)), the [Administrator](/usc/42/7602.md?p=a) shall publish a notice announcing the classification of each such carbon monoxide [nonattainment area](/usc/42/7501.md?p=2). The provisions of [section 7502(a)(1)(B) of this title](/usc/42/7502.md?p=a-1-B) (relating to lack of notice-and-comment and judicial review) shall apply with respect to such classification.
- (3) If an area classified under [paragraph (1)](#a-1), table 1, would have been classified in another [category](/usc/42/1395w–4.md?p=j-1) if the design value in the area were 5 percent greater or 5 percent less than the level on which such classification was based, the [Administrator](/usc/42/7602.md?p=a) may, in the [Administrator](/usc/42/7602.md?p=a)’s discretion, within 90 days after November 15, 1990, by the procedure required under [paragraph (2)](#a-2), adjust the classification of the area. In making such adjustment, the [Administrator](/usc/42/7602.md?p=a) may consider the number of exceedances of the national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for carbon monoxide in the area, the level of pollution transport between the area and the other affected areas, and the mix of sources and [air pollutants](/usc/42/7602.md?p=g) in the area. The [Administrator](/usc/42/7602.md?p=a) may make the same adjustment for purposes of paragraphs (2), (3), (6), and (7) of [section 7512a(a) of this title](/usc/42/7512a.md?p=a).
- (4) Upon application by any [State](/usc/42/7602.md?p=d), the [Administrator](/usc/42/7602.md?p=a) may extend for 1 additional year (hereinafter in this subpart referred to as the “Extension Year”) the date specified in table 1 of [subsection (a)](#a) if—
- (A) the [State](/usc/42/7602.md?p=d) has complied with all requirements and commitments pertaining to the area in the [applicable implementation plan](/usc/42/7602.md?p=q), and
- (B) no more than one exceedance of the national ambient air quality [standard](/usc/42/1320d.md?p=7) level for carbon monoxide has occurred in the area in the year preceding the Extension Year.
No more than 2 one-year extensions may be issued under this paragraph for a [single](/usc/42/2304.md?p=m) [nonattainment area](/usc/42/7501.md?p=2).
- (b) **New designations and reclassifications—**
- (1) **New designations to nonattainment—** Any area that is designated attainment or unclassifiable for carbon monoxide under [section 7407(d)(4) of this title](/usc/42/7407.md?p=d-4), and that is subsequently redesignated to nonattainment for carbon monoxide under [section 7407(d)(3) of this title](/usc/42/7407.md?p=d-3), shall, at the time of the redesignation, be classified by operation of law in accordance with table 1 under subsections [(a)(1)](#a-1) and [(a)(4)](#a-4). Upon its classification, the area shall be subject to the same requirements under [section 7410 of this title](/usc/42/7410.md), subpart 1 of this part, and this subpart that would have applied had the area been so classified at the time of the notice under [subsection (a)(2)](#a-2), except that any absolute, fixed date applicable in connection with any such requirement is extended by operation of law by a period equal to the length of time between November 15, 1990, and the date the area is classified.
- (2) **Reclassification of Moderate Areas upon failure to attain—**
- (A) **General rule—** Within 6 months following the applicable attainment date for a carbon monoxide [nonattainment area](/usc/42/7501.md?p=2), the [Administrator](/usc/42/7602.md?p=a) shall determine, based on the area’s design value as of the attainment date, whether the area has attained the [standard](/usc/42/1320d.md?p=7) by that date. Any Moderate Area that the [Administrator](/usc/42/7602.md?p=a) finds has not attained the [standard](/usc/42/1320d.md?p=7) by that date shall be reclassified by operation of law in accordance with table 1 of [subsection (a)(1)](#a-1) as a Serious Area.
- (B) **Publication of notice—** The [Administrator](/usc/42/7602.md?p=a) shall publish a notice in the Federal Register, no later than 6 months following the attainment date, identifying each area that the [Administrator](/usc/42/7602.md?p=a) has determined, under [subparagraph (A)](#b-2-A), as having failed to attain and identifying the reclassification, if any, described under [subparagraph (A)](#b-2-A).
- (c) **References to terms—** Any reference in this subpart to a “Moderate Area” or a “Serious Area” shall be considered a reference to a Moderate Area or a Serious Area, respectively, as classified under this section.
# §7512a. Plan submissions and requirements
- (a) **Moderate Areas—** Each [State](/usc/42/7602.md?p=d) in which all or part of a Moderate Area is located shall, with respect to the Moderate Area (or portion thereof, to the extent specified in guidance of the [Administrator](/usc/42/7602.md?p=a) issued before November 15, 1990), submit to the [Administrator](/usc/42/7602.md?p=a) the [State](/usc/42/7602.md?p=d) implementation plan revisions (including the plan items) described under this subsection, within such periods as are prescribed under this subsection, except to the extent the [State](/usc/42/7602.md?p=d) has made such submissions as of November 15, 1990:
- (1) **Inventory—** No later than 2 years from November 15, 1990, the [State](/usc/42/7602.md?p=d) shall submit a comprehensive, accurate, current [inventory](/usc/42/4370m.md?p=14) of actual emissions from all sources, as described in [section 7502(c)(3) of this title](/usc/42/7502.md?p=c-3), in accordance with guidance provided by the [Administrator](/usc/42/7602.md?p=a).
- (2)
- (A) **Vehicle miles traveled—** No later than 2 years after November 15, 1990, for areas with a design value above 12.7 ppm at the time of classification, the plan revision shall contain a forecast of vehicle miles traveled in the [nonattainment area](/usc/42/7501.md?p=2) concerned for each year before the year in which the plan [projects](/usc/42/11360.md?p=20) the national ambient air quality [standard](/usc/42/1320d.md?p=7) for carbon monoxide to be attained in the area. The forecast shall be based on guidance which shall be published by the [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of Transportation, within 6 months after November 15, 1990. The plan revision shall provide for annual updates of the forecasts to be submitted to the [Administrator](/usc/42/7602.md?p=a) together with annual reports regarding the extent to which such forecasts proved to be accurate. Such annual reports shall contain estimates of actual vehicle miles traveled in each year for which a forecast was required.
- (B) **Special rule for Denver—** Within 2 years after November 15, 1990, in the case of Denver, the [State](/usc/42/7602.md?p=d) shall submit a revision that includes the transportation control measures as required in [section 7511a(d)(1)(A) of this title](/usc/42/7511a.md?p=d-1-A) except that such revision shall be for the purpose of reducing [CO](/usc/42/7602.md?p=w) emissions rather than volatile organic compound emissions. If the [State](/usc/42/7602.md?p=d) fails to include any such measure, the implementation plan shall contain an explanation of why such measure was not adopted and what [emissions reduction](/usc/42/17114.md?p=a-3) measure was adopted to provide a comparable reduction in emissions, or reasons why such reduction is not necessary to attain the national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for carbon monoxide.
- (3) **Contingency provisions—** No later than 2 years after November 15, 1990, for areas with a design value above 12.7 ppm at the time of classification, the plan revision shall provide for the implementation of specific measures to be undertaken if any estimate of vehicle miles traveled in the area which is submitted in an annual report under [paragraph (2)](#a-2) exceeds the number predicted in the most recent prior forecast or if the area fails to attain the national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for carbon monoxide by the [primary standard attainment date](/usc/42/7602.md?p=n). Such measures shall be included in the plan revision as contingency measures to take effect without further action by the [State](/usc/42/7602.md?p=d) or the [Administrator](/usc/42/7602.md?p=a) if the prior forecast has been exceeded by an updated forecast or if the national [standard](/usc/42/1320d.md?p=7) is not attained by such deadline.
- (4) **Savings clause for vehicle inspection and maintenance provisions of the State implementation plan—** Immediately after November 15, 1990, for any Moderate Area (or, within the [Administrator](/usc/42/7602.md?p=a)’s discretion, portion thereof), the plan for which is of the type described in [section 7511a(a)(2)(B) of this title](/usc/42/7511a.md?p=a-2-B) any provisions necessary to ensure that the [applicable implementation plan](/usc/42/7602.md?p=q) includes the vehicle [inspection](/usc/42/4851b.md?p=12) and maintenance [program](/usc/42/274l–1.md?p=4) described in [section 7511a(a)(2)(B) of this title](/usc/42/7511a.md?p=a-2-B).
- (5) **Periodic inventory—** No later than September 30, 1995, and no later than the end of each 3 year period thereafter, until the area is redesignated to attainment, a revised [inventory](/usc/42/4370m.md?p=14) meeting the requirements of [subsection (a)(1)](#a-1).
- (6) **Enhanced vehicle inspection and maintenance—** No later than 2 years after November 15, 1990, in the case of Moderate Areas with a design value greater than 12.7 ppm at the time of classification, a revision that includes provisions for an enhanced vehicle [inspection](/usc/42/4851b.md?p=12) and maintenance [program](/usc/42/274l–1.md?p=4) as required in [section 7511a(c)(3) of this title](/usc/42/7511a.md?p=c-3) (concerning serious ozone [nonattainment areas](/usc/42/7501.md?p=2)), except that such [program](/usc/42/274l–1.md?p=4) shall be for the purpose of reducing carbon monoxide rather than hydrocarbon emissions.
- (7) **Attainment demonstration and specific annual emission reductions—** In the case of Moderate Areas with a design value greater than 12.7 ppm at the time of classification, no later than 2 years after November 15, 1990, a revision to provide, and a demonstration that the plan as revised will provide, for attainment of the carbon monoxide [NAAQS](/usc/42/7602.md?p=u) by the applicable attainment date and provisions for such specific annual emission reductions as are necessary to attain the [standard](/usc/42/1320d.md?p=7) by that date.
The [Administrator](/usc/42/7602.md?p=a) may, in the [Administrator](/usc/42/7602.md?p=a)’s discretion, require [States](/usc/42/7602.md?p=d) to submit a schedule for submitting any of the revisions or other items required under this subsection. In the case of Moderate Areas with a design value of 12.7 ppm or lower at the time of classification, the requirements of this subsection shall apply in lieu of any requirement that the [State](/usc/42/7602.md?p=d) submit a demonstration that the [applicable implementation plan](/usc/42/7602.md?p=q) provides for attainment of the carbon monoxide [standard](/usc/42/1320d.md?p=7) by the applicable attainment date.
- (b) **Serious Areas—**
- (1) **In general—** Each [State](/usc/42/7602.md?p=d) in which all or part of a Serious Area is located shall, with respect to the Serious Area, make the submissions (other than those required under subsection (a)(1)(B)[^1]) applicable under [subsection (a)](#a) to Moderate Areas with a design value of 12.7 ppm or greater at the time of classification, and shall also submit the revision and other items described under this subsection.
- (2) **Vehicle miles traveled—** Within 2 years after November 15, 1990, the [State](/usc/42/7602.md?p=d) shall submit a revision that includes the transportation control measures as required in [section 7511a(d)(1) of this title](/usc/42/7511a.md?p=d-1) except that such revision shall be for the purpose of reducing [CO](/usc/42/7602.md?p=w) emissions rather than volatile organic compound emissions. In the case of any such area (other than an area in New York [State](/usc/42/7602.md?p=d)) which is a covered area (as defined in [section 7586(a)(2)(B) of this title](/usc/42/7586.md?p=a-2-B)) for purposes of the Clean Fuel Fleet [program](/usc/42/274l–1.md?p=4) under part C of subchapter II, if the [State](/usc/42/7602.md?p=d) fails to include any such measure, the implementation plan shall contain an explanation of why such measure was not adopted and what [emissions reduction](/usc/42/17114.md?p=a-3) measure was adopted to provide a comparable reduction in emissions, or reasons why such reduction is not necessary to attain the national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for carbon monoxide.
- (3) **Oxygenated gasoline—**
- (A) Within 2 years after November 15, 1990, the [State](/usc/42/7602.md?p=d) shall submit a revision to require that gasoline sold, supplied, offered for sale or supply, dispensed, transported or introduced into [commerce](/usc/42/6311.md?p=7) in the larger of—
- (i) the Consolidated Metropolitan Statistical Area (as defined by the [United States](/usc/42/403.md?p=k) [Office](/usc/42/3058f.md?p=1) of Management and Budget) (CMSA) in which the area is located, or
- (ii) if the area is not located in a CMSA, the Metropolitan Statistical Area (as defined by the [United States](/usc/42/403.md?p=k) [Office](/usc/42/3058f.md?p=1) of Management and Budget) in which the area is located,
be blended, during the portion of the year in which the area is prone to high ambient concentrations of carbon monoxide (as determined by the [Administrator](/usc/42/7602.md?p=a)), with fuels containing such level of oxygen as is necessary, in combination with other measures, to provide for attainment of the carbon monoxide national ambient air quality [standard](/usc/42/1320d.md?p=7) by the applicable attainment date and maintenance of the national ambient air quality [standard](/usc/42/1320d.md?p=7) thereafter in the area. The revision shall provide that such requirement shall take effect no later than October 1, 1993, and shall include a [program](/usc/42/274l–1.md?p=4) for implementation and enforcement of the requirement consistent with guidance to be issued by the [Administrator](/usc/42/7602.md?p=a).
- (B) Notwithstanding [subparagraph (A)](#b-3-A), the revision described in this paragraph shall not be required for an area if the [State](/usc/42/7602.md?p=d) demonstrates to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that the revision is not necessary to provide for attainment of the carbon monoxide national ambient air quality [standard](/usc/42/1320d.md?p=7) by the applicable attainment date and maintenance of the national ambient air quality [standard](/usc/42/1320d.md?p=7) thereafter in the area.
- (c) **Areas with significant stationary source emissions of CO—**
- (1) **Serious Areas—** In the case of Serious Areas in which [stationary sources](/usc/42/7411.md?p=a-3) contribute significantly to carbon monoxide levels (as determined under rules issued by the [Administrator](/usc/42/7602.md?p=a)), the [State](/usc/42/7602.md?p=d) shall submit a plan revision within 2 years after November 15, 1990, which provides that the term “[major stationary source](/usc/42/7602.md?p=j)” includes (in addition to the sources described in [section 7602 of this title](/usc/42/7602.md)) any [stationary source](/usc/42/7411.md?p=a-3) which emits, or has the potential to emit, 50 tons per year or more of carbon monoxide.
- (2) **Waivers for certain areas—** The [Administrator](/usc/42/7602.md?p=a) may, on a case-by-case basis, waive any requirements that pertain to transportation controls, [inspection](/usc/42/4851b.md?p=12) and maintenance, or oxygenated fuels where the [Administrator](/usc/42/7602.md?p=a) determines by rule that mobile sources of carbon monoxide do not contribute significantly to carbon monoxide levels in the area.
- (3) **Guidelines—** Within 6 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall issue guidelines for and rules determining whether [stationary sources](/usc/42/7411.md?p=a-3) contribute significantly to carbon monoxide levels in an area.
- (d) **CO milestone—**
- (1) **Milestone demonstration—** By March 31, 1996, each [State](/usc/42/7602.md?p=d) in which all or part of a Serious Area is located shall submit to the [Administrator](/usc/42/7602.md?p=a) a demonstration that the area has achieved a reduction in emissions of [CO](/usc/42/7602.md?p=w) equivalent to the total of the specific annual emission reductions required by December 31, 1995. Such reductions shall be referred to in this subsection as the milestone.
- (2) **Adequacy of demonstration—** A demonstration under this paragraph shall be submitted in such form and manner, and shall contain such information and analysis, as the [Administrator](/usc/42/7602.md?p=a) shall require. The [Administrator](/usc/42/7602.md?p=a) shall determine whether or not a [State](/usc/42/7602.md?p=d)’s demonstration is adequate within 90 days after the [Administrator](/usc/42/7602.md?p=a)’s receipt of a demonstration which contains the information and analysis required by the [Administrator](/usc/42/7602.md?p=a).
- (3) **Failure to meet emission reduction milestone—** If a [State](/usc/42/7602.md?p=d) fails to submit a demonstration under [paragraph (1)](#d-1) within the required period, or if the [Administrator](/usc/42/7602.md?p=a) notifies the [State](/usc/42/7602.md?p=d) that the [State](/usc/42/7602.md?p=d) has not met the milestone, the [State](/usc/42/7602.md?p=d) shall, within 9 months after such a failure or notification, submit a plan revision to implement an economic incentive and transportation control [program](/usc/42/274l–1.md?p=4) as described in [section 7511a(g)(4) of this title](/usc/42/7511a.md?p=g-4). Such revision shall be sufficient to achieve the specific annual reductions in carbon monoxide emissions set forth in the plan by the attainment date.
- (e) **Multi-State CO nonattainment areas—**
- (1) **Coordination among States—** Each [State](/usc/42/7602.md?p=d) in which there is located a portion of a [single](/usc/42/2304.md?p=m) [nonattainment area](/usc/42/7501.md?p=2) for carbon monoxide which covers more than one [State](/usc/42/7602.md?p=d) (“multi-[State](/usc/42/7602.md?p=d) [nonattainment area](/usc/42/7501.md?p=2)”) shall take all reasonable steps to coordinate, substantively and procedurally, the revisions and implementation of [State](/usc/42/7602.md?p=d) implementation plans applicable to the [nonattainment area](/usc/42/7501.md?p=2) concerned. The [Administrator](/usc/42/7602.md?p=a) may not approve any revision of a [State](/usc/42/7602.md?p=d) implementation plan submitted under this part for a [State](/usc/42/7602.md?p=d) in which part of a multi-[State](/usc/42/7602.md?p=d) [nonattainment area](/usc/42/7501.md?p=2) is located if the plan revision for that [State](/usc/42/7602.md?p=d) fails to comply with the requirements of this subsection.
- (2) **Failure to demonstrate attainment—** If any [State](/usc/42/7602.md?p=d) in which there is located a portion of a multi-[State](/usc/42/7602.md?p=d) [nonattainment area](/usc/42/7501.md?p=2) fails to provide a demonstration of attainment of the national ambient air quality [standard](/usc/42/1320d.md?p=7) for carbon monoxide in that portion within the period required under this part the [State](/usc/42/7602.md?p=d) may petition the [Administrator](/usc/42/7602.md?p=a) to make a finding that the [State](/usc/42/7602.md?p=d) would have been able to make such demonstration but for the failure of one or more other [States](/usc/42/7602.md?p=d) in which other portions of the area are located to commit to the implementation of all measures required under this section (relating to plan submissions for carbon monoxide [nonattainment areas](/usc/42/7501.md?p=2)). If the [Administrator](/usc/42/7602.md?p=a) makes such finding, in the portion of the [nonattainment area](/usc/42/7501.md?p=2) within the [State](/usc/42/7602.md?p=d) submitting such petition, no sanction shall be imposed under [section 7509 of this title](/usc/42/7509.md) or under any other provision of this chapter, by reason of the failure to make such demonstration.
- (f) **Reclassified areas—** Each [State](/usc/42/7602.md?p=d) containing a carbon monoxide [nonattainment area](/usc/42/7501.md?p=2) reclassified under [section 7512(b)(2) of this title](/usc/42/7512.md?p=b-2) shall meet the requirements of [subsection (b)](#b) of this section, as may be applicable to the area as reclassified, according to the schedules prescribed in connection with such requirements, except that the [Administrator](/usc/42/7602.md?p=a) may adjust any applicable deadlines (other than the attainment date) where such deadlines are shown to be infeasible.
- (g) **Failure of Serious Area to attain standard—** If the [Administrator](/usc/42/7602.md?p=a) determines under [section 7512(b)(2) of this title](/usc/42/7512.md?p=b-2) that the national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for carbon monoxide has not been attained in a Serious Area by the applicable attainment date, the [State](/usc/42/7602.md?p=d) shall submit a plan revision for the area within 9 months after the date of such determination. The plan revision shall provide that a [program](/usc/42/274l–1.md?p=4) of incentives and requirements as described in [section 7511a(g)(4) of this title](/usc/42/7511a.md?p=g-4) shall be applicable in the area, and such [program](/usc/42/274l–1.md?p=4), in combination with other elements of the revised plan, shall be adequate to reduce the total tonnage of emissions of carbon monoxide in the area by at least 5 percent per year in each year after approval of the plan revision and before attainment of the national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for carbon monoxide.
# §7513. Classifications and attainment dates
- (a) **Initial classifications—** Every area designated nonattainment for [PM–10](/usc/42/7602.md?p=t) pursuant to [section 7407(d) of this title](/usc/42/7407.md?p=d) shall be classified at the time of such designation, by operation of law, as a moderate [PM–10](/usc/42/7602.md?p=t) [nonattainment area](/usc/42/7501.md?p=2) (also referred to in this subpart as a “Moderate Area”) at the time of such designation. At the time of publication of the notice under [section 7407(d)(4) of this title](/usc/42/7407.md?p=d-4) (relating to area designations) for each [PM–10](/usc/42/7602.md?p=t) [nonattainment area](/usc/42/7501.md?p=2), the [Administrator](/usc/42/7602.md?p=a) shall publish a notice announcing the classification of such area. The provisions of [section 7502(a)(1)(B) of this title](/usc/42/7502.md?p=a-1-B) (relating to lack of notice-and-comment and judicial review) shall apply with respect to such classification.
- (b) **Reclassification as Serious—**
- (1) **Reclassification before attainment date—** The [Administrator](/usc/42/7602.md?p=a) may reclassify as a Serious [PM–10](/usc/42/7602.md?p=t) [nonattainment area](/usc/42/7501.md?p=2) (identified in this subpart also as a “Serious Area”) any area that the [Administrator](/usc/42/7602.md?p=a) determines cannot practicably attain the national ambient air quality [standard](/usc/42/1320d.md?p=7) for [PM–10](/usc/42/7602.md?p=t) by the attainment date (as prescribed in [subsection (c)](#c)) for Moderate Areas. The [Administrator](/usc/42/7602.md?p=a) shall reclassify appropriate areas as Serious by the following dates:
- (A) For areas designated nonattainment for [PM–10](/usc/42/7602.md?p=t) under [section 7407(d)(4) of this title](/usc/42/7407.md?p=d-4), the [Administrator](/usc/42/7602.md?p=a) shall propose to reclassify appropriate areas by June 30, 1991, and take final action by December 31, 1991.
- (B) For areas subsequently designated nonattainment, the [Administrator](/usc/42/7602.md?p=a) shall reclassify appropriate areas within 18 months after the required date for the [State](/usc/42/7602.md?p=d)’s submission of a SIP for the Moderate Area.
- (2) **Reclassification upon failure to attain—** Within 6 months following the applicable attainment date for a [PM–10](/usc/42/7602.md?p=t) [nonattainment area](/usc/42/7501.md?p=2), the [Administrator](/usc/42/7602.md?p=a) shall determine whether the area attained the [standard](/usc/42/1320d.md?p=7) by that date. If the [Administrator](/usc/42/7602.md?p=a) finds that any Moderate Area is not in attainment after the applicable attainment date—
- (A) the area shall be reclassified by operation of law as a Serious Area; and
- (B) the [Administrator](/usc/42/7602.md?p=a) shall publish a notice in the Federal Register no later than 6 months following the attainment date, identifying the area as having failed to attain and identifying the reclassification described under [subparagraph (A)](#b-2-A).
- (c) **Attainment dates—** Except as provided under [subsection (d)](#d), the attainment dates for [PM–10](/usc/42/7602.md?p=t) [nonattainment areas](/usc/42/7501.md?p=2) shall be as follows:
- (1) **Moderate Areas—** For a Moderate Area, the attainment date shall be as expeditiously as practicable but no later than the end of the sixth calendar year after the area’s designation as nonattainment, except that, for areas designated nonattainment for [PM–10](/usc/42/7602.md?p=t) under [section 7407(d)(4) of this title](/usc/42/7407.md?p=d-4), the attainment date shall not extend beyond December 31, 1994.
- (2) **Serious Areas—** For a Serious Area, the attainment date shall be as expeditiously as practicable but no later than the end of the tenth calendar year beginning after the area’s designation as nonattainment, except that, for areas designated nonattainment for [PM–10](/usc/42/7602.md?p=t) under [section 7407(d)(4) of this title](/usc/42/7407.md?p=d-4), the date shall not extend beyond December 31, 2001.
- (d) **Extension of attainment date for Moderate Areas—** Upon application by any [State](/usc/42/7602.md?p=d), the [Administrator](/usc/42/7602.md?p=a) may extend for 1 additional year (hereinafter referred to as the “Extension Year”) the date specified in paragraph[^1] (c)(1) if—
- (1) the [State](/usc/42/7602.md?p=d) has complied with all requirements and commitments pertaining to the area in the [applicable implementation plan](/usc/42/7602.md?p=q); and
- (2) no more than one exceedance of the 24-hour national ambient air quality [standard](/usc/42/1320d.md?p=7) level for [PM–10](/usc/42/7602.md?p=t) has occurred in the area in the year preceding the Extension Year, and the annual mean concentration of [PM–10](/usc/42/7602.md?p=t) in the area for such year is less than or equal to the [standard](/usc/42/1320d.md?p=7) level.
No more than 2 one-year extensions may be issued under the subsection for a [single](/usc/42/2304.md?p=m) [nonattainment area](/usc/42/7501.md?p=2).
- (e) **Extension of attainment date for Serious Areas—** Upon application by any [State](/usc/42/7602.md?p=d), the [Administrator](/usc/42/7602.md?p=a) may extend the attainment date for a Serious Area beyond the date specified under [subsection (c)](#c), if attainment by the date established under [subsection (c)](#c) would be impracticable, the [State](/usc/42/7602.md?p=d) has complied with all requirements and commitments pertaining to that area in the implementation plan, and the [State](/usc/42/7602.md?p=d) demonstrates to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that the plan for that area includes the most stringent measures that are included in the implementation plan of any [State](/usc/42/7602.md?p=d) or are achieved in practice in any [State](/usc/42/7602.md?p=d), and can feasibly be implemented in the area. At the time of such application, the [State](/usc/42/7602.md?p=d) must submit a revision to the implementation plan that includes a demonstration of attainment by the most expeditious alternative date practicable. In determining whether to grant an extension, and the appropriate length of time for any such extension, the [Administrator](/usc/42/7602.md?p=a) may consider the nature and extent of nonattainment, the types and numbers of sources or other emitting activities in the area (including the influence of uncontrollable natural sources and transboundary emissions from foreign countries), the population exposed to concentrations in excess of the [standard](/usc/42/1320d.md?p=7), the presence and concentration of potentially toxic substances in the mix of particulate emissions in the area, and the technological and economic feasibility of various control measures. The [Administrator](/usc/42/7602.md?p=a) may not approve an extension until the [State](/usc/42/7602.md?p=d) submits an attainment demonstration for the area. The [Administrator](/usc/42/7602.md?p=a) may grant at most one such extension for an area, of no more than 5 years.
- (f) **Waivers for certain areas—** The [Administrator](/usc/42/7602.md?p=a) may, on a case-by-case basis, waive any requirement applicable to any Serious Area under this subpart where the [Administrator](/usc/42/7602.md?p=a) determines that anthropogenic sources of [PM–10](/usc/42/7602.md?p=t) do not contribute significantly to the [violation](/usc/42/2000e–16a.md?p=c) of the [PM–10](/usc/42/7602.md?p=t) [standard](/usc/42/1320d.md?p=7) in the area. The [Administrator](/usc/42/7602.md?p=a) may also waive a specific date for attainment of the [standard](/usc/42/1320d.md?p=7) where the [Administrator](/usc/42/7602.md?p=a) determines that nonanthropogenic sources of [PM–10](/usc/42/7602.md?p=t) contribute significantly to the [violation](/usc/42/2000e–16a.md?p=c) of the [PM–10](/usc/42/7602.md?p=t) [standard](/usc/42/1320d.md?p=7) in the area.
# §7513a. Plan provisions and schedules for plan submissions
- (a) **Moderate Areas—**
- (1) **Plan provisions—** Each [State](/usc/42/7602.md?p=d) in which all or part of a Moderate Area is located shall submit, according to the applicable schedule under [paragraph (2)](#a-2), an implementation plan that includes each of the following:
- (A) For the purpose of meeting the requirements of [section 7502(c)(5) of this title](/usc/42/7502.md?p=c-5), a permit [program](/usc/42/274l–1.md?p=4) providing that permits meeting the requirements of [section 7503 of this title](/usc/42/7503.md) are required for the [construction](/usc/42/7479.md?p=2-C) and operation of new and [modified](/usc/42/7501.md?p=4) [major stationary sources](#b-3) of [PM–10](/usc/42/7602.md?p=t).
- (B) Either (i) a demonstration (including air quality modeling) that the plan will provide for attainment by the applicable attainment date; or (ii) a demonstration that attainment by such date is impracticable.
- (C) Provisions to assure that reasonably available control measures for the control of [PM–10](/usc/42/7602.md?p=t) shall be implemented no later than December 10, 1993, or 4 years after designation in the case of an area classified as moderate after November 15, 1990.
- (2) **Schedule for plan submissions—** A [State](/usc/42/7602.md?p=d) shall submit the plan required under [subparagraph (1)](#a-1) no later than the following:
- (A) Within 1 year of November 15, 1990, for areas designated nonattainment under [section 7407(d)(4) of this title](/usc/42/7407.md?p=d-4), except that the provision required under [subparagraph (1)(A)](#a-1-A) shall be submitted no later than June 30, 1992.
- (B) 18 months after the designation as nonattainment, for those areas designated nonattainment after the designations prescribed under [section 7407(d)(4) of this title](/usc/42/7407.md?p=d-4).
- (b) **Serious Areas—**
- (1) **Plan provisions—** In addition to the provisions submitted to meet the requirements of paragraph[^1] (a)(1) (relating to Moderate Areas), each [State](/usc/42/7602.md?p=d) in which all or part of a Serious Area is located shall submit an implementation plan for such area that includes each of the following:
- (A) A demonstration (including air quality modeling)—
- (i) that the plan provides for attainment of the [PM–10](/usc/42/7602.md?p=t) national ambient air quality [standard](/usc/42/1320d.md?p=7) by the applicable attainment date, or
- (ii) for any area for which the [State](/usc/42/7602.md?p=d) is seeking, pursuant to [section 7513(e) of this title](/usc/42/7513.md?p=e), an extension of the attainment date beyond the date set forth in [section 7513(c) of this title](/usc/42/7513.md?p=c), that attainment by that date would be impracticable, and that the plan provides for attainment by the most expeditious alternative date practicable.
- (B) Provisions to assure that the best available control measures for the control of [PM–10](/usc/42/7602.md?p=t) shall be implemented no later than 4 years after the date the area is classified (or reclassified) as a Serious Area.
- (2) **Schedule for plan submissions—** A [State](/usc/42/7602.md?p=d) shall submit the demonstration required for an area under [paragraph (1)(A)](#b-1-A) no later than 4 years after reclassification of the area to Serious, except that for areas reclassified under [section 7513(b)(2) of this title](/usc/42/7513.md?p=b-2), the [State](/usc/42/7602.md?p=d) shall submit the attainment demonstration within 18 months after reclassification to Serious. A [State](/usc/42/7602.md?p=d) shall submit the provisions described under [paragraph (1)(B)](#b-1-B) no later than 18 months after reclassification of the area as a Serious Area.
- (3) **Major sources—** For any Serious Area, the terms “major source” and “major stationary source” include any [stationary source](/usc/42/7411.md?p=a-3) or group of [stationary sources](/usc/42/7411.md?p=a-3) located within a contiguous area and under common control that emits, or has the potential to emit, at least 70 tons per year of [PM–10](/usc/42/7602.md?p=t).
- (c) **Milestones—**
- (1) Plan revisions demonstrating attainment submitted to the [Administrator](/usc/42/7602.md?p=a) for approval under this subpart shall contain quantitative milestones which are to be achieved every 3 years until the area is redesignated attainment and which demonstrate [reasonable further progress](/usc/42/7501.md?p=1), as defined in [section 7501(1) of this title](/usc/42/7501.md?p=1), toward attainment by the applicable date.
- (2) Not later than 90 days after the date on which a milestone applicable to the area occurs, each [State](/usc/42/7602.md?p=d) in which all or part of such area is located shall submit to the [Administrator](/usc/42/7602.md?p=a) a demonstration that all measures in the plan approved under this section have been implemented and that the milestone has been met. A demonstration under this subsection shall be submitted in such form and manner, and shall contain such information and analysis, as the [Administrator](/usc/42/7602.md?p=a) shall require. The [Administrator](/usc/42/7602.md?p=a) shall determine whether or not a [State](/usc/42/7602.md?p=d)’s demonstration under this subsection is adequate within 90 days after the [Administrator](/usc/42/7602.md?p=a)’s receipt of a demonstration which contains the information and analysis required by the [Administrator](/usc/42/7602.md?p=a).
- (3) If a [State](/usc/42/7602.md?p=d) fails to submit a demonstration under [paragraph (2)](#c-2) with respect to a milestone within the required period or if the [Administrator](/usc/42/7602.md?p=a) determines that the area has not met any applicable milestone, the [Administrator](/usc/42/7602.md?p=a) shall require the [State](/usc/42/7602.md?p=d), within 9 months after such failure or determination to submit a plan revision that assures that the [State](/usc/42/7602.md?p=d) will achieve the next milestone (or attain the national ambient air quality [standard](/usc/42/1320d.md?p=7) for [PM–10](/usc/42/7602.md?p=t), if there is no next milestone) by the applicable date.
- (d) **Failure to attain—** In the case of a Serious [PM–10](/usc/42/7602.md?p=t) [nonattainment area](/usc/42/7501.md?p=2) in which the [PM–10](/usc/42/7602.md?p=t) [standard](/usc/42/1320d.md?p=7) is not attained by the applicable attainment date, the [State](/usc/42/7602.md?p=d) in which such area is located shall, after notice and opportunity for public comment, submit within 12 months after the applicable attainment date, plan revisions which provide for attainment of the [PM–10](/usc/42/7602.md?p=t) air quality [standard](/usc/42/1320d.md?p=7) and, from the date of such submission until attainment, for an annual reduction in [PM–10](/usc/42/7602.md?p=t) or [PM–10](/usc/42/7602.md?p=t) precursor emissions within the area of not less than 5 percent of the amount of such emissions as reported in the most recent [inventory](/usc/42/4370m.md?p=14) prepared for such area.
- (e) **PM–10 precursors—** The control requirements applicable under plans in effect under this part for [major stationary sources](#b-3) of [PM–10](/usc/42/7602.md?p=t) shall also apply to [major stationary sources](#b-3) of [PM–10](/usc/42/7602.md?p=t) precursors, except where the [Administrator](/usc/42/7602.md?p=a) determines that such sources do not contribute significantly to [PM–10](/usc/42/7602.md?p=t) levels which exceed the [standard](/usc/42/1320d.md?p=7) in the area. The [Administrator](/usc/42/7602.md?p=a) shall issue guidelines regarding the application of the preceding sentence.
# §7513b. Issuance of RACM and BACM guidance
The [Administrator](/usc/42/7602.md?p=a) shall issue, in the same manner and according to the same procedure as guidance is issued under [section 7408(c) of this title](/usc/42/7408.md?p=c), technical guidance on reasonably available control measures and best available control measures for urban fugitive dust, and emissions from residential wood combustion (including curtailments and exemptions from such curtailments) and prescribed silvicultural and agricultural burning, no later than 18 months following November 15, 1990. The [Administrator](/usc/42/7602.md?p=a) shall also examine other [categories](/usc/42/1395w–4.md?p=j-1) of sources contributing to nonattainment of the [PM–10](/usc/42/7602.md?p=t) [standard](/usc/42/1320d.md?p=7), and determine whether additional guidance on reasonably available control measures and best available control measures is needed, and issue any such guidance no later than 3 years after November 15, 1990. In issuing guidelines and making determinations under this section, the [Administrator](/usc/42/7602.md?p=a) (in consultation with the [State](/usc/42/7602.md?p=d)) shall take into account emission reductions achieved, or expected to be achieved, under subchapter IV–A and other provisions of this chapter.
# §7514. Plan submission deadlines
- (a) **Submission—** Any [State](/usc/42/7602.md?p=d) containing an area designated or redesignated under [section 7407(d) of this title](/usc/42/7407.md?p=d) as nonattainment with respect to the national primary ambient air quality [standards](/usc/42/1320d.md?p=7) for sulfur oxides, nitrogen dioxide, or lead subsequent to November 15, 1990, shall submit to the [Administrator](/usc/42/7602.md?p=a), within 18 months of the designation, an [applicable implementation plan](/usc/42/7602.md?p=q) meeting the requirements of this part.
- (b) **States lacking fully approved State implementation plans—** Any [State](/usc/42/7602.md?p=d) containing an area designated nonattainment with respect to national primary ambient air quality [standards](/usc/42/1320d.md?p=7) for sulfur oxides or nitrogen dioxide under [section 7407(d)(1)(C)(i) of this title](/usc/42/7407.md?p=d-1-C-i), but lacking a fully approved implementation plan complying with the requirements of this chapter (including this part) as in effect immediately before November 15, 1990, shall submit to the [Administrator](/usc/42/7602.md?p=a), within 18 months of November 15, 1990, an implementation plan meeting the requirements of subpart 1 (except as otherwise prescribed by [section 7514a of this title](/usc/42/7514a.md)).
# §7514a. Attainment dates
- (a) **Plans under section 7514(a)—** Implementation plans required under [section 7514(a) of this title](/usc/42/7514.md?p=a) shall provide for attainment of the relevant primary [standard](/usc/42/1320d.md?p=7) as expeditiously as practicable but no later than 5 years from the date of the nonattainment designation.
- (b) **Plans under section 7514(b)—** Implementation plans required under [section 7514(b) of this title](/usc/42/7514.md?p=b) shall provide for attainment of the relevant primary national ambient air quality [standard](/usc/42/1320d.md?p=7) within 5 years after November 15, 1990.
- (c) **Inadequate plans—** Implementation plans for [nonattainment areas](/usc/42/7501.md?p=2) for sulfur oxides or nitrogen dioxide with plans that were approved by the [Administrator](/usc/42/7602.md?p=a) before November 15, 1990, but, subsequent to such approval, were found by the [Administrator](/usc/42/7602.md?p=a) to be substantially inadequate, shall provide for attainment of the relevant primary [standard](/usc/42/1320d.md?p=7) within 5 years from the date of such finding.
# §7515. General savings clause
Each regulation, [standard](/usc/42/1320d.md?p=7), rule, notice, order and guidance promulgated or issued by the [Administrator](/usc/42/7602.md?p=a) under this chapter, as in effect before November 15, 1990, shall remain in effect according to its terms, except to the extent otherwise provided under this chapter, inconsistent with any provision of this chapter, or revised by the [Administrator](/usc/42/7602.md?p=a). No control requirement in effect, or required to be adopted by an order, settlement [agreement](/usc/42/1320b–8.md?p=a-3-A), or plan in effect before November 15, 1990, in any area which is a [nonattainment area](/usc/42/7501.md?p=2) for any [air pollutant](/usc/42/7602.md?p=g) may be [modified](/usc/42/7501.md?p=4) after November 15, 1990, in any manner unless the [modification](/usc/42/7501.md?p=4) insures equivalent or greater emission reductions of such [air pollutant](/usc/42/7602.md?p=g).
# §7521. Emission standards for new motor vehicles or new motor vehicle engines
- (a) **Authority of Administrator to prescribe by regulation—** Except as otherwise provided in [subsection (b)](#b)—
- (1) The [Administrator](/usc/42/7602.md?p=a) shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, [standards](/usc/42/1320d.md?p=7) applicable to the emission of any [air pollutant](/usc/42/7602.md?p=g) from any class or classes of [new motor vehicles](/usc/42/7550.md?p=3) or [new motor vehicle engines](/usc/42/7550.md?p=3), which in his judgment [cause](/usc/42/9908.md?p=c-2), or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. Such [standards](/usc/42/1320d.md?p=7) shall be applicable to such vehicles and engines for their useful life (as determined under [subsection (d)](#d), relating to useful life of vehicles for purposes of certification), whether such vehicles and engines are designed as complete systems or incorporate devices to prevent or control such pollution.
- (2) Any regulation prescribed under paragraph (1) of this subsection (and any revision thereof) shall take effect after such period as the [Administrator](/usc/42/7602.md?p=a) finds necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period.
- (3)
- (A) **In general.—**
- (i) Unless the [standard](/usc/42/1320d.md?p=7) is changed as provided in [subparagraph (B)](#a-3-B), regulations under paragraph (1) of this subsection applicable to emissions of hydrocarbons, carbon monoxide, oxides of nitrogen, and particulate matter from classes or [categories](/usc/42/1395w–4.md?p=j-1) of heavy-duty vehicles or engines manufactured during or after [model year](#b-3-A-i) 1983 shall contain [standards](/usc/42/1320d.md?p=7) which reflect the greatest degree of emission reduction achievable through the application of technology which the [Administrator](/usc/42/7602.md?p=a) determines will be available for the [model year](#b-3-A-i) to which such [standards](/usc/42/1320d.md?p=7) apply, giving appropriate consideration to cost, [energy](/usc/42/6311.md?p=7), and safety factors associated with the application of such technology.
- (ii) In establishing classes or [categories](/usc/42/1395w–4.md?p=j-1) of vehicles or engines for purposes of regulations under this paragraph, the [Administrator](/usc/42/7602.md?p=a) may base such classes or [categories](/usc/42/1395w–4.md?p=j-1) on gross vehicle weight, horsepower, type of fuel used, or other appropriate factors.
- (B) **Revised standards for heavy duty trucks.—**
- (i) On the basis of information available to the [Administrator](/usc/42/7602.md?p=a) concerning the effects of [air pollutants](/usc/42/7602.md?p=g) emitted from heavy-duty vehicles or engines and from other sources of mobile source related [pollutants](/usc/42/1397h.md?p=c-4) on the public health and welfare, and taking costs into account, the [Administrator](/usc/42/7602.md?p=a) may promulgate regulations under paragraph (1) of this subsection revising any [standard](/usc/42/1320d.md?p=7) promulgated under, or before the date of, the enactment of the Clean Air Act Amendments of 1990 (or previously revised under this subparagraph) and applicable to classes or [categories](/usc/42/1395w–4.md?p=j-1) of heavy-duty vehicles or engines.
- (ii) Effective for the [model year](#b-3-A-i) 1998 and thereafter, the regulations under paragraph (1) of this subsection applicable to emissions of oxides of nitrogen (NOx) from gasoline and diesel-fueled heavy duty trucks shall contain [standards](/usc/42/1320d.md?p=7) which provide that such emissions may not exceed 4.0 grams per brake horsepower hour (gbh).
- (C) **Lead time and stability.—** Any [standard](/usc/42/1320d.md?p=7) promulgated or revised under this paragraph and applicable to classes or [categories](/usc/42/1395w–4.md?p=j-1) of heavy-duty vehicles or engines shall apply for a period of no less than 3 [model years](#b-3-A-i) beginning no earlier than the [model year](#b-3-A-i) commencing 4 years after such revised [standard](/usc/42/1320d.md?p=7) is promulgated.
- (D) **Rebuilding practices.—** The [Administrator](/usc/42/7602.md?p=a) shall study the practice of rebuilding heavy-duty engines and the impact rebuilding has on engine emissions. On the basis of that study and other information available to the [Administrator](/usc/42/7602.md?p=a), the [Administrator](/usc/42/7602.md?p=a) may prescribe requirements to control rebuilding [practices](/usc/42/17061.md?p=19), including [standards](/usc/42/1320d.md?p=7) applicable to emissions from any rebuilt heavy-duty engines (whether or not the engine is past its statutory useful life), which in the [Administrator](/usc/42/7602.md?p=a)’s judgment [cause](/usc/42/9908.md?p=c-2), or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare taking costs into account. Any regulation shall take effect after a period the [Administrator](/usc/42/7602.md?p=a) finds necessary to permit the development and application of the requisite control measures, giving appropriate consideration to the cost of compliance within the period and [energy](/usc/42/6311.md?p=7) and safety factors.
- (E) **Motorcycles.—** For purposes of this paragraph, motorcycles and motorcycle engines shall be treated in the same manner as heavy-duty vehicles and engines (except as otherwise permitted under [section 7525(f)(1)](/usc/42/7525.md)[^1] of this title) unless the [Administrator](/usc/42/7602.md?p=a) promulgates a rule reclassifying motorcycles as light-duty vehicles within the meaning of this section or unless the [Administrator](/usc/42/7602.md?p=a) promulgates regulations under [subsection (a)](#a) applying [standards](/usc/42/1320d.md?p=7) applicable to the emission of [air pollutants](/usc/42/7602.md?p=g) from motorcycles as a separate class or [category](/usc/42/1395w–4.md?p=j-1). In any case in which such [standards](/usc/42/1320d.md?p=7) are promulgated for such emissions from motorcycles as a separate class or [category](/usc/42/1395w–4.md?p=j-1), the [Administrator](/usc/42/7602.md?p=a), in promulgating such [standards](/usc/42/1320d.md?p=7), shall consider the need to achieve equivalency of emission reductions between motorcycles and other [motor vehicles](/usc/42/7550.md?p=2) to the maximum extent practicable.
- (4)
- (A) Effective with respect to vehicles and engines manufactured after [model year](#b-3-A-i) 1978, no emission control device, system, or element of design shall be used in a [new motor vehicle](/usc/42/7550.md?p=3) or [new motor vehicle engine](/usc/42/7550.md?p=3) for purposes of complying with requirements prescribed under this subchapter if such device, system, or element of design will [cause](/usc/42/9908.md?p=c-2) or contribute to an unreasonable risk to public health, welfare, or safety in its operation or function.
- (B) In determining whether an unreasonable risk exists under [subparagraph (A)](#a-4-A), the [Administrator](/usc/42/7602.md?p=a) shall consider, among other factors, (i) whether and to what extent the use of any device, system, or element of design [causes](/usc/42/9908.md?p=c-2), increases, reduces, or eliminates emissions of any unregulated [pollutants](/usc/42/1397h.md?p=c-4); (ii) available methods for reducing or eliminating any risk to public health, welfare, or safety which may be associated with the use of such device, system, or element of design, and (iii) the availability of other devices, systems, or elements of design which may be used to conform to requirements prescribed under this subchapter without causing or contributing to such unreasonable risk. The [Administrator](/usc/42/7602.md?p=a) shall include in the consideration required by this paragraph all relevant information developed pursuant to [section 7548 of this title](/usc/42/7548.md).
- (5)
- (A) If the [Administrator](/usc/42/7602.md?p=a) promulgates final regulations which define the degree of control required and the test procedures by which compliance could be determined for gasoline vapor recovery of uncontrolled emissions from the fueling of [motor vehicles](/usc/42/7550.md?p=2), the [Administrator](/usc/42/7602.md?p=a) shall, after consultation with the [Secretary](/usc/42/242q–4.md?p=2) of Transportation with respect to [motor vehicle](/usc/42/7550.md?p=2) safety, prescribe, by regulation, [fill pipe](#a-5-D) [standards](/usc/42/1320d.md?p=7) for [new motor vehicles](/usc/42/7550.md?p=3) in order to insure effective connection between such [fill pipe](#a-5-D) and any vapor recovery system which the [Administrator](/usc/42/7602.md?p=a) determines may be required to comply with such vapor recovery regulations. In promulgating such [standards](/usc/42/1320d.md?p=7) the [Administrator](/usc/42/7602.md?p=a) shall take into consideration limits on [fill pipe](#a-5-D) diameter, minimum design criteria for nozzle retainer lips, limits on the location of the unleaded fuel restrictors, a minimum access zone surrounding a [fill pipe](#a-5-D), a minimum pipe or nozzle insertion angle, and such other factors as he deems pertinent.
- (B) Regulations prescribing [standards](/usc/42/1320d.md?p=7) under [subparagraph (A)](#a-5-A) shall not become effective until the introduction of the [model year](#b-3-A-i) for which it would be feasible to implement such [standards](/usc/42/1320d.md?p=7), taking into consideration the restraints of an adequate leadtime for design and production.
- (C) Nothing in [subparagraph (A)](#a-5-A) shall (i) prevent the [Administrator](/usc/42/7602.md?p=a) from specifying different nozzle and fill neck sizes for gasoline with additives and gasoline without additives or (ii) permit the [Administrator](/usc/42/7602.md?p=a) to require a specific location, configuration, modeling, or styling of the [motor vehicle](/usc/42/7550.md?p=2) body with respect to the fuel tank fill neck or fill nozzle clearance envelope.
- (D) For the purpose of this paragraph, the term “fill pipe” shall include the fuel tank fill pipe, fill neck, fill inlet, and closure.
- (6) **Onboard vapor recovery.—** Within 1 year after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall, after consultation with the [Secretary](/usc/42/242q–4.md?p=2) of Transportation regarding the safety of vehicle-based (“onboard”) systems for the control of vehicle refueling emissions, promulgate [standards](/usc/42/1320d.md?p=7) under this section requiring that new light-duty vehicles manufactured beginning in the fourth [model year](#b-3-A-i) after the [model year](#b-3-A-i) in which the [standards](/usc/42/1320d.md?p=7) are promulgated and thereafter shall be equipped with such systems. The [standards](/usc/42/1320d.md?p=7) required under this paragraph shall apply to a percentage of each [manufacturer](/usc/42/300aa–33.md?p=3)’s fleet of new light-duty vehicles beginning with the fourth [model year](#b-3-A-i) after the [model year](#b-3-A-i) in which the [standards](/usc/42/1320d.md?p=7) are promulgated. The percentage shall be as specified in the following table:
| Implementation Schedule for Onboard Vapor Recovery Requirements | |
| --- | --- |
| [Model year](#b-3-A-i) commencing after
[standards](/usc/42/1320d.md?p=7) promulgated | Percentage* |
| Fourth | 40 |
| Fifth | 80 |
| After Fifth | 100 |
| *Percentages in the table refer to a percentage of the [manufacturer](/usc/42/300aa–33.md?p=3)’s sales volume. | |
The [standards](/usc/42/1320d.md?p=7) shall require that such systems provide a minimum evaporative emission capture efficiency of 95 percent. The requirements of [section 7511a(b)(3) of this title](/usc/42/7511a.md?p=b-3) (relating to stage II gasoline vapor recovery) for areas classified under [section 7511 of this title](/usc/42/7511.md) as moderate for ozone shall not apply after promulgation of such [standards](/usc/42/1320d.md?p=7) and the [Administrator](/usc/42/7602.md?p=a) may, by rule, revise or waive the application of the requirements of such [section 7511a(b)(3) of this title](/usc/42/7511a.md?p=b-3) for areas classified under [section 7511 of this title](/usc/42/7511.md) as Serious, Severe, or Extreme for ozone, as appropriate, after such time as the [Administrator](/usc/42/7602.md?p=a) determines that onboard emissions control systems required under this paragraph are in widespread use throughout the [motor vehicle](/usc/42/7550.md?p=2) fleet.
- (b) **Emissions of carbon monoxide, hydrocarbons, and oxides of nitrogen; annual report to Congress; waiver of emission standards; research objectives—**
- (1)
- (A) The regulations under [subsection (a)](#a) applicable to emissions of carbon monoxide and hydrocarbons from light-duty vehicles and engines manufactured during [model years](#b-3-A-i) 1977 through 1979 shall contain [standards](/usc/42/1320d.md?p=7) which provide that such emissions from such vehicles and engines may not exceed 1.5 grams per vehicle mile of hydrocarbons and 15.0 grams per vehicle mile of carbon monoxide. The regulations under [subsection (a)](#a) applicable to emissions of carbon monoxide from light-duty vehicles and engines manufactured during the [model year](#b-3-A-i) 1980 shall contain [standards](/usc/42/1320d.md?p=7) which provide that such emissions may not exceed 7.0 grams per vehicle mile. The regulations under [subsection (a)](#a) applicable to emissions of hydrocarbons from light-duty vehicles and engines manufactured during or after [model year](#b-3-A-i) 1980 shall contain [standards](/usc/42/1320d.md?p=7) which require a reduction of at least 90 percent from emissions of such [pollutant](/usc/42/1397h.md?p=c-4) allowable under the [standards](/usc/42/1320d.md?p=7) under this section applicable to light-duty vehicles and engines manufactured in [model year](#b-3-A-i) 1970. Unless waived as provided in [paragraph (5)](#a-5),[^1] regulations under [subsection (a)](#a) applicable to emissions of carbon monoxide from light-duty vehicles and engines manufactured during or after the [model year](#b-3-A-i) 1981 shall contain [standards](/usc/42/1320d.md?p=7) which require a reduction of at least 90 percent from emissions of such [pollutant](/usc/42/1397h.md?p=c-4) allowable under the [standards](/usc/42/1320d.md?p=7) under this section applicable to light-duty vehicles and engines manufactured in [model year](#b-3-A-i) 1970.
- (B) The regulations under [subsection (a)](#a) applicable to emissions of oxides of nitrogen from light-duty vehicles and engines manufactured during [model years](#b-3-A-i) 1977 through 1980 shall contain [standards](/usc/42/1320d.md?p=7) which provide that such emissions from such vehicles and engines may not exceed 2.0 grams per vehicle mile. The regulations under [subsection (a)](#a) applicable to emissions of oxides of nitrogen from light-duty vehicles and engines manufactured during the [model year](#b-3-A-i) 1981 and thereafter shall contain [standards](/usc/42/1320d.md?p=7) which provide that such emissions from such vehicles and engines may not exceed 1.0 gram per vehicle mile. The [Administrator](/usc/42/7602.md?p=a) shall prescribe [standards](/usc/42/1320d.md?p=7) in lieu of those required by the preceding sentence, which provide that emissions of oxides of nitrogen may not exceed 2.0 grams per vehicle mile for any light-duty vehicle manufactured during [model years](#b-3-A-i) 1981 and 1982 by any [manufacturer](/usc/42/300aa–33.md?p=3) whose production, by corporate identity, for calendar year 1976 was less than three hundred thousand light-duty [motor vehicles](/usc/42/7550.md?p=2) worldwide if the [Administrator](/usc/42/7602.md?p=a) determines that—
- (i) the ability of such [manufacturer](/usc/42/300aa–33.md?p=3) to meet [emission standards](/usc/42/7602.md?p=k) in the 1975 and subsequent [model years](#b-3-A-i) was, and is, primarily dependent upon technology developed by other [manufacturers](/usc/42/300aa–33.md?p=3) and purchased from such [manufacturers](/usc/42/300aa–33.md?p=3); and
- (ii) such [manufacturer](/usc/42/300aa–33.md?p=3) lacks the financial resources and technological ability to develop such technology.
- (C) The [Administrator](/usc/42/7602.md?p=a) may promulgate regulations under [subsection (a)(1)](#a-1) revising any [standard](/usc/42/1320d.md?p=7) prescribed or previously revised under this subsection, as needed to protect public health or welfare, taking costs, [energy](/usc/42/6311.md?p=7), and safety into account. Any revised [standard](/usc/42/1320d.md?p=7) shall require a reduction of emissions from the [standard](/usc/42/1320d.md?p=7) that was previously applicable. Any such revision under this subchapter may provide for a phase-in of the [standard](/usc/42/1320d.md?p=7). It is the intent of Congress that the numerical [emission standards](/usc/42/7602.md?p=k) specified in subsections [(a)(3)(B)(ii)](#a-3-B-ii), [(g)](#g), [(h)](#h), and [(i)](#i) shall not be [modified](/usc/42/7501.md?p=4) by the [Administrator](/usc/42/7602.md?p=a) after November 15, 1990, for any [model year](#b-3-A-i) before the [model year](#b-3-A-i) 2004.
- (2) [Emission standards](/usc/42/7602.md?p=k) under [paragraph (1)](#b-1), and measurement techniques on which such [standards](/usc/42/1320d.md?p=7) are based (if not promulgated prior to November 15, 1990), shall be promulgated by regulation within 180 days after November 15, 1990.
- (3) For purposes of this part—
- (A)
- (i) The term “model year” with reference to any specific calendar year means the [manufacturer](/usc/42/300aa–33.md?p=3)’s annual production period (as determined by the [Administrator](/usc/42/7602.md?p=a)) which includes January 1 of such calendar year. If the [manufacturer](/usc/42/300aa–33.md?p=3) has no annual production period, the term “model year” shall mean the calendar year.
- (ii) For the purpose of assuring that vehicles and engines manufactured before the beginning of a [model year](#b-3-A-i) were not manufactured for purposes of circumventing the effective date of a [standard](/usc/42/1320d.md?p=7) required to be prescribed by [subsection (b)](#b), the [Administrator](/usc/42/7602.md?p=a) may prescribe regulations defining “[model year](#b-3-A-i)” otherwise than as provided in [clause (i)](#b-3-A-i).
- (B) Repealed. Pub. L. 101–549, title II, § 230(1), Nov. 15, 1990, 104 Stat. 2529.
- (C) The term “heavy duty vehicle” means a truck, bus, or other vehicle manufactured primarily for use on the public streets, roads, and highways (not including any vehicle operated exclusively on a rail or rails) which has a gross vehicle weight (as determined under regulations promulgated by the [Administrator](/usc/42/7602.md?p=a)) in excess of six thousand pounds. Such term includes any such vehicle which has special features enabling off-street or off-highway operation and use.
- (3) [^2] Upon the petition of any [manufacturer](/usc/42/300aa–33.md?p=3), the [Administrator](/usc/42/7602.md?p=a), after notice and opportunity for public hearing, may waive the [standard](/usc/42/1320d.md?p=7) required under [subparagraph (B)](#b-1-B) of paragraph (1) to not exceed 1.5 grams of oxides of nitrogen per vehicle mile for any class or [category](/usc/42/1395w–4.md?p=j-1) of light-duty vehicles or engines manufactured by such [manufacturer](/usc/42/300aa–33.md?p=3) during any period of up to four [model years](#b-3-A-i) beginning after the [model year](#b-3-A-i) 1980 if the [manufacturer](/usc/42/300aa–33.md?p=3) demonstrates that such waiver is necessary to permit the use of an innovative power train technology, or innovative emission control device or system, in such class or [category](/usc/42/1395w–4.md?p=j-1) of vehicles or engines and that such technology or system was not utilized by more than 1 percent of the light-duty vehicles sold in the [United States](/usc/42/403.md?p=k) in the 1975 [model year](#b-3-A-i). Such waiver may be granted only if the [Administrator](/usc/42/7602.md?p=a) determines—
- (A) that such waiver would not endanger public health,
- (B) that there is a substantial likelihood that the vehicles or engines will be able to comply with the applicable [standard](/usc/42/1320d.md?p=7) under this section at the expiration of the waiver, and
- (C) that the technology or system has a potential for long-term air quality benefit and has the potential to meet or exceed the average fuel economy [standard](/usc/42/1320d.md?p=7) applicable under the [Energy](/usc/42/6311.md?p=7) Policy and Conservation Act [[42 U.S.C. 6201](/usc/42/6201.md) et seq.] upon the expiration of the waiver.
No waiver under this subparagraph[^3] granted to any [manufacturer](/usc/42/300aa–33.md?p=3) shall apply to more than 5 percent of such [manufacturer](/usc/42/300aa–33.md?p=3)’s production or more than fifty thousand vehicles or engines, whichever is greater.
- (c) **Feasibility study and investigation by National Academy of Sciences; reports to Administrator and Congress; availability of information—**
- (1) The [Administrator](/usc/42/7602.md?p=a) shall undertake to enter into appropriate arrangements with the National Academy of Sciences to conduct a comprehensive study and investigation of the technological feasibility of meeting the emissions [standards](/usc/42/1320d.md?p=7) required to be prescribed by the [Administrator](/usc/42/7602.md?p=a) by [subsection (b)](#b) of this section.
- (2) Of the [funds](/usc/42/12854.md?p=3) authorized to be appropriated to the [Administrator](/usc/42/7602.md?p=a) by this chapter, such amounts as are required shall be available to carry out the study and investigation authorized by paragraph (1) of this subsection.
- (3) In entering into any arrangement with the National Academy of Sciences for conducting the study and investigation authorized by paragraph (1) of this subsection, the [Administrator](/usc/42/7602.md?p=a) shall request the National Academy of Sciences to submit semiannual reports on the progress of its study and investigation to the [Administrator](/usc/42/7602.md?p=a) and the Congress, beginning not later than July 1, 1971, and continuing until such study and investigation is completed.
- (4) The [Administrator](/usc/42/7602.md?p=a) shall furnish to such Academy at its request any information which the Academy deems necessary for the purpose of conducting the investigation and study authorized by paragraph (1) of this subsection. For the purpose of furnishing such information, the [Administrator](/usc/42/7602.md?p=a) may use any authority he has under this chapter (A) to obtain information from any [person](/usc/42/7602.md?p=e), and (B) to require such [person](/usc/42/7602.md?p=e) to conduct such tests, keep such records, and make such reports respecting research or other activities conducted by such [person](/usc/42/7602.md?p=e) as may be reasonably necessary to carry out this subsection.
- (d) **Useful life of vehicles—** The [Administrator](/usc/42/7602.md?p=a) shall prescribe regulations under which the useful life of vehicles and engines shall be determined for purposes of [subsection (a)(1)](#a-1) of this section and [section 7541 of this title](/usc/42/7541.md). Such regulations shall provide that except where a different useful life period is specified in this subchapter useful life shall—
- (1) in the case of light duty vehicles and light duty vehicle engines and light-duty trucks up to 3,750 lbs. LVW and up to 6,000 lbs. GVWR, be a period of use of five years or fifty thousand miles (or the equivalent), whichever first occurs, except that in the case of any requirement of this section which first becomes applicable after November 15, 1990, where the useful life period is not otherwise specified for such vehicles and engines, the period shall be 10 years or 100,000 miles (or the equivalent), whichever first occurs, with testing for purposes of in-use compliance under [section 7541 of this title](/usc/42/7541.md) up to (but not beyond) 7 years or 75,000 miles (or the equivalent), whichever first occurs;
- (2) in the case of any other [motor vehicle](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engine (other than motorcycles or motorcycle engines), be a period of use set forth in [paragraph (1)](#d-1) unless the [Administrator](/usc/42/7602.md?p=a) determines that a period of use of greater duration or mileage is appropriate; and
- (3) in the case of any motorcycle or motorcycle engine, be a period of use the [Administrator](/usc/42/7602.md?p=a) shall determine.
- (e) **New power sources or propulsion systems—** In the event of a new power source or propulsion system for [new motor vehicles](/usc/42/7550.md?p=3) or [new motor vehicle engines](/usc/42/7550.md?p=3) is submitted for certification pursuant to [section 7525(a) of this title](/usc/42/7525.md?p=a), the [Administrator](/usc/42/7602.md?p=a) may postpone certification until he has prescribed [standards](/usc/42/1320d.md?p=7) for any [air pollutants](/usc/42/7602.md?p=g) emitted by such vehicle or engine which in his judgment [cause](/usc/42/9908.md?p=c-2), or contribute to, air pollution which may reasonably be anticipated to endanger the public health or welfare but for which [standards](/usc/42/1320d.md?p=7) have not been prescribed under [subsection (a)](#a).
- (f) **[^4] High altitude regulations—**
- (1) The high altitude regulation in effect with respect to [model year](#b-3-A-i) 1977 [motor vehicles](/usc/42/7550.md?p=2) shall not apply to the [manufacture](/usc/42/300aa–33.md?p=3), distribution, or sale of 1978 and later [model year](#b-3-A-i) [motor vehicles](/usc/42/7550.md?p=2). Any future regulation affecting the sale or distribution of [motor vehicles](/usc/42/7550.md?p=2) or engines manufactured before the [model year](#b-3-A-i) 1984 in high altitude areas of the country shall take effect no earlier than [model year](#b-3-A-i) 1981.
- (2) Any such future regulation applicable to high altitude vehicles or engines shall not require a percentage of reduction in the emissions of such vehicles which is greater than the required percentage of reduction in emissions from [motor vehicles](/usc/42/7550.md?p=2) as set forth in [subsection (b)](#b). This percentage reduction shall be determined by comparing any proposed high altitude [emission standards](/usc/42/7602.md?p=k) to high altitude emissions from vehicles manufactured during [model year](#b-3-A-i) 1970. In no event shall regulations applicable to high altitude vehicles manufactured before the [model year](#b-3-A-i) 1984 establish a numerical [standard](/usc/42/1320d.md?p=7) which is more stringent than that applicable to vehicles certified under non-high altitude conditions.
- (3) [Section 7607(d) of this title](/usc/42/7607.md?p=d) shall apply to any high altitude regulation referred to in [paragraph (2)](#f-2) and before promulgating any such regulation, the [Administrator](/usc/42/7602.md?p=a) shall consider and make a finding with respect to—
- (A) the economic impact upon consumers, individual high altitude [dealers](/usc/42/7550.md?p=4), and the automobile industry of any such regulation, including the economic impact which was experienced as a result of the regulation imposed during [model year](#b-3-A-i) 1977 with respect to high altitude certification requirements;
- (B) the present and future availability of emission control technology capable of meeting the applicable vehicle and engine emission requirements without reducing model availability; and
- (C) the likelihood that the adoption of such a high altitude regulation will result in any significant improvement in air quality in any area to which it shall apply.
- (g) **Light-duty trucks up to 6,000 lbs. GVWR and light-duty vehicles; standards for model years after 1993—**
- (1) **NMHC, CO, and NOx—** Effective with respect to the [model year](#b-3-A-i) 1994 and thereafter, the regulations under [subsection (a)](#a) applicable to emissions of nonmethane hydrocarbons (NMHC), carbon monoxide ([CO](/usc/42/7602.md?p=w)), and oxides of nitrogen (NOx) from light-duty trucks (LDTs) of up to 6,000 lbs. gross vehicle weight rating (GVWR) and light-duty vehicles (LDVs) shall contain [standards](/usc/42/1320d.md?p=7) which provide that emissions from a percentage of each [manufacturer](/usc/42/300aa–33.md?p=3)’s sales volume of such vehicles and trucks shall comply with the levels specified in table G. The percentage shall be as specified in the implementation schedule below:
| table g—[emission standards](/usc/42/7602.md?p=k) for nmhc, [co](/usc/42/7602.md?p=w), and nox from light-duty trucks of up to 6,000 lbs. gvwr and light-duty vehicles | | | | | | |
| --- | --- | --- | --- | --- | --- | --- |
| Vehicle type | Column A | | | Column B | | |
| (5 yrs/50,000 mi) | | | (10 yrs/100,000 mi) | | | |
| NMHC | [CO](/usc/42/7602.md?p=w) | NOx | NMHC | [CO](/usc/42/7602.md?p=w) | NOx | |
| LDTs (0–3,750 lbs. LVW) and light-duty vehicles | 0.25 | 3.4 | 0.4* | 0.31 | 4.2 | 0.6* |
| LDTs (3,751–5,750 lbs. LVW) | 0.32 | 4.4 | 0.7** | 0.40 | 5.5 | 0.97 |
| [Standards](/usc/42/1320d.md?p=7) are expressed in grams per mile (gpm). | | | | | | |
| For [standards](/usc/42/1320d.md?p=7) under column A, for purposes of certification under [section 7525 of this title](/usc/42/7525.md), the applicable useful life shall be 5 years or 50,000 miles (or the equivalent), whichever first occurs. | | | | | | |
| For [standards](/usc/42/1320d.md?p=7) under column B, for purposes of certification under [section 7525 of this title](/usc/42/7525.md), the applicable useful life shall be 10 years or 100,000 miles (or the equivalent), whichever first occurs. | | | | | | |
| *In the case of diesel-fueled LDTs (0–3,750 lvw) and light-duty vehicles, before the [model year](#b-3-A-i) 2004, in lieu of the 0.4 and 0.6 [standards](/usc/42/1320d.md?p=7) for NOx, the applicable [standards](/usc/42/1320d.md?p=7) for NOx shall be 1.0 gpm for a useful life of 5 years or 50,000 miles (or the equivalent), whichever first occurs, and 1.25 gpm for a useful life of 10 years or 100,000 miles (or the equivalent) whichever first occurs. | | | | | | |
| **This [standard](/usc/42/1320d.md?p=7) does not apply to diesel-fueled LDTs (3,751–5,750 lbs. LVW). | | | | | | |
| Implementation Schedule for Table G [Standards](/usc/42/1320d.md?p=7) | |
| --- | --- |
| [Model year](#b-3-A-i) | Percentage* |
| 1994 | 40 |
| 1995 | 80 |
| after 1995 | 100 |
| *Percentages in the table refer to a percentage of each [manufacturer](/usc/42/300aa–33.md?p=3)’s sales volume. | |
- (2) **PM Standard—** Effective with respect to [model year](#b-3-A-i) 1994 and thereafter in the case of light-duty vehicles, and effective with respect to the [model year](#b-3-A-i) 1995 and thereafter in the case of light-duty trucks (LDTs) of up to 6,000 lbs. gross vehicle weight rating (GVWR), the regulations under [subsection (a)](#a) applicable to emissions of particulate matter (PM) from such vehicles and trucks shall contain [standards](/usc/42/1320d.md?p=7) which provide that such emissions from a percentage of each [manufacturer](/usc/42/300aa–33.md?p=3)’s sales volume of such vehicles and trucks shall not exceed the levels specified in the table below. The percentage shall be as specified in the Implementation Schedule below.
| PM [Standard](/usc/42/1320d.md?p=7) for LDTs of up to 6,000 lbs. GVWR | |
| --- | --- |
| Useful life period | [Standard](/usc/42/1320d.md?p=7) |
| 5/50,000 | 0.08 gpm |
| 10/100,000 | 0.10 gpm |
| The applicable useful life, for purposes of certification under [section 7525 of this title](/usc/42/7525.md) and for purposes of in-use compliance under [section 7541 of this title](/usc/42/7541.md), shall be 5 years or 50,000 miles (or the equivalent), whichever first occurs, in the case of the 5/50,000 [standard](/usc/42/1320d.md?p=7). | |
| The applicable useful life, for purposes of certification under [section 7525 of this title](/usc/42/7525.md) and for purposes of in-use compliance under [section 7541 of this title](/usc/42/7541.md), shall be 10 years or 100,000 miles (or the equivalent), whichever first occurs in the case of the 10/100,000 [standard](/usc/42/1320d.md?p=7). | |
| Implementation Schedule for PM [Standards](/usc/42/1320d.md?p=7) | | |
| --- | --- | --- |
| [Model year](#b-3-A-i) | Light-duty vehicles | LDTs |
| 1994 | 40%* | |
| 1995 | 80%* | 40%* |
| 1996 | 100%* | 80%* |
| after 1996 | 100%* | 100%* |
| *Percentages in the table refer to a percentage of each [manufacturer](/usc/42/300aa–33.md?p=3)’s sales volume. | | |
- (h) **Light-duty trucks of more than 6,000 lbs. GVWR; standards for model years after 1995—** Effective with respect to the [model year](#b-3-A-i) 1996 and thereafter, the regulations under [subsection (a)](#a) applicable to emissions of nonmethane hydrocarbons (NMHC), carbon monoxide ([CO](/usc/42/7602.md?p=w)), oxides of nitrogen (NOx), and particulate matter (PM) from light-duty trucks (LDTs) of more than 6,000 lbs. gross vehicle weight rating (GVWR) shall contain [standards](/usc/42/1320d.md?p=7) which provide that emissions from a specified percentage of each [manufacturer](/usc/42/300aa–33.md?p=3)’s sales volume of such trucks shall comply with the levels specified in table H. The specified percentage shall be 50 percent in [model year](#b-3-A-i) 1996 and 100 percent thereafter.
| table h—[emission standards](/usc/42/7602.md?p=k) for nmhc and [co](/usc/42/7602.md?p=w) from gasoline and diesel fueled light-duty trucks of more than 6,000 lbs. gvwr | | | | | | | |
| --- | --- | --- | --- | --- | --- | --- | --- |
| LDT [Test weight](/usc/42/7550.md?p=8) | Column A | | | Column B | | | |
| (5 yrs/50,000 mi) | | | (11 yrs/120,000 mi) | | | | |
| NMHC | [CO](/usc/42/7602.md?p=w) | NOx | NMHC | [CO](/usc/42/7602.md?p=w) | NOx | PM | |
| 3,751–5,750 lbs. TW | 0.32 | 4.4 | 0.7* | 0.46 | 6.4 | 0.98 | 0.10 |
| Over 5,750 lbs. TW | 0.39 | 5.0 | 1.1* | 0.56 | 7.3 | 1.53 | 0.12 |
| [Standards](/usc/42/1320d.md?p=7) are expressed in grams per mile (GPM). | | | | | | | |
| For [standards](/usc/42/1320d.md?p=7) under column A, for purposes of certification under [section 7525 of this title](/usc/42/7525.md), the applicable useful life shall be 5 years or 50,000 miles (or the equivalent) whichever first occurs. | | | | | | | |
| For [standards](/usc/42/1320d.md?p=7) under column B, for purposes of certification under [section 7525 of this title](/usc/42/7525.md), the applicable useful life shall be 11 years or 120,000 miles (or the equivalent), whichever first occurs. | | | | | | | |
| *Not applicable to diesel-fueled LDTs. | | | | | | | |
- (i) **Phase II study for certain light-duty vehicles and light-duty trucks—**
- (1) The [Administrator](/usc/42/7602.md?p=a), with the participation of the [Office](/usc/42/3058f.md?p=1) of Technology Assessment, shall study whether or not further reductions in emissions from light-duty vehicles and light-duty trucks should be required pursuant to this subchapter. The study shall consider whether to establish with respect to [model years](#b-3-A-i) commencing after January 1, 2003, the [standards](/usc/42/1320d.md?p=7) and useful life period for gasoline and diesel-fueled light-duty vehicles and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs. or less specified in the following table:
| table 3—pending [emission standards](/usc/42/7602.md?p=k) for gasoline and diesel fueled light-duty vehicles and light-duty trucks 3,750 lbs. lvw or less | |
| --- | --- |
| [Pollutant](/usc/42/1397h.md?p=c-4) | Emission level* |
| NMHC | 0.125 GPM |
| NOx | 0.2 GPM |
| [CO](/usc/42/7602.md?p=w) | 1.7 GPM |
| *Emission levels are expressed in grams per mile (GPM). For vehicles and engines subject to this subsection for purposes of [subsection (d)](#d) and any reference thereto, the useful life of such vehicles and engines shall be a period of 10 years or 100,000 miles (or the equivalent), whichever first occurs. | |
Such study shall also consider other [standards](/usc/42/1320d.md?p=7) and useful life periods which are more stringent or less stringent than those set forth in table 3 (but more stringent than those referred to in subsections [(g)](#g) and [(h)](#h)).
- (2)
- (A) As part of the study under [paragraph (1)](#i-1), the [Administrator](/usc/42/7602.md?p=a) shall examine the need for further reductions in emissions in order to attain or maintain the national ambient air quality [standards](/usc/42/1320d.md?p=7), taking into consideration the waiver provisions of [section 7543(b) of this title](/usc/42/7543.md?p=b). As part of such study, the [Administrator](/usc/42/7602.md?p=a) shall also examine—
- (i) the availability of technology (including the costs thereof), in the case of light-duty vehicles and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs. or less, for meeting more stringent [emission standards](/usc/42/7602.md?p=k) than those provided in subsections [(g)](#g) and [(h)](#h) for [model years](#b-3-A-i) commencing not earlier than after January 1, 2003, and not later than [model year](#b-3-A-i) 2006, including the lead time and safety and [energy](/usc/42/6311.md?p=7) impacts of meeting more stringent [emission standards](/usc/42/7602.md?p=k); and
- (ii) the need for, and cost effectiveness of, obtaining further reductions in emissions from such light-duty vehicles and light-duty trucks, taking into consideration alternative means of attaining or maintaining the national primary ambient air quality [standards](/usc/42/1320d.md?p=7) pursuant to [State](/usc/42/7602.md?p=d) implementation plans and other requirements of this chapter, including their feasibility and cost effectiveness.
- (B) The [Administrator](/usc/42/7602.md?p=a) shall submit a report to Congress no later than June 1, 1997, containing the results of the study under this subsection, including the results of the examination conducted under [subparagraph (A)](#i-2-A). Before submittal of such report the [Administrator](/usc/42/7602.md?p=a) shall provide a reasonable opportunity for public comment and shall include a summary of such comments in the report to Congress.
- (3)
- (A) Based on the study under [paragraph (1)](#i-1) the [Administrator](/usc/42/7602.md?p=a) shall determine, by rule, within 3 calendar years after the report is submitted to Congress, but not later than December 31, 1999, whether—
- (i) there is a need for further reductions in emissions as provided in [paragraph (2)(A)](#i-2-A);
- (ii) the technology for meeting more stringent [emission standards](/usc/42/7602.md?p=k) will be available, as provided in [paragraph (2)(A)(i)](#i-2-A-i), in the case of light-duty vehicles and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs. or less, for [model years](#b-3-A-i) commencing not earlier than January 1, 2003, and not later than [model year](#b-3-A-i) 2006, considering the factors listed in [paragraph (2)(A)(i)](#i-2-A-i); and
- (iii) obtaining further reductions in emissions from such vehicles will be needed and cost effective, taking into consideration alternatives as provided in [paragraph (2)(A)(ii)](#i-2-A-ii).
The rulemaking under this paragraph shall commence within 3 months after submission of the report to Congress under [paragraph (2)(B)](#i-2-B).
- (B) If the [Administrator](/usc/42/7602.md?p=a) determines under [subparagraph (A)](#i-3-A) that—
- (i) there is no need for further reductions in emissions as provided in [paragraph (2)(A)](#i-2-A);
- (ii) the technology for meeting more stringent [emission standards](/usc/42/7602.md?p=k) will not be available as provided in [paragraph (2)(A)(i)](#i-2-A-i), in the case of light-duty vehicles and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs. or less, for [model years](#b-3-A-i) commencing not earlier than January 1, 2003, and not later than [model year](#b-3-A-i) 2006, considering the factors listed in [paragraph (2)(A)(i)](#i-2-A-i); or
- (iii) obtaining further reductions in emissions from such vehicles will not be needed or cost effective, taking into consideration alternatives as provided in [paragraph (2)(A)(ii)](#i-2-A-ii),
the [Administrator](/usc/42/7602.md?p=a) shall not promulgate more stringent [standards](/usc/42/1320d.md?p=7) than those in effect pursuant to subsections [(g)](#g) and [(h)](#h). Nothing in this paragraph shall prohibit the [Administrator](/usc/42/7602.md?p=a) from exercising the [Administrator](/usc/42/7602.md?p=a)’s authority under [subsection (a)](#a) to promulgate more stringent [standards](/usc/42/1320d.md?p=7) for light-duty vehicles and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs. or less at any other time thereafter in accordance with [subsection (a)](#a).
- (C) If the [Administrator](/usc/42/7602.md?p=a) determines under [subparagraph (A)](#i-3-A) that—
- (i) there is a need for further reductions in emissions as provided in [paragraph (2)(A)](#i-2-A);
- (ii) the technology for meeting more stringent [emission standards](/usc/42/7602.md?p=k) will be available, as provided in [paragraph (2)(A)(i)](#i-2-A-i), in the case of light-duty vehicles and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs. or less, for [model years](#b-3-A-i) commencing not earlier than January 1, 2003, and not later than [model year](#b-3-A-i) 2006, considering the factors listed in [paragraph (2)(A)(i)](#i-2-A-i); and
- (iii) obtaining further reductions in emissions from such vehicles will be needed and cost effective, taking into consideration alternatives as provided in [paragraph (2)(A)(ii)](#i-2-A-ii),
the [Administrator](/usc/42/7602.md?p=a) shall either promulgate the [standards](/usc/42/1320d.md?p=7) (and useful life periods) set forth in Table 3 in [paragraph (1)](#i-1) or promulgate alternative [standards](/usc/42/1320d.md?p=7) (and useful life periods) which are more stringent than those referred to in subsections [(g)](#g) and [(h)](#h). Any such [standards](/usc/42/1320d.md?p=7) (or useful life periods) promulgated by the [Administrator](/usc/42/7602.md?p=a) shall take effect with respect to any such vehicles or engines no earlier than the [model year](#b-3-A-i) 2003 but not later than [model year](#b-3-A-i) 2006, as determined by the [Administrator](/usc/42/7602.md?p=a) in the rule.
- (D) Nothing in this paragraph shall be construed by the [Administrator](/usc/42/7602.md?p=a) or by a court as a presumption that any [standards](/usc/42/1320d.md?p=7) (or useful life period) set forth in Table 3 shall be promulgated in the rulemaking required under this paragraph. The action required of the [Administrator](/usc/42/7602.md?p=a) in accordance with this paragraph shall be treated as a nondiscretionary duty for purposes of [section 7604(a)(2) of this title](/usc/42/7604.md?p=a-2) (relating to citizen suits).
- (E) Unless the [Administrator](/usc/42/7602.md?p=a) determines not to promulgate more stringent [standards](/usc/42/1320d.md?p=7) as provided in [subparagraph (B)](#i-3-B) or to postpone the effective date of [standards](/usc/42/1320d.md?p=7) referred to in Table 3 in [paragraph (1)](#i-1) or to establish alternative [standards](/usc/42/1320d.md?p=7) as provided in [subparagraph (C)](#i-3-C), effective with respect to [model years](#b-3-A-i) commencing after January 1, 2003, the regulations under [subsection (a)](#a) applicable to emissions of nonmethane hydrocarbons (NMHC), oxides of nitrogen (NOx), and carbon monoxide ([CO](/usc/42/7602.md?p=w)) from [motor vehicles](/usc/42/7550.md?p=2) and [motor vehicle](/usc/42/7550.md?p=2) engines in the classes specified in Table 3 in [paragraph (1)](#i-1) above shall contain [standards](/usc/42/1320d.md?p=7) which provide that emissions may not exceed the pending emission levels specified in Table 3 in [paragraph (1)](#i-1).
- (j) **Cold CO standard—**
- (1) **Phase I—** Not later than 12 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations under [subsection (a)](#a) of this section applicable to emissions of carbon monoxide from 1994 and later [model year](#b-3-A-i) light-duty vehicles and light-duty trucks when operated at 20 degrees Fahrenheit. The regulations shall contain [standards](/usc/42/1320d.md?p=7) which provide that emissions of carbon monoxide from a [manufacturer](/usc/42/300aa–33.md?p=3)’s vehicles when operated at 20 degrees Fahrenheit may not exceed, in the case of light-duty vehicles, 10.0 grams per mile, and in the case of light-duty trucks, a level comparable in stringency to the [standard](/usc/42/1320d.md?p=7) applicable to light-duty vehicles. The [standards](/usc/42/1320d.md?p=7) shall take effect after [model year](#b-3-A-i) 1993 according to a phase-in schedule which requires a percentage of each [manufacturer](/usc/42/300aa–33.md?p=3)’s sales volume of light-duty vehicles and light-duty trucks to comply with applicable [standards](/usc/42/1320d.md?p=7) after [model year](#b-3-A-i) 1993. The percentage shall be as specified in the following table:
| Phase-In Schedule for Cold Start [Standards](/usc/42/1320d.md?p=7) | |
| --- | --- |
| [Model Year](#b-3-A-i) | Percentage |
| 1994 | 40 |
| 1995 | 80 |
| 1996 and after | 100 |
- (2) **Phase II—**
- (A) Not later than June 1, 1997, the [Administrator](/usc/42/7602.md?p=a) shall complete a study assessing the need for further reductions in emissions of carbon monoxide and the maximum reductions in such emissions achievable from [model year](#b-3-A-i) 2001 and later [model year](#b-3-A-i) light-duty vehicles and light-duty trucks when operated at 20 degrees Fahrenheit.
- (B)
- (i) If as of June 1, 1997, 6 or more [nonattainment areas](/usc/42/7501.md?p=2) have a carbon monoxide design value of 9.5 ppm or greater, the regulations under [subsection (a)(1)](#a-1) of this section applicable to emissions of carbon monoxide from [model year](#b-3-A-i) 2002 and later [model year](#b-3-A-i) light-duty vehicles and light-duty trucks shall contain [standards](/usc/42/1320d.md?p=7) which provide that emissions of carbon monoxide from such vehicles and trucks when operated at 20 degrees Fahrenheit may not exceed 3.4 grams per mile (gpm) in the case of light-duty vehicles and 4.4 grams per mile (gpm) in the case of light-duty trucks up to 6,000 GVWR and a level comparable in stringency in the case of light-duty trucks 6,000 GVWR and above.
- (ii) In determining for purposes of this subparagraph whether 6 or more [nonattainment areas](/usc/42/7501.md?p=2) have a carbon monoxide design value of 9.5 ppm or greater, the [Administrator](/usc/42/7602.md?p=a) shall exclude the areas of Steubenville, Ohio, and Oshkosh, Wisconsin.
- (3) **Useful-life for phase I and phase II standards—** In the case of the [standards](/usc/42/1320d.md?p=7) referred to in paragraphs [(1)](#j-1) and [(2)](#j-2), for purposes of certification under [section 7525 of this title](/usc/42/7525.md) and in-use compliance under [section 7541 of this title](/usc/42/7541.md), the applicable useful life period shall be 5 years or 50,000 miles, whichever first occurs, except that the [Administrator](/usc/42/7602.md?p=a) may extend such useful life period (for purposes of [section 7525 of this title](/usc/42/7525.md), or [section 7541 of this title](/usc/42/7541.md), or both) if he determines that it is feasible for vehicles and engines subject to such [standards](/usc/42/1320d.md?p=7) to meet such [standards](/usc/42/1320d.md?p=7) for a longer useful life. If the [Administrator](/usc/42/7602.md?p=a) extends such useful life period, the [Administrator](/usc/42/7602.md?p=a) may make an appropriate adjustment of applicable [standards](/usc/42/1320d.md?p=7) for such extended useful life. No such extended useful life shall extend beyond the useful life period provided in regulations under [subsection (d)](#d).
- (4) **Heavy-duty vehicles and engines—** The [Administrator](/usc/42/7602.md?p=a) may also promulgate regulations under [subsection (a)(1)](#a-1) applicable to emissions of carbon monoxide from heavy-duty vehicles and engines when operated at cold temperatures.
- (k) **Control of evaporative emissions—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate (and from time to time revise) regulations applicable to evaporative emissions of hydrocarbons from all gasoline-fueled [motor vehicles](/usc/42/7550.md?p=2)—
- (1) during operation; and
- (2) over 2 or more days of nonuse;
under ozone-prone summertime conditions (as determined by regulations of the [Administrator](/usc/42/7602.md?p=a)). The regulations shall take effect as expeditiously as possible and shall require the greatest degree of emission reduction achievable by means reasonably expected to be available for production during any [model year](#b-3-A-i) to which the regulations apply, giving appropriate consideration to fuel volatility, and to cost, [energy](/usc/42/6311.md?p=7), and safety factors associated with the application of the appropriate technology. The [Administrator](/usc/42/7602.md?p=a) shall commence a rulemaking under this subsection within 12 months after November 15, 1990. If final regulations are not promulgated under this subsection within 18 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall submit a statement to the Congress containing an explanation of the reasons for the delay and a date certain for promulgation of such final regulations in accordance with this chapter. Such date certain shall not be later than 15 months after the expiration of such 18 month deadline.
- (l) **Mobile source-related air toxics—**
- (1) **Study—** Not later than 18 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall complete a study of the need for, and feasibility of, controlling emissions of toxic [air pollutants](/usc/42/7602.md?p=g) which are unregulated under this chapter and associated with [motor vehicles](/usc/42/7550.md?p=2) and [motor vehicle](/usc/42/7550.md?p=2) fuels, and the need for, and feasibility of, controlling such emissions and the means and measures for such controls. The study shall focus on those [categories](/usc/42/1395w–4.md?p=j-1) of emissions that pose the greatest risk to human health or about which significant uncertainties remain, including emissions of benzene, formaldehyde, and 1,3 butadiene. The proposed report shall be available for public review and comment and shall include a summary of all comments.
- (2) **Standards—** Within 54 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall, based on the study under [paragraph (1)](#l-1), promulgate (and from time to time revise) regulations under [subsection (a)(1)](#a-1) or [section 7545(c)(1) of this title](/usc/42/7545.md?p=c-1) containing reasonable requirements to control hazardous [air pollutants](/usc/42/7602.md?p=g) from [motor vehicles](/usc/42/7550.md?p=2) and [motor vehicle](/usc/42/7550.md?p=2) fuels. The regulations shall contain [standards](/usc/42/1320d.md?p=7) for such fuels or vehicles, or both, which the [Administrator](/usc/42/7602.md?p=a) determines reflect the greatest degree of emission reduction achievable through the application of technology which will be available, taking into consideration the [standards](/usc/42/1320d.md?p=7) established under [subsection (a)](#a), the availability and costs of the technology, and noise, [energy](/usc/42/6311.md?p=7), and safety factors, and lead time. Such regulations shall not be inconsistent with [standards](/usc/42/1320d.md?p=7) under [subsection (a)](#a). The regulations shall, at a minimum, apply to emissions of benzene and formaldehyde.
- (m) **Emissions control diagnostics—**
- (1) **Regulations—** Within 18 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations under [subsection (a)](#a) requiring [manufacturers](/usc/42/300aa–33.md?p=3) to install on all new light duty vehicles and light duty trucks diagnostics systems capable of—
- (A) accurately identifying for the vehicle’s useful life as established under this section, emission-related systems deterioration or malfunction, including, at a minimum, the catalytic converter and oxygen sensor, which could [cause](/usc/42/9908.md?p=c-2) or result in failure of the vehicles to comply with [emission standards](/usc/42/7602.md?p=k) established under this section,
- (B) alerting the vehicle’s [owner or operator](/usc/42/9601.md?p=20-B) to the likely need for emission-related components or systems maintenance or repair,
- (C) storing and retrieving fault codes specified by the [Administrator](/usc/42/7602.md?p=a), and
- (D) providing access to stored information in a manner specified by the [Administrator](/usc/42/7602.md?p=a).
The [Administrator](/usc/42/7602.md?p=a) may, in the [Administrator](/usc/42/7602.md?p=a)’s discretion, promulgate regulations requiring [manufacturers](/usc/42/300aa–33.md?p=3) to install such onboard diagnostic systems on heavy-duty vehicles and engines.
- (2) **Effective date—** The regulations required under paragraph (1) of this subsection shall take effect in [model year](#b-3-A-i) 1994, except that the [Administrator](/usc/42/7602.md?p=a) may waive the application of such regulations for [model year](#b-3-A-i) 1994 or 1995 (or both) with respect to any class or [category](/usc/42/1395w–4.md?p=j-1) of [motor vehicles](/usc/42/7550.md?p=2) if the [Administrator](/usc/42/7602.md?p=a) determines that it would be infeasible to apply the regulations to that class or [category](/usc/42/1395w–4.md?p=j-1) in such [model year](#b-3-A-i) or years, consistent with corresponding regulations or policies adopted by the California Air Resources [Board](/usc/42/10261.md?p=2) for such systems.
- (3) **State inspection—** The [Administrator](/usc/42/7602.md?p=a) shall by regulation require [States](/usc/42/7602.md?p=d) that have implementation plans containing [motor vehicle](/usc/42/7550.md?p=2) [inspection](/usc/42/4851b.md?p=12) and maintenance [programs](/usc/42/274l–1.md?p=4) to amend their plans within 2 years after promulgation of such regulations to provide for [inspection](/usc/42/4851b.md?p=12) of onboard diagnostics systems (as prescribed by regulations under paragraph (1) of this subsection) and for the maintenance or repair of malfunctions or system deterioration identified by or affecting such diagnostics systems. Such regulations shall not be inconsistent with the provisions for warranties promulgated under section [7541(a)](/usc/42/7541.md?p=a) and [(b)](/usc/42/7541.md?p=b) of this title.
- (4) **Specific requirements—** In promulgating regulations under this subsection, the [Administrator](/usc/42/7602.md?p=a) shall require—
- (A) that any connectors through which the emission control diagnostics system is accessed for [inspection](/usc/42/4851b.md?p=12), diagnosis, service, or repair shall be [standard](/usc/42/1320d.md?p=7) and uniform on all [motor vehicles](/usc/42/7550.md?p=2) and [motor vehicle](/usc/42/7550.md?p=2) engines;
- (B) that access to the emission control diagnostics system through such connectors shall be unrestricted and shall not require any access code or any device which is only available from a vehicle [manufacturer](/usc/42/300aa–33.md?p=3); and
- (C) that the output of the data from the emission control diagnostics system through such connectors shall be usable without the need for any unique decoding information or device.
- (5) **Information availability—** The [Administrator](/usc/42/7602.md?p=a), by regulation, shall require (subject to the provisions of [section 7542(c) of this title](/usc/42/7542.md?p=c) regarding the protection of methods or processes entitled to protection as trade secrets) [manufacturers](/usc/42/300aa–33.md?p=3) to provide promptly to any [person](/usc/42/7602.md?p=e) engaged in the repairing or servicing of [motor vehicles](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engines, and the [Administrator](/usc/42/7602.md?p=a) for use by any such [persons](/usc/42/7602.md?p=e), with any and all information needed to make use of the emission control diagnostics system prescribed under this subsection and such other information including instructions for making emission related diagnosis and repairs. No such information may be withheld under [section 7542(c) of this title](/usc/42/7542.md?p=c) if that information is provided (directly or indirectly) by the [manufacturer](/usc/42/300aa–33.md?p=3) to franchised [dealers](/usc/42/7550.md?p=4) or other [persons](/usc/42/7602.md?p=e) engaged in the repair, diagnosing, or servicing of [motor vehicles](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engines. Such information shall also be available to the [Administrator](/usc/42/7602.md?p=a), subject to [section 7542(c) of this title](/usc/42/7542.md?p=c), in carrying out the [Administrator](/usc/42/7602.md?p=a)’s responsibilities under this section.
- (f) **[^5] Model years after 1990—** For [model years](#b-3-A-i) prior to [model year](#b-3-A-i) 1994, the regulations under [subsection (a)](#a) applicable to buses other than those subject to [standards](/usc/42/1320d.md?p=7) under [section 7554 of this title](/usc/42/7554.md) shall contain a [standard](/usc/42/1320d.md?p=7) which provides that emissions of particulate matter (PM) from such buses may not exceed the [standards](/usc/42/1320d.md?p=7) set forth in the following table:
| pm [standard](/usc/42/1320d.md?p=7) for buses | |
| --- | --- |
| [Model year](#b-3-A-i) | [Standard](/usc/42/1320d.md?p=7)* |
| 1991 | 0.25 |
| 1992 | 0.25 |
| 1993 and thereafter | 0.10 |
| *[Standards](/usc/42/1320d.md?p=7) are expressed in grams per brake horsepower hour (g/bhp/hr). | |
# §7522. Prohibited acts
- (a) **Enumerated prohibitions—** The following acts and the causing thereof are prohibited—
- (1) in the case of a [manufacturer](/usc/42/300aa–33.md?p=3) of [new motor vehicles](/usc/42/7550.md?p=3) or [new motor vehicle engines](/usc/42/7550.md?p=3) for [distribution in commerce](/usc/42/6311.md?p=7), the sale, or the offering for sale, or the introduction, or delivery for introduction, into [commerce](/usc/42/7550.md?p=6), or (in the case of any [person](/usc/42/7602.md?p=e), except as provided by regulation of the [Administrator](/usc/42/7602.md?p=a)), the [importation](/usc/42/6311.md?p=7) into the [United States](/usc/42/403.md?p=k), of any [new motor vehicle](/usc/42/7550.md?p=3) or [new motor vehicle engine](/usc/42/7550.md?p=3), manufactured after the effective date of regulations under this part which are applicable to such vehicle or engine unless such vehicle or engine is covered by a certificate of conformity issued (and in effect) under regulations prescribed under this part or part C in the case of clean-fuel vehicles (except as provided in [subsection (b)](#b));
- (2)
- (A) for any [person](/usc/42/7602.md?p=e) to fail or refuse to permit access to or copying of records or to fail to make reports or provide information required under [section 7542 of this title](/usc/42/7542.md);
- (B) for any [person](/usc/42/7602.md?p=e) to fail or refuse to permit entry, testing or [inspection](/usc/42/4851b.md?p=12) authorized under [section 7525(c) of this title](/usc/42/7525.md?p=c) or [section 7542 of this title](/usc/42/7542.md);
- (C) for any [person](/usc/42/7602.md?p=e) to fail or refuse to perform tests, or have tests performed as required under [section 7542 of this title](/usc/42/7542.md);
- (D) for any [manufacturer](/usc/42/300aa–33.md?p=3) to fail to make information available as provided by regulation under [section 7521(m)(5) of this title](/usc/42/7521.md?p=m-5);
- (3)
- (A) for any [person](/usc/42/7602.md?p=e) to [remove](/usc/42/9601.md?p=23) or render inoperative any device or element of design installed on or in a [motor vehicle](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engine in compliance with regulations under this subchapter prior to its sale and delivery to the [ultimate purchaser](/usc/42/7550.md?p=5), or for any [person](/usc/42/7602.md?p=e) knowingly to [remove](/usc/42/9601.md?p=23) or render inoperative any such device or element of design after such sale and delivery to the [ultimate purchaser](/usc/42/7550.md?p=5); or
- (B) for any [person](/usc/42/7602.md?p=e) to [manufacture](/usc/42/300aa–33.md?p=3) or sell, or offer to sell, or install, any part or component intended for use with, or as part of, any [motor vehicle](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engine, where a principal effect of the part or component is to bypass, defeat, or render inoperative any device or element of design installed on or in a [motor vehicle](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engine in compliance with regulations under this subchapter, and where the [person](/usc/42/7602.md?p=e) knows or should know that such part or component is being offered for sale or installed for such use or put to such use; or
- (4) for any [manufacturer](/usc/42/300aa–33.md?p=3) of a [new motor vehicle](/usc/42/7550.md?p=3) or [new motor vehicle engine](/usc/42/7550.md?p=3) subject to [standards](/usc/42/1320d.md?p=7) prescribed under [section 7521 of this title](/usc/42/7521.md) or part C—
- (A) to sell or lease any such vehicle or engine unless such [manufacturer](/usc/42/300aa–33.md?p=3) has complied with (i) the requirements of section [7541(a)](/usc/42/7541.md?p=a) and [(b)](/usc/42/7541.md?p=b) of this title with respect to such vehicle or engine, and unless a label or tag is affixed to such vehicle or engine in accordance with [section 7541(c)(3) of this title](/usc/42/7541.md?p=c-3), or (ii) the corresponding requirements of part C in the case of clean fuel vehicles unless the [manufacturer](/usc/42/300aa–33.md?p=3) has complied with the corresponding requirements of part C[^1]
- (B) to fail or refuse to comply with the requirements of section [7541(c)](/usc/42/7541.md?p=c) or [(e)](/usc/42/7541.md?p=e) of this title, or the corresponding requirements of part C in the case of clean fuel vehicles[^1]
- (C) except as provided in subsection (c)(3) of [section 7541 of this title](/usc/42/7541.md) and the corresponding requirements of part C in the case of clean fuel vehicles, to provide directly or indirectly in any communication to the [ultimate purchaser](/usc/42/7550.md?p=5) or any subsequent purchaser that the coverage of any warranty under this chapter is conditioned upon use of any part, component, or system manufactured by such [manufacturer](/usc/42/300aa–33.md?p=3) or any [person](/usc/42/7602.md?p=e) acting for such [manufacturer](/usc/42/300aa–33.md?p=3) or under his control, or conditioned upon service performed by any such [person](/usc/42/7602.md?p=e), or
- (D) to fail or refuse to comply with the terms and conditions of the warranty under section [7541(a)](/usc/42/7541.md?p=a) or [(b)](/usc/42/7541.md?p=b) of this title or the corresponding requirements of part C in the case of clean fuel vehicles with respect to any vehicle; or
- (5) for any [person](/usc/42/7602.md?p=e) to violate [section 7553 of this title](/usc/42/7553.md), [7554](/usc/42/7554.md) of this title, or part C of this subchapter or any regulations under [section 7553 of this title](/usc/42/7553.md), [7554](/usc/42/7554.md) of this title, or part C.
No action with respect to any element of design referred to in [paragraph (3)](#a-3) (including any adjustment or alteration of such element) shall be treated as a prohibited act under such [paragraph (3)](#a-3) if such action is in accordance with [section 7549 of this title](/usc/42/7549.md). Nothing in [paragraph (3)](#a-3) shall be construed to require the use of manufacturer parts in maintaining or repairing any [motor vehicle](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engine. For the purposes of the preceding sentence, the term “manufacturer parts” means, with respect to a [motor vehicle](/usc/42/7550.md?p=2) engine, parts produced or sold by the [manufacturer](/usc/42/300aa–33.md?p=3) of the [motor vehicle](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engine. No action with respect to any device or element of design referred to in [paragraph (3)](#a-3) shall be treated as a prohibited act under that paragraph if (i) the action is for the purpose of repair or replacement of the device or element, or is a necessary and temporary procedure to repair or replace any other item and the device or element is replaced upon completion of the procedure, and (ii) such action thereafter results in the proper functioning of the device or element referred to in [paragraph (3)](#a-3). No action with respect to any device or element of design referred to in [paragraph (3)](#a-3) shall be treated as a prohibited act under that paragraph if the action is for the purpose of a conversion of a [motor vehicle](/usc/42/7550.md?p=2) for use of a [clean alternative fuel](/usc/42/7581.md?p=2) (as defined in this subchapter) and if such vehicle complies with the applicable [standard](/usc/42/1320d.md?p=7) under [section 7521 of this title](/usc/42/7521.md) when operating on such fuel, and if in the case of a [clean alternative fuel](/usc/42/7581.md?p=2) vehicle (as defined by rule by the [Administrator](/usc/42/7602.md?p=a)), the device or element is replaced upon completion of the conversion procedure and such action results in proper functioning of the device or element when the [motor vehicle](/usc/42/7550.md?p=2) operates on conventional fuel.
- (b) **Exemptions; refusal to admit vehicle or engine into United States; vehicles or engines intended for export—**
- (1) The [Administrator](/usc/42/7602.md?p=a) may exempt any [new motor vehicle](/usc/42/7550.md?p=3) or [new motor vehicle engine](/usc/42/7550.md?p=3), from [subsection (a)](#a), upon such terms and conditions as he may find necessary for the purpose of research, investigations, studies, demonstrations, or [training](/usc/42/285e–2.md?p=b-2), or for reasons of national security.
- (2) A [new motor vehicle](/usc/42/7550.md?p=3) or [new motor vehicle engine](/usc/42/7550.md?p=3) offered for [importation](/usc/42/6311.md?p=7) or imported by any [person](/usc/42/7602.md?p=e) in [violation](/usc/42/2000e–16a.md?p=c) of [subsection (a)](#a) shall be refused admission into the [United States](/usc/42/403.md?p=k), but the [Secretary](/usc/42/242q–4.md?p=2) of the Treasury and the [Administrator](/usc/42/7602.md?p=a) may, by joint regulation, provide for deferring final determination as to admission and authorizing the delivery of such a [motor vehicle](/usc/42/7550.md?p=2) or engine offered for [import](/usc/42/6311.md?p=7) to the [owner](/usc/42/13641.md?p=4) or consignee thereof upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to insure that any such [motor vehicle](/usc/42/7550.md?p=2) or engine will be brought into conformity with the [standards](/usc/42/1320d.md?p=7), requirements, and limitations applicable to it under this part. The [Secretary](/usc/42/242q–4.md?p=2) of the Treasury shall, if a [motor vehicle](/usc/42/7550.md?p=2) or engine is finally refused admission under this paragraph, [cause](/usc/42/9908.md?p=c-2) disposition thereof in accordance with the customs laws unless it is exported, under regulations prescribed by such [Secretary](/usc/42/242q–4.md?p=2), within ninety days of the date of notice of such refusal or such additional time as may be permitted pursuant to such regulations, except that disposition in accordance with the customs laws may not be made in such manner as may result, directly or indirectly, in the sale, to the ultimate consumer, of a [new motor vehicle](/usc/42/7550.md?p=3) or [new motor vehicle engine](/usc/42/7550.md?p=3) that fails to comply with applicable [standards](/usc/42/1320d.md?p=7) of the [Administrator](/usc/42/7602.md?p=a) under this part.
- (3) A [new motor vehicle](/usc/42/7550.md?p=3) or [new motor vehicle engine](/usc/42/7550.md?p=3) intended solely for export, and so labeled or tagged on the outside of the container and on the vehicle or engine itself, shall be subject to the provisions of [subsection (a)](#a), except that if the country which is to receive such vehicle or engine has [emission standards](/usc/42/7602.md?p=k) which differ from the [standards](/usc/42/1320d.md?p=7) prescribed under [section 7521 of this title](/usc/42/7521.md), then such vehicle or engine shall comply with the [standards](/usc/42/1320d.md?p=7) of such country which is to receive such vehicle or engine.
# §7523. Actions to restrain violations
- (a) **Jurisdiction—** The district courts of the [United States](/usc/42/403.md?p=k) shall have jurisdiction to restrain [violations](/usc/42/2000e–16a.md?p=c) of [section 7522(a) of this title](/usc/42/7522.md?p=a).
- (b) **Actions brought by or in name of United States; subpenas—** Actions to restrain such [violations](/usc/42/2000e–16a.md?p=c) shall be brought by and in the name of the [United States](/usc/42/403.md?p=k). In any such action, subpenas for witnesses who are required to attend a district court in any district may run into any other district.
# §7524. Civil penalties
- (a) **Violations—** Any [person](/usc/42/7602.md?p=e) who violates sections[^1] 7522(a)(1), 7522(a)(4), or 7522(a)(5) of this title or any [manufacturer](/usc/42/300aa–33.md?p=3) or [dealer](/usc/42/7550.md?p=4) who violates [section 7522(a)(3)(A) of this title](/usc/42/7522.md?p=a-3-A) shall be subject to a civil penalty of not more than $25,000. Any [person](/usc/42/7602.md?p=e) other than a [manufacturer](/usc/42/300aa–33.md?p=3) or [dealer](/usc/42/7550.md?p=4) who violates [section 7522(a)(3)(A) of this title](/usc/42/7522.md?p=a-3-A) or any [person](/usc/42/7602.md?p=e) who violates [section 7522(a)(3)(B) of this title](/usc/42/7522.md?p=a-3-B) shall be subject to a civil penalty of not more than $2,500. Any such [violation](/usc/42/2000e–16a.md?p=c) with respect to paragraph (1), (3)(A), or (4) of [section 7522(a) of this title](/usc/42/7522.md?p=a) shall constitute a separate offense with respect to each [motor vehicle](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engine. Any such [violation](/usc/42/2000e–16a.md?p=c) with respect to [section 7522(a)(3)(B) of this title](/usc/42/7522.md?p=a-3-B) shall constitute a separate offense with respect to each part or component. Any [person](/usc/42/7602.md?p=e) who violates [section 7522(a)(2) of this title](/usc/42/7522.md?p=a-2) shall be subject to a civil penalty of not more than $25,000 per day of [violation](/usc/42/2000e–16a.md?p=c).
- (b) **Civil actions—** The [Administrator](/usc/42/7602.md?p=a) may commence a civil action to assess and recover any civil penalty under [subsection (a)](#a) of this section, [section 7545(d) of this title](/usc/42/7545.md?p=d), or [section 7547(d) of this title](/usc/42/7547.md?p=d). Any action under this subsection may be brought in the district court of the [United States](/usc/42/403.md?p=k) for the district in which the [violation](/usc/42/2000e–16a.md?p=c) is alleged to have occurred or in which the defendant resides or has the [Administrator](/usc/42/7602.md?p=a)’s principal place of business, and the court shall have jurisdiction to assess a civil penalty. In determining the amount of any civil penalty to be assessed under this subsection, the court shall take into account the gravity of the [violation](/usc/42/2000e–16a.md?p=c), the economic benefit or savings (if any) resulting from the [violation](/usc/42/2000e–16a.md?p=c), the size of the violator’s business, the violator’s history of compliance with this subchapter, action taken to remedy the [violation](/usc/42/2000e–16a.md?p=c), the effect of the penalty on the violator’s ability to continue in business, and such other matters as justice may require. In any such action, subpoenas for witnesses who are required to attend a district court in any district may run into any other district.
- (c) **Administrative assessment of certain penalties—**
- (1) **Administrative penalty authority—** In lieu of commencing a civil action under [subsection (b)](#b), the [Administrator](/usc/42/7602.md?p=a) may assess any civil penalty prescribed in [subsection (a)](#a) of this section, [section 7545(d) of this title](/usc/42/7545.md?p=d), or [section 7547(d) of this title](/usc/42/7547.md?p=d), except that the maximum amount of penalty sought against each violator in a penalty assessment proceeding shall not exceed $200,000, unless the [Administrator](/usc/42/7602.md?p=a) and the [Attorney General](/usc/42/14902.md?p=6) jointly determine that a matter involving a larger [penalty amount](/usc/42/655.md?p=a-4-B-i) is appropriate for administrative penalty assessment. Any such determination by the [Administrator](/usc/42/7602.md?p=a) and the [Attorney General](/usc/42/14902.md?p=6) shall not be subject to judicial review. Assessment of a civil penalty under this subsection shall be by an order made on the record after opportunity for a hearing in accordance with sections [554](/usc/5/554.md) and [556](/usc/5/556.md) of title 5. The [Administrator](/usc/42/7602.md?p=a) shall issue reasonable rules for discovery and other procedures for hearings under this paragraph. Before issuing such an order, the [Administrator](/usc/42/7602.md?p=a) shall give written notice to the [person](/usc/42/7602.md?p=e) to be assessed an administrative penalty of the [Administrator](/usc/42/7602.md?p=a)’s proposal to issue such order and provide such [person](/usc/42/7602.md?p=e) an opportunity to request such a hearing on the order, within 30 days of the date the notice is received by such [person](/usc/42/7602.md?p=e). The [Administrator](/usc/42/7602.md?p=a) may compromise, or remit, with or without conditions, any administrative penalty which may be imposed under this section.
- (2) **Determining amount—** In determining the amount of any civil penalty assessed under this subsection, the [Administrator](/usc/42/7602.md?p=a) shall take into account the gravity of the [violation](/usc/42/2000e–16a.md?p=c), the economic benefit or savings (if any) resulting from the [violation](/usc/42/2000e–16a.md?p=c), the size of the violator’s business, the violator’s history of compliance with this subchapter, action taken to remedy the [violation](/usc/42/2000e–16a.md?p=c), the effect of the penalty on the violator’s ability to continue in business, and such other matters as justice may require.
- (3) **Effect of Administrator’s action—**
- (A) Action by the [Administrator](/usc/42/7602.md?p=a) under this subsection shall not affect or limit the [Administrator](/usc/42/7602.md?p=a)’s authority to enforce any provision of this chapter; except that any [violation](/usc/42/2000e–16a.md?p=c),
- (i) with respect to which the [Administrator](/usc/42/7602.md?p=a) has commenced and is diligently prosecuting an action under this subsection, or
- (ii) for which the [Administrator](/usc/42/7602.md?p=a) has issued a final order not subject to further judicial review and the violator has paid a penalty assessment under this subsection,
shall not be the subject of civil penalty action under [subsection (b)](#b).
- (B) No action by the [Administrator](/usc/42/7602.md?p=a) under this subsection shall affect any [person](/usc/42/7602.md?p=e)’s obligation to comply with any section of this chapter.
- (4) **Finality of order—** An order issued under this subsection shall become final 30 days after its issuance unless a petition for judicial review is filed under [paragraph (5)](#c-5).
- (5) **Judicial review—** Any [person](/usc/42/7602.md?p=e) against whom a civil penalty is assessed in accordance with this subsection may seek review of the assessment in the [United States](/usc/42/403.md?p=k) District Court for the District of Columbia, or for the district in which the [violation](/usc/42/2000e–16a.md?p=c) is alleged to have occurred, in which such [person](/usc/42/7602.md?p=e) resides, or where such [person](/usc/42/7602.md?p=e)’s principal place of business is located, within the 30-day period beginning on the date a civil penalty order is issued. Such [person](/usc/42/7602.md?p=e) shall simultaneously send a copy of the filing by certified mail to the [Administrator](/usc/42/7602.md?p=a) and the [Attorney General](/usc/42/14902.md?p=6). The [Administrator](/usc/42/7602.md?p=a) shall file in the court a certified copy, or certified index, as appropriate, of the record on which the order was issued within 30 days. The court shall not set aside or remand any order issued in accordance with the requirements of this subsection unless there is not substantial evidence in the record, taken as a whole, to support the finding of a [violation](/usc/42/2000e–16a.md?p=c) or unless the [Administrator](/usc/42/7602.md?p=a)’s assessment of the penalty constitutes an abuse of discretion, and the court shall not impose additional civil penalties unless the [Administrator](/usc/42/7602.md?p=a)’s assessment of the penalty constitutes an abuse of discretion. In any proceedings, the [United States](/usc/42/403.md?p=k) may seek to recover civil penalties assessed under this section.
- (6) **Collection—** If any [person](/usc/42/7602.md?p=e) fails to pay an assessment of a civil penalty imposed by the [Administrator](/usc/42/7602.md?p=a) as provided in this subsection—
- (A) after the order making the assessment has become final, or
- (B) after a court in an action brought under [paragraph (5)](#c-5) has entered a final judgment in favor of the [Administrator](/usc/42/7602.md?p=a),
the [Administrator](/usc/42/7602.md?p=a) shall request the [Attorney General](/usc/42/14902.md?p=6) to bring a civil action in an appropriate district court to recover the amount assessed (plus interest at rates established pursuant to [section 6621(a)(2) of title 26](/usc/26/6621.md?p=a-2) from the date of the final order or the date of the final judgment, as the case may be). In such an action, the validity, amount, and appropriateness of the penalty shall not be subject to review. Any [person](/usc/42/7602.md?p=e) who fails to pay on a timely basis the amount of an assessment of a civil penalty as described in the first sentence of this paragraph shall be required to pay, in addition to that amount and interest, the [United States](/usc/42/403.md?p=k)’ enforcement expenses, including attorneys fees and costs for collection proceedings, and a quarterly nonpayment penalty for each quarter during which such failure to pay persists. The nonpayment penalty shall be in an amount equal to 10 percent of the aggregate amount of that [person](/usc/42/7602.md?p=e)’s penalties and nonpayment penalties which are unpaid as of the beginning of such quarter.
# §7525. Motor vehicle and motor vehicle engine compliance testing and certification
- (a) **Testing and issuance of certificate of conformity—**
- (1) The [Administrator](/usc/42/7602.md?p=a) shall test, or require to be tested in such manner as he deems appropriate, any [new motor vehicle](/usc/42/7550.md?p=3) or [new motor vehicle engine](/usc/42/7550.md?p=3) submitted by a [manufacturer](/usc/42/300aa–33.md?p=3) to determine whether such vehicle or engine conforms with the regulations prescribed under [section 7521 of this title](/usc/42/7521.md). If such vehicle or engine conforms to such regulations, the [Administrator](/usc/42/7602.md?p=a) shall issue a certificate of conformity upon such terms, and for such period (not in excess of one year), as he may prescribe. In the case of any original equipment [manufacturer](/usc/42/300aa–33.md?p=3) (as defined by the [Administrator](/usc/42/7602.md?p=a) in regulations promulgated before November 15, 1990) of vehicles or vehicle engines whose projected sales in the [United States](/usc/42/403.md?p=k) for any [model year](/usc/42/7521.md?p=b-3-A-i) (as determined by the [Administrator](/usc/42/7602.md?p=a)) will not exceed 300, the [Administrator](/usc/42/7602.md?p=a) shall not require, for purposes of determining compliance with regulations under [section 7521 of this title](/usc/42/7521.md) for the useful life of the vehicle or engine, operation of any vehicle or engine manufactured during such [model year](/usc/42/7521.md?p=b-3-A-i) for more than 5,000 miles or 160 hours, respectively, unless the [Administrator](/usc/42/7602.md?p=a), by regulation, prescribes otherwise. The [Administrator](/usc/42/7602.md?p=a) shall apply any adjustment factors that the [Administrator](/usc/42/7602.md?p=a) deems appropriate to assure that each vehicle or engine will comply during its useful life (as determined under [section 7521(d) of this title](/usc/42/7521.md?p=d)) with the regulations prescribed under [section 7521 of this title](/usc/42/7521.md).
- (2) The [Administrator](/usc/42/7602.md?p=a) shall test any emission control system incorporated in a [motor vehicle](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engine submitted to him by any [person](/usc/42/7602.md?p=e), in order to determine whether such system enables such vehicle or engine to conform to the [standards](/usc/42/1320d.md?p=7) required to be prescribed under [section 7521(b) of this title](/usc/42/7521.md?p=b). If the [Administrator](/usc/42/7602.md?p=a) finds on the basis of such tests that such vehicle or engine conforms to such [standards](/usc/42/1320d.md?p=7), the [Administrator](/usc/42/7602.md?p=a) shall issue a verification of compliance with [emission standards](/usc/42/7602.md?p=k) for such system when incorporated in vehicles of a class of which the tested vehicle is [representative](/usc/42/3058f.md?p=5). He shall inform [manufacturers](/usc/42/300aa–33.md?p=3) and the National Academy of Sciences, and make available to the public, the results of such tests. Tests under this paragraph shall be conducted under such terms and conditions (including requirements for preliminary testing by qualified independent [laboratories](/usc/42/300jj.md?p=10)) as the [Administrator](/usc/42/7602.md?p=a) may prescribe by regulations.
- (3)
- (A) A certificate of conformity may be issued under this section only if the [Administrator](/usc/42/7602.md?p=a) determines that the [manufacturer](/usc/42/300aa–33.md?p=3) (or in the case of a vehicle or engine for [import](/usc/42/6311.md?p=7), any [person](/usc/42/7602.md?p=e)) has established to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that any emission control device, system, or element of design installed on, or incorporated in, such vehicle or engine conforms to applicable requirements of [section 7521(a)(4) of this title](/usc/42/7521.md?p=a-4).
- (B) The [Administrator](/usc/42/7602.md?p=a) may conduct such tests and may require the [manufacturer](/usc/42/300aa–33.md?p=3) (or any such [person](/usc/42/7602.md?p=e)) to conduct such tests and provide such information as is necessary to carry out subparagraph (A) of this paragraph. Such requirements shall include a requirement for prompt reporting of the emission of any unregulated [pollutant](/usc/42/1397h.md?p=c-4) from a system, device, or element of design if such [pollutant](/usc/42/1397h.md?p=c-4) was not emitted, or was emitted in significantly lesser amounts, from the vehicle or engine without use of the system, device, or element of design.
- (4)
- (A) Not later than 12 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall revise the regulations promulgated under this subsection to add test procedures capable of determining whether [model year](/usc/42/7521.md?p=b-3-A-i) 1994 and later [model year](/usc/42/7521.md?p=b-3-A-i) light-duty vehicles and light-duty trucks, when properly maintained and used, will pass the [inspection](/usc/42/4851b.md?p=12) methods and procedures established under [section 7541(b) of this title](/usc/42/7541.md?p=b) for that [model year](/usc/42/7521.md?p=b-3-A-i), under conditions reasonably likely to be encountered in the conduct of [inspection](/usc/42/4851b.md?p=12) and maintenance [programs](/usc/42/274l–1.md?p=4), but which those [programs](/usc/42/274l–1.md?p=4) cannot reasonably influence or control. The conditions shall include fuel characteristics, ambient temperature, and short (30 minutes or less) waiting periods before tests are conducted. The [Administrator](/usc/42/7602.md?p=a) shall not grant a certificate of conformity under this subsection for any 1994 or later [model year](/usc/42/7521.md?p=b-3-A-i) vehicle or engine that the [Administrator](/usc/42/7602.md?p=a) concludes cannot pass the test procedures established under this paragraph.
- (B) From time to time, the [Administrator](/usc/42/7602.md?p=a) may revise the regulations promulgated under [subparagraph (A)](#a-4-A), as the [Administrator](/usc/42/7602.md?p=a) deems appropriate.
- (5)
- (A) A [motor vehicle](/usc/42/7550.md?p=2) engine (including all engine emission controls) may be installed in an [exempted specially produced motor vehicle](#a-5-H-i) if the [motor vehicle](/usc/42/7550.md?p=2) engine is from a [motor vehicle](/usc/42/7550.md?p=2) that is covered by a certificate of conformity issued by the [Administrator](/usc/42/7602.md?p=a) for the [model year](/usc/42/7521.md?p=b-3-A-i) in which the [exempted specially produced motor vehicle](#a-5-H-i) is produced, or the [motor vehicle](/usc/42/7550.md?p=2) engine is covered by an Executive order subject to regulations promulgated by the California Air Resources [Board](/usc/42/10261.md?p=2) for the [model year](/usc/42/7521.md?p=b-3-A-i) in which the [exempted specially produced motor vehicle](#a-5-H-i) is produced, and—
- (i) the [manufacturer](/usc/42/300aa–33.md?p=3) of the engine supplies written instructions to the [Administrator](/usc/42/7602.md?p=a) and the [manufacturer](/usc/42/300aa–33.md?p=3) of the [exempted specially produced motor vehicle](#a-5-H-i) explaining how to install the engine and maintain functionality of the engine’s emission control system and the on-[board](/usc/42/10261.md?p=2) diagnostic system (commonly known as “OBD”), except with respect to evaporative emissions;
- (ii) the [manufacturer](/usc/42/300aa–33.md?p=3) of the [exempted specially produced motor vehicle](#a-5-H-i) installs the engine in accordance with such instructions and certifies such installation in accordance with [subparagraph (E)](#a-5-E);
- (iii) the installation instructions include emission control warranty information from the engine [manufacturer](/usc/42/300aa–33.md?p=3) in compliance with [section 7541 of this title](/usc/42/7541.md), including where warranty repairs can be made, emission control labels to be affixed to the vehicle, and the certificate of conformity number for the applicable vehicle in which the engine was originally intended or the applicable Executive order number for the engine; and
- (iv) the [manufacturer](/usc/42/300aa–33.md?p=3) of the [exempted specially produced motor vehicle](#a-5-H-i) does not produce more than 325 such vehicles in the calendar year in which the vehicle is produced.
- (B) A [motor vehicle](/usc/42/7550.md?p=2) containing an engine compliant with the requirements of [subparagraph (A)](#a-5-A) shall be treated as meeting the requirements of [section 7521 of this title](/usc/42/7521.md) applicable to new vehicles produced or imported in the [model year](/usc/42/7521.md?p=b-3-A-i) in which the [exempted specially produced motor vehicle](#a-5-H-i) is produced or imported.
- (C) Engine installations that are not performed in accordance with installation instructions provided by the [manufacturer](/usc/42/300aa–33.md?p=3) and alterations to the engine not in accordance with the installation instructions shall—
- (i) be treated as prohibited acts by the installer under [section 7522 of this title](/usc/42/7522.md) and any applicable regulations; and
- (ii) subject to civil penalties under [section 7524(a) of this title](/usc/42/7524.md?p=a), civil actions under [section 7524(b) of this title](/usc/42/7524.md?p=b), and administrative assessment of penalties under [section 7524(c) of this title](/usc/42/7524.md?p=c).
- (D) The [manufacturer](/usc/42/300aa–33.md?p=3) of an [exempted specially produced motor vehicle](#a-5-H-i) that has an engine compliant with the requirements of [subparagraph (A)](#a-5-A) shall provide to the purchaser of such vehicle all information received by the [manufacturer](/usc/42/300aa–33.md?p=3) from the engine [manufacturer](/usc/42/300aa–33.md?p=3), including information regarding emissions warranties from the engine [manufacturer](/usc/42/300aa–33.md?p=3) and all emissions-related recalls by the engine [manufacturer](/usc/42/300aa–33.md?p=3).
- (E) To qualify to install an engine under this paragraph, and sell, offer for sale, introduce into [commerce](/usc/42/7550.md?p=6), deliver for introduction into [commerce](/usc/42/7550.md?p=6) or [import](/usc/42/6311.md?p=7) an [exempted specially produced motor vehicle](#a-5-H-i), a [manufacturer](/usc/42/300aa–33.md?p=3) of [exempted specially produced motor vehicles](#a-5-H-i) shall register with the [Administrator](/usc/42/7602.md?p=a) at such time and in such manner as the [Administrator](/usc/42/7602.md?p=a) determines appropriate. The [manufacturer](/usc/42/300aa–33.md?p=3) shall submit an annual report to the [Administrator](/usc/42/7602.md?p=a) that includes—
- (i) a description of the [exempted specially produced motor vehicles](#a-5-H-i) and engines installed in such vehicles;
- (ii) the certificate of conformity number issued to the [motor vehicle](/usc/42/7550.md?p=2) in which the engine was originally intended or the applicable Executive order number for the engine; and
- (iii) a certification that it produced all [exempted specially produced motor vehicles](#a-5-H-i) according to the written instructions from the engine [manufacturer](/usc/42/300aa–33.md?p=3), and otherwise that the engine conforms in all material respects to the description in the application for the applicable certificate of conformity or Executive order.
- (F) [Exempted specially produced motor vehicles](#a-5-H-i) compliant with this paragraph shall be exempted from—
- (i) [motor vehicle](/usc/42/7550.md?p=2) certification testing under this section; and
- (ii) vehicle emission control [inspection](/usc/42/4851b.md?p=12) and maintenance [programs](/usc/42/274l–1.md?p=4) required under [section 7410 of this title](/usc/42/7410.md).
- (G)
- (i) Except as provided in [subparagraphs (A) through (F)](#a-5-A..a-5-F), a [person](/usc/42/7602.md?p=e) engaged in the manufacturing or assembling of [exempted specially produced motor vehicles](#a-5-H-i) shall be considered a [manufacturer](/usc/42/300aa–33.md?p=3) for purposes of this chapter.
- (ii) Nothing in this paragraph shall be construed to exempt any [person](/usc/42/7602.md?p=e) from the prohibitions in [section 7522(a)(3) of this title](/usc/42/7522.md?p=a-3) or the requirements in sections [7542](/usc/42/7542.md), [7525(c)](#c), or [7521(m)(5)](/usc/42/7521.md?p=m-5) of this title.
- (H) In this paragraph:
- (i) The term “exempted specially produced motor vehicle” means a light-duty vehicle or light-duty truck produced by a [low-volume manufacturer](#a-5-H-ii) and that—
- (I) is intended to resemble the body of another [motor vehicle](/usc/42/7550.md?p=2) that was manufactured not less than 25 years before the [manufacture](/usc/42/300aa–33.md?p=3) of the [exempted specially produced motor vehicle](#a-5-H-i); and
- (II) is manufactured under a license for the product configuration, trade dress, trademark, or patent, for the [motor vehicle](/usc/42/7550.md?p=2) that is intended to be replicated from the original [manufacturer](/usc/42/300aa–33.md?p=3), its successors or assignees, or current [owner](/usc/42/13641.md?p=4) of such product configuration, trade dress, trademark, or patent rights.
- (ii) The term “low-volume manufacturer” means a [motor vehicle](/usc/42/7550.md?p=2) [manufacturer](/usc/42/300aa–33.md?p=3), other than a [person](/usc/42/7602.md?p=e) who is registered as an importer under [section 30141 of title 49](/usc/49/30141.md), whose annual worldwide production, including by a [parent](/usc/42/1396a.md?p=k-3) or subsidiary of the [manufacturer](/usc/42/300aa–33.md?p=3), if applicable, is not more than 5,000 [motor vehicles](/usc/42/7550.md?p=2).
- (b) **Testing procedures; hearing; judicial review; additional evidence—**
- (1) In order to determine whether [new motor vehicles](/usc/42/7550.md?p=3) or [new motor vehicle engines](/usc/42/7550.md?p=3) being manufactured by a [manufacturer](/usc/42/300aa–33.md?p=3) do in fact conform with the regulations with respect to which the certificate of conformity was issued, the [Administrator](/usc/42/7602.md?p=a) is authorized to test such vehicles or engines. Such tests may be conducted by the [Administrator](/usc/42/7602.md?p=a) directly or, in accordance with conditions specified by the [Administrator](/usc/42/7602.md?p=a), by the [manufacturer](/usc/42/300aa–33.md?p=3).
- (2)
- (A)
- (i) If, based on tests conducted under [paragraph (1)](#b-1) on a sample of new vehicles or engines covered by a certificate of conformity, the [Administrator](/usc/42/7602.md?p=a) determines that all or part of the vehicles or engines so covered do not conform with the regulations with respect to which the certificate of conformity was issued and with the requirements of [section 7521(a)(4) of this title](/usc/42/7521.md?p=a-4), he may suspend or revoke such certificate in whole or in part, and shall so notify the [manufacturer](/usc/42/300aa–33.md?p=3). Such suspension or revocation shall apply in the case of any [new motor vehicles](/usc/42/7550.md?p=3) or [new motor vehicle engines](/usc/42/7550.md?p=3) manufactured after the date of such notification (or manufactured before such date if still in the hands of the [manufacturer](/usc/42/300aa–33.md?p=3)), and shall apply until such time as the [Administrator](/usc/42/7602.md?p=a) finds that vehicles and engines manufactured by the [manufacturer](/usc/42/300aa–33.md?p=3) do conform to such regulations and requirements. If, during any period of suspension or revocation, the [Administrator](/usc/42/7602.md?p=a) finds that a vehicle or engine actually conforms to such regulations and requirements, he shall issue a certificate of conformity applicable to such vehicle or engine.
- (ii) If, based on tests conducted under [paragraph (1)](#b-1) on any new vehicle or engine, the [Administrator](/usc/42/7602.md?p=a) determines that such vehicle or engine does not conform with such regulations and requirements, he may suspend or revoke such certificate insofar as it applies to such vehicle or engine until such time as he finds such vehicle or engine actually so conforms with such regulations and requirements, and he shall so notify the [manufacturer](/usc/42/300aa–33.md?p=3).
- (B)
- (i) At the request of any [manufacturer](/usc/42/300aa–33.md?p=3) the [Administrator](/usc/42/7602.md?p=a) shall grant such [manufacturer](/usc/42/300aa–33.md?p=3) a hearing as to whether the tests have been properly conducted or any sampling methods have been properly applied, and make a determination on the record with respect to any suspension or revocation under [subparagraph (A)](#b-2-A); but suspension or revocation under [subparagraph (A)](#b-2-A) shall not be stayed by reason of such hearing.
- (ii) In any case of actual controversy as to the validity of any determination under [clause (i)](#b-2-B-i), the [manufacturer](/usc/42/300aa–33.md?p=3) may at any time prior to the 60th day after such determination is made file a petition with the [United States](/usc/42/403.md?p=k) court of appeals for the circuit wherein such [manufacturer](/usc/42/300aa–33.md?p=3) resides or has his principal place of business for a judicial review of such determination. A copy of the petition shall be forthwith transmitted by the clerk of the court to the [Administrator](/usc/42/7602.md?p=a) or other officer designated by him for that purpose. The [Administrator](/usc/42/7602.md?p=a) thereupon shall file in the court the record of the proceedings on which the [Administrator](/usc/42/7602.md?p=a) based his determination, as provided in [section 2112 of title 28](/usc/28/2112.md).
- (iii) If the petitioner applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the [Administrator](/usc/42/7602.md?p=a), the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before the [Administrator](/usc/42/7602.md?p=a), in such manner and upon such terms and conditions as the court may deem proper. The [Administrator](/usc/42/7602.md?p=a) may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken and he shall file such [modified](/usc/42/7501.md?p=4) or new findings, and his recommendation, if any, for the [modification](/usc/42/7501.md?p=4) or setting aside of his original determination, with the return of such additional evidence.
- (iv) Upon the filing of the petition referred to in [clause (ii)](#b-2-B-ii), the court shall have jurisdiction to review the order in accordance with [chapter 7](/usc/5/chptI-ch7.md) of title 5 and to grant appropriate relief as provided in such chapter.
- (c) **Inspection—** For purposes of enforcement of this section, officers or [employees](/usc/42/1320a–7h.md?p=e-7) duly designated by the [Administrator](/usc/42/7602.md?p=a), upon presenting appropriate credentials to the [manufacturer](/usc/42/300aa–33.md?p=3) or [person](/usc/42/7602.md?p=e) in charge, are authorized (1) to enter, at reasonable times, any plant or other establishment of such [manufacturer](/usc/42/300aa–33.md?p=3), for the purpose of conducting tests of vehicles or engines in the hands of the [manufacturer](/usc/42/300aa–33.md?p=3), or (2) to inspect, at reasonable times, records, files, papers, processes, controls, and [facilities](/usc/42/11049.md?p=4) used by such [manufacturer](/usc/42/300aa–33.md?p=3) in conducting tests under regulations of the [Administrator](/usc/42/7602.md?p=a). Each such [inspection](/usc/42/4851b.md?p=12) shall be commenced and completed with reasonable promptness.
- (d) **Rules and regulations—** The [Administrator](/usc/42/7602.md?p=a) shall by regulation establish methods and procedures for making tests under this section.
- (e) **Publication of test results—** The [Administrator](/usc/42/7602.md?p=a) shall make available to the public the results of his tests of any [motor vehicle](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engine submitted by a [manufacturer](/usc/42/300aa–33.md?p=3) under [subsection (a)](#a) as promptly as possible after December 31, 1970, and at the beginning of each [model year](/usc/42/7521.md?p=b-3-A-i) which begins thereafter. Such results shall be described in such nontechnical manner as will reasonably disclose to prospective [ultimate purchasers](/usc/42/7550.md?p=5) of [new motor vehicles](/usc/42/7550.md?p=3) and [new motor vehicle engines](/usc/42/7550.md?p=3) the comparative performance of the vehicles and engines tested in meeting the [standards](/usc/42/1320d.md?p=7) prescribed under [section 7521 of this title](/usc/42/7521.md).
- (f) **High altitude regulations—** All light duty[^1] vehicles and engines manufactured during or after [model year](/usc/42/7521.md?p=b-3-A-i) 1984 and all light-duty trucks manufactured during or after [model year](/usc/42/7521.md?p=b-3-A-i) 1995 shall comply with the requirements of [section 7521 of this title](/usc/42/7521.md) regardless of the altitude at which they are sold.
- (g) **Nonconformance penalty—**
- (1) In the case of any class or [category](/usc/42/1395w–4.md?p=j-1) of heavy-duty vehicles or engines to which a [standard](/usc/42/1320d.md?p=7) promulgated under [section 7521(a) of this title](/usc/42/7521.md?p=a) applies, except as provided in [paragraph (2)](#g-2), a certificate of conformity shall be issued under [subsection (a)](#a) and shall not be suspended or revoked under [subsection (b)](#b) for such vehicles or engines manufactured by a [manufacturer](/usc/42/300aa–33.md?p=3) notwithstanding the failure of such vehicles or engines to meet such [standard](/usc/42/1320d.md?p=7) if such [manufacturer](/usc/42/300aa–33.md?p=3) pays a nonconformance penalty as provided under regulations promulgated by the [Administrator](/usc/42/7602.md?p=a) after notice and opportunity for public hearing. In the case of motorcycles to which such a [standard](/usc/42/1320d.md?p=7) applies, such a certificate may be issued notwithstanding such failure if the [manufacturer](/usc/42/300aa–33.md?p=3) pays such a penalty.
- (2) No certificate of conformity may be issued under [paragraph (1)](#g-1) with respect to any class or [category](/usc/42/1395w–4.md?p=j-1) of vehicle or engine if the degree by which the [manufacturer](/usc/42/300aa–33.md?p=3) fails to meet any [standard](/usc/42/1320d.md?p=7) promulgated under [section 7521(a) of this title](/usc/42/7521.md?p=a) with respect to such class or [category](/usc/42/1395w–4.md?p=j-1) exceeds the percentage determined under regulations promulgated by the [Administrator](/usc/42/7602.md?p=a) to be practicable. Such regulations shall require such testing of vehicles or engines being produced as may be necessary to determine the percentage of the classes or [categories](/usc/42/1395w–4.md?p=j-1) of vehicles or engines which are not in compliance with the regulations with respect to which a certificate of conformity was issued and shall be promulgated not later than one year after August 7, 1977.
- (3) The regulations promulgated under [paragraph (1)](#g-1) shall, not later than one year after August 7, 1977, provide for nonconformance penalties in amounts determined under a formula established by the [Administrator](/usc/42/7602.md?p=a). Such penalties under such formula—
- (A) may vary from [pollutant](/usc/42/1397h.md?p=c-4)-to-[pollutant](/usc/42/1397h.md?p=c-4);
- (B) may vary by class or [category](/usc/42/1395w–4.md?p=j-1) or vehicle or engine;
- (C) shall take into account the extent to which actual emissions of any [air pollutant](/usc/42/7602.md?p=g) exceed allowable emissions under the [standards](/usc/42/1320d.md?p=7) promulgated under [section 7521 of this title](/usc/42/7521.md);
- (D) shall be increased periodically in order to create incentives for the development of production vehicles or engines which achieve the required degree of emission reduction; and
- (E) shall [remove](/usc/42/9601.md?p=23) any competitive disadvantage to [manufacturers](/usc/42/300aa–33.md?p=3) whose engines or vehicles achieve the required degree of emission reduction (including any such disadvantage arising from the application of [paragraph (4)](#g-4)).
- (4) In any case in which a certificate of conformity has been issued under this subsection, any warranty required under [section 7541(b)(2) of this title](/usc/42/7541.md?p=b-2) and any action under [section 7541(c) of this title](/usc/42/7541.md?p=c) shall be required to be effective only for the emission levels which the [Administrator](/usc/42/7602.md?p=a) determines that such certificate was issued and not for the emission levels required under the applicable [standard](/usc/42/1320d.md?p=7).
- (5) The authorities of [section 7542(a) of this title](/usc/42/7542.md?p=a) shall apply, subject to the conditions of [section 7542(b)](/usc/42/7542.md?p=b)[^2] of this title, for purposes of this subsection.
- (h) **Review and revision of regulations—** Within 18 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall review and revise as necessary the regulations under subsection[^3] (a) and (b) of this section regarding the testing of [motor vehicles](/usc/42/7550.md?p=2) and [motor vehicle](/usc/42/7550.md?p=2) engines to insure that vehicles are tested under circumstances which reflect the actual current driving conditions under which [motor vehicles](/usc/42/7550.md?p=2) are used, including conditions relating to fuel, temperature, acceleration, and altitude.
# §7541. Compliance by vehicles and engines in actual use
- (a) **Warranty; certification; payment of replacement costs of parts, devices, or components designed for emission control—**
- (1) Effective with respect to vehicles and engines manufactured in [model years](/usc/42/7521.md?p=b-3-A-i) beginning more than 60 days after December 31, 1970, the [manufacturer](/usc/42/300aa–33.md?p=3) of each [new motor vehicle](/usc/42/7550.md?p=3) and [new motor vehicle engine](/usc/42/7550.md?p=3) shall warrant to the [ultimate purchaser](/usc/42/7550.md?p=5) and each subsequent purchaser that such vehicle or engine is (A) designed, built, and equipped so as to conform at the time of sale with applicable regulations under [section 7521 of this title](/usc/42/7521.md), and (B) free from defects in materials and workmanship which [cause](/usc/42/9908.md?p=c-2) such vehicle or engine to fail to conform with applicable regulations for its useful life (as determined under [section 7521(d) of this title](/usc/42/7521.md?p=d)). In the case of vehicles and engines manufactured in the [model year](/usc/42/7521.md?p=b-3-A-i) 1995 and thereafter such warranty shall require that the vehicle or engine is free from any such defects for the warranty period provided under [subsection (i)](#i).
- (2) In the case of a [motor vehicle](/usc/42/7550.md?p=2) part or [motor vehicle](/usc/42/7550.md?p=2) engine part, the [manufacturer](/usc/42/300aa–33.md?p=3) or rebuilder of such part may certify that use of such part will not result in a failure of the vehicle or engine to comply with [emission standards](/usc/42/7602.md?p=k) promulgated under [section 7521 of this title](/usc/42/7521.md). Such certification shall be made only under such regulations as may be promulgated by the [Administrator](/usc/42/7602.md?p=a) to carry out the purposes of [subsection (b)](#b). The [Administrator](/usc/42/7602.md?p=a) shall promulgate such regulations no later than two years following August 7, 1977.
- (3) The cost of any part, device, or component of any light-duty vehicle that is designed for emission control and which in the instructions issued pursuant to [subsection (c)(3)](#c-3) of this section is scheduled for replacement during the useful life of the vehicle in order to maintain compliance with regulations under [section 7521 of this title](/usc/42/7521.md), the failure of which shall not interfere with the normal performance of the vehicle, and the expected retail price of which, including installation costs, is greater than 2 percent of the suggested retail price of such vehicle, shall be borne or reimbursed at the time of replacement by the vehicle [manufacturer](/usc/42/300aa–33.md?p=3) and such replacement shall be provided without cost to the [ultimate purchaser](/usc/42/7550.md?p=5), subsequent purchaser, or [dealer](/usc/42/7550.md?p=4). The term “designed for emission control” as used in the preceding sentence means a catalytic converter, thermal reactor, or other component installed on or in a vehicle for the sole or primary purpose of reducing vehicle emissions (not including those vehicle components which were in general use prior to [model year](/usc/42/7521.md?p=b-3-A-i) 1968 and the primary function of which is not related to emission control).
- (b) **Testing methods and procedures—** If the [Administrator](/usc/42/7602.md?p=a) determines that (i) there are available testing methods and procedures to ascertain whether, when in actual use throughout its[^1] the warranty period (as determined under [subsection (i)](#i)), each vehicle and engine to which regulations under [section 7521 of this title](/usc/42/7521.md) apply complies with the [emission standards](/usc/42/7602.md?p=k) of such regulations, (ii) such methods and procedures are in accordance with good engineering [practices](/usc/42/17061.md?p=19), and (iii) such methods and procedures are reasonably capable of being correlated with tests conducted under [section 7525(a)(1) of this title](/usc/42/7525.md?p=a-1), then—
- (1) he shall establish such methods and procedures by regulation, and
- (2) at such time as he determines that [inspection](/usc/42/4851b.md?p=12) [facilities](/usc/42/11049.md?p=4) or equipment are available for purposes of carrying out testing methods and procedures established under [paragraph (1)](#b-1), he shall prescribe regulations which shall require [manufacturers](/usc/42/300aa–33.md?p=3) to warrant the emission control device or system of each [new motor vehicle](/usc/42/7550.md?p=3) or [new motor vehicle engine](/usc/42/7550.md?p=3) to which a regulation under [section 7521 of this title](/usc/42/7521.md) applies and which is manufactured in a [model year](/usc/42/7521.md?p=b-3-A-i) beginning after the [Administrator](/usc/42/7602.md?p=a) first prescribes warranty regulations under this [paragraph (2)](#b-2). The warranty under such regulations shall run to the [ultimate purchaser](/usc/42/7550.md?p=5) and each subsequent purchaser and shall provide that if—
- (A) the vehicle or engine is maintained and operated in accordance with instructions under [subsection (c)(3)](#c-3),
- (B) it fails to conform at any time during its[^1] the warranty period (as determined under [subsection (i)](#i)) to the regulations prescribed under [section 7521 of this title](/usc/42/7521.md), and
- (C) such nonconformity results in the [ultimate purchaser](/usc/42/7550.md?p=5) (or any subsequent purchaser) of such vehicle or engine having to bear any penalty or other sanction (including the denial of the right to use such vehicle or engine) under [State](/usc/42/7602.md?p=d) or Federal law,
then such [manufacturer](/usc/42/300aa–33.md?p=3) shall remedy such nonconformity under such warranty with the cost thereof to be borne by the [manufacturer](/usc/42/300aa–33.md?p=3). No such warranty shall be invalid on the basis of any part used in the maintenance or repair of a vehicle or engine if such part was certified as provided under [subsection (a)(2)](#a-2).
- (c) **Nonconforming vehicles; plan for remedying nonconformity; instructions for maintenance and use; label or tag—** Effective with respect to vehicles and engines manufactured during [model years](/usc/42/7521.md?p=b-3-A-i) beginning more than 60 days after December 31, 1970—
- (1) If the [Administrator](/usc/42/7602.md?p=a) determines that a substantial number of any class or [category](/usc/42/1395w–4.md?p=j-1) of vehicles or engines, although properly maintained and used, do not conform to the regulations prescribed under [section 7521 of this title](/usc/42/7521.md), when in actual use throughout their useful life (as determined under [section 7521(d) of this title](/usc/42/7521.md?p=d)), he shall immediately notify the [manufacturer](/usc/42/300aa–33.md?p=3) thereof of such nonconformity, and he shall require the [manufacturer](/usc/42/300aa–33.md?p=3) to submit a plan for remedying the nonconformity of the vehicles or engines with respect to which such notification is given. The plan shall provide that the nonconformity of any such vehicles or engines which are properly used and maintained will be remedied at the expense of the [manufacturer](/usc/42/300aa–33.md?p=3). If the [manufacturer](/usc/42/300aa–33.md?p=3) disagrees with such determination of nonconformity and so advises the [Administrator](/usc/42/7602.md?p=a), the [Administrator](/usc/42/7602.md?p=a) shall afford the [manufacturer](/usc/42/300aa–33.md?p=3) and other interested [persons](/usc/42/7602.md?p=e) an opportunity to present their views and evidence in support thereof at a public hearing. Unless, as a result of such hearing the [Administrator](/usc/42/7602.md?p=a) withdraws such determination of nonconformity, he shall, within 60 days after the completion of such hearing, order the [manufacturer](/usc/42/300aa–33.md?p=3) to provide prompt notification of such nonconformity in accordance with [paragraph (2)](#c-2).
- (2) Any notification required by [paragraph (1)](#c-1) with respect to any class or [category](/usc/42/1395w–4.md?p=j-1) of vehicles or engines shall be given to [dealers](/usc/42/7550.md?p=4), [ultimate purchasers](/usc/42/7550.md?p=5), and subsequent purchasers (if known) in such manner and containing such information as the [Administrator](/usc/42/7602.md?p=a) may by regulations require.
- (3)
- (A) The [manufacturer](/usc/42/300aa–33.md?p=3) shall furnish with each [new motor vehicle](/usc/42/7550.md?p=3) or [motor vehicle](/usc/42/7550.md?p=2) engine written instructions for the proper maintenance and use of the vehicle or engine by the [ultimate purchaser](/usc/42/7550.md?p=5) and such instructions shall correspond to regulations which the [Administrator](/usc/42/7602.md?p=a) shall promulgate. The [manufacturer](/usc/42/300aa–33.md?p=3) shall provide in boldface type on the first page of the written maintenance instructions notice that maintenance, replacement, or repair of the emission control devices and systems may be performed by any automotive repair establishment or individual using any automotive part which has been certified as provided in [subsection (a)(2)](#a-2).
- (B) The instruction under subparagraph (A) of this paragraph shall not include any condition on the [ultimate purchaser](/usc/42/7550.md?p=5)’s using, in connection with such vehicle or engine, any component or service (other than a component or service provided without charge under the terms of the purchase [agreement](/usc/42/1320b–8.md?p=a-3-A)) which is identified by brand, trade, or corporate name; or directly or indirectly distinguishing between service performed by the franchised [dealers](/usc/42/7550.md?p=4) of such [manufacturer](/usc/42/300aa–33.md?p=3) or any other service establishments with which such [manufacturer](/usc/42/300aa–33.md?p=3) has a commercial relationship, and service performed by independent automotive repair [facilities](/usc/42/11049.md?p=4) with which such [manufacturer](/usc/42/300aa–33.md?p=3) has no commercial relationship; except that the prohibition of this subsection may be waived by the [Administrator](/usc/42/7602.md?p=a) if—
- (i) the [manufacturer](/usc/42/300aa–33.md?p=3) satisfies the [Administrator](/usc/42/7602.md?p=a) that the vehicle or engine will function properly only if the component or service so identified is used in connection with such vehicle or engine, and
- (ii) the [Administrator](/usc/42/7602.md?p=a) finds that such a waiver is in the public interest.
- (C) In addition, the [manufacturer](/usc/42/300aa–33.md?p=3) shall indicate by means of a label or tag permanently affixed to such vehicle or engine that such vehicle or engine is covered by a certificate of conformity issued for the purpose of assuring achievement of emissions [standards](/usc/42/1320d.md?p=7) prescribed under [section 7521 of this title](/usc/42/7521.md). Such label or tag shall contain such other information relating to control of [motor vehicle](/usc/42/7550.md?p=2) emissions as the [Administrator](/usc/42/7602.md?p=a) shall prescribe by regulation.
- (4) **Intermediate in-use standards.—**
- (A) **Model years 1994 and 1995.—** For light-duty trucks of up to 6,000 lbs. gross vehicle weight rating (GVWR) and light-duty vehicles which are subject to [standards](/usc/42/1320d.md?p=7) under table G of [section 7521(g)(1) of this title](/usc/42/7521.md?p=g-1) in [model years](/usc/42/7521.md?p=b-3-A-i) 1994 and 1995 (40 percent of the [manufacturer](/usc/42/300aa–33.md?p=3)’s sales volume in [model year](/usc/42/7521.md?p=b-3-A-i) 1994 and 80 percent in [model year](/usc/42/7521.md?p=b-3-A-i) 1995), the [standards](/usc/42/1320d.md?p=7) applicable to NMHC, [CO](/usc/42/7602.md?p=w), and NOx for purposes of this subsection shall be those set forth in table A below in lieu of the [standards](/usc/42/1320d.md?p=7) for such [air pollutants](/usc/42/7602.md?p=g) otherwise applicable under this subchapter.
| table a—intermediate in-use [standards](/usc/42/1320d.md?p=7) ldts up to 6,000 lbs. gvwr and light-duty vehicles | | | |
| --- | --- | --- | --- |
| Vehicle type | NMHC | [CO](/usc/42/7602.md?p=w) | NOx |
| Light-duty vehicles | 0.32 | 3.4 | 0.4* |
| LDT’s (0–3,750 LVW) | 0.32 | 5.2 | 0.4* |
| LDT’s (3,751–5,750 LVW) | 0.41 | 6.7 | 0.7* |
| *Not applicable to diesel-fueled vehicles. | | | |
- (B) **Model years 1996 and thereafter.—**
- (i) In the [model years](/usc/42/7521.md?p=b-3-A-i) 1996 and 1997, light-duty trucks (LDTs) up to 6,000 lbs. gross vehicle weight rating (GVWR) and light-duty vehicles which are not subject to final in-use [standards](/usc/42/1320d.md?p=7) under [paragraph (5)](#c-5) (60 percent of the [manufacturer](/usc/42/300aa–33.md?p=3)’s sales volume in [model year](/usc/42/7521.md?p=b-3-A-i) 1996 and 20 percent in [model year](/usc/42/7521.md?p=b-3-A-i) 1997) shall be subject to the [standards](/usc/42/1320d.md?p=7) set forth in table A of [subparagraph (A)](#c-4-A) for NMHC, [CO](/usc/42/7602.md?p=w), and NOx for purposes of this subsection in lieu of those set forth in [paragraph (5)](#c-5).
- (ii) For LDTs of more than 6,000 lbs. GVWR—
- (I) in [model year](/usc/42/7521.md?p=b-3-A-i) 1996 which are subject to the [standards](/usc/42/1320d.md?p=7) set forth in Table H of [section 7521(h) of this title](/usc/42/7521.md?p=h) (50%);
- (II) in [model year](/usc/42/7521.md?p=b-3-A-i) 1997 (100%); and
- (III) in [model year](/usc/42/7521.md?p=b-3-A-i) 1998 which are not subject to final in-use [standards](/usc/42/1320d.md?p=7) under [paragraph (5)](#c-5) (50%);
the [standards](/usc/42/1320d.md?p=7) for NMHC, [CO](/usc/42/7602.md?p=w), and NOx for purposes of this subsection shall be those set forth in Table B below in lieu of the [standards](/usc/42/1320d.md?p=7) for such [air pollutants](/usc/42/7602.md?p=g) otherwise applicable under this subchapter.
| Table B—Intermediate In-Use [Standards](/usc/42/1320d.md?p=7) LDTs More Than 6,000 Lbs. GVWR | | | |
| --- | --- | --- | --- |
| Vehicle type | NMHC | [CO](/usc/42/7602.md?p=w) | NOx |
| LDTs (3,751–5,750 lbs. TW) | 0.40 | 5.5 | 0.88* |
| LDTs (over 5,750 lbs. TW) | 0.49 | 6.2 | 1.38* |
| *Not applicable to diesel-fueled vehicles. | | | |
- (C) **Useful life.—** In the case of the in-use [standards](/usc/42/1320d.md?p=7) applicable under this paragraph, for purposes of applying this subsection, the applicable useful life shall be 5 years or 50,000 miles or the equivalent (whichever first occurs).
- (5) **Final in-use standards.—**
- (A) After the [model year](/usc/42/7521.md?p=b-3-A-i) 1995, for purposes of applying this subsection, in the case of the percentage specified in the implementation schedule below of each [manufacturer](/usc/42/300aa–33.md?p=3)’s sales volume of light-duty trucks of up to 6,000 lbs. gross vehicle weight rating (GVWR) and light duty[^2] vehicles, the [standards](/usc/42/1320d.md?p=7) for NMHC, [CO](/usc/42/7602.md?p=w), and NOx shall be as provided in Table G in [section 7521(g) of this title](/usc/42/7521.md?p=g), except that in applying the [standards](/usc/42/1320d.md?p=7) set forth in Table G for purposes of determining compliance with this subsection, the applicable useful life shall be (i) 5 years or 50,000 miles (or the equivalent) whichever first occurs in the case of [standards](/usc/42/1320d.md?p=7) applicable for purposes of certification at 50,000 miles; and (ii) 10 years or 100,000 miles (or the equivalent), whichever first occurs in the case of [standards](/usc/42/1320d.md?p=7) applicable for purposes of certification at 100,000 miles, except that no testing shall be done beyond 7 years or 75,000 miles, or the equivalent whichever first occurs.
| LDTs up to 6,000 Lbs. GVWR and Light-Duty Vehicle Schedule for Implementation of Final In-Use [Standards](/usc/42/1320d.md?p=7) | |
| --- | --- |
| [Model year](/usc/42/7521.md?p=b-3-A-i) | Percent |
| 1996 | 40 |
| 1997 | 80 |
| 1998 | 100 |
- (B) After the [model year](/usc/42/7521.md?p=b-3-A-i) 1997, for purposes of applying this subsection, in the case of the percentage specified in the implementation schedule below of each [manufacturer](/usc/42/300aa–33.md?p=3)’s sales volume of light-duty trucks of more than 6,000 lbs. gross vehicle weight rating (GVWR), the [standards](/usc/42/1320d.md?p=7) for NMHC, [CO](/usc/42/7602.md?p=w), and NOx shall be as provided in Table H in [section 7521(h) of this title](/usc/42/7521.md?p=h), except that in applying the [standards](/usc/42/1320d.md?p=7) set forth in Table H for purposes of determining compliance with this subsection, the applicable useful life shall be (i) 5 years or 50,000 miles (or the equivalent) whichever first occurs in the case of [standards](/usc/42/1320d.md?p=7) applicable for purposes of certification at 50,000 miles; and (ii) 11 years or 120,000 miles (or the equivalent), whichever first occurs in the case of [standards](/usc/42/1320d.md?p=7) applicable for purposes of certification at 120,000 miles, except that no testing shall be done beyond 7 years or 90,000 miles (or the equivalent) whichever first occurs.
| LDTs of More Than 6,000 Lbs. GVWR Implementation Schedule for Implementation of Final In-Use [Standards](/usc/42/1320d.md?p=7) | |
| --- | --- |
| [Model year](/usc/42/7521.md?p=b-3-A-i) | Percent |
| 1998 | 50 |
| 1999 | 100 |
- (6) **Diesel vehicles; in-use useful life and testing.—**
- (A) In the case of diesel-fueled light-duty trucks up to 6,000 lbs. GVWR and light-duty vehicles, the useful life for purposes of determining in-use compliance with the [standards](/usc/42/1320d.md?p=7) under [section 7521(g) of this title](/usc/42/7521.md?p=g) for NOx shall be a period of 10 years or 100,000 miles (or the equivalent), whichever first occurs, in the case of [standards](/usc/42/1320d.md?p=7) applicable for purposes of certification at 100,000 miles, except that testing shall not be done for a period beyond 7 years or 75,000 miles (or the equivalent) whichever first occurs.
- (B) In the case of diesel-fueled light-duty trucks of 6,000 lbs. GVWR or more, the useful life for purposes of determining in-use compliance with the [standards](/usc/42/1320d.md?p=7) under [section 7521(h) of this title](/usc/42/7521.md?p=h) for NOx shall be a period of 11 years or 120,000 miles (or the equivalent), whichever first occurs, in the case of [standards](/usc/42/1320d.md?p=7) applicable for purposes of certification at 120,000 miles, except that testing shall not be done for a period beyond 7 years or 90,000 miles (or the equivalent) whichever first occurs.
- (d) **Dealer costs borne by manufacturer—** Any cost obligation of any [dealer](/usc/42/7550.md?p=4) incurred as a result of any requirement imposed by subsection [(a)](#a), [(b)](#b), or [(c)](#c) shall be borne by the [manufacturer](/usc/42/300aa–33.md?p=3). The transfer of any such cost obligation from a [manufacturer](/usc/42/300aa–33.md?p=3) to any [dealer](/usc/42/7550.md?p=4) through franchise or other [agreement](/usc/42/1320b–8.md?p=a-3-A) is prohibited.
- (e) **Cost statement—** If a [manufacturer](/usc/42/300aa–33.md?p=3) includes in any advertisement a statement respecting the cost or value of emission control devices or systems, such [manufacturer](/usc/42/300aa–33.md?p=3) shall set forth in such statement the cost or value attributed to such devices or systems by the [Secretary](/usc/42/242q–4.md?p=2) of Labor (through the Bureau of Labor Statistics). The [Secretary](/usc/42/242q–4.md?p=2) of Labor, and his [representatives](/usc/42/3058f.md?p=5), shall have the same access for this purpose to the books, documents, papers, and records of a [manufacturer](/usc/42/300aa–33.md?p=3) as the Comptroller General has to those of a [recipient](/usc/42/2996a.md?p=6) of assistance for purposes of [section 7611 of this title](/usc/42/7611.md).
- (f) **Inspection after sale to ultimate purchaser—** Any [inspection](/usc/42/4851b.md?p=12) of a [motor vehicle](/usc/42/7550.md?p=2) or a [motor vehicle](/usc/42/7550.md?p=2) engine for purposes of [subsection (c)(1)](#c-1), after its sale to the [ultimate purchaser](/usc/42/7550.md?p=5), shall be made only if the [owner](/usc/42/13641.md?p=4) of such vehicle or engine voluntarily permits such [inspection](/usc/42/4851b.md?p=12) to be made, except as may be provided by any [State](/usc/42/7602.md?p=d) or local [inspection](/usc/42/4851b.md?p=12) [program](/usc/42/274l–1.md?p=4).
- (g) **Replacement and maintenance costs borne by owner—** For the purposes of this section, the [owner](/usc/42/13641.md?p=4) of any [motor vehicle](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engine warranted under this section is responsible in the proper maintenance of such vehicle or engine to replace and to maintain, at his expense at any service establishment or [facility](/usc/42/11049.md?p=4) of his choosing, such items as spark plugs, points, condensers, and any other part, item, or device related to emission control (but not [designed for emission control](#a-3) under the terms of the last sentence of [subsection (a)(3)](#a-3))),[^3] unless such part, item, or device is covered by any warranty not mandated by this chapter.
- (h) **Dealer certification—**
- (1) If at any time during the period for which the warranty applies under [subsection (b)](#b), a [motor vehicle](/usc/42/7550.md?p=2) fails to conform to the applicable regulations under [section 7521 of this title](/usc/42/7521.md) as determined under [subsection (b)](#b) of this section such nonconformity shall be remedied by the [manufacturer](/usc/42/300aa–33.md?p=3) at the cost of the [manufacturer](/usc/42/300aa–33.md?p=3) pursuant to such warranty as provided in [subsection (b)(2)](#b-2)(without regard to [subparagraph (C)](#b-2-C) thereof).
- (2) Nothing in [section 7543(a) of this title](/usc/42/7543.md?p=a) shall be construed to prohibit a [State](/usc/42/7602.md?p=d) from testing, or requiring testing of, a [motor vehicle](/usc/42/7550.md?p=2) after the date of sale of such vehicle to the [ultimate purchaser](/usc/42/7550.md?p=5) (except that no [new motor vehicle](/usc/42/7550.md?p=3) [manufacturer](/usc/42/300aa–33.md?p=3) or [dealer](/usc/42/7550.md?p=4) may be required to conduct testing under this paragraph).
- (i) **Warranty period—**
- (1) **In general—** For purposes of [subsection (a)(1)](#a-1) and [subsection (b)](#b) of this section, the warranty period, effective with respect to new light-duty trucks and new light-duty vehicles and engines, manufactured in the [model year](/usc/42/7521.md?p=b-3-A-i) 1995 and thereafter, shall be the first 2 years or 24,000 miles of use (whichever first occurs), except as provided in [paragraph (2)](#i-2). For purposes of [subsection (a)(1)](#a-1) and [subsection (b)](#b), for other vehicles and engines the warranty period shall be the period established by the [Administrator](/usc/42/7602.md?p=a) by regulation (promulgated prior to November 15, 1990) for such purposes unless the [Administrator](/usc/42/7602.md?p=a) subsequently modifies such regulation.
- (2) **Specified major emission control components—** In the case of a specified major emission control component, the warranty period for new light-duty trucks and new light-duty vehicles and engines manufactured in the [model year](/usc/42/7521.md?p=b-3-A-i) 1995 and thereafter for purposes of [subsection (a)(1)](#a-1) and [subsection (b)](#b) shall be 8 years or 80,000 miles of use (whichever first occurs). As used in this paragraph, the term “specified major emission control component” means only a catalytic converter, an electronic emissions control [unit](/usc/42/1395w–114b.md?p=g-2), and an onboard emissions diagnostic device, except that the [Administrator](/usc/42/7602.md?p=a) may designate any other pollution control device or component as a specified major emission control component if—
- (A) the device or component was not in general use on vehicles and engines manufactured prior to the [model year](/usc/42/7521.md?p=b-3-A-i) 1990; and
- (B) the [Administrator](/usc/42/7602.md?p=a) determines that the retail cost (exclusive of installation costs) of such device or component exceeds $200 (in 1989 dollars), adjusted for inflation or deflation as calculated by the [Administrator](/usc/42/7602.md?p=a) at the time of such determination.
For purposes of this paragraph, the term “onboard emissions diagnostic device” means any device installed for the purpose of storing or processing emissions related diagnostic information, but not including any parts or other systems which it monitors except specified major emissions control components. Nothing in this chapter shall be construed to provide that any part (other than a part referred to in the preceding sentence) shall be required to be warranted under this chapter for the period of 8 years or 80,000 miles referred to in this paragraph.
- (3) **Instructions—** [Subparagraph (A)](#b-2-A) of subsection (b)(2) shall apply only where the [Administrator](/usc/42/7602.md?p=a) has made a determination that the instructions concerned conform to the requirements of [subsection (c)(3)](#c-3).
# §7542. Information collection
- (a) **Manufacturer’s responsibility—** Every [manufacturer](/usc/42/300aa–33.md?p=3) of [new motor vehicles](/usc/42/7550.md?p=3) or [new motor vehicle engines](/usc/42/7550.md?p=3), and every [manufacturer](/usc/42/300aa–33.md?p=3) of [new motor vehicle](/usc/42/7550.md?p=3) or engine parts or components, and other [persons](/usc/42/7602.md?p=e) subject to the requirements of this part or part C, shall establish and maintain records, perform tests where such testing is not otherwise reasonably available under this part and part C (including fees for testing), make reports and provide information the [Administrator](/usc/42/7602.md?p=a) may reasonably require to determine whether the [manufacturer](/usc/42/300aa–33.md?p=3) or other [person](/usc/42/7602.md?p=e) has acted or is acting in compliance with this part and part C and regulations thereunder, or to otherwise carry out the provision of this part and part C, and shall, upon request of an officer or [employee](/usc/42/1320a–7h.md?p=e-7) duly designated by the [Administrator](/usc/42/7602.md?p=a), permit such officer or [employee](/usc/42/1320a–7h.md?p=e-7) at reasonable times to have access to and copy such records.
- (b) **Enforcement authority—** For the purposes of enforcement of this section, officers or [employees](/usc/42/1320a–7h.md?p=e-7) duly designated by the [Administrator](/usc/42/7602.md?p=a) upon presenting appropriate credentials are authorized—
- (1) to enter, at reasonable times, any establishment of the [manufacturer](/usc/42/300aa–33.md?p=3), or of any [person](/usc/42/7602.md?p=e) whom the [manufacturer](/usc/42/300aa–33.md?p=3) engages to perform any activity required by [subsection (a)](#a), for the purposes of inspecting or observing any activity conducted pursuant to [subsection (a)](#a), and
- (2) to inspect records, files, papers, processes, controls, and [facilities](/usc/42/11049.md?p=4) used in performing any activity required by [subsection (a)](#a), by such [manufacturer](/usc/42/300aa–33.md?p=3) or by any [person](/usc/42/7602.md?p=e) whom the [manufacturer](/usc/42/300aa–33.md?p=3) engages to perform any such activity.
- (c) **Availability to public; trade secrets—** Any records, reports, or information obtained under this part or part C shall be available to the public, except that upon a showing satisfactory to the [Administrator](/usc/42/7602.md?p=a) by any [person](/usc/42/7602.md?p=e) that records, reports, or information, or a particular portion thereof (other than emission data), to which the [Administrator](/usc/42/7602.md?p=a) has access under this section, if made public, would divulge methods or processes entitled to protection as trade secrets of that [person](/usc/42/7602.md?p=e), the [Administrator](/usc/42/7602.md?p=a) shall consider the record, report, or information or particular portion thereof confidential in accordance with the purposes of [section 1905 of title 18](/usc/18/1905.md). Any authorized [representative](/usc/42/3058f.md?p=5) of the [Administrator](/usc/42/7602.md?p=a) shall be considered an [employee](/usc/42/1320a–7h.md?p=e-7) of the [United States](/usc/42/403.md?p=k) for purposes of [section 1905 of title 18](/usc/18/1905.md). Nothing in this section shall prohibit the [Administrator](/usc/42/7602.md?p=a) or authorized [representative](/usc/42/3058f.md?p=5) of the [Administrator](/usc/42/7602.md?p=a) from disclosing records, reports or information to other officers, [employees](/usc/42/1320a–7h.md?p=e-7) or authorized [representatives](/usc/42/3058f.md?p=5) of the [United States](/usc/42/403.md?p=k) concerned with carrying out this chapter or when relevant in any proceeding under this chapter. Nothing in this section shall authorize the withholding of information by the [Administrator](/usc/42/7602.md?p=a) or any officer or [employee](/usc/42/1320a–7h.md?p=e-7) under the [Administrator](/usc/42/7602.md?p=a)’s control from the duly authorized committees of the Congress.
# §7543. State standards
- (a) **Prohibition—** No [State](/usc/42/7602.md?p=d) or any political subdivision thereof shall adopt or attempt to enforce any [standard](/usc/42/1320d.md?p=7) relating to the control of emissions from [new motor vehicles](/usc/42/7550.md?p=3) or [new motor vehicle engines](/usc/42/7550.md?p=3) subject to this part. No [State](/usc/42/7602.md?p=d) shall require certification, [inspection](/usc/42/4851b.md?p=12), or any other approval relating to the control of emissions from any [new motor vehicle](/usc/42/7550.md?p=3) or [new motor vehicle engine](/usc/42/7550.md?p=3) as condition precedent to the initial retail sale, titling (if any), or registration of such [motor vehicle](/usc/42/7550.md?p=2), [motor vehicle](/usc/42/7550.md?p=2) engine, or equipment.
- (b) **Waiver—**
- (1) The [Administrator](/usc/42/7602.md?p=a) shall, after notice and opportunity for public hearing, waive application of this section to any [State](/usc/42/7602.md?p=d) which has adopted [standards](/usc/42/1320d.md?p=7) (other than crankcase [emission standards](/usc/42/7602.md?p=k)) for the control of emissions from [new motor vehicles](/usc/42/7550.md?p=3) or [new motor vehicle engines](/usc/42/7550.md?p=3) prior to March 30, 1966, if the [State](/usc/42/7602.md?p=d) determines that the [State](/usc/42/7602.md?p=d) [standards](/usc/42/1320d.md?p=7) will be, in the aggregate, at least as protective of public health and welfare as applicable Federal [standards](/usc/42/1320d.md?p=7). No such waiver shall be granted if the [Administrator](/usc/42/7602.md?p=a) finds that—
- (A) the determination of the [State](/usc/42/7602.md?p=d) is arbitrary and capricious,
- (B) such [State](/usc/42/7602.md?p=d) does not need such [State](/usc/42/7602.md?p=d) [standards](/usc/42/1320d.md?p=7) to meet compelling and extraordinary conditions, or
- (C) such [State](/usc/42/7602.md?p=d) [standards](/usc/42/1320d.md?p=7) and accompanying enforcement procedures are not consistent with [section 7521(a) of this title](/usc/42/7521.md?p=a).
- (2) If each [State](/usc/42/7602.md?p=d) [standard](/usc/42/1320d.md?p=7) is at least as stringent as the comparable applicable Federal [standard](/usc/42/1320d.md?p=7), such [State](/usc/42/7602.md?p=d) [standard](/usc/42/1320d.md?p=7) shall be deemed to be at least as protective of health and welfare as such Federal [standards](/usc/42/1320d.md?p=7) for purposes of [paragraph (1)](#b-1).
- (3) In the case of any [new motor vehicle](/usc/42/7550.md?p=3) or [new motor vehicle engine](/usc/42/7550.md?p=3) to which [State](/usc/42/7602.md?p=d) [standards](/usc/42/1320d.md?p=7) apply pursuant to a waiver granted under [paragraph (1)](#b-1), compliance with such [State](/usc/42/7602.md?p=d) [standards](/usc/42/1320d.md?p=7) shall be treated as compliance with applicable Federal [standards](/usc/42/1320d.md?p=7) for purposes of this subchapter.
- (c) **Certification of vehicle parts or engine parts—** Whenever a regulation with respect to any [motor vehicle](/usc/42/7550.md?p=2) part or [motor vehicle](/usc/42/7550.md?p=2) engine part is in effect under [section 7541(a)(2) of this title](/usc/42/7541.md?p=a-2), no [State](/usc/42/7602.md?p=d) or political subdivision thereof shall adopt or attempt to enforce any [standard](/usc/42/1320d.md?p=7) or any requirement of certification, [inspection](/usc/42/4851b.md?p=12), or approval which relates to [motor vehicle](/usc/42/7550.md?p=2) emissions and is applicable to the same aspect of such part. The preceding sentence shall not apply in the case of a [State](/usc/42/7602.md?p=d) with respect to which a waiver is in effect under [subsection (b)](#b).
- (d) **Control, regulation, or restrictions on registered or licensed motor vehicles—** Nothing in this part shall preclude or deny to any [State](/usc/42/7602.md?p=d) or political subdivision thereof the right otherwise to control, regulate, or restrict the use, operation, or movement of registered or licensed [motor vehicles](/usc/42/7550.md?p=2).
- (e) **Nonroad engines or vehicles—**
- (1) **Prohibition on certain State standards—** No [State](/usc/42/7602.md?p=d) or any political subdivision thereof shall adopt or attempt to enforce any [standard](/usc/42/1320d.md?p=7) or other requirement relating to the control of emissions from either of the following new [nonroad engines](/usc/42/7550.md?p=10) or [nonroad vehicles](/usc/42/7550.md?p=11) subject to regulation under this chapter—
- (A) New engines which are used in [construction](/usc/42/7479.md?p=2-C) equipment or vehicles or used in farm equipment or vehicles and which are smaller than 175 horsepower.
- (B) New locomotives or new engines used in locomotives.
[Subsection (b)](#b) shall not apply for purposes of this paragraph.
- (2) **Other nonroad engines or vehicles—**
- (A) In the case of any [nonroad vehicles](/usc/42/7550.md?p=11) or engines other than those referred to in subparagraph [(A)](#e-1-A) or [(B)](#e-1-B) of paragraph (1), the [Administrator](/usc/42/7602.md?p=a) shall, after notice and opportunity for public hearing, authorize California to adopt and enforce [standards](/usc/42/1320d.md?p=7) and other requirements relating to the control of emissions from such vehicles or engines if California determines that California [standards](/usc/42/1320d.md?p=7) will be, in the aggregate, at least as protective of public health and welfare as applicable Federal [standards](/usc/42/1320d.md?p=7). No such [authorization](/usc/42/4370m.md?p=3) shall be granted if the [Administrator](/usc/42/7602.md?p=a) finds that—
- (i) the determination of California is arbitrary and capricious,
- (ii) California does not need such California [standards](/usc/42/1320d.md?p=7) to meet compelling and extraordinary conditions, or
- (iii) California [standards](/usc/42/1320d.md?p=7) and accompanying enforcement procedures are not consistent with this section.
- (B) Any [State](/usc/42/7602.md?p=d) other than California which has plan provisions approved under part D of subchapter I may adopt and enforce, after notice to the [Administrator](/usc/42/7602.md?p=a), for any period, [standards](/usc/42/1320d.md?p=7) relating to control of emissions from [nonroad vehicles](/usc/42/7550.md?p=11) or engines (other than those referred to in subparagraph [(A)](#e-1-A) or [(B)](#e-1-B) of paragraph (1)) and take such other actions as are referred to in subparagraph (A) of this paragraph respecting such vehicles or engines if—
- (i) such [standards](/usc/42/1320d.md?p=7) and implementation and enforcement are identical, for the period concerned, to the California [standards](/usc/42/1320d.md?p=7) authorized by the [Administrator](/usc/42/7602.md?p=a) under [subparagraph (A)](#e-2-A), and
- (ii) California and such [State](/usc/42/7602.md?p=d) adopt such [standards](/usc/42/1320d.md?p=7) at least 2 years before commencement of the period for which the [standards](/usc/42/1320d.md?p=7) take effect.
The [Administrator](/usc/42/7602.md?p=a) shall issue regulations to implement this subsection.
# §7544. State grants
The [Administrator](/usc/42/7602.md?p=a) is authorized to make grants to appropriate [State agencies](/usc/42/1396r–8.md?p=k-9) in an amount up to two-thirds of the cost of developing and maintaining effective vehicle emission devices and systems [inspection](/usc/42/4851b.md?p=12) and emission testing and control [programs](/usc/42/274l–1.md?p=4), except that—
- (1) no such grant shall be made for any part of any [State](/usc/42/7602.md?p=d) vehicle [inspection](/usc/42/4851b.md?p=12) [program](/usc/42/274l–1.md?p=4) which does not directly relate to the cost of the air pollution control aspects of such a [program](/usc/42/274l–1.md?p=4);
- (2) no such grant shall be made unless the [Secretary](/usc/42/242q–4.md?p=2) of Transportation has certified to the [Administrator](/usc/42/7602.md?p=a) that such [program](/usc/42/274l–1.md?p=4) is consistent with any highway safety [program](/usc/42/274l–1.md?p=4) developed pursuant to [section 402 of title 23](/usc/23/402.md); and
- (3) no such grant shall be made unless the [program](/usc/42/274l–1.md?p=4) includes provisions designed to insure that emission control devices and systems on vehicles in actual use have not been discontinued or rendered inoperative.
Grants may be made under this section by way of reimbursement in any case in which amounts have been expended by the [State](/usc/42/7602.md?p=d) before the date on which any such grant was made.
# §7545. Regulation of fuels
- (a) **Authority of Administrator to regulate—** The [Administrator](/usc/42/7602.md?p=a) may by regulation designate any fuel or fuel additive (including any fuel or fuel additive used exclusively in [nonroad engines](/usc/42/7550.md?p=10) or [nonroad vehicles](/usc/42/7550.md?p=11)) and, after such date or dates as may be prescribed by him, no [manufacturer](#r) or processor of any such fuel or additive may sell, offer for sale, or introduce into [commerce](/usc/42/7550.md?p=6) such fuel or additive unless the [Administrator](/usc/42/7602.md?p=a) has registered such fuel or additive in accordance with [subsection (b)](#b) of this section.
- (b) **Registration requirement—**
- (1) For the purpose of registration of fuels and fuel additives, the [Administrator](/usc/42/7602.md?p=a) shall require—
- (A) the [manufacturer](#r) of any fuel to notify him as to the commercial identifying name and [manufacturer](#r) of any additive contained in such fuel; the range of concentration of any additive in the fuel; and the purpose-in-use of any such additive; and
- (B) the [manufacturer](#r) of any additive to notify him as to the chemical composition of such additive.
- (2) For the purpose of registration of fuels and fuel additives, the [Administrator](/usc/42/7602.md?p=a) shall, on a regular basis, require the [manufacturer](#r) of any fuel or fuel additive—
- (A) to conduct tests to determine potential public health and environmental effects of the fuel or additive (including carcinogenic, teratogenic, or mutagenic effects); and
- (B) to furnish the description of any analytical technique that can be used to detect and measure any additive in such fuel, the recommended range of concentration of such additive, and the recommended purpose-in-use of such additive, and such other information as is reasonable and necessary to determine the emissions resulting from the use of the fuel or additive contained in such fuel, the effect of such fuel or additive on the emission control performance of any vehicle, vehicle engine, [nonroad engine](/usc/42/7550.md?p=10) or [nonroad vehicle](/usc/42/7550.md?p=11), or the extent to which such emissions affect the public health or welfare.
Tests under [subparagraph (A)](#b-2-A) shall be conducted in conformity with test procedures and protocols established by the [Administrator](/usc/42/7602.md?p=a). The result of such tests shall not be considered confidential.
- (3) Upon compliance with the provision of this subsection, including assurances that the [Administrator](/usc/42/7602.md?p=a) will receive changes in the information required, the [Administrator](/usc/42/7602.md?p=a) shall register such fuel or fuel additive.
- (4) **Study on certain fuel additives and blendstocks.—**
- (A) **In general.—** Not later than 2 years after August 8, 2005, the [Administrator](/usc/42/7602.md?p=a) shall—
- (i) conduct a study on the effects on public health (including the effects on [children](/usc/42/256e.md?p=g-2), pregnant women, [minority](/usc/42/299a–1.md?p=d-2) or low-[income](/usc/42/292s.md?p=c-4) communities, and other sensitive populations), air quality, and water resources of increased use of, and the feasibility of using as substitutes for methyl tertiary butyl ether in gasoline—
- (I) ethyl tertiary butyl ether;
- (II) tertiary amyl methyl ether;
- (III) di-isopropyl ether;
- (IV) tertiary butyl alcohol;
- (V) other ethers and heavy alcohols, as determined by then[^1] [Administrator](/usc/42/7602.md?p=a);
- (VI) ethanol;
- (VII) iso-octane; and
- (VIII) alkylates; and
- (ii) conduct a study on the effects on public health (including the effects on [children](/usc/42/256e.md?p=g-2), pregnant women, [minority](/usc/42/299a–1.md?p=d-2) or low-[income](/usc/42/292s.md?p=c-4) communities, and other sensitive populations), air quality, and water resources of the adjustment for ethanol-blended reformulated gasoline to the volatile organic compounds performance requirements that are applicable under paragraphs [(1)](#k-1) and [(3)](#k-3) of subsection (k); and
- (iii) submit to the Committee on Environment and Public Works of the Senate and the Committee on [Energy](/usc/42/6311.md?p=7) and [Commerce](/usc/42/7550.md?p=6) of the House of [Representatives](/usc/42/3058f.md?p=5) a report describing the results of the studies under clauses [(i)](#b-4-A-i) and [(ii)](#b-4-A-ii).
- (B) **Contracts for study.—** In carrying out this paragraph, the [Administrator](/usc/42/7602.md?p=a) may enter into one or more contracts with nongovernmental entities such as—
- (i) the national [energy](/usc/42/6311.md?p=7) [laboratories](/usc/42/300jj.md?p=10); and
- (ii) institutions of higher education (as defined in [section 1001 of title 20](/usc/20/1001.md)).
- (c) **Offending fuels and fuel additives; control; prohibition—**
- (1) The [Administrator](/usc/42/7602.md?p=a) may, from time to time on the basis of information obtained under [subsection (b)](#b) of this section or other information available to him, by regulation, control or prohibit the [manufacture](#r), introduction into [commerce](/usc/42/7550.md?p=6), offering for sale, or sale of any fuel or fuel additive for use in a [motor vehicle](/usc/42/7550.md?p=2), [motor vehicle](/usc/42/7550.md?p=2) engine, or [nonroad engine](/usc/42/7550.md?p=10) or [nonroad vehicle](/usc/42/7550.md?p=11) if, in the judgment of the [Administrator](/usc/42/7602.md?p=a), any fuel or fuel additive or any emission product of such fuel or fuel additive [causes](/usc/42/9908.md?p=c-2), or contributes, to air pollution or water pollution (including any degradation in the quality of groundwater) that may reasonably be anticipated to endanger the public health or welfare, or (B)[^2] if emission products of such fuel or fuel additive will impair to a significant degree the performance of any emission control device or system which is in general use, or which the [Administrator](/usc/42/7602.md?p=a) finds has been developed to a point where in a reasonable time it would be in general use were such regulation to be promulgated.
- (2)
- (A) No fuel, class of fuels, or fuel additive may be controlled or prohibited by the [Administrator](/usc/42/7602.md?p=a) pursuant to clause (A) of paragraph (1) except after consideration of all relevant medical and scientific evidence available to him, including consideration of other technologically or economically feasible means of achieving [emission standards](/usc/42/7602.md?p=k) under [section 7521 of this title](/usc/42/7521.md).
- (B) No fuel or fuel additive may be controlled or prohibited by the [Administrator](/usc/42/7602.md?p=a) pursuant to clause (B) of paragraph (1) except after consideration of available scientific and economic data, including a cost benefit analysis comparing emission control devices or systems which are or will be in general use and require the proposed control or prohibition with emission control devices or systems which are or will be in general use and do not require the proposed control or prohibition. On request of a [manufacturer](#r) of [motor vehicles](/usc/42/7550.md?p=2), [motor vehicle](/usc/42/7550.md?p=2) engines, fuels, or fuel additives submitted within 10 days of notice of proposed rulemaking, the [Administrator](/usc/42/7602.md?p=a) shall hold a public hearing and publish findings with respect to any matter he is required to consider under this subparagraph. Such findings shall be published at the time of promulgation of final regulations.
- (C) No fuel or fuel additive may be prohibited by the [Administrator](/usc/42/7602.md?p=a) under [paragraph (1)](#c-1) unless he finds, and publishes such finding, that in his judgment such prohibition will not [cause](/usc/42/9908.md?p=c-2) the use of any other fuel or fuel additive which will produce emissions which will endanger the public health or welfare to the same or greater degree than the use of the fuel or fuel additive proposed to be prohibited.
- (3)
- (A) For the purpose of obtaining evidence and data to carry out [paragraph (2)](#c-2), the [Administrator](/usc/42/7602.md?p=a) may require the [manufacturer](#r) of any [motor vehicle](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engine to furnish any information which has been developed concerning the emissions from [motor vehicles](/usc/42/7550.md?p=2) resulting from the use of any fuel or fuel additive, or the effect of such use on the performance of any emission control device or system.
- (B) In obtaining information under [subparagraph (A)](#c-3-A), [section 7607(a) of this title](/usc/42/7607.md?p=a) (relating to subpenas) shall be applicable.
- (4)
- (A) Except as otherwise provided in subparagraph [(B)](#c-4-B) or [(C)](#c-4-C), no [State](/usc/42/7602.md?p=d) (or political subdivision thereof) may prescribe or attempt to enforce, for purposes of [motor vehicle](/usc/42/7550.md?p=2) emission control, any control or prohibition respecting any characteristic or component of a fuel or fuel additive in a [motor vehicle](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engine—
- (i) if the [Administrator](/usc/42/7602.md?p=a) has found that no control or prohibition of the characteristic or component of a fuel or fuel additive under [paragraph (1)](#c-1) is necessary and has published his finding in the Federal Register, or
- (ii) if the [Administrator](/usc/42/7602.md?p=a) has prescribed under [paragraph (1)](#c-1) a control or prohibition applicable to such characteristic or component of a fuel or fuel additive, unless [State](/usc/42/7602.md?p=d) prohibition or control is identical to the prohibition or control prescribed by the [Administrator](/usc/42/7602.md?p=a).
- (B) Any [State](/usc/42/7602.md?p=d) for which application of [section 7543(a) of this title](/usc/42/7543.md?p=a) has at any time been waived under [section 7543(b) of this title](/usc/42/7543.md?p=b) may at any time prescribe and enforce, for the purpose of [motor vehicle](/usc/42/7550.md?p=2) emission control, a control or prohibition respecting any fuel or fuel additive.
- (C)
- (i) A [State](/usc/42/7602.md?p=d) may prescribe and enforce, for purposes of [motor vehicle](/usc/42/7550.md?p=2) emission control, a control or prohibition respecting the use of a fuel or fuel additive in a [motor vehicle](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engine if an [applicable implementation plan](/usc/42/7602.md?p=q) for such [State](/usc/42/7602.md?p=d) under [section 7410 of this title](/usc/42/7410.md) so provides. The [Administrator](/usc/42/7602.md?p=a) may approve such provision in an implementation plan, or promulgate an implementation plan containing such a provision, only if he finds that the [State](/usc/42/7602.md?p=d) control or prohibition is necessary to achieve the national primary or secondary ambient air quality [standard](/usc/42/1320d.md?p=7) which the plan implements. The [Administrator](/usc/42/7602.md?p=a) may find that a [State](/usc/42/7602.md?p=d) control or prohibition is necessary to achieve that [standard](/usc/42/1320d.md?p=7) if no other measures that would bring about timely attainment exist, or if other measures exist and are technically possible to implement, but are unreasonable or impracticable. The [Administrator](/usc/42/7602.md?p=a) may make a finding of necessity under this subparagraph even if the plan for the area does not contain an approved demonstration of timely attainment.
- (ii) The [Administrator](/usc/42/7602.md?p=a) may temporarily waive a control or prohibition respecting the use of a fuel or fuel additive required or regulated by the [Administrator](/usc/42/7602.md?p=a) pursuant to subsection [(c)](#c), [(h)](#h), [(i)](#i), [(k)](#k), or [(m)](#m) of this section or prescribed in an [applicable implementation plan](/usc/42/7602.md?p=q) under [section 7410 of this title](/usc/42/7410.md) approved by the [Administrator](/usc/42/7602.md?p=a) under clause (i) of this subparagraph if, after consultation with, and concurrence by, the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), the [Administrator](/usc/42/7602.md?p=a) determines that—
- (I) extreme and unusual fuel or fuel additive supply circumstances exist in a [State](/usc/42/7602.md?p=d) or region of the Nation which prevent the distribution of an adequate supply of the fuel or fuel additive to consumers;
- (II) such extreme and unusual fuel and fuel additive supply circumstances are the result of a [natural disaster](/usc/42/18711.md?p=a-3), an Act of God, a pipeline or refinery equipment failure, or another event that could not reasonably have been foreseen or prevented and not the lack of prudent planning on the part of the [suppliers](/usc/42/1395cc–4.md?p=a-2-I) of the fuel or fuel additive to such [State](/usc/42/7602.md?p=d) or region; and
- (III) it is in the public interest to grant the waiver (for example, when a waiver is necessary to meet projected temporary shortfalls in the supply of the fuel or fuel additive in a [State](/usc/42/7602.md?p=d) or region of the Nation which cannot otherwise be compensated for).
- (iii) If the [Administrator](/usc/42/7602.md?p=a) makes the determinations required under [clause (ii)](#c-4-C-ii), such a temporary extreme and unusual fuel and fuel additive supply circumstances waiver shall be permitted only if—
- (I) the waiver applies to the smallest [geographic area](/usc/42/11360.md?p=9) necessary to address the extreme and unusual fuel and fuel additive supply circumstances;
- (II) the waiver is effective for a period of 20 calendar days or, if the [Administrator](/usc/42/7602.md?p=a) determines that a shorter waiver period is adequate, for the shortest practicable time period necessary to permit the correction of the extreme and unusual fuel and fuel additive supply circumstances and to mitigate impact on air quality;
- (III) the waiver permits a transitional period, the exact duration of which shall be determined by the [Administrator](/usc/42/7602.md?p=a) (but which shall be for the shortest practicable period), after the termination of the temporary waiver to permit wholesalers and retailers to blend down their wholesale and retail [inventory](/usc/42/4370m.md?p=14);
- (IV) the waiver applies to all [persons](/usc/42/7602.md?p=e) in the [motor fuel distribution system](#c-4-C-iii); and
- (V) the [Administrator](/usc/42/7602.md?p=a) has given public notice to all parties in the [motor fuel distribution system](#c-4-C-iii), and local and [State](/usc/42/7602.md?p=d) regulators, in the [State](/usc/42/7602.md?p=d) or region to be covered by the waiver.
The term “motor fuel distribution system” as used in this clause shall be defined by the [Administrator](/usc/42/7602.md?p=a) through rulemaking.
- (iv) Within 180 days of August 8, 2005, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations to implement clauses [(ii)](#c-4-C-ii) and [(iii)](#c-4-C-iii).
- (v) [^3] Nothing in this subparagraph shall—
- (I) limit or otherwise affect the application of any other waiver authority of the [Administrator](/usc/42/7602.md?p=a) pursuant to this section or pursuant to a regulation promulgated pursuant to this section; and
- (II) subject any [State](/usc/42/7602.md?p=d) or [person](/usc/42/7602.md?p=e) to an [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i), penalties, or liability solely arising from actions taken pursuant to the issuance of a waiver under this subparagraph.
- (v)
- (I) [^3] The [Administrator](/usc/42/7602.md?p=a) shall have no authority, when considering a [State](/usc/42/7602.md?p=d) implementation plan or a [State](/usc/42/7602.md?p=d) implementation plan revision, to approve under this paragraph any fuel included in such plan or revision if the effect of such approval increases the total number of fuels approved under this paragraph as of September 1, 2004, in all [State](/usc/42/7602.md?p=d) implementation plans.
- (II) The [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), shall determine the total number of fuels approved under this paragraph as of September 1, 2004, in all [State](/usc/42/7602.md?p=d) implementation plans and shall publish a list of such fuels, including the [States](/usc/42/7602.md?p=d) and Petroleum Administration for Defense District in which they are used, in the Federal Register for public review and comment no later than 90 days after August 8, 2005.
- (III) The [Administrator](/usc/42/7602.md?p=a) shall [remove](/usc/42/9601.md?p=23) a fuel from the list published under [subclause (II)](#c-4-C-v-II) if a fuel ceases to be included in a [State](/usc/42/7602.md?p=d) implementation plan or if a fuel in a [State](/usc/42/7602.md?p=d) implementation plan is identical to a Federal fuel formulation implemented by the [Administrator](/usc/42/7602.md?p=a), but the [Administrator](/usc/42/7602.md?p=a) shall not reduce the total number of fuels authorized under the list published under [subclause (II)](#c-4-C-v-II).
- (IV) [Subclause (I)](#c-4-C-v-I) shall not limit the [Administrator](/usc/42/7602.md?p=a)’s authority to approve a control or prohibition respecting any new fuel under this paragraph in a [State](/usc/42/7602.md?p=d) implementation plan or revision to a [State](/usc/42/7602.md?p=d) implementation plan if such new fuel—
- (aa) completely replaces a fuel on the list published under [subclause (II)](#c-4-C-v-II); or
- (bb) does not increase the total number of fuels on the list published under [subclause (II)](#c-4-C-v-II) as of September 1, 2004.
In the event that the total number of fuels on the list published under [subclause (II)](#c-4-C-v-II) at the time of the [Administrator](/usc/42/7602.md?p=a)’s consideration of a control or prohibition respecting a new fuel is lower than the total number of fuels on such list as of September 1, 2004, the [Administrator](/usc/42/7602.md?p=a) may approve a control or prohibition respecting a new fuel under this subclause if the [Administrator](/usc/42/7602.md?p=a), after consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), publishes in the Federal Register after notice and comment a finding that, in the [Administrator](/usc/42/7602.md?p=a)’s judgment, such control or prohibition respecting a new fuel will not [cause](/usc/42/9908.md?p=c-2) fuel supply or distribution interruptions or have a significant adverse impact on fuel producibility in the affected area or contiguous areas.
- (V) The [Administrator](/usc/42/7602.md?p=a) shall have no authority under this paragraph, when considering any particular [State](/usc/42/7602.md?p=d)’s implementation plan or a revision to that [State](/usc/42/7602.md?p=d)’s implementation plan, to approve any fuel unless that fuel was, as of the date of such consideration, approved in at least one [State](/usc/42/7602.md?p=d) implementation plan in the applicable Petroleum Administration for Defense District. However, the [Administrator](/usc/42/7602.md?p=a) may approve as part of a [State](/usc/42/7602.md?p=d) implementation plan or [State](/usc/42/7602.md?p=d) implementation plan revision a fuel with a summertime Reid Vapor Pressure of 7.0 psi. In no event shall such approval by the [Administrator](/usc/42/7602.md?p=a) [cause](/usc/42/9908.md?p=c-2) an increase in the total number of fuels on the list published under [subclause (II)](#c-4-C-v-II).
- (VI) Nothing in this clause shall be construed to have any effect regarding any available authority of [States](/usc/42/7602.md?p=d) to require the use of any fuel additive registered in accordance with [subsection (b)](#b), including any fuel additive registered in accordance with [subsection (b)](#b) after August 8, 2005.
- (d) **Penalties and injunctions—**
- (1) **Civil penalties—** Any [person](/usc/42/7602.md?p=e) who violates subsection [(a)](#a), [(f)](#f), [(g)](#g), [(k)](#k), [(l)](#l), [(m)](#m), [(n)](#n), or [(o)](#o) of this section or the regulations prescribed under subsection [(c)](#c), [(h)](#h), [(i)](#i), [(k)](#k), [(l)](#l), [(m)](#m), [(n)](#n), or [(o)](#o) of this section or who fails to furnish any information or conduct any tests required by the [Administrator](/usc/42/7602.md?p=a) under [subsection (b)](#b) of this section shall be liable to the [United States](/usc/42/403.md?p=k) for a civil penalty of not more than the sum of $25,000 for every day of such [violation](/usc/42/2000e–16a.md?p=c) and the amount of economic benefit or savings resulting from the [violation](/usc/42/2000e–16a.md?p=c). Any [violation](/usc/42/2000e–16a.md?p=c) with respect to a regulation prescribed under subsection [(c)](#c), [(k)](#k), [(l)](#l), [(m)](#m), or [(o)](#o) of this section which establishes a regulatory [standard](/usc/42/1320d.md?p=7) based upon a multiday averaging period shall constitute a separate day of [violation](/usc/42/2000e–16a.md?p=c) for each and every day in the averaging period. Civil penalties shall be assessed in accordance with subsections (b) and (c) of [section 7524 of this title](/usc/42/7524.md).
- (2) **Injunctive authority—** The district courts of the [United States](/usc/42/403.md?p=k) shall have jurisdiction to restrain [violations](/usc/42/2000e–16a.md?p=c) of subsections [(a)](#a), [(f)](#f), [(g)](#g), [(k)](#k), [(l)](#l), [(m)](#m), [(n)](#n), and [(o)](#o) of this section and of the regulations prescribed under subsections [(c)](#c), [(h)](#h), [(i)](#i), [(k)](#k), [(l)](#l), [(m)](#m), [(n)](#n), and [(o)](#o) of this section, to award other appropriate relief, and to compel the furnishing of information and the conduct of tests required by the [Administrator](/usc/42/7602.md?p=a) under [subsection (b)](#b) of this section. Actions to restrain such [violations](/usc/42/2000e–16a.md?p=c) and compel such actions shall be brought by and in the name of the [United States](/usc/42/403.md?p=k). In any such action, subpoenas for witnesses who are required to attend a district court in any district may run into any other district.
- (e) **Testing of fuels and fuel additives—**
- (1) Not later than one year after August 7, 1977, and after notice and opportunity for a public hearing, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations which implement the authority under subsection [(b)(2)(A)](#b-2-A) and [(B)](#b-2-B) with respect to each fuel or fuel additive which is registered on the date of promulgation of such regulations and with respect to each fuel or fuel additive for which an application for registration is filed thereafter.
- (2) Regulations under [subsection (b)](#b) to carry out this subsection shall require that the requisite information be provided to the [Administrator](/usc/42/7602.md?p=a) by each such [manufacturer](#r)—
- (A) prior to registration, in the case of any fuel or fuel additive which is not registered on the date of promulgation of such regulations; or
- (B) not later than three years after the date of promulgation of such regulations, in the case of any fuel or fuel additive which is registered on such date.
- (3) In promulgating such regulations, the [Administrator](/usc/42/7602.md?p=a) may—
- (A) exempt any small business (as defined in such regulations) from or defer or modify the requirements of, such regulations with respect to any such small business;
- (B) provide for [cost-sharing](/usc/42/18022.md?p=c-3-A) with respect to the testing of any fuel or fuel additive which is manufactured or processed by two or more [persons](/usc/42/7602.md?p=e) or otherwise provide for shared responsibility to meet the requirements of this section without duplication; or
- (C) exempt any [person](/usc/42/7602.md?p=e) from such regulations with respect to a particular fuel or fuel additive upon a finding that any additional testing of such fuel or fuel additive would be duplicative of adequate existing testing.
- (f) **New fuels and fuel additives—**
- (1)
- (A) Effective upon March 31, 1977, it shall be unlawful for any [manufacturer](#r) of any fuel or fuel additive to first introduce into [commerce](/usc/42/7550.md?p=6), or to increase the concentration in use of, any fuel or fuel additive for general use in [light duty motor vehicles](/usc/42/13211.md?p=11) manufactured after [model year](/usc/42/7521.md?p=b-3-A-i) 1974 which is not substantially similar to any fuel or fuel additive utilized in the certification of any [model year](/usc/42/7521.md?p=b-3-A-i) 1975, or subsequent [model year](/usc/42/7521.md?p=b-3-A-i), vehicle or engine under [section 7525 of this title](/usc/42/7525.md).
- (B) Effective upon November 15, 1990, it shall be unlawful for any [manufacturer](#r) of any fuel or fuel additive to first introduce into [commerce](/usc/42/7550.md?p=6), or to increase the concentration in use of, any fuel or fuel additive for use by any [person](/usc/42/7602.md?p=e) in [motor vehicles](/usc/42/7550.md?p=2) manufactured after [model year](/usc/42/7521.md?p=b-3-A-i) 1974 which is not substantially similar to any fuel or fuel additive utilized in the certification of any [model year](/usc/42/7521.md?p=b-3-A-i) 1975, or subsequent [model year](/usc/42/7521.md?p=b-3-A-i), vehicle or engine under [section 7525 of this title](/usc/42/7525.md).
- (2) Effective November 30, 1977, it shall be unlawful for any [manufacturer](#r) of any fuel to introduce into [commerce](/usc/42/7550.md?p=6) any gasoline which contains a concentration of manganese in excess of .0625 grams per gallon of fuel, except as otherwise provided pursuant to a waiver under [paragraph (4)](#f-4).
- (3) Any [manufacturer](#r) of any fuel or fuel additive which prior to March 31, 1977, and after January 1, 1974, first introduced into [commerce](/usc/42/7550.md?p=6) or increased the concentration in use of a fuel or fuel additive that would otherwise have been prohibited under [paragraph (1)(A)](#f-1-A) if introduced on or after March 31, 1977 shall, not later than September 15, 1978, cease to distribute such fuel or fuel additive in [commerce](/usc/42/7550.md?p=6). During the period beginning 180 days after August 7, 1977, and before September 15, 1978, the [Administrator](/usc/42/7602.md?p=a) shall prohibit, or restrict the concentration of any fuel additive which he determines will [cause](/usc/42/9908.md?p=c-2) or contribute to the failure of an emission control device or system (over the useful life of any vehicle in which such device or system is used) to achieve compliance by the vehicle with the [emission standards](/usc/42/7602.md?p=k) with respect to which it has been certified under [section 7525 of this title](/usc/42/7525.md).
- (4) The [Administrator](/usc/42/7602.md?p=a), upon application of any [manufacturer](#r) of any fuel or fuel additive, may waive the prohibitions established under paragraph (1) or (3) of this subsection or the limitation specified in paragraph (2) of this subsection, if he determines that the applicant has established that such fuel or fuel additive or a specified concentration thereof, and the emission products of such fuel or fuel additive or specified concentration thereof, will not [cause](/usc/42/9908.md?p=c-2) or contribute to a failure of any emission control device or system (over the useful life of the [motor vehicle](/usc/42/7550.md?p=2), [motor vehicle](/usc/42/7550.md?p=2) engine, [nonroad engine](/usc/42/7550.md?p=10) or [nonroad vehicle](/usc/42/7550.md?p=11) in which such device or system is used) to achieve compliance by the vehicle or engine with the [emission standards](/usc/42/7602.md?p=k) with respect to which it has been certified pursuant to sections [7525](/usc/42/7525.md) and [7547(a)](/usc/42/7547.md?p=a) of this title. The [Administrator](/usc/42/7602.md?p=a) shall take final action to grant or deny an application submitted under this paragraph, after public notice and comment, within 270 days of the receipt of such an application.
- (5) No action of the [Administrator](/usc/42/7602.md?p=a) under this section may be stayed by any court pending judicial review of such action.
- (g) **Misfueling—**
- (1) No [person](/usc/42/7602.md?p=e) shall introduce, or [cause](/usc/42/9908.md?p=c-2) or allow the introduction of, leaded gasoline into any [motor vehicle](/usc/42/7550.md?p=2) which is labeled “unleaded gasoline only,” which is equipped with a gasoline tank filler inlet designed for the introduction of unleaded gasoline, which is a 1990 or later [model year](/usc/42/7521.md?p=b-3-A-i) [motor vehicle](/usc/42/7550.md?p=2), or which such [person](/usc/42/7602.md?p=e) knows or should know is a vehicle designed solely for the use of unleaded gasoline.
- (2) Beginning October 1, 1993, no [person](/usc/42/7602.md?p=e) shall introduce or [cause](/usc/42/9908.md?p=c-2) or allow the introduction into any [motor vehicle](/usc/42/7550.md?p=2) of diesel fuel which such [person](/usc/42/7602.md?p=e) knows or should know contains a concentration of sulfur in excess of 0.05 percent (by weight) or which fails to meet a cetane index minimum of 40 or such equivalent alternative aromatic level as prescribed by the [Administrator](/usc/42/7602.md?p=a) under [subsection (i)(2)](#i-2).
- (h) **Reid Vapor Pressure requirements—**
- (1) **Prohibition—** Not later than 6 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations making it unlawful for any [person](/usc/42/7602.md?p=e) during the high ozone season (as defined by the [Administrator](/usc/42/7602.md?p=a)) to sell, offer for sale, dispense, supply, offer for supply, transport, or introduce into [commerce](/usc/42/7550.md?p=6) gasoline with a Reid Vapor Pressure in excess of 9.0 pounds per square inch (psi). Such regulations shall also establish more stringent Reid Vapor Pressure [standards](/usc/42/1320d.md?p=7) in a [nonattainment area](/usc/42/7501.md?p=2) as the [Administrator](/usc/42/7602.md?p=a) finds necessary to generally achieve comparable evaporative emissions (on a per-vehicle basis) in [nonattainment areas](/usc/42/7501.md?p=2), taking into consideration the enforceability of such [standards](/usc/42/1320d.md?p=7), the need of an area for emission control, and economic factors.
- (2) **Attainment areas—** The regulations under this subsection shall not make it unlawful for any [person](/usc/42/7602.md?p=e) to sell, offer for supply, transport, or introduce into [commerce](/usc/42/7550.md?p=6) gasoline with a Reid Vapor Pressure of 9.0 pounds per square inch (psi) or lower in any area designated under [section 7407 of this title](/usc/42/7407.md) as an attainment area. Notwithstanding the preceding sentence, the [Administrator](/usc/42/7602.md?p=a) may impose a Reid vapor pressure requirement lower than 9.0 pounds per square inch (psi) in any area, formerly an ozone [nonattainment area](/usc/42/7501.md?p=2), which has been redesignated as an attainment area.
- (3) **Effective date; enforcement—** The regulations under this subsection shall provide that the requirements of this subsection shall take effect not later than the high ozone season for 1992, and shall include such provisions as the [Administrator](/usc/42/7602.md?p=a) determines are necessary to implement and enforce the requirements of this subsection.
- (4) **Ethanol waiver—** For fuel blends containing gasoline and 10 percent denatured anhydrous ethanol, the Reid vapor pressure limitation under this subsection shall be one pound per square inch (psi) greater than the applicable Reid vapor pressure limitations established under [paragraph (1)](#h-1); Provided, however, That a distributor, blender, marketer, reseller, carrier, retailer, or wholesale purchaser-consumer shall be deemed to be in full compliance with the provisions of this subsection and the regulations promulgated thereunder if it can demonstrate (by showing receipt of a certification or other evidence acceptable to the [Administrator](/usc/42/7602.md?p=a)) that—
- (A) the gasoline portion of the blend complies with the Reid vapor pressure limitations promulgated pursuant to this subsection;
- (B) the ethanol portion of the blend does not exceed its waiver condition under [subsection (f)(4)](#f-4); and
- (C) no additional alcohol or other additive has been added to increase the Reid Vapor Pressure of the ethanol portion of the blend.
- (5) **Exclusion from ethanol waiver—**
- (A) **Promulgation of regulations—** Upon notification, accompanied by supporting documentation, from the [Governor](/usc/42/6372.md?p=1) of a [State](/usc/42/7602.md?p=d) that the Reid vapor pressure limitation established by [paragraph (4)](#h-4) will increase emissions that contribute to air pollution in any area in the [State](/usc/42/7602.md?p=d), the [Administrator](/usc/42/7602.md?p=a) shall, by regulation, apply, in lieu of the Reid vapor pressure limitation established by [paragraph (4)](#h-4), the Reid vapor pressure limitation established by [paragraph (1)](#h-1) to all fuel blends containing gasoline and 10 percent denatured anhydrous ethanol that are sold, offered for sale, dispensed, supplied, offered for supply, transported, or introduced into [commerce](/usc/42/7550.md?p=6) in the area during the high ozone season.
- (B) **Deadline for promulgation—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations under [subparagraph (A)](#h-5-A) not later than 90 days after the date of receipt of a notification from a [Governor](/usc/42/6372.md?p=1) under that subparagraph.
- (C) **Effective date—**
- (i) **In general—** With respect to an area in a [State](/usc/42/7602.md?p=d) for which the [Governor](/usc/42/6372.md?p=1) submits a notification under [subparagraph (A)](#h-5-A), the regulations under that subparagraph shall take effect on the later of—
- (I) the first day of the first high ozone season for the area that begins after the date of receipt of the notification; or
- (II) 1 year after the date of receipt of the notification.
- (ii) **Extension of effective date based on determination of insufficient supply—**
- (I) **In general—** If, after receipt of a notification with respect to an area from a [Governor](/usc/42/6372.md?p=1) of a [State](/usc/42/7602.md?p=d) under [subparagraph (A)](#h-5-A), the [Administrator](/usc/42/7602.md?p=a) determines, on the [Administrator](/usc/42/7602.md?p=a)’s own motion or on petition of any [person](/usc/42/7602.md?p=e) and after consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), that the promulgation of regulations described in [subparagraph (A)](#h-5-A) would result in an insufficient supply of gasoline in the [State](/usc/42/7602.md?p=d), the [Administrator](/usc/42/7602.md?p=a), by regulation—
- (aa) shall extend the effective date of the regulations under [clause (i)](#h-5-C-i) with respect to the area for not more than 1 year; and
- (bb) may renew the extension under [item (aa)](#h-5-C-ii-I-aa) for two additional periods, each of which shall not exceed 1 year.
- (II) **Deadline for action on petitions—** The [Administrator](/usc/42/7602.md?p=a) shall act on any petition submitted under [subclause (I)](#h-5-C-ii-I) not later than 180 days after the date of receipt of the petition.
- (6) **Areas covered—** The provisions of this subsection shall apply only to the 48 contiguous [States](/usc/42/7602.md?p=d) and the District of Columbia.
- (i) **Sulfur content requirements for diesel fuel—**
- (1) Effective October 1, 1993, no [person](/usc/42/7602.md?p=e) shall [manufacture](#r), sell, supply, offer for sale or supply, dispense, transport, or introduce into [commerce](/usc/42/7550.md?p=6) [motor vehicle](/usc/42/7550.md?p=2) diesel fuel which contains a concentration of sulfur in excess of 0.05 percent (by weight) or which fails to meet a cetane index minimum of 40.
- (2) Not later than 12 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations to implement and enforce the requirements of [paragraph (1)](#i-1). The [Administrator](/usc/42/7602.md?p=a) may require [manufacturers](#r) and importers of diesel fuel not intended for use in [motor vehicles](/usc/42/7550.md?p=2) to dye such fuel in a particular manner in order to segregate it from [motor vehicle](/usc/42/7550.md?p=2) diesel fuel. The [Administrator](/usc/42/7602.md?p=a) may establish an equivalent alternative aromatic level to the cetane index specification in [paragraph (1)](#i-1).
- (3) The sulfur content of fuel required to be used in the certification of 1991 through 1993 [model year](/usc/42/7521.md?p=b-3-A-i) heavy-duty diesel vehicles and engines shall be 0.10 percent (by weight). The sulfur content and cetane index minimum of fuel required to be used in the certification of 1994 and later [model year](/usc/42/7521.md?p=b-3-A-i) heavy-duty diesel vehicles and engines shall comply with the regulations promulgated under [paragraph (2)](#i-2).
- (4) The [States](/usc/42/7602.md?p=d) of Alaska and Hawaii may be exempted from the requirements of this subsection in the same manner as provided in [section 7625](/usc/42/7625.md)[^4] of this title. The [Administrator](/usc/42/7602.md?p=a) shall take final action on any petition filed under [section 7625](/usc/42/7625.md)[^4] of this title or this paragraph for an exemption from the requirements of this subsection, within 12 months from the date of the petition.
- (j) **Lead substitute gasoline additives—**
- (1) After November 15, 1990, any [person](/usc/42/7602.md?p=e) proposing to register any gasoline additive under [subsection (a)](#a) or to use any previously registered additive as a lead substitute may also elect to register the additive as a lead substitute gasoline additive for reducing valve seat wear by providing the [Administrator](/usc/42/7602.md?p=a) with such relevant information regarding product identity and composition as the [Administrator](/usc/42/7602.md?p=a) deems necessary for carrying out the responsibilities of paragraph (2) of this subsection (in addition to other information which may be required under [subsection (b)](#b)).
- (2) In addition to the other testing which may be required under [subsection (b)](#b), in the case of the lead substitute gasoline additives referred to in [paragraph (1)](#j-1), the [Administrator](/usc/42/7602.md?p=a) shall develop and publish a test procedure to determine the additives’ effectiveness in reducing valve seat wear and the additives’ tendencies to produce engine deposits and other adverse side effects. The test procedures shall be developed in cooperation with the [Secretary](/usc/42/242q–4.md?p=2) of Agriculture and with the input of additive [manufacturers](#r), engine and engine components [manufacturers](#r), and other interested [persons](/usc/42/7602.md?p=e). The [Administrator](/usc/42/7602.md?p=a) shall enter into arrangements with an independent [laboratory](/usc/42/300jj.md?p=10) to conduct tests of each additive using the test procedures developed and published pursuant to this paragraph. The [Administrator](/usc/42/7602.md?p=a) shall publish the results of the tests by company and additive name in the Federal Register along with, for comparison purposes, the results of applying the same test procedures to gasoline containing 0.1 gram of lead per gallon in lieu of the lead substitute gasoline additive. The [Administrator](/usc/42/7602.md?p=a) shall not rank or otherwise rate the lead substitute additives. Test procedures shall be established within 1 year after November 15, 1990. Additives shall be tested within 18 months of November 15, 1990, or 6 months after the lead substitute additives are identified to the [Administrator](/usc/42/7602.md?p=a), whichever is later.
- (3) The [Administrator](/usc/42/7602.md?p=a) may impose a user fee to recover the costs of testing of any fuel additive referred to in this subsection. The fee shall be paid by the [person](/usc/42/7602.md?p=e) proposing to register the fuel additive concerned. Such fee shall not exceed $20,000 for a [single](/usc/42/2304.md?p=m) fuel additive.
- (4) There are authorized to be appropriated to the [Administrator](/usc/42/7602.md?p=a) not more than $1,000,000 for the second full fiscal year after November 15, 1990, to establish test procedures and conduct engine tests as provided in this subsection. Not more than $500,000 per year is authorized to be appropriated for each of the 5 subsequent fiscal years.
- (5) Any fees collected under this subsection shall be deposited in a special [fund](/usc/42/12854.md?p=3) in the [United States](/usc/42/403.md?p=k) Treasury for licensing and other services which thereafter shall be available for appropriation, to remain available until expended, to carry out the Agency’s activities for which the fees were collected.
- (k) **Reformulated gasoline for conventional vehicles—**
- (1) **EPA regulations—**
- (A) **In general—** Not later than November 15, 1991, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations under this section establishing requirements for [reformulated gasoline](#k-10-E) to be used in gasoline-fueled vehicles in specified [nonattainment areas](/usc/42/7501.md?p=2). Such regulations shall require the greatest reduction in emissions of ozone forming volatile organic compounds (during the high ozone season) and emissions of [toxic air pollutants](#k-10-C) (during the entire year) achievable through the reformulation of [conventional gasoline](#k-10-F), taking into consideration the cost of achieving such emission reductions, any nonair-quality and other air-quality related health and environmental impacts and [energy](/usc/42/6311.md?p=7) requirements.
- (B) **Maintenance of toxic air pollutant emissions reductions from reformulated gasoline—**
- (i) **Definition of PADD—** In this subparagraph the term “PADD” means a Petroleum Administration for Defense District.
- (ii) **Regulations concerning emissions of toxic air pollutants—** Not later than 270 days after August 8, 2005, the [Administrator](/usc/42/7602.md?p=a) shall establish by regulation, for each refinery or importer (other than a refiner or importer in a [State](/usc/42/7602.md?p=d) that has received a waiver under [section 7543(b) of this title](/usc/42/7543.md?p=b) with respect to gasoline produced for use in that [State](/usc/42/7602.md?p=d)), [standards](/usc/42/1320d.md?p=7) for [toxic air pollutants](#k-10-C) from use of the [reformulated gasoline](#k-10-E) produced or distributed by the refiner or importer that maintain the reduction of the average annual aggregate emissions of [toxic air pollutants](#k-10-C) for [reformulated gasoline](#k-10-E) produced or distributed by the refiner or importer during calendar years 2001 and 2002 (as determined on the basis of data collected by the [Administrator](/usc/42/7602.md?p=a) with respect to the refiner or importer).
- (iii) **Standards applicable to specific refineries or importers—**
- (I) **Applicability of standards—** For any calendar year, the [standards](/usc/42/1320d.md?p=7) applicable to a refiner or importer under [clause (ii)](#k-1-B-ii) shall apply to the quantity of gasoline produced or distributed by the refiner or importer in the calendar year only to the extent that the quantity is less than or equal to the average annual quantity of [reformulated gasoline](#k-10-E) produced or distributed by the refiner or importer during calendar years 2001 and 2002.
- (II) **Applicability of other standards—** For any calendar year, the quantity of gasoline produced or distributed by a refiner or importer that is in excess of the quantity subject to [subclause (I)](#k-1-B-iii-I) shall be subject to [standards](/usc/42/1320d.md?p=7) for emissions of [toxic air pollutants](#k-10-C) promulgated under [subparagraph (A)](#k-1-A) and [paragraph (3)(B)](#k-3-B).
- (iv) **Credit program—** The [Administrator](/usc/42/7602.md?p=a) shall provide for the granting and use of credits for emissions of [toxic air pollutants](#k-10-C) in the same manner as provided in [paragraph (7)](#k-7).
- (v) **Regional protection of toxics reduction baselines—**
- (I) **In general—** Not later than 60 days after August 8, 2005, and not later than April 1 of each calendar year that begins after August 8, 2005, the [Administrator](/usc/42/7602.md?p=a) shall publish in the Federal Register a report that specifies, with respect to the previous calendar year—
- (aa) the quantity of [reformulated gasoline](#k-10-E) produced that is in excess of the average annual quantity of [reformulated gasoline](#k-10-E) produced in 2001 and 2002; and
- (bb) the reduction of the average annual aggregate emissions of [toxic air pollutants](#k-10-C) in each [PADD](#k-1-B-i), based on retail survey data or data from other appropriate sources.
- (II) **Effect of failure to maintain aggregate toxics reductions—** If, in any calendar year, the reduction of the average annual aggregate emissions of [toxic air pollutants](#k-10-C) in a [PADD](#k-1-B-i) fails to meet or exceed the reduction of the average annual aggregate emissions of [toxic air pollutants](#k-10-C) in the [PADD](#k-1-B-i) in calendar years 2001 and 2002, the [Administrator](/usc/42/7602.md?p=a), not later than 90 days after the date of publication of the report for the calendar year under [subclause (I)](#k-1-B-v-I), shall—
- (aa) identify, to the maximum extent practicable, the reasons for the failure, including the sources, volumes, and characteristics of [reformulated gasoline](#k-10-E) that contributed to the failure; and
- (bb) promulgate revisions to the regulations promulgated under [clause (ii)](#k-1-B-ii), to take effect not earlier than 180 days but not later than 270 days after the date of promulgation, to provide that, notwithstanding [clause (iii)(II)](#k-1-B-iii-II), all [reformulated gasoline](#k-10-E) produced or distributed at each refiner or importer shall meet the [standards](/usc/42/1320d.md?p=7) applicable under [clause (iii)(I)](#k-1-B-iii-I) beginning not later than April 1 of the calendar year following publication of the report under [subclause (I)](#k-1-B-v-I) and in each calendar year thereafter.
- (vi) Not later than July 1, 2007, the [Administrator](/usc/42/7602.md?p=a) shall promulgate final regulations to control hazardous [air pollutants](/usc/42/7602.md?p=g) from [motor vehicles](/usc/42/7550.md?p=2) and [motor vehicle](/usc/42/7550.md?p=2) fuels, as provided for in [section 80.1045 of title 40, Code of Federal Regulations](/cfr/40/80.1045.md) (as in effect on August 8, 2005), and as authorized under [section 7521(l)](/usc/42/7521.md?p=l)[^5] of this title. If the [Administrator](/usc/42/7602.md?p=a) promulgates by such date, final regulations to control hazardous [air pollutants](/usc/42/7602.md?p=g) from [motor vehicles](/usc/42/7550.md?p=2) and [motor vehicle](/usc/42/7550.md?p=2) fuels that achieve and maintain greater overall reductions in emissions of air toxics from [reformulated gasoline](#k-10-E) than the reductions that would be achieved under [subsection (k)(1)(B)](#k-1-B) as amended by this clause, then [subsections (k)(1)(B)(i) through (k)(1)(B)(v)](#k-1-B-i..k-1-B-v) shall be null and void and regulations promulgated thereunder shall be rescinded and have no further effect.
- (2) **General requirements—** The regulations referred to in [paragraph (1)](#k-1) shall require that [reformulated gasoline](#k-10-E) comply with [paragraph (3)](#k-3) and with each of the following requirements (subject to [paragraph (7)](#k-7)):
- (A) **NOx emissions—** The emissions of oxides of nitrogen (NOx) from [baseline vehicles](#k-10-A) when using the [reformulated gasoline](#k-10-E) shall be no greater than the level of such emissions from such vehicles when using [baseline gasoline](#k-10-B-i). If the [Administrator](/usc/42/7602.md?p=a) determines that compliance with the limitation on emissions of oxides of nitrogen under the preceding sentence is technically infeasible, considering the other requirements applicable under this subsection to such gasoline, the [Administrator](/usc/42/7602.md?p=a) may, as appropriate to ensure compliance with this subparagraph, adjust (or waive entirely), any other requirements of this paragraph or any requirements applicable under [paragraph (3)(A)](#k-3-A).
- (B) **Benzene content—** The benzene content of the gasoline shall not exceed 1.0 percent by volume.
- (C) **Heavy metals—** The gasoline shall have no heavy metals, including lead or manganese. The [Administrator](/usc/42/7602.md?p=a) may waive the prohibition contained in this subparagraph for a heavy metal (other than lead) if the [Administrator](/usc/42/7602.md?p=a) determines that addition of the heavy metal to the gasoline will not increase, on an aggregate mass or cancer-risk basis, toxic [air pollutant](/usc/42/7602.md?p=g) emissions from [motor vehicles](/usc/42/7550.md?p=2).
- (3) **More stringent of formula or performance standards—** The regulations referred to in [paragraph (1)](#k-1) shall require compliance with the more stringent of either the requirements set forth in [subparagraph (A)](#k-3-A) or the requirements of subparagraph (B) of this paragraph. For purposes of determining the more stringent provision, [clause (i)](#k-3-A-i) and [clause (ii)](#k-3-B-ii) of subparagraph (B) shall be considered independently.
- (A) **Formula—**
- (i) **Benzene—** The benzene content of the [reformulated gasoline](#k-10-E) shall not exceed 1.0 percent by volume.
- (ii) **Aromatics—** The aromatic hydrocarbon content of the [reformulated gasoline](#k-10-E) shall not exceed 25 percent by volume.
- (iii) **Lead—** The [reformulated gasoline](#k-10-E) shall have no lead content.
- (iv) **Detergents—** The [reformulated gasoline](#k-10-E) shall contain additives to prevent the accumulation of deposits in engines or vehicle fuel supply systems.
- (B) **Performance standard—**
- (i) **VOC emissions—** During the high ozone season (as defined by the [Administrator](/usc/42/7602.md?p=a)), the aggregate emissions of ozone forming volatile organic compounds from [baseline vehicles](#k-10-A) when using the [reformulated gasoline](#k-10-E) shall be 15 percent below the aggregate emissions of ozone forming volatile organic compounds from such vehicles when using [baseline gasoline](#k-10-B-i). Effective in calendar year 2000 and thereafter, 25 percent shall be substituted for 15 percent in applying this clause, except that the [Administrator](/usc/42/7602.md?p=a) may adjust such 25 percent requirement to provide for a lesser or greater reduction based on technological feasibility, considering the cost of achieving such reductions in [VOC](/usc/42/7602.md?p=s) emissions. No such adjustment shall provide for less than a 20 percent reduction below the aggregate emissions of such [air pollutants](/usc/42/7602.md?p=g) from such vehicles when using [baseline gasoline](#k-10-B-i). The reductions required under this clause shall be on a mass basis.
- (ii) **Toxics—** During the entire year, the aggregate emissions of [toxic air pollutants](#k-10-C) from [baseline vehicles](#k-10-A) when using the [reformulated gasoline](#k-10-E) shall be 15 percent below the aggregate emissions of [toxic air pollutants](#k-10-C) from such vehicles when using [baseline gasoline](#k-10-B-i). Effective in calendar year 2000 and thereafter, 25 percent shall be substituted for 15 percent in applying this clause, except that the [Administrator](/usc/42/7602.md?p=a) may adjust such 25 percent requirement to provide for a lesser or greater reduction based on technological feasibility, considering the cost of achieving such reductions in [toxic air pollutants](#k-10-C). No such adjustment shall provide for less than a 20 percent reduction below the aggregate emissions of such [air pollutants](/usc/42/7602.md?p=g) from such vehicles when using [baseline gasoline](#k-10-B-i). The reductions required under this clause shall be on a mass basis.
Any reduction greater than a specific percentage reduction required under this subparagraph shall be treated as satisfying such percentage reduction requirement.
- (4) **Certification procedures—**
- (A) **Regulations—** The regulations under this subsection shall include procedures under which the [Administrator](/usc/42/7602.md?p=a) shall certify [reformulated gasoline](#k-10-E) as complying with the requirements established pursuant to this subsection. Under such regulations, the [Administrator](/usc/42/7602.md?p=a) shall establish procedures for any [person](/usc/42/7602.md?p=e) to petition the [Administrator](/usc/42/7602.md?p=a) to certify a fuel formulation, or slate of fuel formulations. Such procedures shall further require that the [Administrator](/usc/42/7602.md?p=a) shall approve or deny such petition within 180 days of receipt. If the [Administrator](/usc/42/7602.md?p=a) fails to act within such 180-day period, the fuel shall be deemed certified until the [Administrator](/usc/42/7602.md?p=a) completes action on the petition.
- (B) **Certification; equivalency—** The [Administrator](/usc/42/7602.md?p=a) shall certify a fuel formulation or slate of fuel formulations as complying with this subsection if such fuel or fuels—
- (i) comply with the requirements of [paragraph (2)](#k-2), and
- (ii) achieve equivalent or greater reductions in emissions of ozone forming volatile organic compounds and emissions of [toxic air pollutants](#k-10-C) than are achieved by a [reformulated gasoline](#k-10-E) meeting the applicable requirements of [paragraph (3)](#k-3).
- (C) **EPA determination of emissions level—** Within 1 year after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall determine the level of emissions of ozone forming volatile organic compounds and emissions of [toxic air pollutants](#k-10-C) emitted by [baseline vehicles](#k-10-A) when operating on [baseline gasoline](#k-10-B-i). For purposes of this subsection, within 1 year after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall, by rule, determine appropriate measures of, and methodology for, ascertaining the emissions of [air pollutants](/usc/42/7602.md?p=g) (including calculations, equipment, and testing tolerances).
- (5) **Prohibition—** Effective beginning January 1, 1995, each of the following shall be a [violation](/usc/42/2000e–16a.md?p=c) of this subsection:
- (A) The sale or dispensing by any [person](/usc/42/7602.md?p=e) of [conventional gasoline](#k-10-F) to ultimate consumers in any covered area.
- (B) The sale or dispensing by any refiner, blender, importer, or marketer of [conventional gasoline](#k-10-F) for resale in any covered area, without (i) segregating such gasoline from [reformulated gasoline](#k-10-E), and (ii) clearly marking such [conventional gasoline](#k-10-F) as “[conventional gasoline](#k-10-F), not for sale to ultimate consumer in a covered area”.
Any refiner, blender, importer or marketer who purchases property[^6] segregated and marked [conventional gasoline](#k-10-F), and thereafter labels, represents, or wholesales such gasoline as [reformulated gasoline](#k-10-E) shall also be in [violation](/usc/42/2000e–16a.md?p=c) of this subsection. The [Administrator](/usc/42/7602.md?p=a) may impose sampling, testing, and recordkeeping requirements upon any refiner, blender, importer, or marketer to prevent [violations](/usc/42/2000e–16a.md?p=c) of this section.
- (6) **Opt-in areas—**
- (A) **Classified areas—**
- (i) **In general—** Upon the application of the [Governor](/usc/42/6372.md?p=1) of a [State](/usc/42/7602.md?p=d), the [Administrator](/usc/42/7602.md?p=a) shall apply the prohibition set forth in [paragraph (5)](#k-5) in any area in the [State](/usc/42/7602.md?p=d) classified under subpart 2 of part D of subchapter I as a Marginal, Moderate, Serious, or Severe Area (without regard to whether or not the 1980 population of the area exceeds 250,000). In any such case, the [Administrator](/usc/42/7602.md?p=a) shall establish an effective date for such prohibition as he deems appropriate, not later than January 1, 1995, or 1 year after such application is received, whichever is later. The [Administrator](/usc/42/7602.md?p=a) shall publish such application in the Federal Register upon receipt.
- (ii) **Effect of insufficient domestic capacity to produce reformulated gasoline—** If the [Administrator](/usc/42/7602.md?p=a) determines, on the [Administrator](/usc/42/7602.md?p=a)’s own motion or on petition of any [person](/usc/42/7602.md?p=e), after consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), that there is insufficient domestic capacity to produce gasoline certified under this subsection, the [Administrator](/usc/42/7602.md?p=a) shall, by rule, extend the effective date of such prohibition in Marginal, Moderate, Serious, or Severe Areas referred to in [clause (i)](#k-6-A-i) for one additional year, and may, by rule, renew such extension for 2 additional one-year periods. The [Administrator](/usc/42/7602.md?p=a) shall act on any petition submitted under this subparagraph within 6 months after receipt of the petition. The [Administrator](/usc/42/7602.md?p=a) shall issue such extensions for areas with a lower ozone classification before issuing any such extension for areas with a higher classification.
- (B) **Ozone transport region—**
- (i) **Application of prohibition—**
- (I) **In general—** On application of the [Governor](/usc/42/6372.md?p=1) of a [State](/usc/42/7602.md?p=d) in the ozone transport region established by [section 7511c(a) of this title](/usc/42/7511c.md?p=a), the [Administrator](/usc/42/7602.md?p=a), not later than 180 days after the date of receipt of the application, shall apply the prohibition specified in [paragraph (5)](#k-5) to any area in the [State](/usc/42/7602.md?p=d) (other than an area classified as a marginal, moderate, serious, or severe ozone [nonattainment area](/usc/42/7501.md?p=2) under subpart 2 of part D of subchapter I) unless the [Administrator](/usc/42/7602.md?p=a) determines under [clause (iii)](#k-6-B-iii) that there is insufficient capacity to supply [reformulated gasoline](#k-10-E).
- (II) **Publication of application—** As soon as practicable after the date of receipt of an application under [subclause (I)](#k-6-B-i-I), the [Administrator](/usc/42/7602.md?p=a) shall publish the application in the Federal Register.
- (ii) **Period of applicability—** Under [clause (i)](#k-6-B-i), the prohibition specified in [paragraph (5)](#k-5) shall apply in a [State](/usc/42/7602.md?p=d)—
- (I) commencing as soon as practicable but not later than 2 years after the date of approval by the [Administrator](/usc/42/7602.md?p=a) of the application of the [Governor](/usc/42/6372.md?p=1) of the [State](/usc/42/7602.md?p=d); and
- (II) ending not earlier than 4 years after the commencement date determined under [subclause (I)](#k-6-B-ii-I).
- (iii) **Extension of commencement date based on insufficient capacity—**
- (I) **In general—** If, after receipt of an application from a [Governor](/usc/42/6372.md?p=1) of a [State](/usc/42/7602.md?p=d) under [clause (i)](#k-6-B-i), the [Administrator](/usc/42/7602.md?p=a) determines, on the [Administrator](/usc/42/7602.md?p=a)’s own motion or on petition of any [person](/usc/42/7602.md?p=e), after consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), that there is insufficient capacity to supply [reformulated gasoline](#k-10-E), the [Administrator](/usc/42/7602.md?p=a), by regulation—
- (aa) shall extend the commencement date with respect to the [State](/usc/42/7602.md?p=d) under [clause (ii)(I)](#k-6-B-ii-I) for not more than 1 year; and
- (bb) may renew the extension under [item (aa)](#k-6-B-iii-I-aa) for 2 additional periods, each of which shall not exceed 1 year.
- (II) **Deadline for action on petitions—** The [Administrator](/usc/42/7602.md?p=a) shall act on any petition submitted under [subclause (I)](#k-6-B-iii-I) not later than 180 days after the date of receipt of the petition.
- (7) **Credits—**
- (A) The regulations promulgated under this subsection shall provide for the granting of an appropriate amount of credits to a [person](/usc/42/7602.md?p=e) who refines, blends, or [imports](/usc/42/6311.md?p=7) and certifies a gasoline or slate of gasoline that—
- (i) has an aromatic hydrocarbon content (by volume) that is less than the maximum aromatic hydrocarbon content required to comply with [paragraph (3)](#k-3); or
- (ii) has a benzene content (by volume) that is less than the maximum benzene content specified in [paragraph (2)](#k-2).
- (B) The regulations described in [subparagraph (A)](#k-7-A) shall also provide that a [person](/usc/42/7602.md?p=e) who is granted credits may use such credits, or transfer all or a portion of such credits to another [person](/usc/42/7602.md?p=e) for use within the same [nonattainment area](/usc/42/7501.md?p=2), for the purpose of complying with this subsection.
- (C) The regulations promulgated under subparagraphs [(A)](#k-7-A) and [(B)](#k-7-B) shall ensure the enforcement of the requirements for the issuance, application, and transfer of the credits. Such regulations shall prohibit the granting or transfer of such credits for use with respect to any gasoline in a [nonattainment area](/usc/42/7501.md?p=2), to the extent the use of such credits would result in any of the following:
- (i) An average gasoline aromatic hydrocarbon content (by volume) for the nonattainment (taking into account all gasoline sold for use in [conventional gasoline](#k-10-F)-fueled vehicles in the [nonattainment area](/usc/42/7501.md?p=2)) higher than the average fuel aromatic hydrocarbon content (by volume) that would occur in the absence of using any such credits.
- (ii) An average benzene content (by volume) for the [nonattainment area](/usc/42/7501.md?p=2) (taking into account all gasoline sold for use in [conventional gasoline](#k-10-F)-fueled vehicles in the [nonattainment area](/usc/42/7501.md?p=2)) higher than the average benzene content (by volume) that would occur in the absence of using any such credits.
- (8) **Anti-dumping rules—**
- (A) **In general—** Within 1 year after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations applicable to each refiner, blender, or importer of gasoline ensuring that gasoline sold or introduced into [commerce](/usc/42/7550.md?p=6) by such refiner, blender, or importer (other than [reformulated gasoline](#k-10-E) subject to the requirements of [paragraph (1)](#k-1)) does not result in average per gallon emissions (measured on a mass basis) of (i) volatile organic compounds, (ii) oxides of nitrogen, (iii) carbon monoxide, and (iv) [toxic air pollutants](#k-10-C) in excess of such emissions of such [pollutants](/usc/42/1397h.md?p=c-4) attributable to gasoline sold or introduced into [commerce](/usc/42/7550.md?p=6) in calendar year 1990 by that refiner, blender, or importer. Such regulations shall take effect beginning January 1, 1995.
- (B) **Adjustments—** In evaluating compliance with the requirements of [subparagraph (A)](#k-8-A), the [Administrator](/usc/42/7602.md?p=a) shall make appropriate adjustments to insure that no credit is provided for improvement in [motor vehicle](/usc/42/7550.md?p=2) emissions control in [motor vehicles](/usc/42/7550.md?p=2) sold after the calendar year 1990.
- (C) **Compliance determined for each pollutant independently—** In determining whether there is an increase in emissions in [violation](/usc/42/2000e–16a.md?p=c) of the prohibition contained in [subparagraph (A)](#k-8-A) the [Administrator](/usc/42/7602.md?p=a) shall consider an increase in each [air pollutant](/usc/42/7602.md?p=g) referred to in [clauses (i) through (iv)](#i..iv) as a separate [violation](/usc/42/2000e–16a.md?p=c) of such prohibition, except that the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations to provide that any increase in emissions of oxides of nitrogen resulting from adding oxygenates to gasoline may be offset by an equivalent or greater reduction (on a mass basis) in emissions of volatile organic compounds, carbon monoxide, or [toxic air pollutants](#k-10-C), or any combination of the foregoing.
- (D) **Compliance period—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate an appropriate compliance period or appropriate compliance periods to be used for assessing compliance with the prohibition contained in [subparagraph (A)](#k-8-A).
- (E) **Baseline for determining compliance—** If the [Administrator](/usc/42/7602.md?p=a) determines that no adequate and reliable data exists regarding the composition of gasoline sold or introduced into [commerce](/usc/42/7550.md?p=6) by a refiner, blender, or importer in calendar year 1990, for such refiner, blender, or importer, [baseline gasoline](#k-10-B-i) shall be substituted for such 1990 gasoline in determining compliance with [subparagraph (A)](#k-8-A).
- (9) **Emissions from entire vehicle—** In applying the requirements of this subsection, the [Administrator](/usc/42/7602.md?p=a) shall take into account emissions from the entire [motor vehicle](/usc/42/7550.md?p=2), including evaporative, running, refueling, and exhaust emissions.
- (10) **Definitions—** For purposes of this subsection—
- (A) **Baseline vehicles—** The term “baseline vehicles” mean [representative](/usc/42/3058f.md?p=5) [model year](/usc/42/7521.md?p=b-3-A-i) 1990 vehicles.
- (B) **Baseline gasoline—**
- (i) **Summertime—** The term “baseline gasoline” means in the case of gasoline sold during the high ozone period (as defined by the [Administrator](/usc/42/7602.md?p=a)) a gasoline which meets the following specifications:
| BASELINE GASOLINE FUEL PROPERTIES | |
| --- | --- |
| API Gravity | 57.4 |
| Sulfur, ppm | 339 |
| Benzene, % | 1.53 |
| RVP, psi | 8.7 |
| Octane, R+M/2 | 87.3 |
| IBP, F | 91 |
| 10%, F | 128 |
| 50%, F | 218 |
| 90%, F | 330 |
| End Point, F | 415 |
| Aromatics, % | 32.0 |
| Olefins, % | 9.2 |
| Saturates, % | 58.8 |
- (ii) **Wintertime—** The [Administrator](/usc/42/7602.md?p=a) shall establish the specifications of “[baseline gasoline](#k-10-B-i)” for gasoline sold at times other than the high ozone period (as defined by the [Administrator](/usc/42/7602.md?p=a)). Such specifications shall be the specifications of 1990 industry average gasoline sold during such period.
- (C) **Toxic air pollutants—** The term “toxic air pollutants” means the aggregate emissions of the following:
Benzene
1,3 Butadiene
Polycyclic organic matter (POM)
Acetaldehyde
Formaldehyde.
- (D) **Covered area—** The 9 ozone [nonattainment areas](/usc/42/7501.md?p=2) having a 1980 population in excess of 250,000 and having the highest ozone design value during the period 1987 through 1989 shall be “covered areas” for purposes of this subsection. Effective one year after the reclassification of any ozone [nonattainment area](/usc/42/7501.md?p=2) as a Severe ozone [nonattainment area](/usc/42/7501.md?p=2) under [section 7511(b) of this title](/usc/42/7511.md?p=b), such Severe area shall also be a “covered area” for purposes of this subsection.
- (E) **Reformulated gasoline—** The term “reformulated gasoline” means any gasoline which is certified by the [Administrator](/usc/42/7602.md?p=a) under this section as complying with this subsection.
- (F) **Conventional gasoline—** The term “conventional gasoline” means any gasoline which does not meet specifications set by a certification under this subsection.
- (l) **Detergents—** Effective beginning January 1, 1995, no [person](/usc/42/7602.md?p=e) may sell or dispense to an ultimate consumer in the [United States](/usc/42/403.md?p=k), and no refiner or marketer may directly or indirectly sell or dispense to [persons](/usc/42/7602.md?p=e) who sell or dispense to ultimate consumers in the [United States](/usc/42/403.md?p=k) any gasoline which does not contain additives to prevent the accumulation of deposits in engines or fuel supply systems. Not later than 2 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate a rule establishing specifications for such additives.
- (m) **Oxygenated fuels—**
- (1) **Plan revisions for CO nonattainment areas—**
- (A) Each [State](/usc/42/7602.md?p=d) in which there is located all or part of an area which is designated under subchapter I as a [nonattainment area](/usc/42/7501.md?p=2) for carbon monoxide and which has a carbon monoxide design value of 9.5 parts per million (ppm) or above based on data for the 2-year period of 1988 and 1989 and calculated according to the most recent interpretation methodology issued by the [Administrator](/usc/42/7602.md?p=a) prior to November 15, 1990, shall submit to the [Administrator](/usc/42/7602.md?p=a) a [State](/usc/42/7602.md?p=d) implementation plan revision under [section 7410 of this title](/usc/42/7410.md) and part D of subchapter I for such area which shall contain the provisions specified under this subsection regarding oxygenated gasoline.
- (B) A plan revision which contains such provisions shall also be submitted by each [State](/usc/42/7602.md?p=d) in which there is located any area which, for any 2-year period after 1989 has a carbon monoxide design value of 9.5 ppm or above. The revision shall be submitted within 18 months after such 2-year period.
- (2) **Oxygenated gasoline in CO nonattainment areas—** Each plan revision under this subsection shall contain provisions to require that any gasoline sold, or dispensed, to the ultimate consumer in the carbon monoxide [nonattainment area](/usc/42/7501.md?p=2) or sold or dispensed directly or indirectly by fuel refiners or marketers to [persons](/usc/42/7602.md?p=e) who sell or dispense to ultimate consumers, in the larger of—
- (A) the Consolidated Metropolitan Statistical Area (CMSA) in which the area is located, or
- (B) if the area is not located in a CMSA, the Metropolitan Statistical Area in which the area is located,
be blended, during the portion of the year in which the area is prone to high ambient concentrations of carbon monoxide to contain not less than 2.7 percent oxygen by weight (subject to a testing tolerance established by the [Administrator](/usc/42/7602.md?p=a)). The portion of the year in which the area is prone to high ambient concentrations of carbon monoxide shall be as determined by the [Administrator](/usc/42/7602.md?p=a), but shall not be less than 4 months. At the request of a [State](/usc/42/7602.md?p=d) with respect to any area designated as nonattainment for carbon monoxide, the [Administrator](/usc/42/7602.md?p=a) may reduce the period specified in the preceding sentence if the [State](/usc/42/7602.md?p=d) can demonstrate that because of meteorological conditions, a reduced period will assure that there will be no exceedances of the carbon monoxide [standard](/usc/42/1320d.md?p=7) outside of such reduced period. For areas with a carbon monoxide design value of 9.5 ppm or more of[^7] November 15, 1990, the revision shall provide that such requirement shall take effect no later than November 1, 1992 (or at such other date during 1992 as the [Administrator](/usc/42/7602.md?p=a) establishes under the preceding provisions of this paragraph). For other areas, the revision shall provide that such requirement shall take effect no later than November 1 of the third year after the last year of the applicable 2-year period referred to in [paragraph (1)](#m-1) (or at such other date during such third year as the [Administrator](/usc/42/7602.md?p=a) establishes under the preceding provisions of this paragraph) and shall include a [program](/usc/42/274l–1.md?p=4) for implementation and enforcement of the requirement consistent with guidance to be issued by the [Administrator](/usc/42/7602.md?p=a).
- (3) **Waivers—**
- (A) The [Administrator](/usc/42/7602.md?p=a) shall waive, in whole or in part, the requirements of [paragraph (2)](#m-2) upon a demonstration by the [State](/usc/42/7602.md?p=d) to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that the use of oxygenated gasoline would prevent or interfere with the attainment by the area of a national primary ambient air quality [standard](/usc/42/1320d.md?p=7) (or a [State](/usc/42/7602.md?p=d) or local ambient air quality [standard](/usc/42/1320d.md?p=7)) for any [air pollutant](/usc/42/7602.md?p=g) other than carbon monoxide.
- (B) The [Administrator](/usc/42/7602.md?p=a) shall, upon demonstration by the [State](/usc/42/7602.md?p=d) satisfactory to the [Administrator](/usc/42/7602.md?p=a), waive the requirement of [paragraph (2)](#m-2) where the [Administrator](/usc/42/7602.md?p=a) determines that mobile sources of carbon monoxide do not contribute significantly to carbon monoxide levels in an area.
- (C)
- (i) Any [person](/usc/42/7602.md?p=e) may petition the [Administrator](/usc/42/7602.md?p=a) to make a finding that there is, or is likely to be, for any area, an inadequate domestic supply of, or distribution capacity for, oxygenated gasoline meeting the requirements of [paragraph (2)](#m-2) or fuel additives (oxygenates) necessary to meet such requirements. The [Administrator](/usc/42/7602.md?p=a) shall act on such petition within 6 months after receipt of the petition.
- (ii) If the [Administrator](/usc/42/7602.md?p=a) determines, in response to a petition under [clause (i)](#m-3-C-i), that there is an inadequate supply or capacity described in [clause (i)](#m-3-C-i), the [Administrator](/usc/42/7602.md?p=a) shall delay the effective date of [paragraph (2)](#m-2) for 1 year. Upon petition, the [Administrator](/usc/42/7602.md?p=a) may extend such effective date for one additional year. No partial delay or lesser waiver may be granted under this clause.
- (iii) In granting waivers under this subparagraph the [Administrator](/usc/42/7602.md?p=a) shall consider distribution capacity separately from the adequacy of domestic supply and shall grant such waivers in such manner as will assure that, if supplies of oxygenated gasoline are limited, areas having the highest design value for carbon monoxide will have a priority in obtaining oxygenated gasoline which meets the requirements of [paragraph (2)](#m-2).
- (iv) As used in this subparagraph, the term distribution capacity includes capacity for transportation, storage, and blending.
- (4) **Fuel dispensing systems—** Any [person](/usc/42/7602.md?p=e) selling oxygenated gasoline at retail pursuant to this subsection shall be required under regulations promulgated by the [Administrator](/usc/42/7602.md?p=a) to label the fuel dispensing system with a notice that the gasoline is oxygenated and will reduce the carbon monoxide emissions from the [motor vehicle](/usc/42/7550.md?p=2).
- (5) **Guidelines for credit—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate guidelines, within 9 months after November 15, 1990, allowing the use of marketable oxygen credits from gasolines during that portion of the year specified in [paragraph (2)](#m-2) with higher oxygen content than required to offset the sale or use of gasoline with a lower oxygen content than required. No credits may be transferred between [nonattainment areas](/usc/42/7501.md?p=2).
- (6) **Attainment areas—** Nothing in this subsection shall be interpreted as requiring an oxygenated gasoline [program](/usc/42/274l–1.md?p=4) in an area which is in attainment for carbon monoxide, except that in a carbon monoxide [nonattainment area](/usc/42/7501.md?p=2) which is redesignated as attainment for carbon monoxide, the requirements of this subsection shall remain in effect to the extent such [program](/usc/42/274l–1.md?p=4) is necessary to maintain such [standard](/usc/42/1320d.md?p=7) thereafter in the area.
- (7) **Failure to attain CO standard—** If the [Administrator](/usc/42/7602.md?p=a) determines under [section 7512(b)(2) of this title](/usc/42/7512.md?p=b-2) that the national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for carbon monoxide has not been attained in a Serious Area by the applicable attainment date, the [State](/usc/42/7602.md?p=d) shall submit a plan revision for the area within 9 months after the date of such determination. The plan revision shall provide that the minimum oxygen content of gasoline referred to in [paragraph (2)](#m-2) shall be 3.1 percent by weight unless such requirement is waived in accordance with the provisions of this subsection.
- (n) **Prohibition on leaded gasoline for highway use—** After December 31, 1995, it shall be unlawful for any [person](/usc/42/7602.md?p=e) to sell, offer for sale, supply, offer for supply, dispense, transport, or introduce into [commerce](/usc/42/7550.md?p=6), for use as fuel in any [motor vehicle](/usc/42/7550.md?p=2) (as defined in [section 7554(2)](/usc/42/7554.md)[^8] of this title) any gasoline which contains lead or lead additives.
- (o) **Renewable fuel program—**
- (1) **Definitions—** In this section:
- (A) **Additional renewable fuel—** The term “additional renewable fuel” means fuel that is produced from [renewable biomass](#o-1-I) and that is used to replace or reduce the quantity of fossil fuel present in home heating oil or jet fuel.
- (B) **Advanced biofuel—**
- (i) **In general—** The term “advanced biofuel” means [renewable fuel](#o-1-J), other than ethanol derived from corn starch, that has [lifecycle greenhouse gas emissions](#o-1-H), as determined by the [Administrator](/usc/42/7602.md?p=a), after notice and opportunity for comment, that are at least 50 percent less than [baseline lifecycle greenhouse gas emissions](#o-1-C).
- (ii) **Inclusions—** The types of fuels eligible for consideration as “[advanced biofuel](#o-1-B-i)” may include any of the following:
- (I) Ethanol derived from cellulose, hemicellulose, or lignin.
- (II) Ethanol derived from sugar or starch (other than corn starch).
- (III) Ethanol derived from waste material, including crop residue, other vegetative waste material, animal waste, and food waste and yard waste.
- (IV) [Biomass-based diesel](#o-1-D).
- (V) Biogas (including landfill gas and sewage waste [treatment](/usc/42/11851.md?p=11) gas) produced through the conversion of organic matter from [renewable biomass](#o-1-I).
- (VI) Butanol or other alcohols produced through the conversion of organic matter from [renewable biomass](#o-1-I).
- (VII) Other fuel derived from cellulosic [biomass](/usc/42/16317.md?p=f-8-C).
- (C) **Baseline lifecycle greenhouse gas emissions—** The term “baseline lifecycle greenhouse gas emissions” means the average [lifecycle greenhouse gas emissions](#o-1-H), as determined by the [Administrator](/usc/42/7602.md?p=a), after notice and opportunity for comment, for gasoline or diesel (whichever is being replaced by the [renewable fuel](#o-1-J)) sold or distributed as [transportation fuel](#o-1-L) in 2005.
- (D) **Biomass-based diesel—** The term “biomass-based diesel” means [renewable fuel](#o-1-J) that is biodiesel as defined in [section 13220(f) of this title](/usc/42/13220.md?p=f) and that has [lifecycle greenhouse gas emissions](#o-1-H), as determined by the [Administrator](/usc/42/7602.md?p=a), after notice and opportunity for comment, that are at least 50 percent less than the [baseline lifecycle greenhouse gas emissions](#o-1-C). Notwithstanding the preceding sentence, [renewable fuel](#o-1-J) derived from [co](/usc/42/7602.md?p=w)-processing [biomass](/usc/42/16317.md?p=f-8-C) with a petroleum feedstock shall be [advanced biofuel](#o-1-B-i) if it meets the requirements of [subparagraph (B)](#o-1-B), but is not biomass-based diesel.
- (E) **Cellulosic biofuel—** The term “cellulosic biofuel” means [renewable fuel](#o-1-J) derived from any cellulose, hemicellulose, or lignin that is derived from [renewable biomass](#o-1-I) and that has [lifecycle greenhouse gas emissions](#o-1-H), as determined by the [Administrator](/usc/42/7602.md?p=a), that are at least 60 percent less than the [baseline lifecycle greenhouse gas emissions](#o-1-C).
- (F) **Conventional biofuel—** The term “conventional biofuel” means [renewable fuel](#o-1-J) that is ethanol derived from corn starch.
- (G) **Greenhouse gas—** The term “greenhouse gas” means carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons,[^9] sulfur hexafluoride. The [Administrator](/usc/42/7602.md?p=a) may include any other anthropogenically-emitted gas that is determined by the [Administrator](/usc/42/7602.md?p=a), after notice and comment, to contribute to global warming.
- (H) **Lifecycle greenhouse gas emissions—** The term “lifecycle greenhouse gas emissions” means the aggregate quantity of [greenhouse gas](#o-1-G) emissions (including direct emissions and significant indirect emissions such as significant emissions from land use changes), as determined by the [Administrator](/usc/42/7602.md?p=a), related to the full fuel lifecycle, including all stages of fuel and feedstock production and distribution, from feedstock generation or extraction through the distribution and delivery and use of the finished fuel to the ultimate consumer, where the mass values for all [greenhouse gases](#o-1-G) are adjusted to account for their relative global warming potential.
- (I) **Renewable biomass—** The term “renewable biomass” means each of the following:
- (i) Planted crops and crop residue harvested from agricultural land cleared or cultivated at any time prior to December 19, 2007, that is either actively managed or fallow, and nonforested.
- (ii) Planted trees and tree residue from actively managed tree plantations on non-federal[^10] land cleared at any time prior to December 19, 2007, including land belonging to an [Indian tribe](/usc/42/7602.md?p=r) or an [Indian](/usc/42/6862.md?p=6) individual, that is held in [trust](/usc/42/12854.md?p=6) by the [United States](/usc/42/403.md?p=k) or subject to a restriction against alienation imposed by the [United States](/usc/42/403.md?p=k).
- (iii) Animal waste material and animal byproducts.
- (iv) Slash and pre-commercial thinnings that are from non-federal[^10] forestlands, including forestlands belonging to an [Indian tribe](/usc/42/7602.md?p=r) or an [Indian](/usc/42/6862.md?p=6) individual, that are held in [trust](/usc/42/12854.md?p=6) by the [United States](/usc/42/403.md?p=k) or subject to a restriction against alienation imposed by the [United States](/usc/42/403.md?p=k), but not forests or forestlands that are ecological communities with a global or [State](/usc/42/7602.md?p=d) ranking of critically imperiled, imperiled, or rare pursuant to a [State](/usc/42/7602.md?p=d) Natural Heritage [Program](/usc/42/274l–1.md?p=4), old growth forest, or late successional forest.
- (v) [Biomass](/usc/42/16317.md?p=f-8-C) obtained from the immediate vicinity of [buildings](/usc/42/6881.md?p=i-3) and other areas regularly occupied by people, or of public infrastructure, at risk from wildfire.
- (vi) Algae.
- (vii) Separated yard waste or food waste, including recycled cooking and trap grease.
- (J) **Renewable fuel—** The term “renewable fuel” means fuel that is produced from [renewable biomass](#o-1-I) and that is used to replace or reduce the quantity of fossil fuel present in a [transportation fuel](#o-1-L).
- (K) **Small refinery—** The term “small refinery” means a refinery for which the average aggregate daily crude oil throughput for a calendar year (as determined by dividing the aggregate throughput for the calendar year by the number of days in the calendar year) does not exceed 75,000 barrels.
- (L) **Transportation fuel—** The term “transportation fuel” means fuel for use in [motor vehicles](/usc/42/7550.md?p=2), [motor vehicle](/usc/42/7550.md?p=2) engines, [nonroad vehicles](/usc/42/7550.md?p=11), or [nonroad engines](/usc/42/7550.md?p=10) (except for ocean-going vessels).
- (2) **Renewable fuel program—**
- (A) **Regulations—**
- (i) **In general—** Not later than 1 year after August 8, 2005, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations to ensure that gasoline sold or introduced into [commerce](/usc/42/7550.md?p=6) in the [United States](/usc/42/403.md?p=k) (except in noncontiguous [States](/usc/42/7602.md?p=d) or territories), on an annual average basis, contains the applicable volume of [renewable fuel](#o-1-J) determined in accordance with [subparagraph (B)](#o-2-B). Not later than 1 year after December 19, 2007, the [Administrator](/usc/42/7602.md?p=a) shall revise the regulations under this paragraph to ensure that [transportation fuel](#o-1-L) sold or introduced into [commerce](/usc/42/7550.md?p=6) in the [United States](/usc/42/403.md?p=k) (except in noncontiguous [States](/usc/42/7602.md?p=d) or territories), on an annual average basis, contains at least the applicable volume of [renewable fuel](#o-1-J), [advanced biofuel](#o-1-B-i), [cellulosic biofuel](#o-1-E), and [biomass-based diesel](#o-1-D), determined in accordance with [subparagraph (B)](#o-2-B) and, in the case of any such [renewable fuel](#o-1-J) produced from new [facilities](/usc/42/11049.md?p=4) that commence [construction](/usc/42/7479.md?p=2-C) after December 19, 2007, achieves at least a 20 percent reduction in [lifecycle greenhouse gas emissions](#o-1-H) compared to [baseline lifecycle greenhouse gas emissions](#o-1-C).
- (ii) **Noncontiguous State opt-in—**
- (I) **In general—** On the petition of a noncontiguous [State](/usc/42/7602.md?p=d) or territory, the [Administrator](/usc/42/7602.md?p=a) may allow the [renewable fuel](#o-1-J) [program](/usc/42/274l–1.md?p=4) established under this subsection to apply in the noncontiguous [State](/usc/42/7602.md?p=d) or territory at the same time or any time after the [Administrator](/usc/42/7602.md?p=a) promulgates regulations under this subparagraph.
- (II) **Other actions—** In carrying out this clause, the [Administrator](/usc/42/7602.md?p=a) may—
- (aa) issue or revise regulations under this paragraph;
- (bb) establish [applicable percentages](/usc/42/609.md?p=a-7-B-ii) under [paragraph (3)](#o-3);
- (cc) provide for the generation of credits under [paragraph (5)](#o-5); and
- (dd) take such other actions as are necessary to allow for the application of the [renewable fuels](#o-1-J) [program](/usc/42/274l–1.md?p=4) in a noncontiguous [State](/usc/42/7602.md?p=d) or territory.
- (iii) **Provisions of regulations—** Regardless of the date of promulgation, the regulations promulgated under [clause (i)](#o-2-A-i)—
- (I) shall contain compliance provisions applicable to refineries, blenders, distributors, and importers, as appropriate, to ensure that the requirements of this paragraph are met; but
- (II) shall not—
- (aa) restrict [geographic areas](/usc/42/11360.md?p=9) in which [renewable fuel](#o-1-J) may be used; or
- (bb) impose any per-gallon obligation for the use of [renewable fuel](#o-1-J).
- (iv) **Requirement in case of failure to promulgate regulations—** If the [Administrator](/usc/42/7602.md?p=a) does not promulgate regulations under [clause (i)](#o-2-A-i), the percentage of [renewable fuel](#o-1-J) in gasoline sold or dispensed to consumers in the [United States](/usc/42/403.md?p=k), on a volume basis, shall be 2.78 percent for calendar year 2006.
- (B) **Applicable volumes—**
- (i) **Calendar years after 2005—**
- (I) **Renewable fuel—** For the purpose of [subparagraph (A)](#o-2-A), the applicable volume of [renewable fuel](#o-1-J) for the calendar years 2006 through 2022 shall be determined in accordance with the following table:
| Calendar year: | Applicable volume of [renewable fuel](#o-1-J)
(in billions of gallons): |
| --- | --- |
| 2006 | 4.0 |
| 2007 | 4.7 |
| 2008 | 9.0 |
| 2009 | 11.1 |
| 2010 | 12.95 |
| 2011 | 13.95 |
| 2012 | 15.2 |
| 2013 | 16.55 |
| 2014 | 18.15 |
| 2015 | 20.5 |
| 2016 | 22.25 |
| 2017 | 24.0 |
| 2018 | 26.0 |
| 2019 | 28.0 |
| 2020 | 30.0 |
| 2021 | 33.0 |
| 2022 | 36.0 |
- (II) **Advanced biofuel—** For the purpose of [subparagraph (A)](#o-2-A), of the volume of [renewable fuel](#o-1-J) required under [subclause (I)](#o-2-B-i-I), the applicable volume of [advanced biofuel](#o-1-B-i) for the calendar years 2009 through 2022 shall be determined in accordance with the following table:
| Calendar year: | Applicable volume of [advanced biofuel](#o-1-B-i)
(in billions of gallons): |
| --- | --- |
| 2009 | 0.6 |
| 2010 | 0.95 |
| 2011 | 1.35 |
| 2012 | 2.0 |
| 2013 | 2.75 |
| 2014 | 3.75 |
| 2015 | 5.5 |
| 2016 | 7.25 |
| 2017 | 9.0 |
| 2018 | 11.0 |
| 2019 | 13.0 |
| 2020 | 15.0 |
| 2021 | 18.0 |
| 2022 | 21.0 |
- (III) **Cellulosic biofuel—** For the purpose of [subparagraph (A)](#o-2-A), of the volume of [advanced biofuel](#o-1-B-i) required under [subclause (II)](#o-2-B-i-II), the applicable volume of [cellulosic biofuel](#o-1-E) for the calendar years 2010 through 2022 shall be determined in accordance with the following table:
| Calendar year: | Applicable volume of [cellulosic biofuel](#o-1-E)
(in billions of gallons): |
| --- | --- |
| 2010 | 0.1 |
| 2011 | 0.25 |
| 2012 | 0.5 |
| 2013 | 1.0 |
| 2014 | 1.75 |
| 2015 | 3.0 |
| 2016 | 4.25 |
| 2017 | 5.5 |
| 2018 | 7.0 |
| 2019 | 8.5 |
| 2020 | 10.5 |
| 2021 | 13.5 |
| 2022 | 16.0 |
- (IV) **Biomass-based diesel—** For the purpose of [subparagraph (A)](#o-2-A), of the volume of [advanced biofuel](#o-1-B-i) required under [subclause (II)](#o-2-B-i-II), the applicable volume of [biomass-based diesel](#o-1-D) for the calendar years 2009 through 2012 shall be determined in accordance with the following table:
| Calendar year: | Applicable volume of [biomass-based diesel](#o-1-D) (in billions
of gallons): |
| --- | --- |
| 2009 | 0.5 |
| 2010 | 0.65 |
| 2011 | 0.80 |
| 2012 | 1.0 |
- (ii) **Other calendar years—** For the purposes of [subparagraph (A)](#o-2-A), the applicable volumes of each fuel specified in the tables in [clause (i)](#o-2-B-i) for calendar years after the calendar years specified in the tables shall be determined by the [Administrator](/usc/42/7602.md?p=a), in coordination with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7) and the [Secretary](/usc/42/242q–4.md?p=2) of Agriculture, based on a review of the implementation of the [program](/usc/42/274l–1.md?p=4) during calendar years specified in the tables, and an analysis of—
- (I) the impact of the production and use of [renewable fuels](#o-1-J) on the environment, including on air quality, climate change, conversion of wetlands, ecosystems, wildlife habitat, water quality, and water supply;
- (II) the impact of [renewable fuels](#o-1-J) on the [energy](/usc/42/6311.md?p=7) security of the [United States](/usc/42/403.md?p=k);
- (III) the expected annual rate of future commercial production of [renewable fuels](#o-1-J), including [advanced biofuels](#o-1-B-i) in each [category](/usc/42/1395w–4.md?p=j-1) ([cellulosic biofuel](#o-1-E) and [biomass-based diesel](#o-1-D));
- (IV) the impact of [renewable fuels](#o-1-J) on the infrastructure of the [United States](/usc/42/403.md?p=k), including deliverability of materials, goods, and products other than [renewable fuel](#o-1-J), and the sufficiency of infrastructure to deliver and use [renewable fuel](#o-1-J);
- (V) the impact of the use of [renewable fuels](#o-1-J) on the cost to consumers of [transportation fuel](#o-1-L) and on the cost to transport goods; and
- (VI) the impact of the use of [renewable fuels](#o-1-J) on other factors, including job creation, the price and supply of agricultural commodities, rural economic development, and food prices.
The [Administrator](/usc/42/7602.md?p=a) shall promulgate rules establishing the applicable volumes under this clause no later than 14 months before the first year for which such applicable volume will apply.
- (iii) **Applicable volume of advanced biofuel—** For the purpose of making the determinations in [clause (ii)](#o-2-B-ii), for each calendar year, the applicable volume of [advanced biofuel](#o-1-B-i) shall be at least the same percentage of the applicable volume of [renewable fuel](#o-1-J) as in calendar year 2022.
- (iv) **Applicable volume of cellulosic biofuel—** For the purpose of making the determinations in [clause (ii)](#o-2-B-ii), for each calendar year, the applicable volume of [cellulosic biofuel](#o-1-E) established by the [Administrator](/usc/42/7602.md?p=a) shall be based on the assumption that the [Administrator](/usc/42/7602.md?p=a) will not need to issue a waiver for such years under [paragraph (7)(D)](#o-7-D).
- (v) **Minimum applicable volume of biomass-based diesel—** For the purpose of making the determinations in [clause (ii)](#o-2-B-ii), the applicable volume of [biomass-based diesel](#o-1-D) shall not be less than the applicable volume listed in [clause (i)(IV)](#o-2-B-i-IV) for calendar year 2012.
- (3) **Applicable percentages—**
- (A) **Provision of estimate of volumes of gasoline sales—** Not later than October 31 of each of calendar years 2005 through 2021, the [Administrator](/usc/42/7602.md?p=a) of the [Energy](/usc/42/6311.md?p=7) Information Administration shall provide to the [Administrator](/usc/42/7602.md?p=a) of the Environmental Protection Agency an estimate, with respect to the following calendar year, of the volumes of [transportation fuel](#o-1-L), [biomass-based diesel](#o-1-D), and [cellulosic biofuel](#o-1-E) projected to be sold or introduced into [commerce](/usc/42/7550.md?p=6) in the [United States](/usc/42/403.md?p=k).
- (B) **Determination of applicable percentages—**
- (i) **In general—** Not later than November 30 of each of calendar years 2005 through 2021, based on the estimate provided under [subparagraph (A)](#o-3-A), the [Administrator](/usc/42/7602.md?p=a) of the Environmental Protection Agency shall determine and publish in the Federal Register, with respect to the following calendar year, the [renewable fuel](#o-1-J) obligation that ensures that the requirements of [paragraph (2)](#o-2) are met.
- (ii) **Required elements—** The [renewable fuel](#o-1-J) obligation determined for a calendar year under [clause (i)](#o-3-B-i) shall—
- (I) be applicable to refineries, blenders, and importers, as appropriate;
- (II) be expressed in terms of a volume percentage of [transportation fuel](#o-1-L) sold or introduced into [commerce](/usc/42/7550.md?p=6) in the [United States](/usc/42/403.md?p=k); and
- (III) subject to [subparagraph (C)(i)](#o-3-C-i), consist of a [single](/usc/42/2304.md?p=m) [applicable percentage](/usc/42/609.md?p=a-7-B-ii) that applies to all [categories](/usc/42/1395w–4.md?p=j-1) of [persons](/usc/42/7602.md?p=e) specified in [subclause (I)](#o-3-B-ii-I).
- (C) **Adjustments—** In determining the [applicable percentage](/usc/42/609.md?p=a-7-B-ii) for a calendar year, the [Administrator](/usc/42/7602.md?p=a) shall make adjustments—
- (i) to prevent the imposition of redundant obligations on any [person](/usc/42/7602.md?p=e) specified in [subparagraph (B)(ii)(I)](#o-3-B-ii-I); and
- (ii) to account for the use of [renewable fuel](#o-1-J) during the previous calendar year by [small refineries](#o-1-K) that are exempt under [paragraph (9)](#o-9).
- (4) **Modification of greenhouse gas reduction percentages—**
- (A) **In general—** The [Administrator](/usc/42/7602.md?p=a) may, in the regulations under the last sentence of [paragraph (2)(A)(i)](#o-2-A-i), adjust the 20 percent, 50 percent, and 60 percent reductions in [lifecycle greenhouse gas emissions](#o-1-H) specified in [paragraphs (2)(A)(i)](#o-2-A-i) (relating to [renewable fuel](#o-1-J)), (1)(D) (relating to [biomass-based diesel](#o-1-D)), (1)(B)(i) (relating to [advanced biofuel](#o-1-B-i)), and (1)(E) (relating to [cellulosic biofuel](#o-1-E)) to a lower percentage. For the 50 and 60 percent reductions, the [Administrator](/usc/42/7602.md?p=a) may make such an adjustment only if he determines that generally such reduction is not commercially feasible for fuels made using a variety of feedstocks, technologies, and processes to meet the applicable reduction.
- (B) **Amount of adjustment—** In promulgating regulations under this paragraph, the specified 50 percent reduction in [greenhouse gas](#o-1-G) emissions from [advanced biofuel](#o-1-B-i) and in [biomass-based diesel](#o-1-D) may not be reduced below 40 percent. The specified 20 percent reduction in [greenhouse gas](#o-1-G) emissions from [renewable fuel](#o-1-J) may not be reduced below 10 percent, and the specified 60 percent reduction in [greenhouse gas](#o-1-G) emissions from [cellulosic biofuel](#o-1-E) may not be reduced below 50 percent.
- (C) **Adjusted reduction levels—** An adjustment under this paragraph to a percent less than the specified 20 percent [greenhouse gas](#o-1-G) reduction for [renewable fuel](#o-1-J) shall be the minimum possible adjustment, and the adjusted [greenhouse gas](#o-1-G) reduction shall be established by the [Administrator](/usc/42/7602.md?p=a) at the maximum achievable level, taking cost in consideration, for natural gas fired corn-based ethanol plants, allowing for the use of a variety of technologies and processes. An adjustment in the 50 or 60 percent [greenhouse gas](#o-1-G) levels shall be the minimum possible adjustment for the fuel or fuels concerned, and the adjusted [greenhouse gas](#o-1-G) reduction shall be established at the maximum achievable level, taking cost in consideration, allowing for the use of a variety of feedstocks, technologies, and processes.
- (D) **5-year review—** Whenever the [Administrator](/usc/42/7602.md?p=a) makes any adjustment under this paragraph, not later than 5 years thereafter he shall review and revise (based upon the same criteria and [standards](/usc/42/1320d.md?p=7) as required for the initial adjustment) the regulations establishing the adjusted level.
- (E) **Subsequent adjustments—** After the [Administrator](/usc/42/7602.md?p=a) has promulgated a final rule under the last sentence of [paragraph (2)(A)(i)](#o-2-A-i) with respect to the method of determining [lifecycle greenhouse gas emissions](#o-1-H), except as provided in [subparagraph (D)](#o-4-D), the [Administrator](/usc/42/7602.md?p=a) may not adjust the percent [greenhouse gas](#o-1-G) reduction levels unless he determines that there has been a significant change in the analytical methodology used for determining the [lifecycle greenhouse gas emissions](#o-1-H). If he makes such determination, he may adjust the 20, 50, or 60 percent reduction levels through rulemaking using the criteria and [standards](/usc/42/1320d.md?p=7) set forth in this paragraph.
- (F) **Limit on upward adjustments—** If, under subparagraph [(D)](#o-4-D) or [(E)](#o-4-E), the [Administrator](/usc/42/7602.md?p=a) revises a percent level adjusted as provided in subparagraphs [(A)](#o-4-A), [(B)](#o-4-B), and [(C)](#o-4-C) to a higher percent, such higher percent may not exceed the applicable percent specified in paragraph [(2)(A)(i)](#o-2-A-i), [(1)(D)](#o-1-D), [(1)(B)(i)](#o-1-B-i), or [(1)(E)](#o-1-E).
- (G) **Applicability of adjustments—** If the [Administrator](/usc/42/7602.md?p=a) adjusts, or revises, a percent level referred to in this paragraph or makes a change in the analytical methodology used for determining the [lifecycle greenhouse gas emissions](#o-1-H), such adjustment, revision, or change (or any combination thereof) shall only apply to [renewable fuel](#o-1-J) from new [facilities](/usc/42/11049.md?p=4) that commence [construction](/usc/42/7479.md?p=2-C) after the effective date of such adjustment, revision, or change.
- (5) **Credit program—**
- (A) **In general—** The regulations promulgated under [paragraph (2)(A)](#o-2-A) shall provide—
- (i) for the generation of an appropriate amount of credits by any [person](/usc/42/7602.md?p=e) that refines, blends, or [imports](/usc/42/6311.md?p=7) gasoline that contains a quantity of [renewable fuel](#o-1-J) that is greater than the quantity required under [paragraph (2)](#o-2);
- (ii) for the generation of an appropriate amount of credits for biodiesel; and
- (iii) for the generation of credits by [small refineries](#o-1-K) in accordance with [paragraph (9)(C)](#o-9-C).
- (B) **Use of credits—** A [person](/usc/42/7602.md?p=e) that [generates](/usc/42/2021b.md?p=8) credits under [subparagraph (A)](#o-5-A) may use the credits, or transfer all or a portion of the credits to another [person](/usc/42/7602.md?p=e), for the purpose of complying with [paragraph (2)](#o-2).
- (C) **Duration of credits—** A credit generated under this paragraph shall be valid to show compliance for the 12 months as of the date of generation.
- (D) **Inability to generate or purchase sufficient credits—** The regulations promulgated under [paragraph (2)(A)](#o-2-A) shall include provisions allowing any [person](/usc/42/7602.md?p=e) that is unable to [generate](/usc/42/2021b.md?p=8) or purchase sufficient credits to meet the requirements of [paragraph (2)](#o-2) to carry forward a [renewable fuel](#o-1-J) deficit on condition that the [person](/usc/42/7602.md?p=e), in the calendar year following the year in which the [renewable fuel](#o-1-J) deficit is created—
- (i) achieves compliance with the [renewable fuel](#o-1-J) requirement under [paragraph (2)](#o-2); and
- (ii) [generates](/usc/42/2021b.md?p=8) or purchases [additional renewable fuel](#o-1-A) credits to offset the [renewable fuel](#o-1-J) deficit of the previous year.
- (E) **Credits for additional renewable fuel—** The [Administrator](/usc/42/7602.md?p=a) may issue regulations providing: (i) for the generation of an appropriate amount of credits by any [person](/usc/42/7602.md?p=e) that refines, blends, or [imports](/usc/42/6311.md?p=7) [additional renewable fuels](#o-1-A) specified by the [Administrator](/usc/42/7602.md?p=a); and (ii) for the use of such credits by the generator, or the transfer of all or a portion of the credits to another [person](/usc/42/7602.md?p=e), for the purpose of complying with [paragraph (2)](#o-2).
- (6) **Seasonal variations in renewable fuel use—**
- (A) **Study—** For each of calendar years 2006 through 2012, the [Administrator](/usc/42/7602.md?p=a) of the [Energy](/usc/42/6311.md?p=7) Information Administration shall conduct a study of [renewable fuel](#o-1-J) blending to determine whether there are excessive seasonal variations in the use of [renewable fuel](#o-1-J).
- (B) **Regulation of excessive seasonal variations—** If, for any calendar year, the [Administrator](/usc/42/7602.md?p=a) of the [Energy](/usc/42/6311.md?p=7) Information Administration, based on the study under [subparagraph (A)](#o-6-A), makes the determinations specified in [subparagraph (C)](#o-6-C), the [Administrator](/usc/42/7602.md?p=a) of the Environmental Protection Agency shall promulgate regulations to ensure that 25 percent or more of the quantity of [renewable fuel](#o-1-J) necessary to meet the requirements of [paragraph (2)](#o-2) is used during each of the 2 periods specified in [subparagraph (D)](#o-6-D) of each subsequent calendar year.
- (C) **Determinations—** The determinations referred to in [subparagraph (B)](#o-6-B) are that—
- (i) less than 25 percent of the quantity of [renewable fuel](#o-1-J) necessary to meet the requirements of [paragraph (2)](#o-2) has been used during 1 of the 2 periods specified in [subparagraph (D)](#o-6-D) of the calendar year;
- (ii) a pattern of excessive seasonal variation described in [clause (i)](#o-6-C-i) will continue in subsequent calendar years; and
- (iii) promulgating regulations or other requirements to impose a 25 percent or more seasonal use of [renewable fuels](#o-1-J) will not prevent or interfere with the attainment of national ambient air quality [standards](/usc/42/1320d.md?p=7) or significantly increase the price of motor fuels to the consumer.
- (D) **Periods—** The 2 periods referred to in this paragraph are—
- (i) April through September; and
- (ii) January through March and October through December.
- (E) **Exclusion—** [Renewable fuel](#o-1-J) blended or consumed in calendar year 2006 in a [State](/usc/42/7602.md?p=d) that has received a waiver under [section 7543(b) of this title](/usc/42/7543.md?p=b) shall not be included in the study under [subparagraph (A)](#o-6-A).
- (F) **State exemption from seasonality requirements—** Notwithstanding any other provision of law, the seasonality requirement relating to [renewable fuel](#o-1-J) use established by this paragraph shall not apply to any [State](/usc/42/7602.md?p=d) that has received a waiver under [section 7543(b) of this title](/usc/42/7543.md?p=b) or any [State](/usc/42/7602.md?p=d) dependent on refineries in such [State](/usc/42/7602.md?p=d) for gasoline supplies.
- (7) **Waivers—**
- (A) **In general—** The [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of Agriculture and the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), may waive the requirements of [paragraph (2)](#o-2) in whole or in part on petition by one or more [States](/usc/42/7602.md?p=d), by any [person](/usc/42/7602.md?p=e) subject to the requirements of this subsection, or by the [Administrator](/usc/42/7602.md?p=a) on his own motion by reducing the national quantity of [renewable fuel](#o-1-J) required under [paragraph (2)](#o-2)—
- (i) based on a determination by the [Administrator](/usc/42/7602.md?p=a), after public notice and opportunity for comment, that implementation of the requirement would severely harm the economy or environment of a [State](/usc/42/7602.md?p=d), a region, or the [United States](/usc/42/403.md?p=k); or
- (ii) based on a determination by the [Administrator](/usc/42/7602.md?p=a), after public notice and opportunity for comment, that there is an inadequate domestic supply.
- (B) **Petitions for waivers—** The [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of Agriculture and the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), shall approve or disapprove a petition for a waiver of the requirements of [paragraph (2)](#o-2) within 90 days after the date on which the petition is received by the [Administrator](/usc/42/7602.md?p=a).
- (C) **Termination of waivers—** A waiver granted under [subparagraph (A)](#o-7-A) shall terminate after 1 year, but may be renewed by the [Administrator](/usc/42/7602.md?p=a) after consultation with the [Secretary](/usc/42/242q–4.md?p=2) of Agriculture and the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7).
- (D) **Cellulosic biofuel—**
- (i) For any calendar year for which the projected volume of [cellulosic biofuel](#o-1-E) production is less than the minimum applicable volume established under [paragraph (2)(B)](#o-2-B), as determined by the [Administrator](/usc/42/7602.md?p=a) based on the estimate provided under [paragraph (3)(A)](#o-3-A), not later than November 30 of the preceding calendar year, the [Administrator](/usc/42/7602.md?p=a) shall reduce the applicable volume of [cellulosic biofuel](#o-1-E) required under [paragraph (2)(B)](#o-2-B) to the projected volume available during that calendar year. For any calendar year in which the [Administrator](/usc/42/7602.md?p=a) makes such a reduction, the [Administrator](/usc/42/7602.md?p=a) may also reduce the applicable volume of [renewable fuel](#o-1-J) and [advanced biofuels](#o-1-B-i) requirement established under [paragraph (2)(B)](#o-2-B) by the same or a lesser volume.
- (ii) Whenever the [Administrator](/usc/42/7602.md?p=a) reduces the minimum [cellulosic biofuel](#o-1-E) volume under this subparagraph, the [Administrator](/usc/42/7602.md?p=a) shall make available for sale [cellulosic biofuel](#o-1-E) credits at the higher of $0.25 per gallon or the amount by which $3.00 per gallon exceeds the average wholesale price of a gallon of gasoline in the [United States](/usc/42/403.md?p=k). Such amounts shall be adjusted for inflation by the [Administrator](/usc/42/7602.md?p=a) for years after 2008.
- (iii) Eighteen months after December 19, 2007, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations to govern the issuance of credits under this subparagraph. The regulations shall set forth the method for determining the exact price of credits in the event of a waiver. The price of such credits shall not be changed more frequently than once each quarter. These regulations shall include such provisions, including limiting the credits’ uses and useful life, as the [Administrator](/usc/42/7602.md?p=a) deems appropriate to assist market liquidity and transparency, to provide appropriate certainty for regulated entities and [renewable fuel](#o-1-J) producers, and to limit any potential misuse of [cellulosic biofuel](#o-1-E) credits to reduce the use of other [renewable fuels](#o-1-J), and for such other purposes as the [Administrator](/usc/42/7602.md?p=a) determines will help achieve the goals of this subsection. The regulations shall limit the number of [cellulosic biofuel](#o-1-E) credits for any calendar year to the minimum applicable volume (as reduced under this subparagraph) of [cellulosic biofuel](#o-1-E) for that year.
- (E) **Biomass-based diesel—**
- (i) **Market evaluation—** The [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7) and the [Secretary](/usc/42/242q–4.md?p=2) of Agriculture, shall periodically evaluate the impact of the [biomass-based diesel](#o-1-D) requirements established under this paragraph on the price of diesel fuel.
- (ii) **Waiver—** If the [Administrator](/usc/42/7602.md?p=a) determines that there is a significant renewable feedstock disruption or other market circumstances that would make the price of [biomass-based diesel](#o-1-D) fuel increase significantly, the [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7) and the [Secretary](/usc/42/242q–4.md?p=2) of Agriculture, shall issue an order to reduce, for up to a 60-day period, the quantity of [biomass-based diesel](#o-1-D) required under [subparagraph (A)](#o-7-A) by an appropriate quantity that does not exceed 15 percent of the applicable annual requirement for [biomass-based diesel](#o-1-D). For any calendar year in which the [Administrator](/usc/42/7602.md?p=a) makes a reduction under this subparagraph, the [Administrator](/usc/42/7602.md?p=a) may also reduce the applicable volume of [renewable fuel](#o-1-J) and [advanced biofuels](#o-1-B-i) requirement established under [paragraph (2)(B)](#o-2-B) by the same or a lesser volume.
- (iii) **Extensions—** If the [Administrator](/usc/42/7602.md?p=a) determines that the feedstock disruption or circumstances described in [clause (ii)](#o-7-E-ii) is continuing beyond the 60-day period described in [clause (ii)](#o-7-E-ii) or this clause, the [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7) and the [Secretary](/usc/42/242q–4.md?p=2) of Agriculture, may issue an order to reduce, for up to an additional 60-day period, the quantity of [biomass-based diesel](#o-1-D) required under [subparagraph (A)](#o-7-A) by an appropriate quantity that does not exceed an additional 15 percent of the applicable annual requirement for [biomass-based diesel](#o-1-D).
- (F) **Modification of applicable volumes—** For any of the tables in [paragraph (2)(B)](#o-2-B), if the [Administrator](/usc/42/7602.md?p=a) waives—
- (i) at least 20 percent of the applicable volume requirement set forth in any such table for 2 consecutive years; or
- (ii) at least 50 percent of such volume requirement for a [single](/usc/42/2304.md?p=m) year,
the [Administrator](/usc/42/7602.md?p=a) shall promulgate a rule (within 1 year after issuing such waiver) that modifies the applicable volumes set forth in the table concerned for all years following the final year to which the waiver applies, except that no such [modification](/usc/42/7501.md?p=4) in applicable volumes shall be made for any year before 2016. In promulgating such a rule, the [Administrator](/usc/42/7602.md?p=a) shall comply with the processes, criteria, and [standards](/usc/42/1320d.md?p=7) set forth in [paragraph (2)(B)(ii)](#o-2-B-ii).
- (8) **Study and waiver for initial year of program—**
- (A) **In general—** Not later than 180 days after August 8, 2005, the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7) shall conduct for the [Administrator](/usc/42/7602.md?p=a) a study assessing whether the [renewable fuel](#o-1-J) requirement under [paragraph (2)](#o-2) will likely result in significant adverse impacts on consumers in 2006, on a national, regional, or [State](/usc/42/7602.md?p=d) basis.
- (B) **Required evaluations—** The study shall evaluate [renewable fuel](#o-1-J)—
- (i) supplies and prices;
- (ii) blendstock supplies; and
- (iii) supply and distribution system capabilities.
- (C) **Recommendations by the Secretary—** Based on the results of the study, the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7) shall make specific recommendations to the [Administrator](/usc/42/7602.md?p=a) concerning waiver of the requirements of [paragraph (2)](#o-2), in whole or in part, to prevent any adverse impacts described in [subparagraph (A)](#o-8-A).
- (D) **Waiver—**
- (i) **In general—** Not later than 270 days after August 8, 2005, the [Administrator](/usc/42/7602.md?p=a) shall, if and to the extent recommended by the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7) under [subparagraph (C)](#o-8-C), waive, in whole or in part, the [renewable fuel](#o-1-J) requirement under [paragraph (2)](#o-2) by reducing the national quantity of [renewable fuel](#o-1-J) required under [paragraph (2)](#o-2) in calendar year 2006.
- (ii) **No effect on waiver authority—** [Clause (i)](#o-8-D-i) does not limit the authority of the [Administrator](/usc/42/7602.md?p=a) to waive the requirements of [paragraph (2)](#o-2) in whole, or in part, under [paragraph (7)](#o-7).
- (9) **Small refineries—**
- (A) **Temporary exemption—**
- (i) **In general—** The requirements of [paragraph (2)](#o-2) shall not apply to [small refineries](#o-1-K) until calendar year 2011.
- (ii) **Extension of exemption—**
- (I) **Study by Secretary of Energy—** Not later than December 31, 2008, the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7) shall conduct for the [Administrator](/usc/42/7602.md?p=a) a study to determine whether compliance with the requirements of [paragraph (2)](#o-2) would impose a disproportionate economic hardship on [small refineries](#o-1-K).
- (II) **Extension of exemption—** In the case of a [small refinery](#o-1-K) that the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7) determines under [subclause (I)](#o-9-A-ii-I) would be subject to a disproportionate economic hardship if required to comply with [paragraph (2)](#o-2), the [Administrator](/usc/42/7602.md?p=a) shall extend the exemption under [clause (i)](#o-9-A-i) for the [small refinery](#o-1-K) for a period of not less than 2 additional years.
- (B) **Petitions based on disproportionate economic hardship—**
- (i) **Extension of exemption—** A [small refinery](#o-1-K) may at any time petition the [Administrator](/usc/42/7602.md?p=a) for an extension of the exemption under [subparagraph (A)](#o-9-A) for the reason of disproportionate economic hardship.
- (ii) **Evaluation of petitions—** In evaluating a petition under [clause (i)](#o-9-B-i), the [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), shall consider the findings of the study under [subparagraph (A)(ii)](#o-9-A-ii) and other economic factors.
- (iii) **Deadline for action on petitions—** The [Administrator](/usc/42/7602.md?p=a) shall act on any petition submitted by a [small refinery](#o-1-K) for a hardship exemption not later than 90 days after the date of receipt of the petition.
- (C) **Credit program—** If a [small refinery](#o-1-K) notifies the [Administrator](/usc/42/7602.md?p=a) that the [small refinery](#o-1-K) waives the exemption under [subparagraph (A)](#o-9-A), the regulations promulgated under [paragraph (2)(A)](#o-2-A) shall provide for the generation of credits by the [small refinery](#o-1-K) under [paragraph (5)](#o-5) beginning in the calendar year following the date of notification.
- (D) **Opt-in for small refineries—** A [small refinery](#o-1-K) shall be subject to the requirements of [paragraph (2)](#o-2) if the [small refinery](#o-1-K) notifies the [Administrator](/usc/42/7602.md?p=a) that the [small refinery](#o-1-K) waives the exemption under [subparagraph (A)](#o-9-A).
- (10) **Ethanol market concentration analysis—**
- (A) **Analysis—**
- (i) **In general—** Not later than 180 days after August 8, 2005, and annually thereafter, the Federal Trade [Commission](/usc/42/2000ff.md?p=1) shall perform a market concentration analysis of the ethanol production industry using the Herfindahl-Hirschman Index to determine whether there is sufficient competition among industry participants to avoid price-setting and other anticompetitive behavior.
- (ii) **Scoring—** For the purpose of scoring under [clause (i)](#o-10-A-i) using the Herfindahl-Hirschman Index, all marketing arrangements among industry participants shall be considered.
- (B) **Report—** Not later than December 1, 2005, and annually thereafter, the Federal Trade [Commission](/usc/42/2000ff.md?p=1) shall submit to Congress and the [Administrator](/usc/42/7602.md?p=a) a report on the results of the market concentration analysis performed under [subparagraph (A)(i)](#o-10-A-i).
- (11) **Periodic reviews—** To allow for the appropriate adjustment of the requirements described in [subparagraph (B)](#o-2-B) of paragraph (2), the [Administrator](/usc/42/7602.md?p=a) shall conduct periodic reviews of—
- (A) existing technologies;
- (B) the feasibility of achieving compliance with the requirements; and
- (C) the impacts of the requirements described in subsection (a)(2)[^11] on each individual and entity described in [paragraph (2)](#o-2).
- (12) **Effect on other provisions—** Nothing in this subsection, or regulations issued pursuant to this subsection, shall affect or be construed to affect the regulatory status of carbon dioxide or any other [greenhouse gas](#o-1-G), or to expand or limit regulatory authority regarding carbon dioxide or any other [greenhouse gas](#o-1-G), for purposes of other provisions (including [section 7475](/usc/42/7475.md)) of this chapter. The previous sentence shall not affect implementation and enforcement of this subsection.
- (q) **[^12] Analyses of motor vehicle fuel changes and emissions model—**
- (1) **Anti-backsliding analysis—**
- (A) **Draft analysis—** Not later than 4 years after August 8, 2005, the [Administrator](/usc/42/7602.md?p=a) shall publish for public comment a draft analysis of the changes in emissions of [air pollutants](/usc/42/7602.md?p=g) and air quality due to the use of [motor vehicle](/usc/42/7550.md?p=2) fuel and fuel additives resulting from implementation of the amendments made by the [Energy](/usc/42/6311.md?p=7) Policy Act of 2005.
- (B) **Final analysis—** After providing a reasonable opportunity for comment but not later than 5 years after August 8, 2005, the [Administrator](/usc/42/7602.md?p=a) shall publish the analysis in final form.
- (2) **Emissions model—** For the purposes of this section, not later than 4 years after August 8, 2005, the [Administrator](/usc/42/7602.md?p=a) shall develop and finalize an emissions model that reflects, to the maximum extent practicable, the effects of gasoline characteristics or components on emissions from vehicles in the [motor vehicle](/usc/42/7550.md?p=2) fleet during calendar year 2007.
- (3) **Permeation effects study—**
- (A) **In general—** Not later than 1 year after August 8, 2005, the [Administrator](/usc/42/7602.md?p=a) shall conduct a study, and report to Congress the results of the study, on the effects of ethanol content in gasoline on permeation, the process by which fuel molecules migrate through the elastomeric materials (rubber and plastic parts) that make up the fuel and fuel vapor systems of a [motor vehicle](/usc/42/7550.md?p=2).
- (B) **Evaporative emissions—** The study shall include estimates of the increase in total evaporative emissions likely to result from the use of gasoline with ethanol content in a [motor vehicle](/usc/42/7550.md?p=2), and the fleet of [motor vehicles](/usc/42/7550.md?p=2), due to permeation.
- (r) **Fuel and fuel additive importers and importation—** For the purposes of this section, the term “manufacturer” includes an importer and the term “manufacture” includes [importation](/usc/42/6311.md?p=7).
- (s) **Conversion assistance for cellulosic biomass, waste-derived ethanol, approved renewable fuels—**
- (1) **In general—** The [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7) may provide grants to merchant producers of cellulosic [biomass](/usc/42/16317.md?p=f-8-C) ethanol, waste-derived ethanol, and [approved renewable fuels](#s-4-A) in the [United States](/usc/42/403.md?p=k) to assist the producers in [building](/usc/42/6881.md?p=i-3) eligible production [facilities](/usc/42/11049.md?p=4) described in [paragraph (2)](#s-2) for the production of ethanol or [approved renewable fuels](#s-4-A).
- (2) **Eligible production facilities—** A production [facility](/usc/42/11049.md?p=4) shall be eligible to receive a grant under this subsection if the production [facility](/usc/42/11049.md?p=4)—
- (A) is located in the [United States](/usc/42/403.md?p=k); and
- (B) uses cellulosic or [renewable biomass](#s-4-B) or waste-derived feedstocks derived from agricultural residues, wood residues, [municipal solid waste](/usc/42/7546.md?p=a-1), or agricultural byproducts.
- (3) **Authorization of appropriations—** There are authorized to be appropriated the following amounts to carry out this subsection:
- (A) $100,000,000 for fiscal year 2006.
- (B) $250,000,000 for fiscal year 2007.
- (C) $400,000,000 for fiscal year 2008.
- (4) **Definitions—** For the purposes of this subsection:
- (A) The term “approved renewable fuels” are fuels and components of fuels that have been approved by the Department of [Energy](/usc/42/6311.md?p=7), as defined in [section 13211 of this title](/usc/42/13211.md), which have been made from [renewable biomass](#s-4-B).
- (B) The term “renewable biomass” is, as defined in Presidential Executive Order 13134, published in the Federal Register on August 16, 1999, any organic matter that is available on a renewable or recurring basis (excluding old-growth timber), including dedicated [energy](/usc/42/6311.md?p=7) crops and trees, agricultural food and feed crop residues, aquatic plants, animal wastes, wood and wood residues, paper and paper residues, and other vegetative waste materials. Old-growth timber means timber of a forest from the late successional stage of forest development.
- (t) **Blending of compliant reformulated gasolines—**
- (1) **In general—** Notwithstanding subsections [(h)](#h) and [(k)](#k) and subject to the limitations in paragraph (2) of this subsection, it shall not be a [violation](/usc/42/2000e–16a.md?p=c) of this part[^13] for a gasoline retailer, during any month of the year, to blend at a retail location batches of ethanol-blended and non-ethanol-blended reformulated gasoline, provided that—
- (A) each batch of gasoline to be blended has been individually certified as in compliance with subsections [(h)](#h) and [(k)](#k) prior to being blended;
- (B) the retailer notifies the [Administrator](/usc/42/7602.md?p=a) prior to such blending, and identifies the exact location of the retail station and the specific tank in which such blending will take place;
- (C) the retailer retains and, as requested by the [Administrator](/usc/42/7602.md?p=a) or the [Administrator](/usc/42/7602.md?p=a)’s designee, makes available for [inspection](/usc/42/4851b.md?p=12) such certifications accounting for all gasoline at the retail outlet; and
- (D) the retailer does not, between June 1 and September 15 of each year, blend a batch of [VOC](/usc/42/7602.md?p=s)-controlled, or “summer”, gasoline with a batch of non-[VOC](/usc/42/7602.md?p=s)-controlled, or “winter”, gasoline (as these terms are defined under subsections [(h)](#h) and [(k)](#k)).
- (2) **Limitations—**
- (A) **Frequency limitation—** A retailer shall only be permitted to blend batches of compliant reformulated gasoline under this subsection a maximum of two blending periods between May 1 and September 15 of each calendar year.
- (B) **Duration of blending period—** Each blending period authorized under [subparagraph (A)](#t-2-A) shall extend for a period of no more than 10 consecutive calendar days.
- (3) **Surveys—** A sample of gasoline taken from a retail location that has blended gasoline within the past 30 days and is in compliance with subparagraphs [(A)](#t-1-A), [(B)](#t-1-B), [(C)](#t-1-C), and [(D)](#t-1-D) of paragraph (1) shall not be used in a [VOC](/usc/42/7602.md?p=s) survey mandated by [40 CFR Part 80](/cfr/40/part80.md).
- (4) **State implementation plans—** A [State](/usc/42/7602.md?p=d) shall be held harmless and shall not be required to revise its [State](/usc/42/7602.md?p=d) implementation plan under [section 7410 of this title](/usc/42/7410.md) to account for the emissions from blended gasoline authorized under [paragraph (1)](#t-1).
- (5) **Preservation of State law—** Nothing in this subsection shall—
- (A) preempt existing [State](/usc/42/7602.md?p=d) laws or regulations regulating the blending of compliant gasolines; or
- (B) prohibit a [State](/usc/42/7602.md?p=d) from adopting such restrictions in the future.
- (6) **Regulations—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate, after notice and comment, regulations implementing this subsection within 1 year after August 8, 2005.
- (7) **Effective date—** This subsection shall become effective 15 months after August 8, 2005, and shall apply to blended batches of reformulated gasoline on or after that date, regardless of whether the implementing regulations required by [paragraph (6)](#t-6) have been promulgated by the [Administrator](/usc/42/7602.md?p=a) by that date.
- (8) **Liability—** No [person](/usc/42/7602.md?p=e) other than the [person](/usc/42/7602.md?p=e) responsible for blending under this subsection shall be subject to an [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i) or penalties under [subsection (d)](#d) solely arising from the blending of compliant reformulated gasolines by the retailers.
- (9) **Formulation of gasoline—** This subsection does not grant authority to the [Administrator](/usc/42/7602.md?p=a) or any [State](/usc/42/7602.md?p=d) (or any subdivision thereof) to require reformulation of gasoline at the refinery to adjust for potential or actual emissions increases due to the blending authorized by this subsection.
- (u) **Standard specifications for biodiesel—**
- (1) Unless the American Society for Testing and Materials has adopted a [standard](/usc/42/1320d.md?p=7) for diesel fuel containing 20 percent [biodiesel](#u-5) (commonly known as “B20”) within 1 year after December 19, 2007, the [Administrator](/usc/42/7602.md?p=a) shall initiate a rulemaking to establish a uniform per gallon fuel [standard](/usc/42/1320d.md?p=7) for such fuel and designate an identification number so that vehicle [manufacturers](#r) are able to design engines to use fuel meeting such [standard](/usc/42/1320d.md?p=7).
- (2) Unless the American Society for Testing and Materials has adopted a [standard](/usc/42/1320d.md?p=7) for diesel fuel containing 5 percent [biodiesel](#u-5) (commonly known as “B5”) within 1 year after December 19, 2007, the [Administrator](/usc/42/7602.md?p=a) shall initiate a rulemaking to establish a uniform per gallon fuel [standard](/usc/42/1320d.md?p=7) for such fuel and designate an identification so that vehicle [manufacturers](#r) are able to design engines to use fuel meeting such [standard](/usc/42/1320d.md?p=7).
- (3) Whenever the [Administrator](/usc/42/7602.md?p=a) is required to initiate a rulemaking under paragraph [(1)](#u-1) or [(2)](#u-2), the [Administrator](/usc/42/7602.md?p=a) shall promulgate a final rule within 18 months after December 19, 2007.
- (4) Not later than 180 days after December 19, 2007, the [Administrator](/usc/42/7602.md?p=a) shall establish an annual [inspection](/usc/42/4851b.md?p=12) and enforcement [program](/usc/42/274l–1.md?p=4) to ensure that diesel fuel containing [biodiesel](#u-5) sold or distributed in interstate [commerce](/usc/42/7550.md?p=6) meets the [standards](/usc/42/1320d.md?p=7) established under regulations under this section, including testing and certification for compliance with applicable [standards](/usc/42/1320d.md?p=7) of the American Society for Testing and Materials. There are authorized to be appropriated to carry out the [inspection](/usc/42/4851b.md?p=12) and enforcement [program](/usc/42/274l–1.md?p=4) under this paragraph $3,000,000 for each of fiscal years 2008 through 2010.
- (5) For purposes of this subsection, the term “biodiesel” has the meaning provided by [section 13220(f) of this title](/usc/42/13220.md?p=f).
- (v) **Prevention of air quality deterioration—**
- (1) **Study—**
- (A) **In general—** Not later than 18 months after December 19, 2007, the [Administrator](/usc/42/7602.md?p=a) shall complete a study to determine whether the [renewable fuel](#o-1-J) volumes required by this section will adversely impact air quality as a result of changes in vehicle and engine emissions of [air pollutants](/usc/42/7602.md?p=g) regulated under this chapter.
- (B) **Considerations—** The study shall include consideration of—
- (i) different blend levels, types of [renewable fuels](#o-1-J), and available vehicle technologies; and
- (ii) appropriate national, regional, and local air quality control measures.
- (2) **Regulations—** Not later than 3 years after December 19, 2007, the [Administrator](/usc/42/7602.md?p=a) shall—
- (A) promulgate fuel regulations to implement appropriate measures to mitigate, to the greatest extent achievable, considering the results of the study under [paragraph (1)](#v-1), any adverse impacts on air quality, as the result of the renewable volumes required by this section; or
- (B) make a determination that no such measures are necessary.
# §7546. Renewable fuel
- (a) **Definitions—** In this section:
- (1) **Municipal solid waste—** The term “municipal solid waste” has the meaning given the term “solid waste” in [section 6903 of this title](/usc/42/6903.md).
- (2) **RFG State—** The term “RFG State” means a [State](/usc/42/7602.md?p=d) in which is located one or more covered areas (as defined in [section 7545(k)(10)(D) of this title](/usc/42/7545.md?p=k-10-D)).
- (3) **Secretary—** The term “Secretary” means the Secretary of [Energy](/usc/42/6311.md?p=7).
- (b) **Cellulosic biomass ethanol and municipal solid waste loan guarantee program—**
- (1) **In general—** [Funds](/usc/42/12854.md?p=3) may be provided for the cost (as defined in the Federal Credit Reform Act of 1990 ([2 U.S.C. 661](/usc/2/661.md) et seq.)) of loan guarantees issued under title XIV of the [Energy](/usc/42/6311.md?p=7) Policy Act[^1] to carry out commercial [demonstration projects](/usc/42/16281.md?p=d-2) for celluosic[^2] [biomass](/usc/42/16317.md?p=f-8-C) and sucrose-derived ethanol.
- (2) **Demonstration projects—**
- (A) **In general—** The [Secretary](#a-3) shall issue loan guarantees under this section to carry out not more than 4 [projects](/usc/42/11360.md?p=20) to commercially demonstrate the feasibility and viability of producing cellulosic [biomass](/usc/42/16317.md?p=f-8-C) ethanol or sucrose-derived ethanol, including at least 1 [project](/usc/42/11360.md?p=20) that uses cereal straw as a feedstock and 1 [project](/usc/42/11360.md?p=20) that uses [municipal solid waste](#a-1) as a feedstock.
- (B) **Design capacity—** Each [project](/usc/42/11360.md?p=20) shall have a design capacity to produce at least 30,000,000 gallons of cellulosic [biomass](/usc/42/16317.md?p=f-8-C) ethanol each year.
- (3) **Applicant assurances—** An applicant for a loan guarantee under this section shall provide assurances, satisfactory to the [Secretary](#a-3), that—
- (A) the [project](/usc/42/11360.md?p=20) design has been validated through the operation of a continuous process [facility](/usc/42/11049.md?p=4) with a cumulative output of at least 50,000 gallons of ethanol;
- (B) the [project](/usc/42/11360.md?p=20) has been subject to a full technical review;
- (C) the [project](/usc/42/11360.md?p=20) is covered by adequate [project](/usc/42/11360.md?p=20) performance guarantees;
- (D) the [project](/usc/42/11360.md?p=20), with the loan guarantee, is economically viable; and
- (E) there is a reasonable assurance of repayment of the guaranteed loan.
- (4) **Limitations—**
- (A) **Maximum guarantee—** Except as provided in [subparagraph (B)](#b-4-B), a loan guarantee under this section may be issued for up to 80 percent of the estimated cost of a [project](/usc/42/11360.md?p=20), but may not exceed $250,000,000 for a [project](/usc/42/11360.md?p=20).
- (B) **Additional guarantees—**
- (i) **In general—** The [Secretary](#a-3) may issue additional loan guarantees for a [project](/usc/42/11360.md?p=20) to cover up to 80 percent of the excess of actual [project](/usc/42/11360.md?p=20) cost over estimated [project](/usc/42/11360.md?p=20) cost but not to exceed 15 percent of the amount of the original guarantee.
- (ii) **Principal and interest—** Subject to [subparagraph (A)](#b-4-A), the [Secretary](#a-3) shall guarantee 100 percent of the principal and interest of a loan made under [subparagraph (A)](#b-4-A).
- (5) **Equity contributions—** To be eligible for a loan guarantee under this section, an applicant for the loan guarantee shall have binding commitments from equity investors to provide an initial equity contribution of at least 20 percent of the total [project](/usc/42/11360.md?p=20) cost.
- (6) **Insufficient amounts—** If the amount made available to carry out this section is insufficient to allow the [Secretary](#a-3) to make loan guarantees for 3 [projects](/usc/42/11360.md?p=20) described in [subsection (b)](#b), the [Secretary](#a-3) shall issue loan guarantees for one or more qualifying [projects](/usc/42/11360.md?p=20) under this section in the order in which the applications for the [projects](/usc/42/11360.md?p=20) are received by the [Secretary](#a-3).
- (7) **Approval—** An application for a loan guarantee under this section shall be approved or disapproved by the [Secretary](#a-3) not later than 90 days after the application is received by the [Secretary](#a-3).
- (c) **Authorization of appropriations for resource center—** There is authorized to be appropriated, for a resource center to further develop bioconversion technology using low-cost [biomass](/usc/42/16317.md?p=f-8-C) for the production of ethanol at the Center for [Biomass](/usc/42/16317.md?p=f-8-C)-Based [Energy](/usc/42/6311.md?p=7) at the Mississippi [State](/usc/42/7602.md?p=d) University and the Oklahoma [State](/usc/42/7602.md?p=d) University, $4,000,000 for each of fiscal years 2005 through 2007.
- (d) **Renewable fuel production research and development grants—**
- (1) **In general—** The [Administrator](/usc/42/7602.md?p=a) shall provide grants for the research into, and development and implementation of, renewable fuel production technologies in [RFG States](#a-2) with low rates of ethanol production, including low rates of production of cellulosic [biomass](/usc/42/16317.md?p=f-8-C) ethanol.
- (2) **Eligibility—**
- (A) **In general—** The entities eligible to receive a grant under this subsection are academic institutions in [RFG States](#a-2), and consortia made up of combinations of academic institutions, industry, [State](/usc/42/7602.md?p=d) government agencies, or [local government](/usc/42/8401a.md) agencies in [RFG States](#a-2), that have proven experience and capabilities with relevant technologies.
- (B) **Application—** To be eligible to receive a grant under this subsection, an [eligible entity](/usc/42/256a.md?p=l-1) shall submit to the [Administrator](/usc/42/7602.md?p=a) an application in such manner and form, and accompanied by such information, as the [Administrator](/usc/42/7602.md?p=a) may specify.
- (3) **Authorization of appropriations—** There is authorized to be appropriated to carry out this subsection $25,000,000 for each of fiscal years 2006 through 2010.
- (e) **Cellulosic biomass ethanol conversion assistance—**
- (1) **In general—** The [Secretary](#a-3) may provide grants to merchant producers of cellulosic [biomass](/usc/42/16317.md?p=f-8-C) ethanol in the [United States](/usc/42/403.md?p=k) to assist the producers in [building](/usc/42/6881.md?p=i-3) eligible production [facilities](/usc/42/11049.md?p=4) described in [paragraph (2)](#e-2) for the production of cellulosic [biomass](/usc/42/16317.md?p=f-8-C) ethanol.
- (2) **Eligible production facilities—** A production [facility](/usc/42/11049.md?p=4) shall be eligible to receive a grant under this subsection if the production [facility](/usc/42/11049.md?p=4)—
- (A) is located in the [United States](/usc/42/403.md?p=k); and
- (B) uses cellulosic [biomass](/usc/42/16317.md?p=f-8-C) feedstocks derived from agricultural residues or [municipal solid waste](#a-1).
- (3) **Authorization of appropriations—** There is authorized to be appropriated to carry out this subsection—
- (A) $250,000,000 for fiscal year 2006; and
- (B) $400,000,000 for fiscal year 2007.
# §7547. Nonroad engines and vehicles
- (a) **Emissions standards—**
- (1) The [Administrator](/usc/42/7602.md?p=a) shall conduct a study of emissions from [nonroad engines](/usc/42/7550.md?p=10) and [nonroad vehicles](/usc/42/7550.md?p=11) (other than locomotives or engines used in locomotives) to determine if such emissions [cause](/usc/42/9908.md?p=c-2), or significantly contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. Such study shall be completed within 12 months of November 15, 1990.
- (2) After notice and opportunity for public hearing, the [Administrator](/usc/42/7602.md?p=a) shall determine within 12 months after completion of the study under [paragraph (1)](#a-1), based upon the results of such study, whether emissions of carbon monoxide, oxides of nitrogen, and volatile organic compounds from new and existing [nonroad engines](/usc/42/7550.md?p=10) or [nonroad vehicles](/usc/42/7550.md?p=11) (other than locomotives or engines used in locomotives) are significant contributors to ozone or carbon monoxide concentrations in more than 1 area which has failed to attain the national ambient air quality [standards](/usc/42/1320d.md?p=7) for ozone or carbon monoxide. Such determination shall be included in the regulations under [paragraph (3)](#a-3).
- (3) If the [Administrator](/usc/42/7602.md?p=a) makes an affirmative determination under [paragraph (2)](#a-2) the [Administrator](/usc/42/7602.md?p=a) shall, within 12 months after completion of the study under [paragraph (1)](#a-1), promulgate (and from time to time revise) regulations containing [standards](/usc/42/1320d.md?p=7) applicable to emissions from those classes or [categories](/usc/42/1395w–4.md?p=j-1) of new [nonroad engines](/usc/42/7550.md?p=10) and new [nonroad vehicles](/usc/42/7550.md?p=11) (other than locomotives or engines used in locomotives) which in the [Administrator](/usc/42/7602.md?p=a)’s judgment [cause](/usc/42/9908.md?p=c-2), or contribute to, such air pollution. Such [standards](/usc/42/1320d.md?p=7) shall achieve the greatest degree of emission reduction achievable through the application of technology which the [Administrator](/usc/42/7602.md?p=a) determines will be available for the engines or vehicles to which such [standards](/usc/42/1320d.md?p=7) apply, giving appropriate consideration to the cost of applying such technology within the period of time available to [manufacturers](/usc/42/300aa–33.md?p=3) and to noise, [energy](/usc/42/6311.md?p=7), and safety factors associated with the application of such technology. In determining what degree of reduction will be available, the [Administrator](/usc/42/7602.md?p=a) shall first consider [standards](/usc/42/1320d.md?p=7) equivalent in stringency to [standards](/usc/42/1320d.md?p=7) for comparable [motor vehicles](/usc/42/7550.md?p=2) or engines (if any) regulated under [section 7521 of this title](/usc/42/7521.md), taking into account the technological feasibility, costs, safety, noise, and [energy](/usc/42/6311.md?p=7) factors associated with achieving, as appropriate, [standards](/usc/42/1320d.md?p=7) of such stringency and lead time. The regulations shall apply to the useful life of the engines or vehicles (as determined by the [Administrator](/usc/42/7602.md?p=a)).
- (4) If the [Administrator](/usc/42/7602.md?p=a) determines that any emissions not referred to in [paragraph (2)](#a-2) from new [nonroad engines](/usc/42/7550.md?p=10) or vehicles significantly contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, the [Administrator](/usc/42/7602.md?p=a) may promulgate (and from time to time revise) such regulations as the [Administrator](/usc/42/7602.md?p=a) deems appropriate containing [standards](/usc/42/1320d.md?p=7) applicable to emissions from those classes or [categories](/usc/42/1395w–4.md?p=j-1) of new [nonroad engines](/usc/42/7550.md?p=10) and new [nonroad vehicles](/usc/42/7550.md?p=11) (other than locomotives or engines used in locomotives) which in the [Administrator](/usc/42/7602.md?p=a)’s judgment [cause](/usc/42/9908.md?p=c-2), or contribute to, such air pollution, taking into account costs, noise, safety, and [energy](/usc/42/6311.md?p=7) factors associated with the application of technology which the [Administrator](/usc/42/7602.md?p=a) determines will be available for the engines and vehicles to which such [standards](/usc/42/1320d.md?p=7) apply. The regulations shall apply to the useful life of the engines or vehicles (as determined by the [Administrator](/usc/42/7602.md?p=a)).
- (5) Within 5 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations containing [standards](/usc/42/1320d.md?p=7) applicable to emissions from new locomotives and new engines used in locomotives. Such [standards](/usc/42/1320d.md?p=7) shall achieve the greatest degree of emission reduction achievable through the application of technology which the [Administrator](/usc/42/7602.md?p=a) determines will be available for the locomotives or engines to which such [standards](/usc/42/1320d.md?p=7) apply, giving appropriate consideration to the cost of applying such technology within the period of time available to [manufacturers](/usc/42/300aa–33.md?p=3) and to noise, [energy](/usc/42/6311.md?p=7), and safety factors associated with the application of such technology.
- (b) **Effective date—** [Standards](/usc/42/1320d.md?p=7) under this section shall take effect at the earliest possible date considering the lead time necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period and [energy](/usc/42/6311.md?p=7) and safety.
- (c) **Safe controls—** Effective with respect to new engines or vehicles to which [standards](/usc/42/1320d.md?p=7) under this section apply, no emission control device, system, or element of design shall be used in such a new [nonroad engine](/usc/42/7550.md?p=10) or new [nonroad vehicle](/usc/42/7550.md?p=11) for purposes of complying with such [standards](/usc/42/1320d.md?p=7) if such device, system, or element of design will [cause](/usc/42/9908.md?p=c-2) or contribute to an unreasonable risk to public health, welfare, or safety in its operation or function. In determining whether an unreasonable risk exists, the [Administrator](/usc/42/7602.md?p=a) shall consider factors including those described in [section 7521(a)(4)(B) of this title](/usc/42/7521.md?p=a-4-B).
- (d) **Enforcement—** The [standards](/usc/42/1320d.md?p=7) under this section shall be subject to sections [7525](/usc/42/7525.md), [7541](/usc/42/7541.md), [7542](/usc/42/7542.md), and [7543](/usc/42/7543.md) of this title, with such [modifications](/usc/42/7501.md?p=4) of the applicable regulations implementing such sections as the [Administrator](/usc/42/7602.md?p=a) deems appropriate, and shall be enforced in the same manner as [standards](/usc/42/1320d.md?p=7) prescribed under [section 7521 of this title](/usc/42/7521.md). The [Administrator](/usc/42/7602.md?p=a) shall revise or promulgate regulations as may be necessary to determine compliance with, and enforce, [standards](/usc/42/1320d.md?p=7) in effect under this section.
# §7548. Study of particulate emissions from motor vehicles
- (a) **Study and analysis—**
- (1) The [Administrator](/usc/42/7602.md?p=a) shall conduct a study concerning the effects on health and welfare of particulate emissions from [motor vehicles](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engines to which [section 7521 of this title](/usc/42/7521.md) applies. Such study shall characterize and quantify such emissions and analyze the relationship of such emissions to various fuels and fuel additives.
- (2) The study shall also include an analysis of particulate emissions from mobile sources which are not related to engine emissions (including, but not limited to tire debris, and asbestos from brake lining).
- (b) **Report to Congress—** The [Administrator](/usc/42/7602.md?p=a) shall report to the Congress the findings and results of the study conducted under [subsection (a)](#a) not later than two years after August 7, 1977. Such report shall also include recommendations for [standards](/usc/42/1320d.md?p=7) or methods to regulate particulate emissions described in [paragraph (2)](#a-2) of subsection (a).
# §7549. High altitude performance adjustments
- (a) **Instruction of the manufacturer—**
- (1) Any action taken with respect to any element of design installed on or in a [motor vehicle](/usc/42/7550.md?p=2) or [motor vehicle](/usc/42/7550.md?p=2) engine in compliance with regulations under this subchapter (including any alteration or adjustment of such element), shall be treated as not in [violation](/usc/42/2000e–16a.md?p=c) of [section 7522(a) of this title](/usc/42/7522.md?p=a) if such action is performed in accordance with high altitude adjustment instructions provided by the [manufacturer](/usc/42/300aa–33.md?p=3) under [subsection (b)](#b) and approved by the [Administrator](/usc/42/7602.md?p=a).
- (2) If the [Administrator](/usc/42/7602.md?p=a) finds that adjustments or [modifications](/usc/42/7501.md?p=4) made pursuant to instructions of the [manufacturer](/usc/42/300aa–33.md?p=3) under [paragraph (1)](#a-1) will not insure emission control performance with respect to each [standard](/usc/42/1320d.md?p=7) under [section 7521 of this title](/usc/42/7521.md) at least equivalent to that which would result if no such adjustments or [modifications](/usc/42/7501.md?p=4) were made, he shall disapprove such instructions. Such finding shall be based upon minimum engineering evaluations consistent with good engineering practice.
- (b) **Regulations—**
- (1) Instructions respecting each class or [category](/usc/42/1395w–4.md?p=j-1) of vehicles or engines to which this subchapter applies providing for such vehicle and engine adjustments and [modifications](/usc/42/7501.md?p=4) as may be necessary to insure emission control performance at different altitudes shall be submitted by the [manufacturer](/usc/42/300aa–33.md?p=3) to the [Administrator](/usc/42/7602.md?p=a) pursuant to regulations promulgated by the [Administrator](/usc/42/7602.md?p=a).
- (2) Any knowing [violation](/usc/42/2000e–16a.md?p=c) by a [manufacturer](/usc/42/300aa–33.md?p=3) of requirements of the [Administrator](/usc/42/7602.md?p=a) under [paragraph (1)](#b-1) shall be treated as a [violation](/usc/42/2000e–16a.md?p=c) by such [manufacturer](/usc/42/300aa–33.md?p=3) of [section 7522(a)(3) of this title](/usc/42/7522.md?p=a-3) for purposes of the penalties contained in [section 7524 of this title](/usc/42/7524.md).
- (3) Such instructions shall provide, in addition to other adjustments, for adjustments for vehicles moving from high altitude areas to low altitude areas after the initial registration of such vehicles.
- (c) **Manufacturer parts—** No instructions under this section respecting adjustments or [modifications](/usc/42/7501.md?p=4) may require the use of any [manufacturer](/usc/42/300aa–33.md?p=3) parts (as defined in [section 7522(a) of this title](/usc/42/7522.md?p=a)) unless the [manufacturer](/usc/42/300aa–33.md?p=3) demonstrates to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that the use of such [manufacturer](/usc/42/300aa–33.md?p=3) parts is necessary to insure emission control performance.
- (d) **State inspection and maintenance programs—** Before January 1, 1981 the authority provided by this section shall be available in any high altitude [State](/usc/42/7602.md?p=d) (as determined under regulations of the [Administrator](/usc/42/7602.md?p=a) under regulations promulgated before August 7, 1977) but after December 31, 1980, such authority shall be available only in any such [State](/usc/42/7602.md?p=d) in which an [inspection](/usc/42/4851b.md?p=12) and maintenance [program](/usc/42/274l–1.md?p=4) for the testing of [motor vehicle](/usc/42/7550.md?p=2) emissions has been instituted for the portions of the [State](/usc/42/7602.md?p=d) where any national ambient air quality [standard](/usc/42/1320d.md?p=7) for auto-related [pollutants](/usc/42/1397h.md?p=c-4) has not been attained.
- (e) **High altitude testing—**
- (1) The [Administrator](/usc/42/7602.md?p=a) shall promptly establish at least one testing center (in addition to the testing centers existing on November 15, 1990) located at a site that represents high altitude conditions, to ascertain in a reasonable manner whether, when in actual use throughout their useful life (as determined under [section 7521(d) of this title](/usc/42/7521.md?p=d)), each class or [category](/usc/42/1395w–4.md?p=j-1) of vehicle and engines to which regulations under [section 7521 of this title](/usc/42/7521.md) apply conforms to the emissions [standards](/usc/42/1320d.md?p=7) established by such regulations. For purposes of this subsection, the term “high altitude conditions” refers to high altitude as defined in regulations of the [Administrator](/usc/42/7602.md?p=a) in effect as of November 15, 1990.
- (2) The [Administrator](/usc/42/7602.md?p=a), in cooperation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7) and the [Administrator](/usc/42/7602.md?p=a) of the Federal Transit Administration, and such other agencies as the [Administrator](/usc/42/7602.md?p=a) deems appropriate, shall establish a research and technology assessment center to provide for the development and evaluation of less-polluting heavy-duty engines and fuels for use in buses, [heavy-duty trucks](/usc/42/16131.md?p=6), and non-road engines and vehicles, which shall be located at a high-altitude site that represents high-altitude conditions. In establishing and funding such a center, the [Administrator](/usc/42/7602.md?p=a) shall give preference to proposals which provide for local [cost-sharing](/usc/42/18022.md?p=c-3-A) of [facilities](/usc/42/11049.md?p=4) and recovery of costs of operation through utilization of such [facility](/usc/42/11049.md?p=4) for the purposes of this section.
- (3) The [Administrator](/usc/42/7602.md?p=a) shall designate at least one center at high-altitude conditions to provide research on after-market emission components, dual-fueled vehicles and conversion kits, the effects of tampering on emissions equipment, testing of alternate fuels and conversion kits, and the development of curricula, [training](/usc/42/285e–2.md?p=b-2) courses, and materials to maximize the effectiveness of [inspection](/usc/42/4851b.md?p=12) and maintenance [programs](/usc/42/274l–1.md?p=4) as they relate to promoting effective control of vehicle emissions at high-altitude elevations. Preference shall be given to existing vehicle emissions testing and research centers that have established reputations for vehicle emissions research and development and [training](/usc/42/285e–2.md?p=b-2), and that possess in-house Federal Test Procedure capacity.
# §7550. Definitions
As used in this part—
- (1) The term “[manufacturer](/usc/42/300aa–33.md?p=3)” as used in sections [7521](/usc/42/7521.md), [7522](/usc/42/7522.md), [7525](/usc/42/7525.md), [7541](/usc/42/7541.md), and [7542](/usc/42/7542.md) of this title means any [person](/usc/42/7602.md?p=e) engaged in the manufacturing or assembling of [new motor vehicles](#3), [new motor vehicle engines](#3), new [nonroad vehicles](#11) or new [nonroad engines](#10), or importing such vehicles or engines for resale, or who acts for and is under the control of any such [person](/usc/42/7602.md?p=e) in connection with the distribution of [new motor vehicles](#3), [new motor vehicle engines](#3), new [nonroad vehicles](#11) or new [nonroad engines](#10), but shall not include any [dealer](#4) with respect to [new motor vehicles](#3), [new motor vehicle engines](#3), new [nonroad vehicles](#11) or new [nonroad engines](#10) received by him in [commerce](#6).
- (2) The term “motor vehicle” means any self-propelled vehicle designed for transporting [persons](/usc/42/7602.md?p=e) or property on a street or highway.
- (3) Except with respect to vehicles or engines imported or offered for [importation](/usc/42/6311.md?p=7), the term “new motor vehicle” means a [motor vehicle](#2) the equitable or legal title to which has never been transferred to an [ultimate purchaser](#5); and the term “new motor vehicle engine” means an engine in a new motor vehicle or a [motor vehicle](#2) engine the equitable or legal title to which has never been transferred to the [ultimate purchaser](#5); and with respect to imported vehicles or engines, such terms mean a [motor vehicle](#2) and engine, respectively, manufactured after the effective date of a regulation issued under [section 7521 of this title](/usc/42/7521.md) which is applicable to such vehicle or engine (or which would be applicable to such vehicle or engine had it been manufactured for [importation](/usc/42/6311.md?p=7) into the [United States](/usc/42/403.md?p=k)).
- (4) The term “dealer” means any [person](/usc/42/7602.md?p=e) who is engaged in the sale or the distribution of [new motor vehicles](#3) or [new motor vehicle engines](#3) to the [ultimate purchaser](#5).
- (5) The term “ultimate purchaser” means, with respect to any [new motor vehicle](#3) or [new motor vehicle engine](#3), the first [person](/usc/42/7602.md?p=e) who in good faith purchases such [new motor vehicle](#3) or new engine for purposes other than resale.
- (6) The term “commerce” means (A) commerce between any place in any [State](/usc/42/7602.md?p=d) and any place outside thereof; and (B) commerce wholly within the District of Columbia.
- (7) **Vehicle curb weight, gross vehicle weight rating, light-duty truck, light-duty vehicle, and loaded vehicle weight.—** The terms “vehicle curb weight”, “gross vehicle weight rating” (GVWR), “light-duty truck” (LDT), light-duty vehicle,[^1] and “loaded vehicle weight” (LVW) have the meaning provided in regulations promulgated by the [Administrator](/usc/42/7602.md?p=a) and in effect as of November 15, 1990. The abbreviations in parentheses corresponding to any term referred to in this paragraph shall have the same meaning as the corresponding term.
- (8) **Test weight.—** The term “test weight” and the abbreviation “tw” mean the vehicle curb weight added to the gross vehicle weight rating (gvwr) and divided by 2.
- (9) **Motor vehicle or engine part manufacturer.—** The term “motor vehicle or engine part manufacturer” as used in sections [7541](/usc/42/7541.md) and [7542](/usc/42/7542.md) of this title means any [person](/usc/42/7602.md?p=e) engaged in the manufacturing, assembling or rebuilding of any device, system, part, component or element of design which is installed in or on [motor vehicles](#2) or [motor vehicle](#2) engines.
- (10) **Nonroad engine.—** The term “nonroad engine” means an internal combustion engine (including the fuel system) that is not used in a [motor vehicle](#2) or a vehicle used solely for competition, or that is not subject to [standards](/usc/42/1320d.md?p=7) promulgated under [section 7411 of this title](/usc/42/7411.md) or [section 7521 of this title](/usc/42/7521.md).
- (11) **Nonroad vehicle.—** The term “nonroad vehicle” means a vehicle that is powered by a [nonroad engine](#10) and that is not a [motor vehicle](#2) or a vehicle used solely for competition.
# [§7551. Omitted — omitted]
# §7552. Motor vehicle compliance program fees
- (a) **Fee collection—** Consistent with [section 9701 of title 31](/usc/31/9701.md), the [Administrator](/usc/42/7602.md?p=a) may promulgate (and from time to time revise) regulations establishing fees to recover all reasonable costs to the [Administrator](/usc/42/7602.md?p=a) associated with—
- (1) new vehicle or engine certification under [section 7525(a) of this title](/usc/42/7525.md?p=a) or part C,
- (2) new vehicle or engine compliance monitoring and testing under [section 7525(b) of this title](/usc/42/7525.md?p=b) or part C, and
- (3) in-use vehicle or engine compliance monitoring and testing under [section 7541(c) of this title](/usc/42/7541.md?p=c) or part C.
The [Administrator](/usc/42/7602.md?p=a) may establish for all foreign and domestic [manufacturers](/usc/42/300aa–33.md?p=3) a fee schedule based on such factors as the [Administrator](/usc/42/7602.md?p=a) finds appropriate and equitable and nondiscriminatory, including the number of vehicles or engines produced under a certificate of conformity. In the case of heavy-duty engine and vehicle [manufacturers](/usc/42/300aa–33.md?p=3), such fees shall not exceed a reasonable amount to recover an appropriate portion of such reasonable costs.
- (b) **Special Treasury fund—** Any fees collected under this section shall be deposited in a special [fund](/usc/42/12854.md?p=3) in the [United States](/usc/42/403.md?p=k) Treasury for licensing and other services which thereafter shall be available for appropriation, to remain available until expended, to carry out the Agency’s activities for which the fees were collected.
- (c) **Limitation on fund use—** Moneys in the special [fund](/usc/42/12854.md?p=3) referred to in [subsection (b)](#b) shall not be used until after the first fiscal year commencing after the first July 1 when fees are paid into the [fund](/usc/42/12854.md?p=3).
- (d) **Administrator’s testing authority—** Nothing in this subsection shall be construed to limit the [Administrator](/usc/42/7602.md?p=a)’s authority to require [manufacturer](/usc/42/300aa–33.md?p=3) or confirmatory testing as provided in this part.
# §7553. Prohibition on production of engines requiring leaded gasoline
The [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations applicable to [motor vehicle](/usc/42/7550.md?p=2) engines and [nonroad engines](/usc/42/7550.md?p=10) manufactured after [model year](/usc/42/7521.md?p=b-3-A-i) 1992 that prohibit the [manufacture](/usc/42/300aa–33.md?p=3), sale, or introduction into [commerce](/usc/42/7550.md?p=6) of any engine that requires leaded gasoline.
# §7554. Urban bus standards
- (a) **Standards for model years after 1993—** Not later than January 1, 1992, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations under [section 7521(a) of this title](/usc/42/7521.md?p=a) applicable to [urban buses](#f-1) for the [model year](/usc/42/7521.md?p=b-3-A-i) 1994 and thereafter. Such [standards](/usc/42/1320d.md?p=7) shall be based on the best technology that can reasonably be anticipated to be available at the time such measures are to be implemented, taking costs, safety, [energy](/usc/42/6311.md?p=7), lead time, and other relevant factors into account. Such regulations shall require that such [urban buses](#f-1) comply with the provisions of [subsection (b)](#b) of this section (and [subsection (c)](#c) of this subsection,[^1] if applicable) in addition to compliance with the [standards](/usc/42/1320d.md?p=7) applicable under [section 7521(a) of this title](/usc/42/7521.md?p=a) for heavy-duty vehicles of the same type and [model year](/usc/42/7521.md?p=b-3-A-i).
- (b) **PM standard—**
- (1) **50 percent reduction—** The [standards](/usc/42/1320d.md?p=7) under [section 7521(a) of this title](/usc/42/7521.md?p=a) applicable to [urban buses](#f-1) shall require that, effective for the [model year](/usc/42/7521.md?p=b-3-A-i) 1994 and thereafter, emissions of particulate matter (PM) from [urban buses](#f-1) shall not exceed 50 percent of the emissions of particulate matter (PM) allowed under the [emission standard](/usc/42/7602.md?p=k) applicable under [section 7521(a) of this title](/usc/42/7521.md?p=a) as of November 15, 1990, for particulate matter (PM) in the case of heavy-duty diesel vehicles and engines manufactured in the [model year](/usc/42/7521.md?p=b-3-A-i) 1994.
- (2) **Revised reduction—** The [Administrator](/usc/42/7602.md?p=a) shall increase the level of emissions of particulate matter allowed under the [standard](/usc/42/1320d.md?p=7) referred to in [paragraph (1)](#b-1) if the [Administrator](/usc/42/7602.md?p=a) determines that the 50 percent reduction referred to in [paragraph (1)](#b-1) is not technologically achievable, taking into account durability, costs, lead time, safety, and other relevant factors. The [Administrator](/usc/42/7602.md?p=a) may not increase such level of emissions above 70 percent of the emissions of particulate matter (PM) allowed under the [emission standard](/usc/42/7602.md?p=k) applicable under [section 7521(a) of this title](/usc/42/7521.md?p=a) as of November 15, 1990, for particulate matter (PM) in the case of heavy-duty diesel vehicles and engines manufactured in the [model year](/usc/42/7521.md?p=b-3-A-i) 1994.
- (3) **Determination as part of rule—** As part of the rulemaking under [subsection (a)](#a), the [Administrator](/usc/42/7602.md?p=a) shall make a determination as to whether the 50 percent reduction referred to in [paragraph (1)](#b-1) is technologically achievable, taking into account durability, costs, lead time, safety, and other relevant factors.
- (c) **Low-polluting fuel requirement—**
- (1) **Annual testing—** Beginning with [model year](/usc/42/7521.md?p=b-3-A-i) 1994 buses, the [Administrator](/usc/42/7602.md?p=a) shall conduct annual tests of a [representative](/usc/42/3058f.md?p=5) sample of operating [urban buses](#f-1) subject to the particulate matter (PM) [standard](/usc/42/1320d.md?p=7) applicable pursuant to [subsection (b)](#b) to determine whether such buses comply with such [standard](/usc/42/1320d.md?p=7) in use over their full useful life.
- (2) **Promulgation of additional low-polluting fuel requirement—**
- (A) If the [Administrator](/usc/42/7602.md?p=a) determines, based on the testing under [paragraph (1)](#c-1), that [urban buses](#f-1) subject to the particulate matter (PM) [standard](/usc/42/1320d.md?p=7) applicable pursuant to [subsection (b)](#b) do not comply with such [standard](/usc/42/1320d.md?p=7) in use over their full useful life, he shall revise the [standards](/usc/42/1320d.md?p=7) applicable to such buses to require (in addition to compliance with the PM [standard](/usc/42/1320d.md?p=7) applicable pursuant to [subsection (b)](#b)) that all new [urban buses](#f-1) purchased or placed into service by [owners](/usc/42/13641.md?p=4) or operators of [urban buses](#f-1) in all metropolitan statistical areas or consolidated metropolitan statistical areas with a 1980 population of 750,000 or more shall be capable of operating, and shall be exclusively operated, on low-polluting fuels. The [Administrator](/usc/42/7602.md?p=a) shall establish the pass-fail rate for purposes of testing under this subparagraph.
- (B) The [Administrator](/usc/42/7602.md?p=a) shall promulgate a schedule phasing in any low-polluting fuel requirement established pursuant to this paragraph to an increasing percentage of new [urban buses](#f-1) purchased or placed into service in each of the first 5 [model years](/usc/42/7521.md?p=b-3-A-i) commencing 3 years after the determination under [subparagraph (A)](#c-2-A). Under such schedule 100 percent of new [urban buses](#f-1) placed into service in the fifth [model year](/usc/42/7521.md?p=b-3-A-i) commencing 3 years after the determination under [subparagraph (A)](#c-2-A) shall comply with the low-polluting fuel requirement established pursuant to this paragraph.
- (C) The [Administrator](/usc/42/7602.md?p=a) may extend the requirements of this paragraph to metropolitan statistical areas or consolidated metropolitan statistical areas with a 1980 population of less than 750,000, if the [Administrator](/usc/42/7602.md?p=a) determines that a significant benefit to public health could be expected to result from such extension.
- (d) **Retrofit requirements—** Not later than 12 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations under [section 7521(a) of this title](/usc/42/7521.md?p=a) requiring that [urban buses](#f-1) which—
- (1) are operating in areas referred to in [subparagraph (A)](#c-2-A) of subsection (c)(2) (or [subparagraph (C)](#c-2-C) of subsection (c)(2) if the [Administrator](/usc/42/7602.md?p=a) has taken action under that subparagraph);
- (2) were not subject to [standards](/usc/42/1320d.md?p=7) in effect under the regulations under [subsection (a)](#a) of this section; and
- (3) have their engines replaced or rebuilt after January 1, 1995,
shall comply with an emissions [standard](/usc/42/1320d.md?p=7) or emissions control technology requirement established by the [Administrator](/usc/42/7602.md?p=a) in such regulations. Such emissions [standard](/usc/42/1320d.md?p=7) or emissions control technology requirement shall reflect the best retrofit technology and maintenance [practices](/usc/42/17061.md?p=19) reasonably achievable.
- (e) **Procedures for administration and enforcement—** The [Administrator](/usc/42/7602.md?p=a) shall establish, within 18 months after November 15, 1990, and in accordance with [section 7525(h) of this title](/usc/42/7525.md?p=h), procedures for the administration and enforcement of [standards](/usc/42/1320d.md?p=7) for buses subject to [standards](/usc/42/1320d.md?p=7) under this section, testing procedures, sampling protocols, in-use compliance requirements, and criteria governing evaluation of buses. Procedures for testing (including, but not limited to, certification testing) shall reflect actual operating conditions.
- (f) **Definitions—** For purposes of this section—
- (1) **Urban bus—** The term “urban bus” has the meaning provided under regulations of the [Administrator](/usc/42/7602.md?p=a) promulgated under [section 7521(a) of this title](/usc/42/7521.md?p=a).
- (2) **Low-polluting fuel—** The term “low-polluting fuel” means methanol, ethanol, propane, or natural gas, or any comparably low-polluting fuel. In determining whether a fuel is comparably low-polluting, the [Administrator](/usc/42/7602.md?p=a) shall consider both the level of emissions of [air pollutants](/usc/42/7602.md?p=g) from vehicles using the fuel and the contribution of such emissions to ambient levels of [air pollutants](/usc/42/7602.md?p=g). For purposes of this paragraph, the term “methanol” includes any fuel which contains at least 85 percent methanol unless the [Administrator](/usc/42/7602.md?p=a) increases such percentage as he deems appropriate to protect public health and welfare.
# §7571. Establishment of standards
- (a) **Study; proposed standards; hearings; issuance of regulations—**
- (1) Within 90 days after December 31, 1970, the [Administrator](/usc/42/7602.md?p=a) shall commence a study and investigation of emissions of [air pollutants](/usc/42/7602.md?p=g) from aircraft in order to determine—
- (A) the extent to which such emissions affect air quality in air quality control regions throughout the [United States](/usc/42/403.md?p=k), and
- (B) the technological feasibility of controlling such emissions.
- (2)
- (A) The [Administrator](/usc/42/7602.md?p=a) shall, from time to time, issue proposed [emission standards](/usc/42/7602.md?p=k) applicable to the emission of any [air pollutant](/usc/42/7602.md?p=g) from any class or classes of aircraft engines which in his judgment [causes](/usc/42/9908.md?p=c-2), or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare.
- (B)
- (i) The [Administrator](/usc/42/7602.md?p=a) shall consult with the [Administrator](/usc/42/7602.md?p=a) of the Federal Aviation Administration on aircraft engine [emission standards](/usc/42/7602.md?p=k).
- (ii) The [Administrator](/usc/42/7602.md?p=a) shall not change the aircraft engine [emission standards](/usc/42/7602.md?p=k) if such change would significantly increase noise and adversely affect safety.
- (3) The [Administrator](/usc/42/7602.md?p=a) shall hold public hearings with respect to such proposed [standards](/usc/42/1320d.md?p=7). Such hearings shall, to the extent practicable, be held in air quality control regions which are most seriously affected by aircraft emissions. Within 90 days after the issuance of such proposed regulations, he shall issue such regulations with such [modifications](/usc/42/7501.md?p=4) as he deems appropriate. Such regulations may be revised from time to time.
- (b) **Effective date of regulations—** Any regulation prescribed under this section (and any revision thereof) shall take effect after such period as the [Administrator](/usc/42/7602.md?p=a) finds necessary (after consultation with the [Secretary](/usc/42/242q–4.md?p=2) of Transportation) to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period.
- (c) **Regulations which create hazards to aircraft safety—** Any regulations in effect under this section on August 7, 1977, or proposed or promulgated thereafter, or amendments thereto, with respect to aircraft shall not apply if disapproved by the President, after notice and opportunity for public hearing, on the basis of a finding by the [Secretary](/usc/42/242q–4.md?p=2) of Transportation that any such regulation would create a [hazard](/usc/42/5165f.md?p=a-3) to aircraft safety. Any such finding shall include a reasonably specific statement of the basis upon which the finding was made.
# §7572. Enforcement of standards
- (a) **Regulations to insure compliance with standards—** The [Secretary](/usc/42/242q–4.md?p=2) of Transportation, after consultation with the [Administrator](/usc/42/7602.md?p=a), shall prescribe regulations to insure compliance with all [standards](/usc/42/1320d.md?p=7) prescribed under [section 7571 of this title](/usc/42/7571.md) by the [Administrator](/usc/42/7602.md?p=a). The regulations of the [Secretary](/usc/42/242q–4.md?p=2) of Transportation shall include provisions making such [standards](/usc/42/1320d.md?p=7) applicable in the issuance, amendment, [modification](/usc/42/7501.md?p=4), suspension, or revocation of any certificate authorized by part A of subtitle VII of [title 49](/usc/49.md) or the Department of Transportation Act. Such [Secretary](/usc/42/242q–4.md?p=2) shall insure that all necessary [inspections](/usc/42/4851b.md?p=12) are accomplished, and,[^1] may execute any power or duty vested in him by any other provision of law in the execution of all powers and duties vested in him under this section.
- (b) **Notice and appeal rights—** In any action to amend, modify, suspend, or revoke a certificate in which [violation](/usc/42/2000e–16a.md?p=c) of an [emission standard](/usc/42/7602.md?p=k) prescribed under [section 7571 of this title](/usc/42/7571.md) or of a regulation prescribed under [subsection (a)](#a) is at issue, the certificate holder shall have the same notice and appeal rights as are prescribed for such holders in part A of subtitle VII of [title 49](/usc/49.md) or the Department of Transportation Act, except that in any appeal to the National Transportation Safety [Board](/usc/42/10261.md?p=2), the [Board](/usc/42/10261.md?p=2) may amend, modify, or revoke the order of the [Secretary](/usc/42/242q–4.md?p=2) of Transportation only if it finds no [violation](/usc/42/2000e–16a.md?p=c) of such [standard](/usc/42/1320d.md?p=7) or regulation and that such amendment, [modification](/usc/42/7501.md?p=4), or revocation is consistent with safety in air transportation.
# §7573. State standards and controls
No [State](/usc/42/7602.md?p=d) or political subdivision thereof may adopt or attempt to enforce any [standard](/usc/42/1320d.md?p=7) respecting emissions of any [air pollutant](/usc/42/7602.md?p=g) from any aircraft or engine thereof unless such [standard](/usc/42/1320d.md?p=7) is identical to a [standard](/usc/42/1320d.md?p=7) applicable to such aircraft under this part.
# §7574. Definitions
Terms used in this part (other than [Administrator](/usc/42/7602.md?p=a)) shall have the same meaning as such terms have under [section 40102(a) of title 49](/usc/49/40102.md?p=a).
# §7581. Definitions
For purposes of this part—
- (1) **Terms defined in part A—** The definitions applicable to part A under [section 7550 of this title](/usc/42/7550.md) shall also apply for purposes of this part.
- (2) **Clean alternative fuel—** The term “clean alternative fuel” means any fuel (including methanol, ethanol, or other alcohols (including any mixture thereof containing 85 percent or more by volume of such alcohol with gasoline or other fuels), reformulated gasoline, diesel, natural gas, liquefied petroleum gas, and [hydrogen](/usc/42/16152.md?p=1)) or power source (including electricity) used in a [clean-fuel vehicle](#7) that complies with the [standards](/usc/42/1320d.md?p=7) and requirements applicable to such vehicle under this subchapter when using such fuel or power source. In the case of any flexible fuel vehicle or dual fuel vehicle, the term “clean alternative fuel” means only a fuel with respect to which such vehicle was certified as a [clean-fuel vehicle](#7) meeting the [standards](/usc/42/1320d.md?p=7) applicable to [clean-fuel vehicles](#7) under [section 7583(d)(2) of this title](/usc/42/7583.md?p=d-2) when operating on clean alternative fuel (or any CARB [standards](/usc/42/1320d.md?p=7) which replaces such [standards](/usc/42/1320d.md?p=7) pursuant to [section 7583(e) of this title](/usc/42/7583.md?p=e)).
- (3) **NMOG—** The term nonmethane organic gas (“NMOG”) means the sum of nonoxygenated and oxygenated hydrocarbons contained in a gas sample, including, at a minimum, all oxygenated organic gases containing 5 or fewer carbon atoms (i.e., aldehydes, ketones, alcohols, ethers, etc.), and all known alkanes, alkenes, alkynes, and aromatics containing 12 or fewer carbon atoms. To demonstrate compliance with a NMOG [standard](/usc/42/1320d.md?p=7), NMOG emissions shall be measured in accordance with the “California Non-Methane Organic Gas Test Procedures”. In the case of vehicles using fuels other than [base gasoline](#4), the level of NMOG emissions shall be adjusted based on the reactivity of the emissions relative to vehicles using [base gasoline](#4).
- (4) **Base gasoline—** The term “base gasoline” means gasoline which meets the following specifications:
| | |
| --- | --- |
| Specifications of [Base Gasoline](#4) Used as Basis for Reactivity Readjustment: | |
| API gravity | 57.8 |
| Sulfur, ppm | 317 |
| Color | Purple |
| Benzene, vol. % | 1.35 |
| Reid vapor pressure | 8.7 |
| Drivability | 1195 |
| Antiknock index | 87.3 |
| Distillation, D–86 °F | |
| IBP | 92 |
| 10% | 126 |
| 50% | 219 |
| 90% | 327 |
| EP | 414 |
| Hydrocarbon Type, Vol. % FIA: | |
| Aromatics | 30.9 |
| Olefins | 8.2 |
| Saturates | 60.9 |
The [Administrator](/usc/42/7602.md?p=a) shall modify the definitions of NMOG, base gasoline, and the methods for making reactivity adjustments, to conform to the definitions and method used in California under the Low-Emission Vehicle and Clean Fuel Regulations of the California Air Resources [Board](/usc/42/10261.md?p=2), so long as the California definitions are, in the aggregate, at least as protective of public health and welfare as the definitions in this section.
- (5) **Covered fleet—** The term “covered fleet” means 10 or more [motor vehicles](/usc/42/13211.md?p=13) which are owned or operated by a [single](/usc/42/2304.md?p=m) [person](/usc/42/7602.md?p=e). In determining the number of vehicles owned or operated by a [single](/usc/42/2304.md?p=m) [person](/usc/42/7602.md?p=e) for purposes of this paragraph, all [motor vehicles](/usc/42/13211.md?p=13) owned or operated, leased or otherwise controlled by such [person](/usc/42/7602.md?p=e), by any [person](/usc/42/7602.md?p=e) who controls such [person](/usc/42/7602.md?p=e), by any [person](/usc/42/7602.md?p=e) controlled by such [person](/usc/42/7602.md?p=e), and by any [person](/usc/42/7602.md?p=e) under common control with such [person](/usc/42/7602.md?p=e) shall be treated as owned by such [person](/usc/42/7602.md?p=e). The term “covered fleet” shall not include [motor vehicles](/usc/42/13211.md?p=13) held for lease or rental to the general public, [motor vehicles](/usc/42/13211.md?p=13) held for sale by [motor vehicle](/usc/42/13211.md?p=13) dealers (including demonstration vehicles), [motor vehicles](/usc/42/13211.md?p=13) used for [motor vehicle](/usc/42/13211.md?p=13) [manufacturer](/usc/42/300aa–33.md?p=3) product evaluations or tests, law enforcement and other emergency vehicles, or nonroad vehicles (including farm and [construction](/usc/42/7479.md?p=2-C) vehicles).
- (6) **Covered fleet vehicle—** The term “covered fleet vehicle” means only a [motor vehicle](/usc/42/13211.md?p=13) which is—
- (i) in a vehicle class for which [standards](/usc/42/1320d.md?p=7) are applicable under this part; and
- (ii) in a covered fleet which is centrally fueled (or capable of being centrally fueled).
No vehicle which under normal operations is garaged at a personal residence at night shall be considered to be a vehicle which is capable of being centrally fueled within the meaning of this paragraph.
- (7) **Clean-fuel vehicle—** The term “clean-fuel vehicle” means a vehicle in a class or [category](/usc/42/1395w–4.md?p=j-1) of vehicles which has been certified to meet for any model year the clean-fuel vehicle [standards](/usc/42/1320d.md?p=7) applicable under this part for that model year to clean-fuel vehicles in that class or [category](/usc/42/1395w–4.md?p=j-1).
# §7582. Requirements applicable to clean-fuel vehicles
- (a) **Promulgation of standards—** Not later than 24 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations under this part containing [clean-fuel vehicle](/usc/42/7581.md?p=7) [standards](/usc/42/1320d.md?p=7) for the [clean-fuel vehicles](/usc/42/7581.md?p=7) specified in this part.
- (b) **Other requirements—** [Clean-fuel vehicles](/usc/42/7581.md?p=7) of up to 8,500 gvwr subject to [standards](/usc/42/1320d.md?p=7) set forth in this part shall comply with all [motor vehicle](/usc/42/13211.md?p=13) requirements of this subchapter (such as requirements relating to on-[board](/usc/42/10261.md?p=2) diagnostics, evaporative emissions, etc.) which are applicable to conventional gasoline-fueled vehicles of the same [category](/usc/42/1395w–4.md?p=j-1) and model year, except as provided in [section 7584 of this title](/usc/42/7584.md) with respect to administration and enforcement, and except to the extent that any such requirement is in conflict with the provisions of this part. [Clean-fuel vehicles](/usc/42/7581.md?p=7) of 8,500 gvwr or greater subject to [standards](/usc/42/1320d.md?p=7) set forth in this part shall comply with all requirements of this subchapter which are applicable in the case of conventional gasoline-fueled or diesel fueled vehicles of the same [category](/usc/42/1395w–4.md?p=j-1) and model year, except as provided in [section 7584 of this title](/usc/42/7584.md) with respect to administration and enforcement, and except to the extent that any such requirement is in conflict with the provisions of this part.
- (c) **In-use useful life and testing—**
- (1) In the case of light-duty vehicles and light-duty trucks up to 6,000 lbs gvwr, the useful life for purposes of determining in-use compliance with the [standards](/usc/42/1320d.md?p=7) under [section 7583 of this title](/usc/42/7583.md) shall be—
- (A) a period of 5 years or 50,000 miles (or the equivalent) whichever first occurs, in the case of [standards](/usc/42/1320d.md?p=7) applicable for purposes of certification at 50,000 miles; and
- (B) a period of 10 years or 100,000 miles (or the equivalent) whichever first occurs, in the case of [standards](/usc/42/1320d.md?p=7) applicable for purposes of certification at 100,000 miles, except that in-use testing shall not be done for a period beyond 7 years or 75,000 miles (or the equivalent) whichever first occurs.
- (2) In the case of light-duty trucks of more than 6,000 lbs gvwr, the useful life for purposes of determining in-use compliance with the [standards](/usc/42/1320d.md?p=7) under [section 7583 of this title](/usc/42/7583.md) shall be—
- (A) a period of 5 years or 50,000 miles (or the equivalent) whichever first occurs in the case of [standards](/usc/42/1320d.md?p=7) applicable for purposes of certification at 50,000 miles; and
- (B) a period of 11 years or 120,000 miles (or the equivalent) whichever first occurs in the case of [standards](/usc/42/1320d.md?p=7) applicable for purposes of certification at 120,000 miles, except that in-use testing shall not be done for a period beyond 7 years or 90,000 miles (or the equivalent) whichever first occurs.
# §7583. Standards for light-duty clean-fuel vehicles
- (a) **Exhaust standards for light-duty vehicles and certain light-duty trucks—** The [standards](/usc/42/1320d.md?p=7) set forth in this subsection shall apply in the case of [clean-fuel vehicles](/usc/42/7581.md?p=7) which are light-duty trucks of up to 6,000 lbs. gross vehicle weight rating (gvwr) (but not including light-duty trucks of more than 3,750 lbs. loaded vehicle weight (lvw)) or light-duty vehicles:
- (1) **Phase I—** Beginning with model year 1996, for the [air pollutants](/usc/42/7602.md?p=g) specified in the following table, the [clean-fuel vehicle](/usc/42/7581.md?p=7) [standards](/usc/42/1320d.md?p=7) under this section shall provide that vehicle exhaust emissions shall not exceed the levels specified in the following table:
| Phase I Clean Fuel Vehicle [Emission Standards](/usc/42/7602.md?p=k) for Light-Duty Trucks of up to 3,750 Lbs. LVW and up to 6,000 Lbs. GVWR and Light-Duty Vehicles | | | | | |
| --- | --- | --- | --- | --- | --- |
| [Pollutant](/usc/42/1397h.md?p=c-4) | NMOG | [CO](/usc/42/7602.md?p=w) | NOx | PM | HCHO (formaldehyde) |
| 50,000 mile [standard](/usc/42/1320d.md?p=7) | 0.125 | 3.4 | 0.4 | ....... | 0.015 |
| 100,000 mile [standard](/usc/42/1320d.md?p=7) | 0.156 | 4.2 | 0.6 | 0.08* | 0.018 |
| [Standards](/usc/42/1320d.md?p=7) are expressed in grams per mile (gpm). | | | | | |
| *[Standards](/usc/42/1320d.md?p=7) for particulates (PM) shall apply only to diesel-fueled vehicles. | | | | | |
| In the case of the 50,000 mile [standards](/usc/42/1320d.md?p=7) and the 100,000 mile [standards](/usc/42/1320d.md?p=7), for purposes of certification, the applicable useful life shall be 50,000 miles or 100,000 miles, respectively. | | | | | |
- (2) **Phase II—** Beginning with model year 2001, for [air pollutants](/usc/42/7602.md?p=g) specified in the following table, the [clean-fuel vehicle](/usc/42/7581.md?p=7) [standards](/usc/42/1320d.md?p=7) under this section shall provide that vehicle exhaust emissions shall not exceed the levels specified in the following table.
| Phase II Clean Fuel Vehicle [Emission Standards](/usc/42/7602.md?p=k) for Light-Duty Trucks of up to 3,750 Lbs. LVW and up to 6,000 Lbs. GVWR and Light-Duty Vehicles | | | | | |
| --- | --- | --- | --- | --- | --- |
| [Pollutant](/usc/42/1397h.md?p=c-4) | NMOG | [CO](/usc/42/7602.md?p=w) | NOx | PM* | HCHO (formaldehyde) |
| 50,000 mile [standard](/usc/42/1320d.md?p=7) | 0.075 | 3.4 | 0.2 | ...... | 0.015 |
| 100,000 mile [standard](/usc/42/1320d.md?p=7) | 0.090 | 4.2 | 0.3 | 0.08 | 0.018 |
| [Standards](/usc/42/1320d.md?p=7) are expressed in grams per mile (gpm). | | | | | |
| *[Standards](/usc/42/1320d.md?p=7) for particulates (PM) shall apply only to diesel-fueled vehicles. | | | | | |
| In the case of the 50,000 mile [standards](/usc/42/1320d.md?p=7) and the 100,000 mile [standards](/usc/42/1320d.md?p=7), for purposes of certification, the applicable useful life shall be 50,000 miles or 100,000 miles, respectively. | | | | | |
- (b) **Exhaust standards for light-duty trucks of more than 3,750 lbs. LVW and up to 5,750 lbs. LVW and up to 6,000 lbs. GVWR—** The [standards](/usc/42/1320d.md?p=7) set forth in this paragraph[^1] shall apply in the case of [clean-fuel vehicles](/usc/42/7581.md?p=7) which are light-duty trucks of more than 3,750 lbs. loaded vehicle weight (lvw) but not more than 5,750 lbs. lvw and not more than 6,000 lbs. gross weight rating (GVWR):
- (1) **Phase I—** Beginning with model year 1996, for the [air pollutants](/usc/42/7602.md?p=g) specified in the following table, the [clean-fuel vehicle](/usc/42/7581.md?p=7) [standards](/usc/42/1320d.md?p=7) under this section shall provide that vehicle exhaust emissions shall not exceed the levels specified in the following table.
| Phase I Clean Fuel Vehicle [Emission Standards](/usc/42/7602.md?p=k) for Light-Duty Trucks of More Than 3,750 Lbs. and up to 5,750 Lbs. LVW and up to 6,000 Lbs. GVWR | | | | | |
| --- | --- | --- | --- | --- | --- |
| [Pollutant](/usc/42/1397h.md?p=c-4) | NMOG | [CO](/usc/42/7602.md?p=w) | NOx | PM* | HCHO (formaldehyde) |
| 50,000 mile [standard](/usc/42/1320d.md?p=7) | 0.160 | 4.4 | 0.7 | ...... | 0.018 |
| 100,000 mile [standard](/usc/42/1320d.md?p=7) | 0.200 | 5.5 | 0.9 | 0.08 | 0.023 |
| [Standards](/usc/42/1320d.md?p=7) are expressed in grams per mile (gpm). | | | | | |
| *[Standards](/usc/42/1320d.md?p=7) for particulates (PM) shall apply only to diesel-fueled vehicles. | | | | | |
| In the case of the 50,000 mile [standards](/usc/42/1320d.md?p=7) and the 100,000 mile [standards](/usc/42/1320d.md?p=7), for purposes of certification, the applicable useful life shall be 50,000 miles or 100,000 miles, respectively. | | | | | |
- (2) **Phase II—** Beginning with model year 2001, for the [air pollutants](/usc/42/7602.md?p=g) specified in the following table, the [clean-fuel vehicle](/usc/42/7581.md?p=7) [standards](/usc/42/1320d.md?p=7) under this section shall provide that vehicle exhaust emissions shall not exceed the levels specified in the following table.
| Phase II Clean Fuel Vehicle [Emission Standards](/usc/42/7602.md?p=k) for Light-Duty Trucks of More Than 3,750 Lbs. LVW and up to 5,750 Lbs. LVW and up to 6,000 Lbs. GVWR | | | | | |
| --- | --- | --- | --- | --- | --- |
| [Pollutant](/usc/42/1397h.md?p=c-4) | NMOG | [CO](/usc/42/7602.md?p=w) | NOx | PM* | HCHO (formaldehyde) |
| 50,000 mile [standard](/usc/42/1320d.md?p=7) | 0.100 | 4.4 | 0.4 | ...... | 0.018 |
| 100,000 mile [standard](/usc/42/1320d.md?p=7) | 0.130 | 5.5 | 0.5 | 0.08 | 0.023 |
| [Standards](/usc/42/1320d.md?p=7) are expressed in grams per mile (gpm). | | | | | |
| *[Standards](/usc/42/1320d.md?p=7) for particulates (PM) shall apply only to diesel-fueled vehicles. | | | | | |
| In the case of the 50,000 mile [standards](/usc/42/1320d.md?p=7) and the 100,000 mile [standards](/usc/42/1320d.md?p=7), for purposes of certification, the applicable useful life shall be 50,000 miles or 100,000 miles, respectively. | | | | | |
- (c) **Exhaust standards for light-duty trucks greater than 6,000 lbs. GVWR—** The [standards](/usc/42/1320d.md?p=7) set forth in this subsection shall apply in the case of [clean-fuel vehicles](/usc/42/7581.md?p=7) which are light-duty trucks of more than 6,000 lbs. gross weight rating (GVWR) and less than or equal to 8,500 lbs. GVWR, beginning with model year 1998. For the [air pollutants](/usc/42/7602.md?p=g) specified in the following table, the [clean-fuel vehicle](/usc/42/7581.md?p=7) [standards](/usc/42/1320d.md?p=7) under this section shall provide that vehicle exhaust emissions of vehicles within the test weight [categories](/usc/42/1395w–4.md?p=j-1) specified in the following table shall not exceed the levels specified in such table.
| Clean Fuel Vehicle [Emission Standards](/usc/42/7602.md?p=k) for Light Duty Trucks Greater Than 6,000 lbs. GVWR | | | | | |
| --- | --- | --- | --- | --- | --- |
| Test Weight [Category](/usc/42/1395w–4.md?p=j-1): Up to 3,750 lbs. tw | | | | | |
| [Pollutant](/usc/42/1397h.md?p=c-4) | NMOG | [CO](/usc/42/7602.md?p=w) | NOx | PM* | HCHO (formaldehyde) |
| 50,000 mile [standard](/usc/42/1320d.md?p=7) | 0.125 | 3.4 | 0.4** | ...... | 0.015 |
| 120,000 mile [standard](/usc/42/1320d.md?p=7) | 0.180 | 5.0 | 0.6 | 0.08 | 0.022 |
| Test Weight [Category](/usc/42/1395w–4.md?p=j-1): Above 3,750 but not above 5,750 lbs. tw | | | | | |
| --- | --- | --- | --- | --- | --- |
| [Pollutant](/usc/42/1397h.md?p=c-4) | NMOG | [CO](/usc/42/7602.md?p=w) | NOx | PM* | HCHO (formaldehyde) |
| 50,000 mile [standard](/usc/42/1320d.md?p=7) | 0.160 | 4.4 | 0.7** | ...... | 0.018 |
| 120,000 mile [standard](/usc/42/1320d.md?p=7) | 0.230 | 6.4 | 1.0 | 0.10 | 0.027 |
| Test Weight [Category](/usc/42/1395w–4.md?p=j-1): Above 5,750 tw but not above 8,500 lbs. gvwr | | | | | |
| --- | --- | --- | --- | --- | --- |
| [Pollutant](/usc/42/1397h.md?p=c-4) | NMOG | [CO](/usc/42/7602.md?p=w) | NOx | PM* | HCHO (formaldehyde) |
| 50,000 mile [standard](/usc/42/1320d.md?p=7) | 0.195 | 5.0 | 1.1** | ...... | 0.022 |
| 120,000 mile [standard](/usc/42/1320d.md?p=7) | 0.280 | 7.3 | 1.5 | 0.12 | 0.032 |
| [Standards](/usc/42/1320d.md?p=7) are expressed in grams per mile (gpm). | | | | | |
| *[Standards](/usc/42/1320d.md?p=7) for particulates (PM) shall apply only to diesel-fueled vehicles. | | | | | |
| **[Standard](/usc/42/1320d.md?p=7) not applicable to diesel-fueled vehicles. | | | | | |
| For the 50,000 mile [standards](/usc/42/1320d.md?p=7) and the 120,000 mile [standards](/usc/42/1320d.md?p=7) set forth in the table, the applicable useful life for purposes of certification shall be 50,000 miles or 120,000 miles, respectively. | | | | | |
- (d) **Flexible and dual-fuel vehicles—**
- (1) **In general—** The [Administrator](/usc/42/7602.md?p=a) shall establish [standards](/usc/42/1320d.md?p=7) and requirements under this section for the model year 1996 and thereafter for vehicles weighing not more than 8,500 lbs. gvwr which are capable of operating on more than one fuel. Such [standards](/usc/42/1320d.md?p=7) shall require that such vehicles meet the exhaust [standards](/usc/42/1320d.md?p=7) applicable under subsection[^2] (a), (b), and (c) for [CO](/usc/42/7602.md?p=w), NOx, and HCHO, and if appropriate, PM for [single](/usc/42/2304.md?p=m)-fuel vehicles of the same vehicle [category](/usc/42/1395w–4.md?p=j-1) and model year.
- (2) **Exhaust NMOG standard for operation on clean alternative fuel—** In addition to [standards](/usc/42/1320d.md?p=7) for the [pollutants](/usc/42/1397h.md?p=c-4) referred to in [paragraph (1)](#d-1), the [standards](/usc/42/1320d.md?p=7) established under [paragraph (1)](#d-1) shall require that vehicle exhaust emissions of NMOG not exceed the levels (expressed in grams per mile) specified in the tables below when the vehicle is operated on the [clean alternative fuel](/usc/42/7581.md?p=2) for which such vehicle is certified:
| NMOG [Standards](/usc/42/1320d.md?p=7) for Flexible- and Dual-Fueled Vehicles When Operating on [Clean Alternative Fuel](/usc/42/7581.md?p=2) | | |
| --- | --- | --- |
| Light-duty Trucks up to 6,000 lbs. GVWR and Light-duty vehicles | | |
| Vehicle Type | Column A (50,000 mi.) [Standard](/usc/42/1320d.md?p=7) (gpm) | Column B (100,000 mi.) [Standard](/usc/42/1320d.md?p=7) (gpm) |
| Beginning MY 1996: | | |
| LDT’s (0–3,750 lbs. LVW) and light-duty vehicles | 0.125 | 0.156 |
| LDT’s (3,751–5,750 lbs. LVW) | 0.160 | 0.20 |
| Beginning MY 2001: | | |
| LDT’s (0–3,750 lbs. LVW) and light-duty vehicles | 0.075 | 0.090 |
| LDT’s (3,751–5,750 lbs. LVW) | 0.100 | 0.130 |
| For [standards](/usc/42/1320d.md?p=7) under column A, for purposes of certification under [section 7525 of this title](/usc/42/7525.md), the applicable useful life shall be 50,000 miles. | | |
| For [standards](/usc/42/1320d.md?p=7) under column B, for purposes of certification under [section 7525 of this title](/usc/42/7525.md), the applicable useful life shall be 100,000 miles. | | |
| Light-duty Trucks More than 6,000 lbs. GVWR | | |
| --- | --- | --- |
| Vehicle Type | Column A (50,000 mi.) [Standard](/usc/42/1320d.md?p=7) | Column B (120,000 mi.) [Standard](/usc/42/1320d.md?p=7) |
| Beginning MY 1998: | | |
| LDT’s (0–3,750 lbs. TW) | 0.125 | 0.180 |
| LDT’s (3,751–5,750 lbs. TW) | 0.160 | 0.230 |
| LDT’s (above 5,750 lbs. TW) | 0.195 | 0.280 |
| For [standards](/usc/42/1320d.md?p=7) under column A, for purposes of certification under [section 7525 of this title](/usc/42/7525.md), the applicable useful life shall be 50,000 miles. | | |
| For [standards](/usc/42/1320d.md?p=7) under column B, for purposes of certification under [section 7525 of this title](/usc/42/7525.md), the applicable useful life shall be 120,000 miles. | | |
- (3) **NMOG standard for operation on conventional fuel—** In addition to the [standards](/usc/42/1320d.md?p=7) referred to in [paragraph (1)](#d-1), the [standards](/usc/42/1320d.md?p=7) established under [paragraph (1)](#d-1) shall require that vehicle exhaust emissions of NMOG not exceed the levels (expressed in grams per mile) specified in the tables below:
| NMOG [Standards](/usc/42/1320d.md?p=7) for Flexible- and Dual-Fueled Vehicles When Operating on Conventional Fuel | | |
| --- | --- | --- |
| Light-duty Trucks of up to 6,000 lbs. GVWR and Light-duty vehicles | | |
| Vehicle Type | Column A (50,000 mi.) [Standard](/usc/42/1320d.md?p=7) (gpm) | Column B (100,000 mi.) [Standard](/usc/42/1320d.md?p=7) (gpm) |
| Beginning MY 1996: | | |
| LDT’s (0–3,750 lbs. LVW) and light-duty vehicles | 0.25 | 0.31 |
| LDT’s (3,751–5,750 lbs. LVW) | 0.32 | 0.40 |
| Beginning MY 2001: | | |
| LDT’s (0–3,750 lbs. LVW) and light-duty vehicles | 0.125 | 0.156 |
| LDT’s (3,751–5,750 lbs. LVW) | 0.160 | 0.200 |
| For [standards](/usc/42/1320d.md?p=7) under column A, for purposes of certification under [section 7525 of this title](/usc/42/7525.md), the applicable useful life shall be 50,000 miles. | | |
| For [standards](/usc/42/1320d.md?p=7) under column B, for purposes of certification under [section 7525 of this title](/usc/42/7525.md), the applicable useful life shall be 100,000 miles. | | |
| Light-duty Trucks of up to 6,000 lbs. GVWR | | |
| --- | --- | --- |
| Vehicle Type | Column A (50,000 mi.) [Standard](/usc/42/1320d.md?p=7) | Column B (120,000 mi.) [Standard](/usc/42/1320d.md?p=7) |
| Beginning MY 1998: | | |
| LDT’s (0–3,750 lbs. TW) | 0.25 | 0.36 |
| LDT’s (3,751–5,750 lbs. TW) | 0.32 | 0.46 |
| LDT’s (above 5,750 lbs. TW) | 0.39 | 0.56 |
| For [standards](/usc/42/1320d.md?p=7) under column A, for purposes of certification under [section 7525 of this title](/usc/42/7525.md), the applicable useful life shall be 50,000 miles. | | |
| For [standards](/usc/42/1320d.md?p=7) under column B, for purposes of certification under [section 7525 of this title](/usc/42/7525.md), the applicable useful life shall be 120,000 miles. | | |
- (e) **Replacement by CARB standards—**
- (1) **Single set of CARB standards—** If the [State](/usc/42/7602.md?p=d) of California promulgates regulations establishing and implementing a [single](/usc/42/2304.md?p=m) set of [standards](/usc/42/1320d.md?p=7) applicable in California pursuant to a waiver approved under [section 7543 of this title](/usc/42/7543.md) to any [category](/usc/42/1395w–4.md?p=j-1) of vehicles referred to in subsection [(a)](#a), [(b)](#b), [(c)](#c), or [(d)](#d) of this section and such set of [standards](/usc/42/1320d.md?p=7) is, in the aggregate, at least as protective of public health and welfare as the otherwise applicable [standards](/usc/42/1320d.md?p=7) set forth in [section 7582 of this title](/usc/42/7582.md) and subsection [(a)](#a), [(b)](#b), [(c)](#c), or [(d)](#d) of this section, such set of California [standards](/usc/42/1320d.md?p=7) shall apply to [clean-fuel vehicles](/usc/42/7581.md?p=7) in such [category](/usc/42/1395w–4.md?p=j-1) in lieu of the [standards](/usc/42/1320d.md?p=7) otherwise applicable under [section 7582 of this title](/usc/42/7582.md) and subsection [(a)](#a), [(b)](#b), [(c)](#c), or [(d)](#d) of this section, as the case may be.
- (2) **Multiple sets of CARB standards—** If the [State](/usc/42/7602.md?p=d) of California promulgates regulations establishing and implementing several different sets of [standards](/usc/42/1320d.md?p=7) applicable in California pursuant to a waiver approved under [section 7543 of this title](/usc/42/7543.md) to any [category](/usc/42/1395w–4.md?p=j-1) of vehicles referred to in subsection [(a)](#a), [(b)](#b), [(c)](#c), or [(d)](#d) of this section and each of such sets of California [standards](/usc/42/1320d.md?p=7) is, in the aggregate, at least as protective of public health and welfare as the otherwise applicable [standards](/usc/42/1320d.md?p=7) set forth in [section 7582 of this title](/usc/42/7582.md) and subsection [(a)](#a), [(b)](#b), [(c)](#c), or [(d)](#d) of this section, such [standards](/usc/42/1320d.md?p=7) shall be treated as “qualifying California [standards](/usc/42/1320d.md?p=7)” for purposes of this paragraph. Where more than one set of qualifying [standards](/usc/42/1320d.md?p=7) are established and administered by the [State](/usc/42/7602.md?p=d) of California, the least stringent set of qualifying California [standards](/usc/42/1320d.md?p=7) shall apply to the [clean-fuel vehicles](/usc/42/7581.md?p=7) concerned in lieu of the [standards](/usc/42/1320d.md?p=7) otherwise applicable to such vehicles under [section 7582 of this title](/usc/42/7582.md) and this section.
- (f) **Less stringent CARB standards—** If the Low-Emission Vehicle and Clean Fuels Regulations of the California Air Resources [Board](/usc/42/10261.md?p=2) applicable to any [category](/usc/42/1395w–4.md?p=j-1) of vehicles referred to in subsection [(a)](#a), [(b)](#b), [(c)](#c), or [(d)](#d) of this section are [modified](/usc/42/7501.md?p=4) after November 15, 1990, to provide an emissions [standard](/usc/42/1320d.md?p=7) which is less stringent than the otherwise applicable [standard](/usc/42/1320d.md?p=7) set forth in subsection [(a)](#a), [(b)](#b), [(c)](#c), or [(d)](#d), or if any effective date contained in such regulations is delayed, such [modified](/usc/42/7501.md?p=4) [standards](/usc/42/1320d.md?p=7) or such delay (or both, as the case may be) shall apply, for an interim period, in lieu of the [standard](/usc/42/1320d.md?p=7) or effective date otherwise applicable under subsection [(a)](#a), [(b)](#b), [(c)](#c), or [(d)](#d) to any vehicles covered by such [modified](/usc/42/7501.md?p=4) [standard](/usc/42/1320d.md?p=7) or delayed effective date. The interim period shall be a period of not more than 2 model years from the effective date otherwise applicable under subsection [(a)](#a), [(b)](#b), [(c)](#c), or [(d)](#d). After such interim period, the otherwise applicable [standard](/usc/42/1320d.md?p=7) set forth in subsection [(a)](#a), [(b)](#b), [(c)](#c), or [(d)](#d) shall take effect with respect to such vehicles (unless subsequently replaced under [subsection (e)](#e)).
- (g) **Not applicable to heavy-duty vehicles—** Notwithstanding any provision of the Low-Emission Vehicle and Clean Fuels Regulations of the California Air Resources [Board](/usc/42/10261.md?p=2) nothing in this section shall apply to heavy-duty engines in vehicles of more than 8,500 lbs. GVWR.
# §7584. Administration and enforcement as per California standards
Where the numerical [clean-fuel vehicle](/usc/42/7581.md?p=7) [standards](/usc/42/1320d.md?p=7) applicable under this part to vehicles of not more than 8,500 lbs. GVWR are the same as numerical [emission standards](/usc/42/7602.md?p=k) applicable in California under the Low-Emission Vehicle and Clean Fuels Regulations of the California Air Resources [Board](/usc/42/10261.md?p=2) (“CARB”), such [standards](/usc/42/1320d.md?p=7) shall be administered and enforced by the [Administrator](/usc/42/7602.md?p=a)—
- (1) in the same manner and with the same flexibility as the [State](/usc/42/7602.md?p=d) of California administers and enforces corresponding [standards](/usc/42/1320d.md?p=7) applicable under the Low-Emission Vehicle and Clean Fuels Regulations of the California Air Resources [Board](/usc/42/10261.md?p=2) (“CARB”); and
- (2) subject to the same requirements, and utilizing the same interpretations and policy judgments, as are applicable in the case of such CARB [standards](/usc/42/1320d.md?p=7), including, but not limited to, requirements regarding certification, production-line testing, and in-use compliance,
unless the [Administrator](/usc/42/7602.md?p=a) determines (in promulgating the rules establishing the clean fuel vehicle [program](/usc/42/274l–1.md?p=4) under this section) that any such administration and enforcement would not meet the criteria for a waiver under [section 7543 of this title](/usc/42/7543.md). Nothing in this section shall apply in the case of [standards](/usc/42/1320d.md?p=7) under [section 7585 of this title](/usc/42/7585.md) for heavy-duty vehicles.
# §7585. Standards for heavy-duty clean-fuel vehicles (GVWR above 8,500 up to 26,000 lbs.)
- (a) **Model years after 1997; combined NOx and NMHC standard—** For classes or [categories](/usc/42/1395w–4.md?p=j-1) of heavy-duty vehicles or engines manufactured for the model year 1998 or thereafter and having a GVWR greater than 8,500 lbs. and up to 26,000 lbs. GVWR, the [standards](/usc/42/1320d.md?p=7) under this part for [clean-fuel vehicles](/usc/42/7581.md?p=7) shall require that combined emissions of oxides of nitrogen (NOx) and nonmethane hydrocarbons (NMHC) shall not exceed 3.15 grams per brake horsepower hour (equivalent to 50 percent of the combined [emission standards](/usc/42/7602.md?p=k) applicable under [section 7521 of this title](/usc/42/7521.md) for such [air pollutants](/usc/42/7602.md?p=g) in the case of a conventional model year 1994 heavy-duty diesel-fueled vehicle or engine). No [standard](/usc/42/1320d.md?p=7) shall be promulgated as provided in this section for any heavy-duty vehicle of more than 26,000 lbs. GVWR.
- (b) **Revised standards that are less stringent—**
- (1) The [Administrator](/usc/42/7602.md?p=a) may promulgate a revised less stringent [standard](/usc/42/1320d.md?p=7) for the vehicles or engines referred to in [subsection (a)](#a) if the [Administrator](/usc/42/7602.md?p=a) determines that the 50 percent reduction required under [subsection (a)](#a) is not technologically feasible for clean diesel-fueled vehicles and engines, taking into account durability, costs, lead time, safety, and other relevant factors. To provide adequate lead time the [Administrator](/usc/42/7602.md?p=a) shall make a determination with regard to the technological feasibility of such 50 percent reduction before December 31, 1993.
- (2) Any [person](/usc/42/7602.md?p=e) may at any time petition the [Administrator](/usc/42/7602.md?p=a) to make a determination under [paragraph (1)](#b-1). The [Administrator](/usc/42/7602.md?p=a) shall act on such a petition within 6 months after the petition is filed.
- (3) Any revised less stringent [standards](/usc/42/1320d.md?p=7) promulgated as provided in this subsection shall require at least a 30 percent reduction in lieu of the 50 percent reduction referred to in [paragraph (1)](#b-1).
# §7586. Centrally fueled fleets
- (a) **Fleet program required for certain nonattainment areas—**
- (1) **SIP revision—** Each [State](/usc/42/7602.md?p=d) in which there is located all or part of a covered area (as defined in [paragraph (2)](#a-2)) shall submit, within 42 months after November 15, 1990, a [State](/usc/42/7602.md?p=d) implementation plan revision under [section 7410 of this title](/usc/42/7410.md) and part D of subchapter I to establish a [clean-fuel vehicle](/usc/42/7581.md?p=7) [program](/usc/42/274l–1.md?p=4) for fleets under this section.
- (2) **Covered areas—** For purposes of this subsection, each of the following shall be a “covered area”:
- (A) **Ozone nonattainment areas—** Any ozone [nonattainment area](/usc/42/7501.md?p=2) with a 1980 population of 250,000 or more classified under subpart 2 of part D of subchapter I of this chapter as Serious, Severe, or Extreme based on data for the calendar years 1987, 1988, and 1989. In determining the ozone [nonattainment areas](/usc/42/7501.md?p=2) to be treated as covered areas pursuant to this subparagraph, the [Administrator](/usc/42/7602.md?p=a) shall use the most recent interpretation methodology issued by the [Administrator](/usc/42/7602.md?p=a) prior to November 15, 1990.
- (B) **Carbon monoxide nonattainment areas—** Any carbon monoxide [nonattainment area](/usc/42/7501.md?p=2) with a 1980 population of 250,000 or more and a carbon monoxide design value at or above 16.0 parts per million based on data for calendar years 1988 and 1989 (as calculated according to the most recent interpretation methodology issued prior to November 15, 1990, by the [United States](/usc/42/403.md?p=k) Environmental Protection Agency), excluding those carbon monoxide [nonattainment areas](/usc/42/7501.md?p=2) in which mobile sources do not contribute significantly to carbon monoxide exceedances.
- (3) **Plan revisions for reclassified areas—** In the case of ozone [nonattainment areas](/usc/42/7501.md?p=2) reclassified as Serious, Severe, or Extreme under part D of subchapter I with a 1980 population of 250,000 or more, the [State](/usc/42/7602.md?p=d) shall submit a plan revision meeting the requirements of this subsection within 1 year after reclassification. Such plan revision shall implement the requirements applicable under this subsection at the time of reclassification and thereafter, except that the [Administrator](/usc/42/7602.md?p=a) may adjust for a limited period the deadlines for compliance where compliance with such deadlines would be infeasible.
- (4) **Consultation; consideration of factors—** Each [State](/usc/42/7602.md?p=d) required to submit an implementation plan revision under this subsection shall develop such revision in consultation with fleet operators, vehicle [manufacturers](/usc/42/300aa–33.md?p=3), fuel producers and distributors, [motor vehicle](/usc/42/13211.md?p=13) fuel, and other interested parties, taking into consideration operational range, specialty uses, vehicle and fuel availability, costs, safety, resale values of vehicles and equipment and other relevant factors.
- (b) **Phase-in of requirements—** The plan revision required under this section shall contain provisions requiring that at least a specified percentage of all new [covered fleet vehicles](/usc/42/7581.md?p=6) in model year 1998 and thereafter purchased by each covered fleet operator in each covered area shall be [clean-fuel vehicles](/usc/42/7581.md?p=7) and shall use [clean alternative fuels](/usc/42/7581.md?p=2) when operating in the covered area. For the applicable model years (MY) specified in the following table and thereafter, the specified percentage shall be as provided in the table for the vehicle types set forth in the table:
| Clean Fuel Vehicle Phase-in Requirements for Fleets | | | |
| --- | --- | --- | --- |
| Vehicle Type | MY1998 | MY1999 | MY2000 |
| Light-duty trucks up to 6,000 lbs. GVWR and light-duty vehicles | 30% | 50% | 70% |
| [Heavy-duty trucks](/usc/42/16131.md?p=6) above 8,500 lbs. GVWR | 50% | 50% | 50% |
| The term MY refers to model year. | | | |
- (c) **Accelerated standard for light-duty trucks up to 6,000 lbs. GVWR and light-duty vehicles—** Notwithstanding the model years for which [clean-fuel vehicle](/usc/42/7581.md?p=7) [standards](/usc/42/1320d.md?p=7) are applicable as provided in [section 7583 of this title](/usc/42/7583.md), for purposes of this section, light duty[^1] trucks of up to 6,000 lbs. GVWR and light-duty vehicles manufactured in model years 1998 through model year 2000 shall be treated as [clean-fuel vehicles](/usc/42/7581.md?p=7) only if such vehicles comply with the [standards](/usc/42/1320d.md?p=7) applicable under [section 7583 of this title](/usc/42/7583.md) for vehicles in the same class for the model year 2001. The requirements of [subsection (b)](#b) shall take effect on the earlier of the following:
- (1) The first model year after model year 1997 in which new light-duty trucks up to 6,000 lbs. GVWR and light-duty vehicles which comply with the model year 2001 [standards](/usc/42/1320d.md?p=7) under [section 7583 of this title](/usc/42/7583.md) are offered for sale in California.
- (2) Model year 2001.
Whenever the effective date of [subsection (b)](#b) is delayed pursuant to paragraph (1) of this subsection, the phase-in schedule under [subsection (b)](#b) shall be [modified](/usc/42/7501.md?p=4) to commence with the model year referred to in [paragraph (1)](#c-1) in lieu of model year 1998.
- (d) **Choice of vehicles and fuel—** The plan revision under this subsection shall provide that the choice of [clean-fuel vehicles](/usc/42/7581.md?p=7) and [clean alternative fuels](/usc/42/7581.md?p=2) shall be made by the covered fleet operator subject to the requirements of this subsection.
- (e) **Availability of clean alternative fuel—** The plan revision shall require fuel providers to make [clean alternative fuel](/usc/42/7581.md?p=2) available to covered fleet operators at locations at which [covered fleet vehicles](/usc/42/7581.md?p=6) are centrally fueled.
- (f) **Credits—**
- (1) **Issuance of credits—** The [State](/usc/42/7602.md?p=d) plan revision required under this section shall provide for the issuance by the [State](/usc/42/7602.md?p=d) of appropriate credits to a fleet operator for any of the following (or any combination thereof):
- (A) The purchase of more [clean-fuel vehicles](/usc/42/7581.md?p=7) than required under this section.
- (B) The purchase of clean fuel[^2] vehicles which meet more stringent [standards](/usc/42/1320d.md?p=7) established by the [Administrator](/usc/42/7602.md?p=a) pursuant to [paragraph (4)](#f-4).
- (C) The purchase of vehicles in [categories](/usc/42/1395w–4.md?p=j-1) which are not covered by this section but which meet [standards](/usc/42/1320d.md?p=7) established for such vehicles under [paragraph (4)](#f-4).
- (2) **Use of credits; limitations based on weight classes—**
- (A) **Use of credits—** Credits under this subsection may be used by the [person](/usc/42/7602.md?p=e) holding such credits to demonstrate compliance with this section or may be traded or sold for use by any other [person](/usc/42/7602.md?p=e) to demonstrate compliance with other requirements applicable under this section in the same [nonattainment area](/usc/42/7501.md?p=2). Credits obtained at any time may be held or banked for use at any later time, and when so used, such credits shall maintain the same value as if used at an earlier date.
- (B) **Limitations based on weight classes—** Credits issued with respect to the purchase of vehicles of up to 8,500 lbs. GVWR may not be used to demonstrate compliance by any [person](/usc/42/7602.md?p=e) with the requirements applicable under this subsection to vehicles of more than 8,500 lbs. GVWR. Credits issued with respect to the purchase of vehicles of more than 8,500 lbs. GVWR may not be used to demonstrate compliance by any [person](/usc/42/7602.md?p=e) with the requirements applicable under this subsection to vehicles weighing up to 8,500 lbs. GVWR.
- (C) **Weighting—** Credits issued for purchase of a clean fuel[^2] vehicle under this subsection shall be adjusted with appropriate weighting to reflect the level of emission reduction achieved by the vehicle.
- (3) **Regulations and administration—** Within 12 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations for such credit [program](/usc/42/274l–1.md?p=4). The [State](/usc/42/7602.md?p=d) shall administer the credit [program](/usc/42/274l–1.md?p=4) established under this subsection.
- (4) **Standards for issuing credits for cleaner vehicles—** Solely for purposes of issuing credits under [paragraph (1)(B)](#f-1-B), the [Administrator](/usc/42/7602.md?p=a) shall establish under this paragraph [standards](/usc/42/1320d.md?p=7) for Ultra-Low Emission Vehicles (“ULEV”s) and Zero Emissions Vehicles (“ZEV”s) which shall be more stringent than those otherwise applicable to [clean-fuel vehicles](/usc/42/7581.md?p=7) under this part. The [Administrator](/usc/42/7602.md?p=a) shall certify clean fuel[^2] vehicles as complying with such more stringent [standards](/usc/42/1320d.md?p=7), and administer and enforce such more stringent [standards](/usc/42/1320d.md?p=7), in the same manner as in the case of the otherwise applicable [clean-fuel vehicle](/usc/42/7581.md?p=7) [standards](/usc/42/1320d.md?p=7) established under this section. The [standards](/usc/42/1320d.md?p=7) established by the [Administrator](/usc/42/7602.md?p=a) under this paragraph for vehicles under 8,500 lbs. GVWR or greater shall conform as closely as possible to [standards](/usc/42/1320d.md?p=7) which are established by the [State](/usc/42/7602.md?p=d) of California for ULEV and ZEV vehicles in the same class. For vehicles of 8,500 lbs. GVWR or more, the [Administrator](/usc/42/7602.md?p=a) shall promulgate comparable [standards](/usc/42/1320d.md?p=7) for purposes of this subsection.
- (5) **Early fleet credits—** The [State](/usc/42/7602.md?p=d) plan revision shall provide credits under this subsection to fleet operators that purchase vehicles certified to meet [clean-fuel vehicle](/usc/42/7581.md?p=7) [standards](/usc/42/1320d.md?p=7) under this part during any period after approval of the plan revision and prior to the effective date of the fleet [program](/usc/42/274l–1.md?p=4) under this section.
- (g) **Availability to public—** At any [facility](/usc/42/11049.md?p=4) owned or operated by a department, agency, or instrumentality of the [United States](/usc/42/403.md?p=k) where vehicles subject to this subsection are supplied with [clean alternative fuel](/usc/42/7581.md?p=2), such fuel shall be offered for sale to the public for use in other vehicles during reasonable business times and subject to national security concerns, unless such fuel is commercially available for vehicles in the vicinity of such [Federal facilities](/usc/42/17061.md?p=8).
- (h) **Transportation control measures—** The [Administrator](/usc/42/7602.md?p=a) shall by rule, within 1 year after November 15, 1990, ensure that certain transportation control measures including time-of-day or day-of-week restrictions, and other similar measures that restrict vehicle usage, do not apply to any [clean-fuel vehicle](/usc/42/7581.md?p=7) that meets the requirements of this section. This subsection shall apply notwithstanding subchapter I.
# §7587. Vehicle conversions
- (a) **Conversion of existing and new conventional vehicles to clean-fuel vehicles—** The requirements of [section 7586 of this title](/usc/42/7586.md) may be met through the conversion of existing or new gasoline or diesel-powered vehicles to [clean-fuel vehicles](/usc/42/7581.md?p=7) which comply with the applicable requirements of that section. For purposes of such provisions the conversion of a vehicle to clean fuel[^1] vehicle shall be treated as the purchase of a clean fuel[^1] vehicle. Nothing in this part shall be construed to provide that any covered fleet operator subject to fleet vehicle purchase requirements under [section 7586 of this title](/usc/42/7586.md) shall be required to convert existing or new gasoline or diesel-powered vehicles to [clean-fuel vehicles](/usc/42/7581.md?p=7) or to purchase converted vehicles.
- (b) **Regulations—** The [Administrator](/usc/42/7602.md?p=a) shall, within 24 months after November 15, 1990, consistent with the requirements of this subchapter applicable to new vehicles, promulgate regulations governing conversions of conventional vehicles to [clean-fuel vehicles](/usc/42/7581.md?p=7). Such regulations shall establish criteria for such conversions which will ensure that a converted vehicle will comply with the [standards](/usc/42/1320d.md?p=7) applicable under this part to [clean-fuel vehicles](/usc/42/7581.md?p=7). Such regulations shall provide for the application to such conversions of the same provisions of this subchapter (including provisions relating to administration enforcement) as are applicable to [standards](/usc/42/1320d.md?p=7) under section[^2] 7582, 7583, 7584, and 7585 of this title, except that in the case of conversions the [Administrator](/usc/42/7602.md?p=a) may modify the applicable regulations implementing such provisions as the [Administrator](/usc/42/7602.md?p=a) deems necessary to implement this part.
- (c) **Enforcement—** Any [person](/usc/42/7602.md?p=e) who converts conventional vehicles to clean fuel[^1] vehicles pursuant to [subsection (b)](#b), shall be considered a [manufacturer](/usc/42/300aa–33.md?p=3) for purposes of sections [7525](/usc/42/7525.md) and [7541](/usc/42/7541.md) of this title and related enforcement provisions. Nothing in the preceding sentence shall require a [person](/usc/42/7602.md?p=e) who performs such conversions to warrant any part or operation of a vehicle other than as required under this part. Nothing in this paragraph shall limit the applicability of any other warranty to unrelated parts or operations.
- (d) **Tampering—** The conversion from a vehicle capable of operating on gasoline or diesel fuel only to a [clean-fuel vehicle](/usc/42/7581.md?p=7) shall not be considered a [violation](/usc/42/2000e–16a.md?p=c) of [section 7522(a)(3) of this title](/usc/42/7522.md?p=a-3) if such conversion complies with the regulations promulgated under [subsection (b)](#b).
- (e) **Safety—** The [Secretary](/usc/42/242q–4.md?p=2) of Transportation shall, if necessary, promulgate rules under applicable [motor vehicle](/usc/42/13211.md?p=13) laws regarding the safety of vehicles converted from existing and new vehicles to [clean-fuel vehicles](/usc/42/7581.md?p=7).
# §7588. Federal agency fleets
- (a) **Additional provisions applicable—** The provisions of this section shall apply, in addition to the other provisions of this part, in the case of [covered fleet vehicles](/usc/42/7581.md?p=6) owned or operated by an agency, department, or instrumentality of the [United States](/usc/42/403.md?p=k), except as otherwise provided in [subsection (e)](#e).
- (b) **Cost of vehicles to Federal agency—** Notwithstanding the provisions of sections 601–611 of title 40, the [Administrator](/usc/42/7602.md?p=a) of General Services shall not include the incremental costs of [clean-fuel vehicles](/usc/42/7581.md?p=7) in the amount to be reimbursed by Federal agencies if the [Administrator](/usc/42/7602.md?p=a) of General Services determines that appropriations provided pursuant to this paragraph are sufficient to provide for the incremental cost of such vehicles over the cost of comparable conventional vehicles.
- (c) **Limitations on appropriations—** [Funds](/usc/42/12854.md?p=3) appropriated pursuant to the [authorization](/usc/42/4370m.md?p=3) under this paragraph shall be applicable only—
- (1) to the portion of the cost of acquisition, maintenance and operation of vehicles acquired under this subparagraph which exceeds the cost of acquisition, maintenance and operation of comparable conventional vehicles;
- (2) to the portion of the costs of fuel storage and dispensing equipment attributable to such vehicles which exceeds the costs for such purposes required for conventional vehicles; and
- (3) to the portion of the costs of acquisition of [clean-fuel vehicles](/usc/42/7581.md?p=7) which represents a reduction in revenue from the [disposal](/usc/42/2021b.md?p=7) of such vehicles as compared to revenue resulting from the [disposal](/usc/42/2021b.md?p=7) of comparable conventional vehicles.
- (d) **Vehicle costs—** The incremental cost of vehicles acquired under this part over the cost of comparable conventional vehicles shall not be applied to any calculation with respect to a limitation under law on the maximum cost of individual vehicles which may be required by the [United States](/usc/42/403.md?p=k).
- (e) **Exemptions—** The requirements of this part shall not apply to vehicles with respect to which the [Secretary](/usc/42/242q–4.md?p=2) of Defense has certified to the [Administrator](/usc/42/7602.md?p=a) that an exemption is needed based on national security consideration.
- (f) **Acquisition requirement—** Federal agencies, to the extent practicable, shall obtain [clean-fuel vehicles](/usc/42/7581.md?p=7) from original equipment [manufacturers](/usc/42/300aa–33.md?p=3).
- (g) **Authorization of appropriations—** There are authorized to be appropriated such sums as may be required to carry out the provisions of this section: Provided, That such sums as are appropriated for the [Administrator](/usc/42/7602.md?p=a) of General Services pursuant to the [authorization](/usc/42/4370m.md?p=3) under this section shall be added to the General Supply [Fund](/usc/42/12854.md?p=3) established in [section 321 of title 40](/usc/40/321.md).
# §7589. California pilot test program
- (a) **Establishment—** The [Administrator](/usc/42/7602.md?p=a) shall establish a pilot [program](/usc/42/274l–1.md?p=4) in the [State](/usc/42/7602.md?p=d) of California to demonstrate the effectiveness of [clean-fuel vehicles](/usc/42/7581.md?p=7) in controlling air pollution in ozone [nonattainment areas](/usc/42/7501.md?p=2).
- (b) **Applicability—** The provisions of this section shall only apply to light-duty trucks and light-duty vehicles, and such provisions shall apply only in the [State](/usc/42/7602.md?p=d) of California, except as provided in [subsection (f)](#f).
- (c) **Program requirements—** Not later than 24 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations establishing requirements under this section applicable in the [State](/usc/42/7602.md?p=d) of California. The regulations shall provide the following:
- (1) **Clean-fuel vehicles—** [Clean-fuel vehicles](/usc/42/7581.md?p=7) shall be produced, sold, and distributed (in accordance with normal business [practices](/usc/42/17061.md?p=19) and applicable franchise [agreements](/usc/42/1320b–8.md?p=a-3-A)) to ultimate purchasers in California (including [owners](/usc/42/13641.md?p=4) of covered fleets referred to in [section 7586 of this title](/usc/42/7586.md)) in numbers that meet or exceed the following schedule:
| Model Years | Number of Clean-Fuel
Vehicles |
| --- | --- |
| 1996, 1997, 1998 | 150,000 vehicles |
| 1999 and thereafter | 300,000 vehicles |
- (2) **Clean alternative fuels—**
- (A) Within 2 years after November 15, 1990, the [State](/usc/42/7602.md?p=d) of California shall submit a revision of the [applicable implementation plan](/usc/42/7602.md?p=q) under part D of subchapter I and [section 7410 of this title](/usc/42/7410.md) containing a clean fuel plan that requires that [clean alternative fuels](/usc/42/7581.md?p=2) on which the [clean-fuel vehicles](/usc/42/7581.md?p=7) required under this paragraph can operate shall be produced and distributed by fuel [suppliers](/usc/42/1395cc–4.md?p=a-2-I) and made available in California. At a minimum, sufficient [clean alternative fuels](/usc/42/7581.md?p=2) shall be produced, distributed and made available to assure that all [clean-fuel vehicles](/usc/42/7581.md?p=7) required under this section can operate, to the maximum extent practicable, exclusively on such fuels in California. The [State](/usc/42/7602.md?p=d) shall require that [clean alternative fuels](/usc/42/7581.md?p=2) be made available and offered for sale at an adequate number of locations with sufficient geographic distribution to ensure convenient refueling with [clean alternative fuels](/usc/42/7581.md?p=2), considering the number of, and type of, such vehicles sold and the geographic distribution of such vehicles within the [State](/usc/42/7602.md?p=d). The [State](/usc/42/7602.md?p=d) shall determine the [clean alternative fuels](/usc/42/7581.md?p=2) to be produced, distributed, and made available based on [motor vehicle](/usc/42/13211.md?p=13) [manufacturers](/usc/42/300aa–33.md?p=3)’ projections of future sales of such vehicles and consultations with the affected [local governments](/usc/42/8401a.md) and fuel [suppliers](/usc/42/1395cc–4.md?p=a-2-I).
- (B) The [State](/usc/42/7602.md?p=d) may by regulation grant [persons](/usc/42/7602.md?p=e) subject to the requirements prescribed under this paragraph an appropriate amount of credits for exceeding such requirements, and any [person](/usc/42/7602.md?p=e) granted credits may transfer some or all of the credits for use by one or more [persons](/usc/42/7602.md?p=e) in demonstrating compliance with such requirements. The [State](/usc/42/7602.md?p=d) may make the credits available for use after consideration of enforceability, environmental, and economic factors and upon such terms and conditions as the [State](/usc/42/7602.md?p=d) finds appropriate.
- (C) The [State](/usc/42/7602.md?p=d) may also by regulation establish specifications for any [clean alternative fuel](/usc/42/7581.md?p=2) produced and made available under this paragraph as the [State](/usc/42/7602.md?p=d) finds necessary to reduce or eliminate an unreasonable risk to public health, welfare, or safety associated with its use or to ensure acceptable vehicle maintenance and performance characteristics.
- (D) If a retail gasoline dispensing [facility](/usc/42/11049.md?p=4) would have to [remove](/usc/42/9601.md?p=23) or replace one or more [motor vehicle](/usc/42/13211.md?p=13) fuel [underground storage tanks](/usc/42/6991b.md?p=i-1-F-ii) and accompanying piping in order to comply with the provisions of this section, and it had removed and replaced such tank or tanks and accompanying piping in order to comply with subtitle I of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6991](/usc/42/6991.md) et seq.] prior to November 15, 1990, it shall not be required to comply with this subsection until a period of 7 years has passed from the date of the [removal](/usc/42/9601.md?p=23) and replacement of such tank or tanks.
- (E) Nothing in this section authorizes any [State](/usc/42/7602.md?p=d) other than California to adopt provisions regarding [clean alternative fuels](/usc/42/7581.md?p=2).
- (F) If the [State](/usc/42/7602.md?p=d) of California fails to adopt a clean fuel [program](/usc/42/274l–1.md?p=4) that meets the requirements of this paragraph, the [Administrator](/usc/42/7602.md?p=a) shall, within 4 years after November 15, 1990, establish a clean fuel [program](/usc/42/274l–1.md?p=4) for the [State](/usc/42/7602.md?p=d) of California under this paragraph and [section 7410(c) of this title](/usc/42/7410.md?p=c) that meets the requirements of this paragraph.
- (d) **Credits for motor vehicle manufacturers—**
- (1) The [Administrator](/usc/42/7602.md?p=a) may (by regulation) grant a [motor vehicle](/usc/42/13211.md?p=13) [manufacturer](/usc/42/300aa–33.md?p=3) an appropriate amount of credits toward fulfillment of such [manufacturer](/usc/42/300aa–33.md?p=3)’s share of the requirements of [subsection (c)(1)](#c-1) of this section for any of the following (or any combination thereof):
- (A) The sale of more [clean-fuel vehicles](/usc/42/7581.md?p=7) than required under [subsection (c)(1)](#c-1) of this section.
- (B) The sale of clean fuel[^1] vehicles which meet [standards](/usc/42/1320d.md?p=7) established by the [Administrator](/usc/42/7602.md?p=a) as provided in [paragraph (3)](#d-3) which are more stringent than the [clean-fuel vehicle](/usc/42/7581.md?p=7) [standards](/usc/42/1320d.md?p=7) otherwise applicable to such [clean-fuel vehicle](/usc/42/7581.md?p=7). A [manufacturer](/usc/42/300aa–33.md?p=3) granted credits under this paragraph may transfer some or all of the credits for use by one or more other [manufacturers](/usc/42/300aa–33.md?p=3) in demonstrating compliance with the requirements prescribed under this paragraph. The [Administrator](/usc/42/7602.md?p=a) may make the credits available for use after consideration of enforceability, environmental, and economic factors and upon such terms and conditions as he finds appropriate. The [Administrator](/usc/42/7602.md?p=a) shall grant credits in accordance with this paragraph, notwithstanding any requirements of [State](/usc/42/7602.md?p=d) law or any credits granted with respect to the same vehicles under any [State](/usc/42/7602.md?p=d) law, rule, or regulation.
- (2) **Regulations and administration.—** The [Administrator](/usc/42/7602.md?p=a) shall administer the credit [program](/usc/42/274l–1.md?p=4) established under this subsection. Within 12 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations for such credit [program](/usc/42/274l–1.md?p=4).
- (3) **Standards for issuing credits for cleaner vehicles.—** The more stringent [standards](/usc/42/1320d.md?p=7) and other requirements (including requirements relating to the weighting of credits) established by the [Administrator](/usc/42/7602.md?p=a) for purposes of the credit [program](/usc/42/274l–1.md?p=4) under 7585(e)[^2] of this title (relating to credits for clean fuel[^1] vehicles in the fleets [program](/usc/42/274l–1.md?p=4)) shall also apply for purposes of the credit [program](/usc/42/274l–1.md?p=4) under this paragraph.
- (e) **Program evaluation—**
- (1) Not later than June 30, 1994 and again in connection with the report under [paragraph (2)](#e-2), the [Administrator](/usc/42/7602.md?p=a) shall provide a report to the Congress on the status of the California Air Resources [Board](/usc/42/10261.md?p=2) Low-Emissions Vehicles and Clean Fuels [Program](/usc/42/274l–1.md?p=4). Such report shall examine the capability, from a technological standpoint, of [motor vehicle](/usc/42/13211.md?p=13) [manufacturers](/usc/42/300aa–33.md?p=3) and [motor vehicle](/usc/42/13211.md?p=13) fuel [suppliers](/usc/42/1395cc–4.md?p=a-2-I) to comply with the requirements of such [program](/usc/42/274l–1.md?p=4) and with the requirements of the California Pilot [Program](/usc/42/274l–1.md?p=4) under this section.
- (2) Not later than June 30, 1998, the [Administrator](/usc/42/7602.md?p=a) shall complete and submit a report to Congress on the effectiveness of the California pilot [program](/usc/42/274l–1.md?p=4) under this section. The report shall evaluate the level of emission reductions achieved under the [program](/usc/42/274l–1.md?p=4), the costs of the [program](/usc/42/274l–1.md?p=4), the advantages and disadvantages of extending the [program](/usc/42/274l–1.md?p=4) to other [nonattainment areas](/usc/42/7501.md?p=2), and desirability of continuing or expanding the [program](/usc/42/274l–1.md?p=4) in California.
- (3) The [program](/usc/42/274l–1.md?p=4) under this section cannot be extended or terminated by the [Administrator](/usc/42/7602.md?p=a) except by Act of Congress enacted after November 15, 1990. [Section 7507 of this title](/usc/42/7507.md) does not apply to the [program](/usc/42/274l–1.md?p=4) under this section.
- (f) **Voluntary opt-in for other States—**
- (1) **EPA regulations—** Not later than 2 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations establishing a voluntary opt-in [program](/usc/42/274l–1.md?p=4) under this subsection pursuant to which—
- (A) [clean-fuel vehicles](/usc/42/7581.md?p=7) which are required to be produced, sold, and distributed in the [State](/usc/42/7602.md?p=d) of California under this section, and
- (B) [clean alternative fuels](/usc/42/7581.md?p=2) required to be produced and distributed under this section by fuel [suppliers](/usc/42/1395cc–4.md?p=a-2-I) and made available in California[^3]
may also be sold and used in other [States](/usc/42/7602.md?p=d) which submit plan revisions under [paragraph (2)](#f-2).
- (2) **Plan revisions—** Any [State](/usc/42/7602.md?p=d) in which there is located all or part of an ozone [nonattainment area](/usc/42/7501.md?p=2) classified under subpart[^4] D of subchapter I as Serious, Severe, or Extreme may submit a revision of the [applicable implementation plan](/usc/42/7602.md?p=q) under part D of subchapter I and [section 7410 of this title](/usc/42/7410.md) to provide incentives for the sale or use in such an area or [State](/usc/42/7602.md?p=d) of [clean-fuel vehicles](/usc/42/7581.md?p=7) which are required to be produced, sold, and distributed in the [State](/usc/42/7602.md?p=d) of California, and for the use in such an area or [State](/usc/42/7602.md?p=d) of [clean alternative fuels](/usc/42/7581.md?p=2) required to be produced and distributed by fuel [suppliers](/usc/42/1395cc–4.md?p=a-2-I) and made available in California. Such plan provisions shall not take effect until 1 year after the [State](/usc/42/7602.md?p=d) has provided notice of such provisions to [motor vehicle](/usc/42/13211.md?p=13) [manufacturers](/usc/42/300aa–33.md?p=3) and to fuel [suppliers](/usc/42/1395cc–4.md?p=a-2-I).
- (3) **Incentives—** The incentives referred to in [paragraph (2)](#f-2) may include any or all of the following:
- (A) A [State](/usc/42/7602.md?p=d) registration fee on [new motor vehicles](/usc/42/7550.md?p=3) registered in the [State](/usc/42/7602.md?p=d) which are not [clean-fuel vehicles](/usc/42/7581.md?p=7) in the amount of at least 1 percent of the cost of the vehicle. The proceeds of such fee shall be used to provide financial incentives to purchasers of [clean-fuel vehicles](/usc/42/7581.md?p=7) and to vehicle dealers who sell high volumes or high percentages of [clean-fuel vehicles](/usc/42/7581.md?p=7) and to defray the administrative costs of the incentive [program](/usc/42/274l–1.md?p=4).
- (B) Provisions to exempt [clean-fuel vehicles](/usc/42/7581.md?p=7) from high occupancy vehicle or trip reduction requirements.
- (C) Provisions to provide preference in the use of existing parking spaces for [clean-fuel vehicles](/usc/42/7581.md?p=7).
The incentives under this paragraph shall not apply in the case of [covered fleet vehicles](/usc/42/7581.md?p=6).
- (4) **No sales or production mandate—** The regulations and plan revisions under paragraphs [(1)](#f-1) and [(2)](#f-2) shall not include any production or sales mandate for [clean-fuel vehicles](/usc/42/7581.md?p=7) or [clean alternative fuels](/usc/42/7581.md?p=2). Such regulations and plan revisions shall also provide that vehicle [manufacturers](/usc/42/300aa–33.md?p=3) and fuel [suppliers](/usc/42/1395cc–4.md?p=a-2-I) may not be subject to penalties or sanctions for failing to produce or sell [clean-fuel vehicles](/usc/42/7581.md?p=7) or [clean alternative fuels](/usc/42/7581.md?p=2).
# §7590. General provisions
- (a) **State refueling facilities—** If any [State](/usc/42/7602.md?p=d) adopts enforceable provisions in an implementation plan applicable to a [nonattainment area](/usc/42/7501.md?p=2) which provides that existing [State](/usc/42/7602.md?p=d) refueling [facilities](/usc/42/11049.md?p=4) will be made available to the public for the purchase of [clean alternative fuels](/usc/42/7581.md?p=2) or that [State](/usc/42/7602.md?p=d)-operated refueling [facilities](/usc/42/11049.md?p=4) for such fuels will be constructed and operated by the [State](/usc/42/7602.md?p=d) and made available to the public at reasonable times, taking into consideration safety, costs, and other relevant factors, in approving such plan under [section 7410 of this title](/usc/42/7410.md) and part D,[^1] the [Administrator](/usc/42/7602.md?p=a) may credit a [State](/usc/42/7602.md?p=d) with the emission reductions for purposes of part D[^1] attributable to such actions.
- (b) **No production mandate—** The [Administrator](/usc/42/7602.md?p=a) shall have no authority under this part to mandate the production of [clean-fuel vehicles](/usc/42/7581.md?p=7) except as provided in the California pilot test [program](/usc/42/274l–1.md?p=4) or to specify as applicable the models, lines, or types of, or marketing or price [practices](/usc/42/17061.md?p=19), policies, or strategies for, vehicles subject to this part. Nothing in this part shall be construed to give the [Administrator](/usc/42/7602.md?p=a) authority to mandate marketing or pricing [practices](/usc/42/17061.md?p=19), policies, or strategies for fuels.
- (c) **Tank and fuel system safety—** The [Secretary](/usc/42/242q–4.md?p=2) of Transportation shall, in accordance with [chapter 301](/usc/49/chstVI-ptA-ch301.md) of title 49, promulgate applicable regulations regarding the safety and use of fuel storage cylinders and fuel systems, including appropriate testing and retesting, in conversions of [motor vehicles](/usc/42/13211.md?p=13).
- (d) **Consultation with Department of Energy and Department of Transportation—** The [Administrator](/usc/42/7602.md?p=a) shall coordinate with the [Secretaries](/usc/42/242q–4.md?p=2) of the Department of [Energy](/usc/42/6311.md?p=7) and the Department of Transportation in carrying out the [Administrator](/usc/42/7602.md?p=a)’s duties under this part.
# §7601. Administration
- (a) **Regulations; delegation of powers and duties; regional officers and employees—**
- (1) The [Administrator](/usc/42/7602.md?p=a) is authorized to prescribe such regulations as are necessary to carry out his functions under this chapter. The [Administrator](/usc/42/7602.md?p=a) may delegate to any officer or [employee](/usc/42/1320a–7h.md?p=e-7) of the Environmental Protection Agency such of his powers and duties under this chapter, except the making of regulations subject to [section 7607(d) of this title](/usc/42/7607.md?p=d), as he may deem necessary or expedient.
- (2) Not later than one year after August 7, 1977, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations establishing general applicable procedures and policies for regional officers and [employees](/usc/42/1320a–7h.md?p=e-7) (including the Regional [Administrator](/usc/42/7602.md?p=a)) to follow in carrying out a delegation under [paragraph (1)](#a-1), if any. Such regulations shall be designed—
- (A) to assure fairness and uniformity in the criteria, procedures, and policies applied by the various regions in implementing and enforcing the chapter;
- (B) to assure at least an adequate quality audit of each [State](/usc/42/7602.md?p=d)’s performance and adherence to the requirements of this chapter in implementing and enforcing the chapter, particularly in the review of new sources and in enforcement of the chapter; and
- (C) to provide a mechanism for identifying and standardizing inconsistent or varying criteria, procedures, and policies being employed by such officers and [employees](/usc/42/1320a–7h.md?p=e-7) in implementing and enforcing the chapter.
- (b) **Detail of Environmental Protection Agency personnel to air pollution control agencies—** Upon the request of an [air pollution control agency](/usc/42/7602.md?p=b), personnel of the Environmental Protection Agency may be detailed to such agency for the purpose of carrying out the provisions of this chapter.
- (c) **Payments under grants; installments; advances or reimbursements—** Payments under grants made under this chapter may be made in installments, and in advance or by way of reimbursement, as may be determined by the [Administrator](/usc/42/7602.md?p=a).
- (d) **Tribal authority—**
- (1) Subject to the provisions of [paragraph (2)](#d-2), the [Administrator](/usc/42/7602.md?p=a)—
- (A) is authorized to treat [Indian tribes](/usc/42/7602.md?p=r) as [States](/usc/42/7602.md?p=d) under this chapter, except for purposes of the requirement that makes available for application by each [State](/usc/42/7602.md?p=d) no less than one-half of 1 percent of annual appropriations under [section 7405 of this title](/usc/42/7405.md); and
- (B) may provide any such [Indian tribe](/usc/42/7602.md?p=r) grant and contract assistance to carry out functions provided by this chapter.
- (2) The [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations within 18 months after November 15, 1990, specifying those provisions of this chapter for which it is appropriate to treat [Indian tribes](/usc/42/7602.md?p=r) as [States](/usc/42/7602.md?p=d). Such [treatment](/usc/42/11851.md?p=11) shall be authorized only if—
- (A) the [Indian tribe](/usc/42/7602.md?p=r) has a governing body carrying out substantial governmental duties and powers;
- (B) the functions to be exercised by the [Indian tribe](/usc/42/7602.md?p=r) pertain to the management and protection of air resources within the exterior boundaries of the reservation or other areas within the tribe’s jurisdiction; and
- (C) the [Indian tribe](/usc/42/7602.md?p=r) is reasonably expected to be capable, in the judgment of the [Administrator](/usc/42/7602.md?p=a), of carrying out the functions to be exercised in a manner consistent with the terms and purposes of this chapter and all applicable regulations.
- (3) The [Administrator](/usc/42/7602.md?p=a) may promulgate regulations which establish the elements of tribal implementation plans and procedures for approval or disapproval of tribal implementation plans and portions thereof.
- (4) In any case in which the [Administrator](/usc/42/7602.md?p=a) determines that the [treatment](/usc/42/11851.md?p=11) of [Indian tribes](/usc/42/7602.md?p=r) as identical to [States](/usc/42/7602.md?p=d) is inappropriate or administratively infeasible, the [Administrator](/usc/42/7602.md?p=a) may provide, by regulation, other means by which the [Administrator](/usc/42/7602.md?p=a) will directly administer such provisions so as to achieve the appropriate purpose.
- (5) Until such time as the [Administrator](/usc/42/7602.md?p=a) promulgates regulations pursuant to this subsection, the [Administrator](/usc/42/7602.md?p=a) may continue to provide financial assistance to [eligible Indian tribes](/usc/42/612.md?p=a-2-B) under [section 7405 of this title](/usc/42/7405.md).
# §7602. Definitions
When used in this chapter—
- (a) The term “Administrator” means the Administrator of the Environmental Protection Agency.
- (b) The term “air pollution control agency” means any of the following:
- (1) A [single](/usc/42/2304.md?p=m) [State agency](/usc/42/1396r–8.md?p=k-9) designated by the [Governor](/usc/42/6372.md?p=1) of that [State](#d) as the official [State](#d) [air pollution control agency](#b) for purposes of this chapter.
- (2) An agency established by two or more [States](#d) and having substantial powers or duties pertaining to the prevention and control of air pollution.
- (3) A [city](/usc/42/12902.md?p=11), county, or other [local government](/usc/42/8401a.md) health authority, or, in the case of any [city](/usc/42/12902.md?p=11), county, or other [local government](/usc/42/8401a.md) in which there is an agency other than the health authority charged with responsibility for enforcing ordinances or laws relating to the prevention and control of air pollution, such other agency.
- (4) An agency of two or more [municipalities](#f) located in the same [State](#d) or in different [States](#d) and having substantial powers or duties pertaining to the prevention and control of air pollution.
- (5) An agency of an [Indian tribe](#r).
- (c) The term “interstate air pollution control agency” means—
- (1) an [air pollution control agency](#b) established by two or more [States](#d), or
- (2) an [air pollution control agency](#b) of two or more [municipalities](#f) located in different [States](#d).
- (d) The term “State” means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa and includes the Commonwealth of the Northern Mariana Islands.
- (e) The term “person” includes an individual, [corporation](/usc/42/2296b–7.md?p=1), partnership, association, [State](#d), [municipality](#f), political subdivision of a [State](#d), and any agency, department, or instrumentality of the [United States](/usc/42/403.md?p=k) and any officer, agent, or [employee](/usc/42/1320a–7h.md?p=e-7) thereof.
- (f) The term “municipality” means a [city](/usc/42/12902.md?p=11), town, borough, county, parish, district, or other public body created by or pursuant to [State](#d) law.
- (g) The term “air pollutant” means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including [source material](/usc/42/2014.md?p=z), [special nuclear material](/usc/42/2014.md?p=aa), and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutant, to the extent the [Administrator](#a) has identified such precursor or precursors for the particular purpose for which the term “air pollutant” is used.
- (h) All language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and [hazards](/usc/42/5165f.md?p=a-3) to transportation, as well as effects on economic values and on personal comfort and well-being, whether caused by transformation, conversion, or combination with other [air pollutants](#g).
- (i) The term “Federal land manager” means, with respect to any lands in the [United States](/usc/42/403.md?p=k), the [Secretary](/usc/42/242q–4.md?p=2) of the department with authority over such lands.
- (j) Except as otherwise expressly provided, the terms “major stationary source” and “major emitting facility” mean any stationary [facility](/usc/42/11049.md?p=4) or source of [air pollutants](#g) which directly emits, or has the potential to emit, one hundred tons per year or more of any [air pollutant](#g) (including any major emitting facility or source of fugitive emissions of any such [pollutant](/usc/42/1397h.md?p=c-4), as determined by rule by the [Administrator](#a)).
- (k) The terms “emission limitation” and “emission standard” mean a requirement established by the [State](#d) or the [Administrator](#a) which limits the quantity, rate, or concentration of emissions of [air pollutants](#g) on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice or operational [standard](/usc/42/1320d.md?p=7) promulgated under this chapter..[^1]
- (l) The term “standard of performance” means a requirement of continuous emission reduction, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction.
- (m) The term “means of emission limitation” means a system of continuous emission reduction (including the use of specific technology or fuels with specified pollution characteristics).
- (n) The term “primary standard attainment date” means the date specified in the [applicable implementation plan](#q) for the attainment of a national primary ambient air quality [standard](/usc/42/1320d.md?p=7) for any [air pollutant](#g).
- (o) The term “delayed compliance order” means an order issued by the [State](#d) or by the [Administrator](#a) to an existing [stationary source](/usc/42/7411.md?p=a-3), postponing the date required under an [applicable implementation plan](#q) for compliance by such source with any requirement of such plan.
- (p) The term “schedule and timetable of compliance” means a schedule of required measures including an enforceable sequence of actions or operations leading to compliance with an [emission limitation](#k), other limitation, prohibition, or [standard](/usc/42/1320d.md?p=7).
- (q) For purposes of this chapter, the term “applicable implementation plan” means the portion (or portions) of the implementation plan, or most recent revision thereof, which has been approved under [section 7410 of this title](/usc/42/7410.md), or promulgated under [section 7410(c) of this title](/usc/42/7410.md?p=c), or promulgated or approved pursuant to regulations promulgated under [section 7601(d) of this title](/usc/42/7601.md?p=d) and which implements the relevant requirements of this chapter.
- (r) **Indian Tribe.—** The term “Indian tribe” means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village, which is Federally recognized as eligible for the special [programs](/usc/42/274l–1.md?p=4) and services provided by the [United States](/usc/42/403.md?p=k) to [Indians](/usc/42/6862.md?p=6) because of their status as [Indians](/usc/42/6862.md?p=6).
- (s) **VOC.—** The term “VOC” means volatile organic compound, as defined by the [Administrator](#a).
- (t) **PM–10.—** The term “PM–10” means particulate matter with an aerodynamic diameter less than or equal to a nominal ten micrometers, as measured by such method as the [Administrator](#a) may determine.
- (u) **NAAQS and CTG.—** The term “NAAQS” means national ambient air quality [standard](/usc/42/1320d.md?p=7). The term “CTG” means a Control Technique Guideline published by the [Administrator](#a) under [section 7408 of this title](/usc/42/7408.md).
- (v) **NOx.—** The term “NOx” means oxides of nitrogen.
- (w) **CO.—** The term “CO” means carbon monoxide.
- (x) **Small Source.—** The term “small source” means a source that emits less than 100 tons of regulated [pollutants](/usc/42/1397h.md?p=c-4) per year, or any class of [persons](#e) that the [Administrator](#a) determines, through regulation, generally lack technical ability or knowledge regarding control of air pollution.
- (y) **Federal Implementation Plan.—** The term “Federal implementation plan” means a plan (or portion thereof) promulgated by the [Administrator](#a) to fill all or a portion of a gap or otherwise correct all or a portion of an inadequacy in a [State](#d) implementation plan, and which includes enforceable [emission limitations](#k) or other control measures, means or techniques (including economic incentives, such as marketable permits or auctions of emissions allowances), and provides for attainment of the relevant national ambient air quality [standard](/usc/42/1320d.md?p=7).
- (z) **Stationary Source.—** The term “[stationary source](/usc/42/7411.md?p=a-3)” means generally any source of an [air pollutant](#g) except those emissions resulting directly from an internal combustion engine for transportation purposes or from a [nonroad engine](/usc/42/7550.md?p=10) or nonroad vehicle as defined in [section 7550 of this title](/usc/42/7550.md).
# §7603. Emergency powers
Notwithstanding any other provision of this chapter, the [Administrator](/usc/42/7602.md?p=a), upon receipt of evidence that a pollution source or combination of sources (including moving sources) is presenting an imminent and substantial endangerment to public health or welfare, or the environment, may bring suit on behalf of the [United States](/usc/42/403.md?p=k) in the appropriate [United States](/usc/42/403.md?p=k) district court to immediately restrain any [person](/usc/42/7602.md?p=e) causing or contributing to the alleged pollution to stop the emission of [air pollutants](/usc/42/7602.md?p=g) causing or contributing to such pollution or to take such other action as may be necessary. If it is not practicable to assure prompt protection of public health or welfare or the environment by commencement of such a civil action, the [Administrator](/usc/42/7602.md?p=a) may issue such orders as may be necessary to protect public health or welfare or the environment. Prior to taking any action under this section, the [Administrator](/usc/42/7602.md?p=a) shall consult with appropriate [State](/usc/42/7602.md?p=d) and local authorities and attempt to confirm the accuracy of the information on which the action proposed to be taken is based. Any order issued by the [Administrator](/usc/42/7602.md?p=a) under this section shall be effective upon issuance and shall remain in effect for a period of not more than 60 days, unless the [Administrator](/usc/42/7602.md?p=a) brings an action pursuant to the first sentence of this section before the expiration of that period. Whenever the [Administrator](/usc/42/7602.md?p=a) brings such an action within the 60-day period, such order shall remain in effect for an additional 14 days or for such longer period as may be authorized by the court in which such action is brought.
# §7604. Citizen suits
- (a) **Authority to bring civil action; jurisdiction—** Except as provided in [subsection (b)](#b), any [person](/usc/42/7602.md?p=e) may commence a civil action on his own behalf—
- (1) against any [person](/usc/42/7602.md?p=e) (including (i) the [United States](/usc/42/403.md?p=k), and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to have violated (if there is evidence that the alleged [violation](/usc/42/2000e–16a.md?p=c) has been repeated) or to be in [violation](/usc/42/2000e–16a.md?p=c) of (A) an [emission standard or limitation under this chapter](#f) or (B) an order issued by the [Administrator](/usc/42/7602.md?p=a) or a [State](/usc/42/7602.md?p=d) with respect to such a [standard](/usc/42/1320d.md?p=7) or limitation,
- (2) against the [Administrator](/usc/42/7602.md?p=a) where there is alleged a failure of the [Administrator](/usc/42/7602.md?p=a) to perform any act or duty under this chapter which is not discretionary with the [Administrator](/usc/42/7602.md?p=a), or
- (3) against any [person](/usc/42/7602.md?p=e) who proposes to construct or constructs any new or [modified](/usc/42/7501.md?p=4) [major emitting facility](/usc/42/7602.md?p=j) without a permit required under part C of subchapter I (relating to significant deterioration of air quality) or part D of subchapter I (relating to nonattainment) or who is alleged to have violated (if there is evidence that the alleged [violation](/usc/42/2000e–16a.md?p=c) has been repeated) or to be in [violation](/usc/42/2000e–16a.md?p=c) of any condition of such permit.
The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an [emission standard](/usc/42/7602.md?p=k) or limitation, or such an order, or to order the [Administrator](/usc/42/7602.md?p=a) to perform such act or duty, as the case may be, and to apply any appropriate civil penalties (except for actions under [paragraph (2)](#a-2)). The district courts of the [United States](/usc/42/403.md?p=k) shall have jurisdiction to compel (consistent with paragraph (2) of this subsection) agency action unreasonably delayed, except that an action to compel agency action referred to in [section 7607(b) of this title](/usc/42/7607.md?p=b) which is unreasonably delayed may only be filed in a [United States](/usc/42/403.md?p=k) District Court within the circuit in which such action would be reviewable under [section 7607(b) of this title](/usc/42/7607.md?p=b). In any such action for unreasonable delay, notice to the entities referred to in [subsection (b)(1)(A)](#b-1-A) shall be provided 180 days before commencing such action.
- (b) **Notice—** No action may be commenced—
- (1) under [subsection (a)(1)](#a-1)—
- (A) prior to 60 days after the plaintiff has given notice of the [violation](/usc/42/2000e–16a.md?p=c) (i) to the [Administrator](/usc/42/7602.md?p=a), (ii) to the [State](/usc/42/7602.md?p=d) in which the [violation](/usc/42/2000e–16a.md?p=c) occurs, and (iii) to any alleged violator of the [standard](/usc/42/1320d.md?p=7), limitation, or order, or
- (B) if the [Administrator](/usc/42/7602.md?p=a) or [State](/usc/42/7602.md?p=d) has commenced and is diligently prosecuting a civil action in a court of the [United States](/usc/42/403.md?p=k) or a [State](/usc/42/7602.md?p=d) to require compliance with the [standard](/usc/42/1320d.md?p=7), limitation, or order, but in any such action in a court of the [United States](/usc/42/403.md?p=k) any [person](/usc/42/7602.md?p=e) may intervene as a matter of right.[^1]
- (2) under [subsection (a)(2)](#a-2) prior to 60 days after the plaintiff has given notice of such action to the [Administrator](/usc/42/7602.md?p=a),
except that such action may be brought immediately after such notification in the case of an action under this section respecting a [violation](/usc/42/2000e–16a.md?p=c) of section [7412(i)(3)(A)](/usc/42/7412.md?p=i-3-A) or [(f)(4)](/usc/42/7412.md) of this title or an order issued by the [Administrator](/usc/42/7602.md?p=a) pursuant to [section 7413(a) of this title](/usc/42/7413.md?p=a). Notice under this subsection shall be given in such manner as the [Administrator](/usc/42/7602.md?p=a) shall prescribe by regulation.
- (c) **Venue; intervention by Administrator; service of complaint; consent judgment—**
- (1) Any action respecting a [violation](/usc/42/2000e–16a.md?p=c) by a [stationary source](/usc/42/7411.md?p=a-3) of an [emission standard](/usc/42/7602.md?p=k) or limitation or an order respecting such [standard](/usc/42/1320d.md?p=7) or limitation may be brought only in the judicial district in which such source is located.
- (2) In any action under this section, the [Administrator](/usc/42/7602.md?p=a), if not a party, may intervene as a matter of right at any time in the proceeding. A judgment in an action under this section to which the [United States](/usc/42/403.md?p=k) is not a party shall not, however, have any binding effect upon the [United States](/usc/42/403.md?p=k).
- (3) Whenever any action is brought under this section the plaintiff shall serve a copy of the complaint on the [Attorney General](/usc/42/14902.md?p=6) of the [United States](/usc/42/403.md?p=k) and on the [Administrator](/usc/42/7602.md?p=a). No consent judgment shall be entered in an action brought under this section in which the [United States](/usc/42/403.md?p=k) is not a party prior to 45 days following the receipt of a copy of the proposed consent judgment by the [Attorney General](/usc/42/14902.md?p=6) and the [Administrator](/usc/42/7602.md?p=a) during which time the Government may submit its comments on the proposed consent judgment to the court and parties or may intervene as a matter of right.
- (d) **Award of costs; security—** The court, in issuing any final order in any action brought pursuant to [subsection (a)](#a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure.
- (e) **Nonrestriction of other rights—** Nothing in this section shall restrict any right which any [person](/usc/42/7602.md?p=e) (or class of [persons](/usc/42/7602.md?p=e)) may have under any statute or common law to seek enforcement of any [emission standard](/usc/42/7602.md?p=k) or limitation or to seek any other relief (including relief against the [Administrator](/usc/42/7602.md?p=a) or a [State agency](/usc/42/1396r–8.md?p=k-9)). Nothing in this section or in any other law of the [United States](/usc/42/403.md?p=k) shall be construed to prohibit, exclude, or restrict any [State](/usc/42/7602.md?p=d), local, or interstate authority from—
- (1) bringing any [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i) or obtaining any judicial remedy or sanction in any [State](/usc/42/7602.md?p=d) or local court, or
- (2) bringing any administrative [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i) or obtaining any administrative remedy or sanction in any [State](/usc/42/7602.md?p=d) or local administrative agency, department or instrumentality,
against the [United States](/usc/42/403.md?p=k), any department, agency, or instrumentality thereof, or any officer, agent, or [employee](/usc/42/1320a–7h.md?p=e-7) thereof under [State](/usc/42/7602.md?p=d) or local law respecting control and abatement of air pollution. For provisions requiring compliance by the [United States](/usc/42/403.md?p=k), departments, agencies, instrumentalities, officers, agents, and [employees](/usc/42/1320a–7h.md?p=e-7) in the same manner as nongovernmental entities, see [section 7418 of this title](/usc/42/7418.md).
- (f) **“Emission standard or limitation under this chapter” defined—** For purposes of this section, the term “emission standard or limitation under this chapter” means—
- (1) a schedule or timetable of compliance, [emission limitation](/usc/42/7602.md?p=k), [standard of performance](/usc/42/7602.md?p=l) or [emission standard](/usc/42/7602.md?p=k),
- (2) a control or prohibition respecting a [motor vehicle](/usc/42/13211.md?p=13) fuel or fuel additive, or[^2]
- (3) any condition or requirement of a permit under part C of subchapter I (relating to significant deterioration of air quality) or part D of subchapter I (relating to nonattainment),,[^3] [section 7419 of this title](/usc/42/7419.md) (relating to primary nonferrous smelter orders), any condition or requirement under an [applicable implementation plan](/usc/42/7602.md?p=q) relating to transportation control measures, air quality maintenance plans, vehicle [inspection](/usc/42/4851b.md?p=12) and maintenance [programs](/usc/42/274l–1.md?p=4) or vapor recovery requirements, section [7545(e)](/usc/42/7545.md?p=e) and [(f)](/usc/42/7545.md?p=f) of this title (relating to fuels and fuel additives), [section 7491 of this title](/usc/42/7491.md) (relating to visibility protection), any condition or requirement under subchapter VI (relating to ozone protection), or any requirement under section [7411](/usc/42/7411.md) or [7412](/usc/42/7412.md) of this title (without regard to whether such requirement is expressed as an [emission standard](/usc/42/7602.md?p=k) or otherwise);[^4] or
- (4) any other [standard](/usc/42/1320d.md?p=7), limitation, or schedule established under any permit issued pursuant to subchapter V or under any applicable [State](/usc/42/7602.md?p=d) implementation plan approved by the [Administrator](/usc/42/7602.md?p=a), any permit term or condition, and any requirement to obtain a permit as a condition of operations.[^5]
which is in effect under this chapter (including a requirement applicable by reason of [section 7418 of this title](/usc/42/7418.md)) or under an [applicable implementation plan](/usc/42/7602.md?p=q).
- (g) **Penalty fund—**
- (1) Penalties received under [subsection (a)](#a) shall be deposited in a special [fund](/usc/42/12854.md?p=3) in the [United States](/usc/42/403.md?p=k) Treasury for licensing and other services. Amounts in such [fund](/usc/42/12854.md?p=3) are authorized to be appropriated and shall remain available until expended, for use by the [Administrator](/usc/42/7602.md?p=a) to finance air compliance and enforcement activities. The [Administrator](/usc/42/7602.md?p=a) shall annually report to the Congress about the sums deposited into the [fund](/usc/42/12854.md?p=3), the sources thereof, and the actual and proposed uses thereof.
- (2) Notwithstanding [paragraph (1)](#g-1) the court in any action under this subsection[^6] to apply civil penalties shall have discretion to order that such civil penalties, in lieu of being deposited in the [fund](/usc/42/12854.md?p=3) referred to in [paragraph (1)](#g-1), be used in beneficial mitigation [projects](/usc/42/11360.md?p=20) which are consistent with this chapter and enhance the public health or the environment. The court shall obtain the view of the [Administrator](/usc/42/7602.md?p=a) in exercising such discretion and selecting any such [projects](/usc/42/11360.md?p=20). The amount of any such payment in any such action shall not exceed $100,000.
# §7605. Representation in litigation
- (a) **Attorney General; attorneys appointed by Administrator—** The [Administrator](/usc/42/7602.md?p=a) shall request the [Attorney General](/usc/42/14902.md?p=6) to appear and represent him in any civil action instituted under this chapter to which the [Administrator](/usc/42/7602.md?p=a) is a party. Unless the [Attorney General](/usc/42/14902.md?p=6) notifies the [Administrator](/usc/42/7602.md?p=a) that he will appear in such action, within a reasonable time, attorneys appointed by the [Administrator](/usc/42/7602.md?p=a) shall appear and represent him.
- (b) **Memorandum of understanding regarding legal representation—** In the event the [Attorney General](/usc/42/14902.md?p=6) agrees to appear and represent the [Administrator](/usc/42/7602.md?p=a) in any such action, such representation shall be conducted in accordance with, and shall include participation by, attorneys appointed by the [Administrator](/usc/42/7602.md?p=a) to the extent authorized by, the memorandum of understanding between the Department of Justice and the Environmental Protection Agency, dated June 13, 1977, respecting representation of the agency by the department in civil litigation.
# §7606. Federal procurement
- (a) **Contracts with violators prohibited—** No Federal agency may enter into any contract with any [person](/usc/42/7602.md?p=e) who is convicted of any offense under [section 7413(c) of this title](/usc/42/7413.md?p=c) for the procurement of goods, materials, and services to perform such contract at any [facility](/usc/42/11049.md?p=4) at which the [violation](/usc/42/2000e–16a.md?p=c) which gave rise to such conviction occurred if such [facility](/usc/42/11049.md?p=4) is owned, leased, or supervised by such [person](/usc/42/7602.md?p=e). The prohibition in the preceding sentence shall continue until the [Administrator](/usc/42/7602.md?p=a) certifies that the condition giving rise to such a conviction has been corrected. For convictions arising under [section 7413(c)(2) of this title](/usc/42/7413.md?p=c-2), the condition giving rise to the conviction also shall be considered to include any substantive [violation](/usc/42/2000e–16a.md?p=c) of this chapter associated with the [violation](/usc/42/2000e–16a.md?p=c) of [7413(c)(2)](/usc/42/7413.md?p=c-2) of this title. The [Administrator](/usc/42/7602.md?p=a) may extend this prohibition to other [facilities](/usc/42/11049.md?p=4) owned or operated by the convicted [person](/usc/42/7602.md?p=e).
- (b) **Notification procedures—** The [Administrator](/usc/42/7602.md?p=a) shall establish procedures to provide all Federal agencies with the notification necessary for the purposes of [subsection (a)](#a).
- (c) **Federal agency contracts—** In order to implement the purposes and policy of this chapter to protect and enhance the quality of the Nation’s air, the President shall, not more than 180 days after December 31, 1970, [cause](/usc/42/9908.md?p=c-2) to be issued an order (1) requiring each Federal agency authorized to enter into contracts and each Federal agency which is empowered to extend Federal assistance by way of grant, loan, or contract to effectuate the purpose and policy of this chapter in such contracting or assistance activities, and (2) setting forth procedures, sanctions, penalties, and such other provisions, as the President determines necessary to carry out such requirement.
- (d) **Exemptions; notification to Congress—** The President may exempt any contract, loan, or grant from all or part of the provisions of this section where he determines such exemption is necessary in the paramount interest of the [United States](/usc/42/403.md?p=k) and he shall notify the Congress of such exemption.
# §7607. Administrative proceedings and judicial review
- (a) **Administrative subpenas; confidentiality; witnesses—** In connection with any determination under [section 7410(f) of this title](/usc/42/7410.md?p=f), or for purposes of obtaining information under [section 7521(b)(4)](/usc/42/7521.md)[^1] or 7545(c)(3) of this title, any investigation, monitoring, reporting requirement, entry, compliance [inspection](/usc/42/4851b.md?p=12), or administrative enforcement proceeding under the[^2] chapter (including but not limited to [section 7413](/usc/42/7413.md), [section 7414](/usc/42/7414.md), [section 7420](/usc/42/7420.md), [section 7429](/usc/42/7429.md), [section 7477](/usc/42/7477.md), [section 7524](/usc/42/7524.md), [section 7525](/usc/42/7525.md), [section 7542](/usc/42/7542.md), [section 7603](/usc/42/7603.md), or [section 7606 of this title](/usc/42/7606.md)),,[^3] the [Administrator](/usc/42/7602.md?p=a) may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and he may administer oaths. Except for emission data, upon a showing satisfactory to the [Administrator](/usc/42/7602.md?p=a) by such [owner or operator](/usc/42/9601.md?p=20-B) that such papers, books, documents, or information or particular part thereof, if made public, would divulge trade secrets or secret processes of such [owner or operator](/usc/42/9601.md?p=20-B), the [Administrator](/usc/42/7602.md?p=a) shall consider such record, report, or information or particular portion thereof confidential in accordance with the purposes of [section 1905 of title 18](/usc/18/1905.md), except that such paper, book, document, or information may be disclosed to other officers, [employees](/usc/42/1320a–7h.md?p=e-7), or authorized [representatives](/usc/42/3058f.md?p=5) of the [United States](/usc/42/403.md?p=k) concerned with carrying out this chapter, to [persons](/usc/42/7602.md?p=e) carrying out the National Academy of Sciences’ study and investigation provided for in [section 7521(c) of this title](/usc/42/7521.md?p=c), or when relevant in any proceeding under this chapter. Witnesses summoned shall be paid the same fees and mileage that are paid witnesses in the courts of the [United States](/usc/42/403.md?p=k). In case of contumacy or refusal to obey a subpena served upon any [person](/usc/42/7602.md?p=e) under this subparagraph,[^4] the district court of the [United States](/usc/42/403.md?p=k) for any district in which such [person](/usc/42/7602.md?p=e) is found or resides or transacts business, upon application by the [United States](/usc/42/403.md?p=k) and after notice to such [person](/usc/42/7602.md?p=e), shall have jurisdiction to issue an order requiring such [person](/usc/42/7602.md?p=e) to appear and give testimony before the [Administrator](/usc/42/7602.md?p=a) to appear and produce papers, books, and documents before the [Administrator](/usc/42/7602.md?p=a), or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof.
- (b) **Judicial review—**
- (1) A petition for review of action of the [Administrator](/usc/42/7602.md?p=a) in promulgating any national primary or secondary ambient air quality [standard](/usc/42/1320d.md?p=7), any [emission standard](/usc/42/7602.md?p=k) or requirement under [section 7412 of this title](/usc/42/7412.md), any [standard of performance](/usc/42/7602.md?p=l) or requirement under [section 7411 of this title](/usc/42/7411.md),,[^3] any [standard](/usc/42/1320d.md?p=7) under [section 7521 of this title](/usc/42/7521.md) (other than a [standard](/usc/42/1320d.md?p=7) required to be prescribed under [section 7521(b)(1) of this title](/usc/42/7521.md?p=b-1)), any determination under [section 7521(b)(5)](/usc/42/7521.md)[^1] of this title, any control or prohibition under [section 7545 of this title](/usc/42/7545.md), any [standard](/usc/42/1320d.md?p=7) under [section 7571 of this title](/usc/42/7571.md), any rule issued under section [7413](/usc/42/7413.md), [7419](/usc/42/7419.md), or under [section 7420 of this title](/usc/42/7420.md), or any other nationally applicable regulations promulgated, or final action taken, by the [Administrator](/usc/42/7602.md?p=a) under this chapter may be filed only in the [United States](/usc/42/403.md?p=k) Court of Appeals for the District of Columbia. A petition for review of the [Administrator](/usc/42/7602.md?p=a)’s action in approving or promulgating any implementation plan under [section 7410 of this title](/usc/42/7410.md) or [section 7411(d) of this title](/usc/42/7411.md?p=d), any order under [section 7411(j) of this title](/usc/42/7411.md?p=j), under [section 7412 of this title](/usc/42/7412.md), under [section 7419 of this title](/usc/42/7419.md), or under [section 7420 of this title](/usc/42/7420.md), or his action under section [1857c–10(c)(2)(A)](/usc/42/1857c–10.md), [(B)](/usc/42/1857c–10.md), or [(C)](/usc/42/1857c–10.md) of this title (as in effect before August 7, 1977) or under regulations thereunder, or revising regulations for enhanced monitoring and compliance certification [programs](/usc/42/274l–1.md?p=4) under [section 7414(a)(3) of this title](/usc/42/7414.md?p=a-3), or any other final action of the [Administrator](/usc/42/7602.md?p=a) under this chapter (including any denial or disapproval by the [Administrator](/usc/42/7602.md?p=a) under subchapter I) which is locally or regionally applicable may be filed only in the [United States](/usc/42/403.md?p=k) Court of Appeals for the appropriate circuit. Notwithstanding the preceding sentence a petition for review of any action referred to in such sentence may be filed only in the [United States](/usc/42/403.md?p=k) Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the [Administrator](/usc/42/7602.md?p=a) finds and publishes that such action is based on such a determination. Any petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds arise. The filing of a petition for reconsideration by the [Administrator](/usc/42/7602.md?p=a) of any otherwise final rule or action shall not affect the finality of such rule or action for purposes of judicial review nor extend the time within which a petition for judicial review of such rule or action under this section may be filed, and shall not postpone the effectiveness of such rule or action.
- (2) Action of the [Administrator](/usc/42/7602.md?p=a) with respect to which review could have been obtained under [paragraph (1)](#b-1) shall not be subject to judicial review in civil or criminal proceedings for enforcement. Where a final decision by the [Administrator](/usc/42/7602.md?p=a) defers performance of any nondiscretionary statutory action to a later time, any [person](/usc/42/7602.md?p=e) may challenge the deferral pursuant to [paragraph (1)](#b-1).
- (c) **Additional evidence—** In any judicial proceeding in which review is sought of a determination under this chapter required to be made on the record after notice and opportunity for hearing, if any party applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the [Administrator](/usc/42/7602.md?p=a), the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before the [Administrator](/usc/42/7602.md?p=a), in such manner and upon such terms and conditions as to[^5] the court may deem proper. The [Administrator](/usc/42/7602.md?p=a) may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken and he shall file such [modified](/usc/42/7501.md?p=4) or new findings, and his recommendation, if any, for the [modification](/usc/42/7501.md?p=4) or setting aside of his original determination, with the return of such additional evidence.
- (d) **Rulemaking—**
- (1) This subsection applies to—
- (A) the promulgation or revision of any national ambient air quality [standard](/usc/42/1320d.md?p=7) under [section 7409 of this title](/usc/42/7409.md),
- (B) the promulgation or revision of an implementation plan by the [Administrator](/usc/42/7602.md?p=a) under [section 7410(c) of this title](/usc/42/7410.md?p=c),
- (C) the promulgation or revision of any [standard of performance](/usc/42/7602.md?p=l) under [section 7411 of this title](/usc/42/7411.md), or [emission standard](/usc/42/7602.md?p=k) or limitation under [section 7412(d) of this title](/usc/42/7412.md?p=d), any [standard](/usc/42/1320d.md?p=7) under [section 7412(f) of this title](/usc/42/7412.md?p=f), or any regulation under section [7412(g)(1)(D)](/usc/42/7412.md) and [(F)](/usc/42/7412.md)[^6] of this title, or any regulation under section [7412(m)](/usc/42/7412.md?p=m) or [(n)](/usc/42/7412.md?p=n) of this title,
- (D) the promulgation of any requirement for [solid waste](/usc/42/7546.md?p=a-1) combustion under [section 7429 of this title](/usc/42/7429.md),
- (E) the promulgation or revision of any regulation pertaining to any fuel or fuel additive under [section 7545 of this title](/usc/42/7545.md),
- (F) the promulgation or revision of any aircraft [emission standard](/usc/42/7602.md?p=k) under [section 7571 of this title](/usc/42/7571.md),
- (G) the promulgation or revision of any regulation under subchapter IV–A (relating to control of acid deposition),
- (H) promulgation or revision of regulations pertaining to primary nonferrous smelter orders under [section 7419 of this title](/usc/42/7419.md) (but not including the granting or denying of any such order),
- (I) promulgation or revision of regulations under subchapter VI (relating to stratosphere and ozone protection),
- (J) promulgation or revision of regulations under part C of subchapter I (relating to prevention of significant deterioration of air quality and protection of visibility),
- (K) promulgation or revision of regulations under [section 7521 of this title](/usc/42/7521.md) and test procedures for [new motor vehicles](/usc/42/7550.md?p=3) or engines under [section 7525 of this title](/usc/42/7525.md), and the revision of a [standard](/usc/42/1320d.md?p=7) under [section 7521(a)(3) of this title](/usc/42/7521.md?p=a-3),
- (L) promulgation or revision of regulations for noncompliance penalties under [section 7420 of this title](/usc/42/7420.md),
- (M) promulgation or revision of any regulations promulgated under [section 7541 of this title](/usc/42/7541.md) (relating to warranties and compliance by vehicles in actual use),
- (N) action of the [Administrator](/usc/42/7602.md?p=a) under [section 7426 of this title](/usc/42/7426.md) (relating to interstate pollution abatement),
- (O) the promulgation or revision of any regulation pertaining to consumer and commercial products under [section 7511b(e) of this title](/usc/42/7511b.md?p=e),
- (P) the promulgation or revision of any regulation pertaining to field citations under [section 7413(d)(3) of this title](/usc/42/7413.md?p=d-3),
- (Q) the promulgation or revision of any regulation pertaining to [urban buses](/usc/42/7554.md?p=f-1) or the clean-fuel vehicle, clean-fuel fleet, and clean fuel [programs](/usc/42/274l–1.md?p=4) under part C of subchapter II,
- (R) the promulgation or revision of any regulation pertaining to [nonroad engines](/usc/42/7550.md?p=10) or nonroad vehicles under [section 7547 of this title](/usc/42/7547.md),
- (S) the promulgation or revision of any regulation relating to [motor vehicle](/usc/42/13211.md?p=13) compliance [program](/usc/42/274l–1.md?p=4) fees under [section 7552 of this title](/usc/42/7552.md),
- (T) the promulgation or revision of any regulation under subchapter IV–A (relating to acid deposition),
- (U) the promulgation or revision of any regulation under [section 7511b(f) of this title](/usc/42/7511b.md?p=f) pertaining to marine vessels, and
- (V) such other actions as the [Administrator](/usc/42/7602.md?p=a) may determine.
The provisions of [section 553 through 557](/usc/42/553..557.md) and [section 706 of title 5](/usc/5/706.md) shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies. This subsection shall not apply in the case of any rule or circumstance referred to in subparagraphs [(A)](#d-1-A) or [(B)](#d-1-B) of sub[section 553(b) of title 5](/usc/5/553.md?p=b).
- (2) Not later than the date of proposal of any action to which this subsection applies, the [Administrator](/usc/42/7602.md?p=a) shall establish a rulemaking docket for such action (hereinafter in this subsection referred to as a “rule”). Whenever a rule applies only within a particular [State](/usc/42/7602.md?p=d), a second (identical) docket shall be simultaneously established in the appropriate regional [office](/usc/42/3058f.md?p=1) of the Environmental Protection Agency.
- (3) In the case of any rule to which this subsection applies, notice of proposed rulemaking shall be published in the Federal Register, as provided under [section 553(b) of title 5](/usc/5/553.md?p=b), shall be accompanied by a statement of its basis and purpose and shall specify the period available for public comment (hereinafter referred to as the “comment period”). The notice of proposed rulemaking shall also [state](/usc/42/7602.md?p=d) the docket number, the location or locations of the docket, and the times it will be open to public [inspection](/usc/42/4851b.md?p=12). The statement of basis and purpose shall include a summary of—
- (A) the factual data on which the proposed rule is based;
- (B) the methodology used in obtaining the data and in analyzing the data; and
- (C) the major legal interpretations and policy considerations underlying the proposed rule.
The statement shall also set forth or summarize and provide a reference to any pertinent findings, recommendations, and comments by the Scientific Review Committee established under [section 7409(d) of this title](/usc/42/7409.md?p=d) and the National Academy of Sciences, and, if the proposal differs in any important respect from any of these recommendations, an explanation of the reasons for such differences. All data, information, and documents referred to in this paragraph on which the proposed rule relies shall be included in the docket on the date of publication of the proposed rule.
- (4)
- (A) The rulemaking docket required under [paragraph (2)](#d-2) shall be open for [inspection](/usc/42/4851b.md?p=12) by the public at reasonable times specified in the notice of proposed rulemaking. Any [person](/usc/42/7602.md?p=e) may copy documents contained in the docket. The [Administrator](/usc/42/7602.md?p=a) shall provide copying [facilities](/usc/42/11049.md?p=4) which may be used at the expense of the [person](/usc/42/7602.md?p=e) seeking copies, but the [Administrator](/usc/42/7602.md?p=a) may waive or reduce such expenses in such instances as the public interest requires. Any [person](/usc/42/7602.md?p=e) may request copies by mail if the [person](/usc/42/7602.md?p=e) pays the expenses, including personnel costs to do the copying.
- (B)
- (i) Promptly upon receipt by the agency, all written comments and documentary information on the proposed rule received from any [person](/usc/42/7602.md?p=e) for inclusion in the docket during the comment period shall be placed in the docket. The transcript of public hearings, if any, on the proposed rule shall also be included in the docket promptly upon receipt from the [person](/usc/42/7602.md?p=e) who transcribed such hearings. All documents which become available after the proposed rule has been published and which the [Administrator](/usc/42/7602.md?p=a) determines are of central relevance to the rulemaking shall be placed in the docket as soon as possible after their availability.
- (ii) The drafts of proposed rules submitted by the [Administrator](/usc/42/7602.md?p=a) to the [Office](/usc/42/3058f.md?p=1) of Management and Budget for any interagency review process prior to proposal of any such rule, all documents accompanying such drafts, and all written comments thereon by other agencies and all written responses to such written comments by the [Administrator](/usc/42/7602.md?p=a) shall be placed in the docket no later than the date of proposal of the rule. The drafts of the final rule submitted for such review process prior to promulgation and all such written comments thereon, all documents accompanying such drafts, and written responses thereto shall be placed in the docket no later than the date of promulgation.
- (5) In promulgating a rule to which this subsection applies (i) the [Administrator](/usc/42/7602.md?p=a) shall allow any [person](/usc/42/7602.md?p=e) to submit written comments, data, or documentary information; (ii) the [Administrator](/usc/42/7602.md?p=a) shall give interested [persons](/usc/42/7602.md?p=e) an opportunity for the oral presentation of data, views, or arguments, in addition to an opportunity to make written submissions; (iii) a transcript shall be kept of any oral presentation; and (iv) the [Administrator](/usc/42/7602.md?p=a) shall keep the record of such proceeding open for thirty days after completion of the proceeding to provide an opportunity for submission of rebuttal and supplementary information.
- (6)
- (A) The promulgated rule shall be accompanied by (i) a statement of basis and purpose like that referred to in [paragraph (3)](#d-3) with respect to a proposed rule and (ii) an explanation of the reasons for any major changes in the promulgated rule from the proposed rule.
- (B) The promulgated rule shall also be accompanied by a response to each of the significant comments, criticisms, and new data submitted in written or oral presentations during the comment period.
- (C) The promulgated rule may not be based (in part or whole) on any information or data which has not been placed in the docket as of the date of such promulgation.
- (7)
- (A) The record for judicial review shall consist exclusively of the material referred to in [paragraph (3)](#d-3), [clause (i)](#d-4-B-i) of paragraph (4)(B), and subparagraphs [(A)](#d-6-A) and [(B)](#d-6-B) of paragraph (6).
- (B) Only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. If the [person](/usc/42/7602.md?p=e) raising an objection can demonstrate to the [Administrator](/usc/42/7602.md?p=a) that it was impracticable to raise such objection within such time or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule, the [Administrator](/usc/42/7602.md?p=a) shall convene a proceeding for reconsideration of the rule and provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed. If the [Administrator](/usc/42/7602.md?p=a) refuses to convene such a proceeding, such [person](/usc/42/7602.md?p=e) may seek review of such refusal in the [United States](/usc/42/403.md?p=k) court of appeals for the appropriate circuit (as provided in [subsection (b)](#b)). Such reconsideration shall not postpone the effectiveness of the rule. The effectiveness of the rule may be stayed during such reconsideration, however, by the [Administrator](/usc/42/7602.md?p=a) or the court for a period not to exceed three months.
- (8) The sole forum for challenging procedural determinations made by the [Administrator](/usc/42/7602.md?p=a) under this subsection shall be in the [United States](/usc/42/403.md?p=k) court of appeals for the appropriate circuit (as provided in [subsection (b)](#b)) at the time of the substantive review of the rule. No interlocutory appeals shall be permitted with respect to such procedural determinations. In reviewing alleged procedural errors, the court may invalidate the rule only if the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made.
- (9) In the case of review of any action of the [Administrator](/usc/42/7602.md?p=a) to which this subsection applies, the court may reverse any such action found to be—
- (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
- (B) contrary to constitutional right, power, privilege, or immunity;
- (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or
- (D) without observance of procedure required by law, if (i) such failure to observe such procedure is arbitrary or capricious, (ii) the requirement of [paragraph (7)(B)](#d-7-B) has been met, and (iii) the condition of the last sentence of [paragraph (8)](#d-8) is met.
- (10) Each statutory deadline for promulgation of rules to which this subsection applies which requires promulgation less than six months after date of proposal may be extended to not more than six months after date of proposal by the [Administrator](/usc/42/7602.md?p=a) upon a determination that such extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of this subsection.
- (11) The requirements of this subsection shall take effect with respect to any rule the proposal of which occurs after ninety days after August 7, 1977.
- (e) **Other methods of judicial review not authorized—** Nothing in this chapter shall be construed to authorize judicial review of regulations or orders of the [Administrator](/usc/42/7602.md?p=a) under this chapter, except as provided in this section.
- (f) **Costs—** In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate.
- (g) **Stay, injunction, or similar relief in proceedings relating to noncompliance penalties—** In any action respecting the promulgation of regulations under [section 7420 of this title](/usc/42/7420.md) or the administration or enforcement of [section 7420 of this title](/usc/42/7420.md) no court shall grant any stay, injunctive, or similar relief before final judgment by such court in such action.
- (h) **Public participation—** It is the intent of Congress that, consistent with the policy of subchapter II of [chapter 5](/usc/5/chptI-ch5.md) of title 5, the [Administrator](/usc/42/7602.md?p=a) in promulgating any regulation under this chapter, including a regulation subject to a deadline, shall ensure a reasonable period for public participation of at least 30 days, except as otherwise expressly provided in section[^7] 7407(d), 7502(a), 7511(a) and (b), and 7512(a) and (b) of this title.
# §7608. Mandatory licensing
Whenever the [Attorney General](/usc/42/14902.md?p=6) determines, upon application of the [Administrator](/usc/42/7602.md?p=a)—
- (1) that—
- (A) in the implementation of the requirements of section [7411](/usc/42/7411.md), [7412](/usc/42/7412.md), or [7521](/usc/42/7521.md) of this title, a right under any [United States](/usc/42/403.md?p=k) letters patent, which is being used or intended for public or commercial use and not otherwise reasonably available, is necessary to enable any [person](/usc/42/7602.md?p=e) required to comply with such limitation to so comply, and
- (B) there are no reasonable alternative methods to accomplish such purpose, and
- (2) that the unavailability of such right may result in a substantial lessening of competition or tendency to create a monopoly in any line of [commerce](/usc/42/6311.md?p=7) in any section of the country,
the [Attorney General](/usc/42/14902.md?p=6) may so certify to a district court of the [United States](/usc/42/403.md?p=k), which may issue an order requiring the [person](/usc/42/7602.md?p=e) who owns such patent to license it on such reasonable terms and conditions as the court, after hearing, may determine. Such certification may be made to the district court for the district in which the [person](/usc/42/7602.md?p=e) owning the patent resides, does business, or is found.
# §7609. Policy review
- (a) **Environmental impact—** The [Administrator](/usc/42/7602.md?p=a) shall review and comment in writing on the environmental impact of any matter relating to duties and responsibilities granted pursuant to this chapter or other provisions of the authority of the [Administrator](/usc/42/7602.md?p=a), contained in any (1) legislation proposed by any Federal department or agency, (2) newly authorized Federal [projects](/usc/42/11360.md?p=20) for [construction](/usc/42/7479.md?p=2-C) and any major Federal agency action (other than a [project](/usc/42/11360.md?p=20) for [construction](/usc/42/7479.md?p=2-C)) to which [section 4332(2)(C) of this title](/usc/42/4332.md) applies, and (3) proposed regulations published by any department or agency of the Federal Government. Such written comment shall be made public at the conclusion of any such review.
- (b) **Unsatisfactory legislation, action, or regulation—** In the event the [Administrator](/usc/42/7602.md?p=a) determines that any such legislation, action, or regulation is unsatisfactory from the standpoint of public health or welfare or environmental quality, he shall publish his determination and the matter shall be referred to the [Council](/usc/42/300f.md?p=9) on Environmental Quality.
# §7610. Other authority
- (a) **Authority and responsibilities under other laws not affected—** Except as provided in [subsection (b)](#b) of this section, this chapter shall not be construed as superseding or limiting the authorities and responsibilities, under any other provision of law, of the [Administrator](/usc/42/7602.md?p=a) or any other Federal officer, department, or agency.
- (b) **Nonduplication of appropriations—** No appropriation shall be authorized or made under section [241](/usc/42/241.md), [243](/usc/42/243.md), or [246](/usc/42/246.md) of this title for any fiscal year after the fiscal year ending June 30, 1964, for any purpose for which appropriations may be made under authority of this chapter.
# §7611. Records and audit
- (a) **Recipients of assistance to keep prescribed records—** Each [recipient](/usc/42/2996a.md?p=6) of assistance under this chapter shall keep such records as the [Administrator](/usc/42/7602.md?p=a) shall prescribe, including records which fully disclose the amount and disposition by such [recipient](/usc/42/2996a.md?p=6) of the proceeds of such assistance, the total cost of the [project](/usc/42/11360.md?p=20) or undertaking in connection with which such assistance is given or used, and the amount of that portion of the cost of the [project](/usc/42/11360.md?p=20) or undertaking supplied by other sources, and such other records as will facilitate an effective audit.
- (b) **Audits—** The [Administrator](/usc/42/7602.md?p=a) and the Comptroller General of the [United States](/usc/42/403.md?p=k), or any of their duly authorized [representatives](/usc/42/3058f.md?p=5), shall have access for the purpose of audit and examinations to any books, documents, papers, and records of the [recipients](/usc/42/2996a.md?p=6) that are pertinent to the grants received under this chapter.
# §7612. Economic impact analyses
- (a) **Cost-benefit analysis—** The [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Commerce](/usc/42/6311.md?p=7), the [Secretary](/usc/42/242q–4.md?p=2) of Labor, and the [Council](/usc/42/300f.md?p=9) on Clean Air Compliance Analysis (as established under [subsection (f)](#f) of this section), shall conduct a comprehensive analysis of the impact of this chapter on the public health, economy, and environment of the [United States](/usc/42/403.md?p=k). In performing such analysis, the [Administrator](/usc/42/7602.md?p=a) should consider the costs, benefits and other effects associated with compliance with each [standard](/usc/42/1320d.md?p=7) issued for—
- (1) a criteria [air pollutant](/usc/42/7602.md?p=g) subject to a [standard](/usc/42/1320d.md?p=7) issued under [section 7409 of this title](/usc/42/7409.md);
- (2) a hazardous [air pollutant](/usc/42/7602.md?p=g) listed under [section 7412 of this title](/usc/42/7412.md), including any technology-based [standard](/usc/42/1320d.md?p=7) and any risk-based [standard](/usc/42/1320d.md?p=7) for such [pollutant](/usc/42/1397h.md?p=c-4);
- (3) emissions from mobile sources regulated under subchapter II of this chapter;
- (4) a limitation under this chapter for emissions of sulfur dioxide or nitrogen oxides;
- (5) a limitation under subchapter VI of this chapter on the production of any ozone-depleting substance; and
- (6) any other section of this chapter.
- (b) **Benefits—** In describing the benefits of a [standard](/usc/42/1320d.md?p=7) described in [subsection (a)](#a), the [Administrator](/usc/42/7602.md?p=a) shall consider all of the economic, public health, and environmental benefits of efforts to comply with such [standard](/usc/42/1320d.md?p=7). In any case where numerical values are assigned to such benefits, a default assumption of zero value shall not be assigned to such benefits unless supported by specific data. The [Administrator](/usc/42/7602.md?p=a) shall assess how benefits are measured in order to assure that damage to human health and the environment is more accurately measured and taken into account.
- (c) **Costs—** In describing the costs of a [standard](/usc/42/1320d.md?p=7) described in [subsection (a)](#a), the [Administrator](/usc/42/7602.md?p=a) shall consider the effects of such [standard](/usc/42/1320d.md?p=7) on employment, productivity, cost of living, economic growth, and the overall economy of the [United States](/usc/42/403.md?p=k).
- (d) **Initial report—** Not later than 12 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Commerce](/usc/42/6311.md?p=7), the [Secretary](/usc/42/242q–4.md?p=2) of Labor, and the [Council](/usc/42/300f.md?p=9) on Clean Air Compliance Analysis, shall submit a report to the Congress that summarizes the results of the analysis described in [subsection (a)](#a), which reports—
- (1) all costs incurred previous to November 15, 1990, in the effort to comply with such [standards](/usc/42/1320d.md?p=7); and
- (2) all benefits that have accrued to the [United States](/usc/42/403.md?p=k) as a result of such costs.
- (e) **Omitted—**
- (f) **Appointment of Advisory Council on Clean Air Compliance Analysis—** Not later than 6 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Commerce](/usc/42/6311.md?p=7) and the [Secretary](/usc/42/242q–4.md?p=2) of Labor, shall appoint an [Advisory Council](/usc/42/274l–1.md?p=1) on Clean Air Compliance Analysis of not less than nine members (hereafter in this section referred to as the “[Council](/usc/42/300f.md?p=9)”). In appointing such members, the [Administrator](/usc/42/7602.md?p=a) shall appoint recognized experts in the fields of the health and environmental effects of air pollution, economic analysis, environmental sciences, and such other fields that the [Administrator](/usc/42/7602.md?p=a) determines to be appropriate.
- (g) **Duties of Advisory Council—** The [Council](/usc/42/300f.md?p=9) shall—
- (1) review the data to be used for any analysis required under this section and make recommendations to the [Administrator](/usc/42/7602.md?p=a) on the use of such data;
- (2) review the methodology used to analyze such data and make recommendations to the [Administrator](/usc/42/7602.md?p=a) on the use of such methodology; and
- (3) prior to the issuance of a report required under subsection [(d)](#d) or [(e)](#e), review the findings of such report, and make recommendations to the [Administrator](/usc/42/7602.md?p=a) concerning the validity and utility of such findings.
# [§7613. Repealed. Pub. L. 101–549, title VIII, § 803, Nov. 15, 1990, 104 Stat. 2689 — repealed]
# §7614. Labor standards
The [Administrator](/usc/42/7602.md?p=a) shall take such action as may be necessary to insure that all laborers and mechanics employed by contractors or subcontractors on [projects](/usc/42/11360.md?p=20) assisted under this chapter shall be paid wages at rates not less than those prevailing for the same type of work on similar [construction](/usc/42/7479.md?p=2-C) in the locality as determined by the [Secretary](/usc/42/242q–4.md?p=2) of Labor, in accordance with sections 3141–3144, [3146](/usc/40/3146.md), and [3147](/usc/40/3147.md) of title 40. The [Secretary](/usc/42/242q–4.md?p=2) of Labor shall have, with respect to the labor [standards](/usc/42/1320d.md?p=7) specified in this subsection,[^1] the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (15 F.R. 3176; 64 Stat. 1267) and [section 3145 of title 40](/usc/40/3145.md).
# §7615. Separability
If any provision of this chapter, or the application of any provision of this chapter to any [person](/usc/42/7602.md?p=e) or circumstance, is held invalid, the application of such provision to other [persons](/usc/42/7602.md?p=e) or circumstances, and the remainder of this chapter shall not be affected thereby.
# §7616. Sewage treatment grants
- (a) **Construction—** No grant which the [Administrator](/usc/42/7602.md?p=a) is authorized to make to any applicant for [construction](/usc/42/7479.md?p=2-C) of sewage [treatment](/usc/42/11851.md?p=11) works in any area in any [State](/usc/42/7602.md?p=d) may be withheld, conditioned, or restricted by the [Administrator](/usc/42/7602.md?p=a) on the basis of any requirement of this chapter except as provided in [subsection (b)](#b).
- (b) **Withholding, conditioning, or restriction of construction grants—** The [Administrator](/usc/42/7602.md?p=a) may withhold, condition, or restrict the making of any grant for [construction](/usc/42/7479.md?p=2-C) referred to in [subsection (a)](#a) only if he determines that—
- (1) such [treatment](/usc/42/11851.md?p=11) works will not comply with applicable [standards](/usc/42/1320d.md?p=7) under section [7411](/usc/42/7411.md) or [7412](/usc/42/7412.md) of this title,
- (2) the [State](/usc/42/7602.md?p=d) does not have in effect, or is not carrying out, a [State](/usc/42/7602.md?p=d) implementation plan approved by the [Administrator](/usc/42/7602.md?p=a) which expressly quantifies and provides for the increase in emissions of each [air pollutant](/usc/42/7602.md?p=g) (from stationary and mobile sources in any area to which either part C or part D of subchapter I applies for such [pollutant](/usc/42/1397h.md?p=c-4)) which increase may reasonably be anticipated to result directly or indirectly from the new sewage [treatment](/usc/42/11851.md?p=11) capacity which would be created by such [construction](/usc/42/7479.md?p=2-C).[^1]
- (3) the [construction](/usc/42/7479.md?p=2-C) of such [treatment](/usc/42/11851.md?p=11) works would create new sewage [treatment](/usc/42/11851.md?p=11) capacity which—
- (A) may reasonably be anticipated to [cause](/usc/42/9908.md?p=c-2) or contribute to, directly or indirectly, an increase in emissions of any [air pollutant](/usc/42/7602.md?p=g) in excess of the increase provided for under the provisions referred to in [paragraph (2)](#b-2) for any such area, or
- (B) would otherwise not be in conformity with the [applicable implementation plan](/usc/42/7602.md?p=q), or
- (4) such increase in emissions would interfere with, or be inconsistent with, the [applicable implementation plan](/usc/42/7602.md?p=q) for any other [State](/usc/42/7602.md?p=d).
In the case of [construction](/usc/42/7479.md?p=2-C) of a [treatment](/usc/42/11851.md?p=11) works which would result, directly or indirectly, in an increase in emissions of any [air pollutant](/usc/42/7602.md?p=g) from stationary and mobile sources in an area to which part D of subchapter I applies, the quantification of emissions referred to in [paragraph (2)](#b-2) shall include the emissions of any such [pollutant](/usc/42/1397h.md?p=c-4) resulting directly or indirectly from areawide and nonmajor stationary source growth (mobile and stationary) for each such area.
- (c) **National Environmental Policy Act—** Nothing in this section shall be construed to amend or alter any provision of the National Environmental Policy Act [[42 U.S.C. 4321](/usc/42/4321.md) et seq.] or to affect any determination as to whether or not the requirements of such Act have been met in the case of the [construction](/usc/42/7479.md?p=2-C) of any sewage [treatment](/usc/42/11851.md?p=11) works.
# §7617. Economic impact assessment
- (a) **Notice of proposed rulemaking; substantial revisions—** This section applies to action of the [Administrator](/usc/42/7602.md?p=a) in promulgating or revising—
- (1) any new source [standard of performance](/usc/42/7602.md?p=l) under [section 7411 of this title](/usc/42/7411.md),
- (2) any regulation under [section 7411(d) of this title](/usc/42/7411.md?p=d),
- (3) any regulation under part B[^1] of subchapter I (relating to ozone and stratosphere protection),
- (4) any regulation under part C of subchapter I (relating to prevention of significant deterioration of air quality),
- (5) any regulation establishing [emission standards](/usc/42/7602.md?p=k) under [section 7521 of this title](/usc/42/7521.md) and any other regulation promulgated under that section,
- (6) any regulation controlling or prohibiting any fuel or fuel additive under [section 7545(c) of this title](/usc/42/7545.md?p=c), and
- (7) any aircraft [emission standard](/usc/42/7602.md?p=k) under [section 7571 of this title](/usc/42/7571.md).
Nothing in this section shall apply to any [standard](/usc/42/1320d.md?p=7) or regulation described in [paragraphs (1) through (7)](#1..7) of this subsection unless the notice of proposed rulemaking in connection with such [standard](/usc/42/1320d.md?p=7) or regulation is published in the Federal Register after the date ninety days after August 7, 1977. In the case of revisions of such [standards](/usc/42/1320d.md?p=7) or regulations, this section shall apply only to revisions which the [Administrator](/usc/42/7602.md?p=a) determines to be substantial revisions.
- (b) **Preparation of assessment by Administrator—** Before publication of notice of proposed rulemaking with respect to any [standard](/usc/42/1320d.md?p=7) or regulation to which this section applies, the [Administrator](/usc/42/7602.md?p=a) shall prepare an economic impact assessment respecting such [standard](/usc/42/1320d.md?p=7) or regulation. Such assessment shall be included in the docket required under [section 7607(d)(2) of this title](/usc/42/7607.md?p=d-2) and shall be available to the public as provided in [section 7607(d)(4) of this title](/usc/42/7607.md?p=d-4). Notice of proposed rulemaking shall include notice of such availability together with an explanation of the extent and manner in which the [Administrator](/usc/42/7602.md?p=a) has considered the analysis contained in such economic impact assessment in proposing the action. The [Administrator](/usc/42/7602.md?p=a) shall also provide such an explanation in his notice of promulgation of any regulation or [standard](/usc/42/1320d.md?p=7) referred to in [subsection (a)](#a). Each such explanation shall be part of the statements of basis and purpose required under sections [7607(d)(3)](/usc/42/7607.md?p=d-3) and [7607(d)(6)](/usc/42/7607.md?p=d-6) of this title.
- (c) **Analysis—** Subject to [subsection (d)](#d), the assessment required under this section with respect to any [standard](/usc/42/1320d.md?p=7) or regulation shall contain an analysis of—
- (1) the costs of compliance with any such [standard](/usc/42/1320d.md?p=7) or regulation, including extent to which the costs of compliance will vary depending on (A) the effective date of the [standard](/usc/42/1320d.md?p=7) or regulation, and (B) the development of less expensive, more efficient means or methods of compliance with the [standard](/usc/42/1320d.md?p=7) or regulation;
- (2) the potential inflationary or recessionary effects of the [standard](/usc/42/1320d.md?p=7) or regulation;
- (3) the effects on competition of the [standard](/usc/42/1320d.md?p=7) or regulation with respect to small business;
- (4) the effects of the [standard](/usc/42/1320d.md?p=7) or regulation on consumer costs; and
- (5) the effects of the [standard](/usc/42/1320d.md?p=7) or regulation on [energy use](/usc/42/6291.md?p=4).
Nothing in this section shall be construed to provide that the analysis of the factors specified in this subsection affects or alters the factors which the [Administrator](/usc/42/7602.md?p=a) is required to consider in taking any action referred to in [subsection (a)](#a).
- (d) **Extensiveness of assessment—** The assessment required under this section shall be as extensive as practicable, in the judgment of the [Administrator](/usc/42/7602.md?p=a) taking into account the time and resources available to the Environmental Protection Agency and other duties and authorities which the [Administrator](/usc/42/7602.md?p=a) is required to carry out under this chapter.
- (e) **Limitations on construction of section—** Nothing in this section shall be construed—
- (1) to alter the basis on which a [standard](/usc/42/1320d.md?p=7) or regulation is promulgated under this chapter;
- (2) to preclude the [Administrator](/usc/42/7602.md?p=a) from carrying out his responsibility under this chapter to protect public health and welfare; or
- (3) to authorize or require any judicial review of any such [standard](/usc/42/1320d.md?p=7) or regulation, or any stay or injunction of the proposal, promulgation, or effectiveness of such [standard](/usc/42/1320d.md?p=7) or regulation on the basis of failure to comply with this section.
- (f) **Citizen suits—** The requirements imposed on the [Administrator](/usc/42/7602.md?p=a) under this section shall be treated as nondiscretionary duties for purposes of [section 7604(a)(2) of this title](/usc/42/7604.md?p=a-2), relating to citizen suits. The sole method for enforcement of the [Administrator](/usc/42/7602.md?p=a)’s duty under this section shall be by bringing a citizen suit under such [section 7604(a)(2)](/usc/42/7604.md?p=a-2) for a court order to compel the [Administrator](/usc/42/7602.md?p=a) to perform such duty. [Violation](/usc/42/2000e–16a.md?p=c) of any such order shall subject the [Administrator](/usc/42/7602.md?p=a) to penalties for contempt of court.
- (g) **Costs—** In the case of any provision of this chapter in which costs are expressly required to be taken into account, the adequacy or inadequacy of any assessment required under this section may be taken into consideration, but shall not be treated for purposes of judicial review of any such provision as conclusive with respect to compliance or noncompliance with the requirement of such provision to take cost into account.
# [§7618. Repealed. Pub. L. 101–549, title I, § 108(q), Nov. 15, 1990, 104 Stat. 2469 — repealed]
# §7619. Air quality monitoring
- (a) **In general—** After notice and opportunity for public hearing, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations establishing an air quality monitoring system throughout the [United States](/usc/42/403.md?p=k) which—
- (1) utilizes uniform air quality monitoring criteria and methodology and measures such air quality according to a uniform air quality index,
- (2) provides for air quality monitoring stations in major urban areas and other appropriate areas throughout the [United States](/usc/42/403.md?p=k) to provide monitoring such as will supplement (but not duplicate) air quality monitoring carried out by the [States](/usc/42/7602.md?p=d) required under any [applicable implementation plan](/usc/42/7602.md?p=q),
- (3) provides for daily analysis and reporting of air quality based upon such uniform air quality index, and
- (4) provides for recordkeeping with respect to such monitoring data and for periodic analysis and reporting to the general public by the [Administrator](/usc/42/7602.md?p=a) with respect to air quality based upon such data.
The operation of such air quality monitoring system may be carried out by the [Administrator](/usc/42/7602.md?p=a) or by such other departments, agencies, or entities of the Federal Government (including the National Weather Service) as the President may deem appropriate. Any air quality monitoring system required under any [applicable implementation plan](/usc/42/7602.md?p=q) under [section 7410 of this title](/usc/42/7410.md) shall, as soon as practicable following promulgation of regulations under this section, utilize the [standard](/usc/42/1320d.md?p=7) criteria and methodology, and measure air quality according to the [standard](/usc/42/1320d.md?p=7) index, established under such regulations.
- (b) **Air quality monitoring data influenced by exceptional events—**
- (1) **Definition of exceptional event—** In this section:
- (A) **In general—** The term “[exceptional event](#b-1-B)” means an event that—
- (i) affects air quality;
- (ii) is not reasonably controllable or preventable;
- (iii) is an event caused by human activity that is unlikely to recur at a particular location or a natural event; and
- (iv) is determined by the [Administrator](/usc/42/7602.md?p=a) through the process established in the regulations promulgated under [paragraph (2)](#b-2) to be an [exceptional event](#b-1-B).
- (B) **Exclusions—** In this subsection, the term “exceptional event” does not include—
- (i) stagnation of air masses or meteorological inversions;
- (ii) a meteorological event involving high temperatures or lack of precipitation; or
- (iii) air pollution relating to source noncompliance.
- (2) **Regulations—**
- (A) **Proposed regulations—** Not later than March 1, 2006, after consultation with [Federal land managers](/usc/42/7602.md?p=i) and [State](/usc/42/7602.md?p=d) [air pollution control agencies](/usc/42/7602.md?p=b), the [Administrator](/usc/42/7602.md?p=a) shall publish in the Federal Register proposed regulations governing the review and handling of air quality monitoring data influenced by [exceptional events](#b-1-B).
- (B) **Final regulations—** Not later than 1 year after the date on which the [Administrator](/usc/42/7602.md?p=a) publishes proposed regulations under [subparagraph (A)](#b-2-A), and after providing an opportunity for interested [persons](/usc/42/7602.md?p=e) to make oral presentations of views, data, and arguments regarding the proposed regulations, the [Administrator](/usc/42/7602.md?p=a) shall promulgate final regulations governing the review and handling or[^1] air quality monitoring data influenced by an [exceptional event](#b-1-B) that are consistent with [paragraph (3)](#b-3).
- (3) **Principles and requirements—**
- (A) **Principles—** In promulgating regulations under this section, the [Administrator](/usc/42/7602.md?p=a) shall follow—
- (i) the principle that protection of public health is the highest priority;
- (ii) the principle that timely information should be provided to the public in any case in which the air quality is unhealthy;
- (iii) the principle that all ambient air quality data should be included in a timely manner,[^2] an appropriate Federal air quality database that is accessible to the public;
- (iv) the principle that each [State](/usc/42/7602.md?p=d) must take necessary measures to safeguard public health regardless of the source of the air pollution; and
- (v) the principle that air quality data should be carefully screened to ensure that events not likely to recur are represented accurately in all monitoring data and analyses.
- (B) **Requirements—** Regulations promulgated under this section shall, at a minimum, provide that—
- (i) the occurrence of an [exceptional event](#b-1-B) must be demonstrated by reliable, accurate data that is promptly produced and provided by Federal, [State](/usc/42/7602.md?p=d), or [local government](/usc/42/8401a.md) agencies;
- (ii) a clear causal relationship must exist between the measured exceedances of a national ambient air quality [standard](/usc/42/1320d.md?p=7) and the [exceptional event](#b-1-B) to demonstrate that the [exceptional event](#b-1-B) caused a specific air pollution concentration at a particular air quality monitoring location;
- (iii) there is a public process for determining whether an event is exceptional; and
- (iv) there are criteria and procedures for the [Governor](/usc/42/6372.md?p=1) of a [State](/usc/42/7602.md?p=d) to petition the [Administrator](/usc/42/7602.md?p=a) to exclude air quality monitoring data that is directly due to [exceptional events](#b-1-B) from use in determinations by the [Administrator](/usc/42/7602.md?p=a) with respect to exceedances or [violations](/usc/42/2000e–16a.md?p=c) of the national ambient air quality [standards](/usc/42/1320d.md?p=7).
- (4) **Interim provision—** Until the effective date of a regulation promulgated under [paragraph (2)](#b-2), the following guidance issued by the [Administrator](/usc/42/7602.md?p=a) shall continue to apply:
- (A) Guidance on the identification and use of air quality data affected by [exceptional events](#b-1-B) (July 1986).
- (B) Areas affected by [PM–10](/usc/42/7602.md?p=t) natural events, May 30, 1996.
- (C) Appendices I, K, and N to [part 50 of title 40, Code of Federal Regulations](/cfr/40/part50.md).
# §7620. Standardized air quality modeling
- (a) **Conferences—** Not later than six months after August 7, 1977, and at least every three years thereafter, the [Administrator](/usc/42/7602.md?p=a) shall conduct a conference on air quality modeling. In conducting such conference, special attention shall be given to appropriate modeling necessary for carrying out part C of subchapter I (relating to prevention of significant deterioration of air quality).
- (b) **Conferees—** The conference conducted under this section shall provide for participation by the National Academy of Sciences, [representatives](/usc/42/3058f.md?p=5) of [State](/usc/42/7602.md?p=d) and local [air pollution control agencies](/usc/42/7602.md?p=b), and appropriate Federal agencies, including the National Science [Foundation](/usc/42/17351.md?p=3);[^1] the National Oceanic and Atmospheric Administration, and the National Institute of [Standards](/usc/42/1320d.md?p=7) and Technology.
- (c) **Comments; transcripts—** Interested [persons](/usc/42/7602.md?p=e) shall be permitted to submit written comments and a verbatim transcript of the conference proceedings shall be maintained.
- (d) **Promulgation and revision of regulations relating to air quality modeling—** The comments submitted and the transcript maintained pursuant to [subsection (c)](#c) shall be included in the docket required to be established for purposes of promulgating or revising any regulation relating to air quality modeling under part C of subchapter I.
# §7621. Employment effects
- (a) **Continuous evaluation of potential loss or shifts of employment—** The [Administrator](/usc/42/7602.md?p=a) shall conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of this chapter and [applicable implementation plans](/usc/42/7602.md?p=q), including where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement.
- (b) **Request for investigation; hearings; record; report—** Any [employee](/usc/42/1320a–7h.md?p=e-7), or any [representative](/usc/42/3058f.md?p=5) of such [employee](/usc/42/1320a–7h.md?p=e-7), who is discharged or laid off, threatened with discharge or layoff, or whose employment is otherwise adversely affected or threatened to be adversely affected because of the alleged results of any requirement imposed or proposed to be imposed under this chapter, including any requirement applicable to [Federal facilities](/usc/42/17061.md?p=8) and any requirement imposed by a [State](/usc/42/7602.md?p=d) or political subdivision thereof, may request the [Administrator](/usc/42/7602.md?p=a) to conduct a full investigation of the matter. Any such request shall be reduced to writing, shall set forth with reasonable particularity the grounds for the request, and shall be signed by the [employee](/usc/42/1320a–7h.md?p=e-7), or [representative](/usc/42/3058f.md?p=5) of such [employee](/usc/42/1320a–7h.md?p=e-7), making the request. The [Administrator](/usc/42/7602.md?p=a) shall thereupon investigate the matter and, at the request of any party, shall hold public hearings on not less than five days’ notice. At such hearings, the [Administrator](/usc/42/7602.md?p=a) shall require the parties, including the employer involved, to present information relating to the actual or potential effect of such requirements on employment and the detailed reasons or justification therefor. If the [Administrator](/usc/42/7602.md?p=a) determines that there are no reasonable grounds for conducting a public hearing he shall notify (in writing) the party requesting such hearing of such a determination and the reasons therefor. If the [Administrator](/usc/42/7602.md?p=a) does convene such a hearing, the hearing shall be on the record. Upon receiving the report of such investigation, the [Administrator](/usc/42/7602.md?p=a) shall make findings of fact as to the effect of such requirements on employment and on the alleged actual or potential discharge, layoff, or other adverse effect on employment, and shall make such recommendations as he deems appropriate. Such report, findings, and recommendations shall be available to the public.
- (c) **Subpenas; confidential information; witnesses; penalty—** In connection with any investigation or public hearing conducted under [subsection (b)](#b) of this section or as authorized in [section 7419 of this title](/usc/42/7419.md) (relating to primary nonferrous smelter orders), the [Administrator](/usc/42/7602.md?p=a) may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents, and he may administer oaths. Except for emission data, upon a showing satisfactory to the [Administrator](/usc/42/7602.md?p=a) by such [owner or operator](/usc/42/9601.md?p=20-B) that such papers, books, documents, or information or particular part thereof, if made public, would divulge trade secrets or secret processes of such [owner](/usc/42/13641.md?p=4), or operator, the [Administrator](/usc/42/7602.md?p=a) shall consider such record, report, or information or particular portion thereof confidential in accordance with the purposes of [section 1905 of title 18](/usc/18/1905.md), except that such paper, book, document, or information may be disclosed to other officers, [employees](/usc/42/1320a–7h.md?p=e-7), or authorized [representatives](/usc/42/3058f.md?p=5) of the [United States](/usc/42/403.md?p=k) concerned with carrying out this chapter, or when relevant in any proceeding under this chapter. Witnesses summoned shall be paid the same fees and mileage that are paid witnesses in the courts of the [United States](/usc/42/403.md?p=k). In cases of contumacy or refusal to obey a subpena served upon any [person](/usc/42/7602.md?p=e) under this subparagraph,[^1] the district court of the [United States](/usc/42/403.md?p=k) for any district in which such [person](/usc/42/7602.md?p=e) is found or resides or transacts business, upon application by the [United States](/usc/42/403.md?p=k) and after notice to such [person](/usc/42/7602.md?p=e), shall have jurisdiction to issue an order requiring such [person](/usc/42/7602.md?p=e) to appear and give testimony before the [Administrator](/usc/42/7602.md?p=a), to appear and produce papers, books, and documents before the [Administrator](/usc/42/7602.md?p=a), or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof.
- (d) **Limitations on construction of section—** Nothing in this section shall be construed to require or authorize the [Administrator](/usc/42/7602.md?p=a), the [States](/usc/42/7602.md?p=d), or political subdivisions thereof, to modify or withdraw any requirement imposed or proposed to be imposed under this chapter.
# §7622. Employee protection
- (a) **Discharge or discrimination prohibited—** No employer may discharge any [employee](/usc/42/1320a–7h.md?p=e-7) or otherwise discriminate against any [employee](/usc/42/1320a–7h.md?p=e-7) with respect to his compensation, terms, conditions, or privileges of employment because the [employee](/usc/42/1320a–7h.md?p=e-7) (or any [person](/usc/42/7602.md?p=e) acting pursuant to a request of the [employee](/usc/42/1320a–7h.md?p=e-7))—
- (1) commenced, caused to be commenced, or is about to commence or [cause](/usc/42/9908.md?p=c-2) to be commenced a proceeding under this chapter or a proceeding for the administration or enforcement of any requirement imposed under this chapter or under any [applicable implementation plan](/usc/42/7602.md?p=q),
- (2) testified or is about to testify in any such proceeding, or
- (3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of this chapter.
- (b) **Complaint charging unlawful discharge or discrimination; investigation; order—**
- (1) Any [employee](/usc/42/1320a–7h.md?p=e-7) who believes that he has been discharged or otherwise discriminated against by any [person](/usc/42/7602.md?p=e) in [violation](/usc/42/2000e–16a.md?p=c) of [subsection (a)](#a) may, within thirty days after such [violation](/usc/42/2000e–16a.md?p=c) occurs, file (or have any [person](/usc/42/7602.md?p=e) file on his behalf) a complaint with the [Secretary](/usc/42/242q–4.md?p=2) of Labor (hereinafter in this subsection referred to as the “[Secretary](/usc/42/242q–4.md?p=2)”) alleging such discharge or discrimination. Upon receipt of such a complaint, the [Secretary](/usc/42/242q–4.md?p=2) shall notify the [person](/usc/42/7602.md?p=e) named in the complaint of the filing of the complaint.
- (2)
- (A) Upon receipt of a complaint filed under [paragraph (1)](#b-1), the [Secretary](/usc/42/242q–4.md?p=2) shall conduct an investigation of the [violation](/usc/42/2000e–16a.md?p=c) alleged in the complaint. Within thirty days of the receipt of such complaint, the [Secretary](/usc/42/242q–4.md?p=2) shall complete such investigation and shall notify in writing the [complainant](/usc/42/3602.md?p=j) (and any [person](/usc/42/7602.md?p=e) acting in his behalf) and the [person](/usc/42/7602.md?p=e) alleged to have committed such [violation](/usc/42/2000e–16a.md?p=c) of the results of the investigation conducted pursuant to this subparagraph. Within ninety days of the receipt of such complaint the [Secretary](/usc/42/242q–4.md?p=2) shall, unless the proceeding on the complaint is terminated by the [Secretary](/usc/42/242q–4.md?p=2) on the basis of a settlement entered into by the [Secretary](/usc/42/242q–4.md?p=2) and the [person](/usc/42/7602.md?p=e) alleged to have committed such [violation](/usc/42/2000e–16a.md?p=c), issue an order either providing the relief prescribed by [subparagraph (B)](#b-2-B) or denying the complaint. An order of the [Secretary](/usc/42/242q–4.md?p=2) shall be made on the record after notice and opportunity for public hearing. The [Secretary](/usc/42/242q–4.md?p=2) may not enter into a settlement terminating a proceeding on a complaint without the participation and consent of the [complainant](/usc/42/3602.md?p=j).
- (B) If, in response to a complaint filed under [paragraph (1)](#b-1), the [Secretary](/usc/42/242q–4.md?p=2) determines that a [violation](/usc/42/2000e–16a.md?p=c) of [subsection (a)](#a) has occurred, the [Secretary](/usc/42/242q–4.md?p=2) shall order the [person](/usc/42/7602.md?p=e) who committed such [violation](/usc/42/2000e–16a.md?p=c) to (i) take affirmative action to abate the [violation](/usc/42/2000e–16a.md?p=c), and (ii) reinstate the [complainant](/usc/42/3602.md?p=j) to his former position together with the compensation (including back pay), terms, conditions, and privileges of his employment, and the [Secretary](/usc/42/242q–4.md?p=2) may order such [person](/usc/42/7602.md?p=e) to provide compensatory [damages](/usc/42/9601.md?p=6) to the [complainant](/usc/42/3602.md?p=j). If an order is issued under this paragraph, the [Secretary](/usc/42/242q–4.md?p=2), at the request of the [complainant](/usc/42/3602.md?p=j), shall assess against the [person](/usc/42/7602.md?p=e) against whom the order is issued a sum equal to the aggregate amount of all costs and expenses (including attorneys’ and expert witness fees) reasonably incurred, as determined by the [Secretary](/usc/42/242q–4.md?p=2), by the [complainant](/usc/42/3602.md?p=j) for, or in connection with, the bringing of the complaint upon which the order was issued.
- (c) **Review—**
- (1) Any [person](/usc/42/7602.md?p=e) adversely affected or aggrieved by an order issued under [subsection (b)](#b) may obtain review of the order in the [United States](/usc/42/403.md?p=k) court of appeals for the circuit in which the [violation](/usc/42/2000e–16a.md?p=c), with respect to which the order was issued, allegedly occurred. The petition for review must be filed within sixty days from the issuance of the [Secretary](/usc/42/242q–4.md?p=2)’s order. Review shall conform to [chapter 7](/usc/5/chptI-ch7.md) of title 5. The commencement of proceedings under this subparagraph[^1] shall not, unless ordered by the court, operate as a stay of the [Secretary](/usc/42/242q–4.md?p=2)’s order.
- (2) An order of the [Secretary](/usc/42/242q–4.md?p=2) with respect to which review could have been obtained under [paragraph (1)](#c-1) shall not be subject to judicial review in any criminal or other civil proceeding.
- (d) **Enforcement of order by Secretary—** Whenever a [person](/usc/42/7602.md?p=e) has failed to comply with an order issued under [subsection (b)(2)](#b-2), the [Secretary](/usc/42/242q–4.md?p=2) may file a civil action in the [United States](/usc/42/403.md?p=k) district court for the district in which the [violation](/usc/42/2000e–16a.md?p=c) was found to occur to enforce such order. In actions brought under this subsection, the district courts shall have jurisdiction to grant all appropriate relief including, but not limited to, injunctive relief, compensatory, and exemplary [damages](/usc/42/9601.md?p=6).
- (e) **Enforcement of order by person on whose behalf order was issued—**
- (1) Any [person](/usc/42/7602.md?p=e) on whose behalf an order was issued under [paragraph (2)](#b-2) of subsection (b) may commence a civil action against the [person](/usc/42/7602.md?p=e) to whom such order was issued to require compliance with such order. The appropriate [United States](/usc/42/403.md?p=k) district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such order.
- (2) The court, in issuing any final order under this subsection, may award costs of litigation (including reasonable attorney and expert witness fees) to any party whenever the court determines such award is appropriate.
- (f) **Mandamus—** Any nondiscretionary duty imposed by this section shall be enforceable in a mandamus proceeding brought under [section 1361 of title 28](/usc/28/1361.md).
- (g) **Deliberate violation by employee—** [Subsection (a)](#a) shall not apply with respect to any [employee](/usc/42/1320a–7h.md?p=e-7) who, acting without direction from his employer (or the employer’s agent), deliberately [causes](/usc/42/9908.md?p=c-2) a [violation](/usc/42/2000e–16a.md?p=c) of any requirement of this chapter.
# [§7623. Repealed. Pub. L. 96–300, § 1(c), July 2, 1980, 94 Stat. 831 — repealed]
# §7624. Cost of vapor recovery equipment
- (a) **Costs to be borne by owner of retail outlet—** The regulations under this chapter applicable to vapor recovery with respect to mobile source fuels at retail outlets of such fuels shall provide that the cost of procurement and installation of such vapor recovery shall be borne by the [owner](/usc/42/13641.md?p=4) of such outlet (as determined under such regulations). Except as provided in [subsection (b)](#b), such regulations shall provide that no lease of a retail outlet by the [owner](/usc/42/13641.md?p=4) thereof which is entered into or renewed after August 7, 1977, may provide for a payment by the lessee of the cost of procurement and installation of vapor recovery equipment. Such regulations shall also provide that the cost of procurement and installation of vapor recovery equipment may be recovered by the [owner](/usc/42/13641.md?p=4) of such outlet by means of price increases in the cost of any product sold by such [owner](/usc/42/13641.md?p=4), notwithstanding any provision of law.
- (b) **Payment by lessee—** The regulations of the [Administrator](/usc/42/7602.md?p=a) referred to in [subsection (a)](#a) shall permit a lease of a retail outlet to provide for payment by the lessee of the cost of procurement and installation of vapor recovery equipment over a reasonable period (as determined in accordance with such regulations), if the [owner](/usc/42/13641.md?p=4) of such outlet does not sell, trade in, or otherwise dispense any product at wholesale or retail at such outlet.
# §7625. Vapor recovery for small business marketers of petroleum products
- (a) **Marketers of gasoline—** The regulations under this chapter applicable to vapor recovery from fueling of [motor vehicles](/usc/42/13211.md?p=13) at retail outlets of gasoline shall not apply to any outlet owned by an independent small business marketer of gasoline having monthly sales of less than 50,000 gallons. In the case of any other outlet owned by an independent small business marketer, such regulations shall provide, with respect to independent small business marketers of gasoline, for a three-year phase-in period for the installation of such vapor recovery equipment at such outlets under which such marketers shall have—
- (1) 33 percent of such outlets in compliance at the end of the first year during which such regulations apply to such marketers,
- (2) 66 percent at the end of such second year, and
- (3) 100 percent at the end of the third year.
- (b) **State requirements—** Nothing in [subsection (a)](#a) shall be construed to prohibit any [State](/usc/42/7602.md?p=d) from adopting or enforcing, with respect to independent small business marketers of gasoline having monthly sales of less than 50,000 gallons, any vapor recovery requirements for mobile source fuels at retail outlets. Any vapor recovery requirement which is adopted by a [State](/usc/42/7602.md?p=d) and submitted to the [Administrator](/usc/42/7602.md?p=a) as part of its implementation plan may be approved and enforced by the [Administrator](/usc/42/7602.md?p=a) as part of the [applicable implementation plan](/usc/42/7602.md?p=q) for that [State](/usc/42/7602.md?p=d).
- (c) **Refiners—** For purposes of this section, an independent small business marketer of gasoline is a [person](/usc/42/7602.md?p=e) engaged in the marketing of gasoline who would be required to pay for procurement and installation of vapor recovery equipment under [section 7624](/usc/42/7624.md)[^1] of this title or under regulations of the [Administrator](/usc/42/7602.md?p=a), unless such [person](/usc/42/7602.md?p=e)—
- (1)
- (A) is a [refiner](#c), or[^2]
- (B) [controls](#c), is controlled by, or is under common [control](#c) with, a [refiner](#c),
- (C) is otherwise directly or indirectly affiliated (as determined under the regulations of the [Administrator](/usc/42/7602.md?p=a)) with a [refiner](#c) or with a [person](/usc/42/7602.md?p=e) who [controls](#c), is controlled by, or is under a common [control](#c) with a [refiner](#c) (unless the sole affiliation referred to herein is by means of a supply contract or an [agreement](/usc/42/1320b–8.md?p=a-3-A) or contract to use a trademark, trade name, service mark, or other identifying symbol or name owned by such [refiner](#c) or any such [person](/usc/42/7602.md?p=e)), or
- (2) receives less than 50 percent of his annual [income](/usc/42/292s.md?p=c-4) from refining or marketing of gasoline.
For the purpose of this section, the term “refiner” shall not include any refiner whose total refinery capacity (including the refinery capacity of any [person](/usc/42/7602.md?p=e) who controls, is controlled by, or is under common control with, such refiner) does not exceed 65,000 barrels per day. For purposes of this section, “control” of a [corporation](/usc/42/2296b–7.md?p=1) means ownership of more than 50 percent of its stock.
# §7625–1. Exemptions for certain territories
- (a)
- (1) Upon petition by the [governor](/usc/42/6372.md?p=1)[^1] of Guam, American Samoa, the Virgin Islands, or the Commonwealth of the Northern Mariana Islands, the [Administrator](/usc/42/7602.md?p=a) is authorized to exempt any [person](/usc/42/7602.md?p=e) or source or class of [persons](/usc/42/7602.md?p=e) or sources in such territory from any requirement under this chapter other than [section 7412 of this title](/usc/42/7412.md) or any requirement under [section 7410 of this title](/usc/42/7410.md) or part D[^2] necessary to attain or maintain a national primary ambient air quality [standard](/usc/42/1320d.md?p=7). Such exemption may be granted if the [Administrator](/usc/42/7602.md?p=a) finds that compliance with such requirement is not feasible or is unreasonable due to unique geographical, meteorological, or economic factors of such territory, or such other local factors as the [Administrator](/usc/42/7602.md?p=a) deems significant. Any such petition shall be considered in accordance with [section 7607(d) of this title](/usc/42/7607.md?p=d) and any exemption under this subsection shall be considered final action by the [Administrator](/usc/42/7602.md?p=a) for the purposes of [section 7607(b) of this title](/usc/42/7607.md?p=b).
- (2) The [Administrator](/usc/42/7602.md?p=a) shall promptly notify the Committees on [Energy](/usc/42/6311.md?p=7) and [Commerce](/usc/42/6311.md?p=7) and on Natural Resources of the House of [Representatives](/usc/42/3058f.md?p=5) and the Committees on Environment and Public Works and on [Energy](/usc/42/6311.md?p=7) and Natural Resources of the Senate upon receipt of any petition under this subsection and of the approval or rejection of such petition and the basis for such action.
- (b) Notwithstanding any other provision of this chapter, any fossil fuel fired steam electric power plant operating within Guam as of December 8, 1983, is hereby exempted from:
- (1) any requirement of the new source performance [standards](/usc/42/1320d.md?p=7) relating to sulfur dioxide promulgated under [section 7411 of this title](/usc/42/7411.md) as of December 8, 1983; and
- (2) any regulation relating to sulfur dioxide [standards](/usc/42/1320d.md?p=7) or limitations contained in a [State](/usc/42/7602.md?p=d) implementation plan approved under [section 7410 of this title](/usc/42/7410.md) as of December 8, 1983: Provided, That such exemption shall expire eighteen months after December 8, 1983, unless the [Administrator](/usc/42/7602.md?p=a) determines that such plant is making all [emissions reductions](/usc/42/17114.md?p=a-3) practicable to prevent exceedances of the national ambient air quality [standards](/usc/42/1320d.md?p=7) for sulfur dioxide.
# §7625a. Statutory construction
The parenthetical cross references in any provision of this chapter to other provisions of the chapter, or other provisions of law, where the words “relating to” or “pertaining to” are used, are made only for convenience, and shall be given no legal effect.
# §7626. Authorization of appropriations
- (a) **In general—** There are authorized to be appropriated to carry out this chapter such sums as may be necessary for the 7 fiscal years commencing after November 15, 1990.
- (b) **Grants for planning—** There are authorized to be appropriated (1) not more than $50,000,000 to carry out [section 7505 of this title](/usc/42/7505.md) beginning in fiscal year 1991, to be available until expended, to develop plan revisions required by subpart 2, 3, or 4 of part D of subchapter I, and (2) not more than $15,000,000 for each of the 7 fiscal years commencing after November 15, 1990, to make grants to the [States](/usc/42/7602.md?p=d) to prepare implementation plans as required by subpart 2, 3, or 4 of part D of subchapter I.
# §7627. Air pollution from Outer Continental Shelf activities
- (a) **Applicable requirements for certain areas—**
- (1) **In general—** Not later than 12 months after November 15, 1990, following consultation with the [Secretary](/usc/42/242q–4.md?p=2) of the Interior and the Commandant of the [United States](/usc/42/403.md?p=k) Coast Guard, the [Administrator](/usc/42/7602.md?p=a), by rule, shall establish requirements to control air pollution from [Outer Continental Shelf sources](#a-4-C) located offshore of the [States](/usc/42/7602.md?p=d) along the Pacific, Arctic and Atlantic Coasts (other than [Outer Continental Shelf sources](#a-4-C) located offshore of the North Slope Borough of the [State](/usc/42/7602.md?p=d) of Alaska), and along the [United States](/usc/42/403.md?p=k) Gulf Coast off the [State](/usc/42/7602.md?p=d) of Florida eastward of longitude 87 degrees and 30 minutes (“[OCS sources](#a-4-C)”) to attain and maintain Federal and [State](/usc/42/7602.md?p=d) ambient air quality [standards](/usc/42/1320d.md?p=7) and to comply with the provisions of part C of subchapter I. For such sources located within 25 miles of the seaward boundary of such [States](/usc/42/7602.md?p=d), such requirements shall be the same as would be applicable if the source were located in the [corresponding onshore area](#a-4-B), and shall include, but not be limited to, [State](/usc/42/7602.md?p=d) and local requirements for emission controls, [emission limitations](/usc/42/7602.md?p=k), offsets, permitting, monitoring, testing, and reporting. [New OCS sources](#a-4-D) shall comply with such requirements on the date of promulgation and [existing OCS sources](#a-4-D) shall comply on the date 24 months thereafter. The [Administrator](/usc/42/7602.md?p=a) shall update such requirements as necessary to maintain consistency with onshore regulations and this chapter. The authority of this subsection shall supersede section 5(a)(8) of the [Outer Continental Shelf](#a-4-A) Lands Act [[43 U.S.C. 1334(a)(8)](/usc/43/1334.md?p=a-8)] but shall not repeal or modify any other Federal, [State](/usc/42/7602.md?p=d), or local authorities with respect to air quality. Each requirement established under this section shall be treated, for purposes of sections [7413](/usc/42/7413.md), [7414](/usc/42/7414.md), [7416](/usc/42/7416.md), [7420](/usc/42/7420.md), and [7604](/usc/42/7604.md) of this title, as a [standard](/usc/42/1320d.md?p=7) under [section 7411 of this title](/usc/42/7411.md) and a [violation](/usc/42/2000e–16a.md?p=c) of any such requirement shall be considered a [violation](/usc/42/2000e–16a.md?p=c) of [section 7411(e) of this title](/usc/42/7411.md?p=e).
- (2) **Exemptions—** The [Administrator](/usc/42/7602.md?p=a) may exempt an [OCS source](#a-4-C) from a specific requirement in effect under regulations under this subsection if the [Administrator](/usc/42/7602.md?p=a) finds that compliance with a pollution control technology requirement is technically infeasible or will [cause](/usc/42/9908.md?p=c-2) an unreasonable threat to health and safety. The [Administrator](/usc/42/7602.md?p=a) shall make written findings explaining the basis of any exemption issued pursuant to this subsection and shall impose another requirement equal to or as close in stringency to the original requirement as possible. The [Administrator](/usc/42/7602.md?p=a) shall ensure that any increase in emissions due to the granting of an exemption is offset by reductions in actual emissions, not otherwise required by this chapter, from the same source or other sources in the area or in the [corresponding onshore area](#a-4-B). The [Administrator](/usc/42/7602.md?p=a) shall establish procedures to provide for public notice and comment on exemptions proposed pursuant to this subsection.
- (3) **State procedures—** Each [State](/usc/42/7602.md?p=d) adjacent to an [OCS source](#a-4-C) included under this subsection may promulgate and submit to the [Administrator](/usc/42/7602.md?p=a) regulations for implementing and enforcing the requirements of this subsection. If the [Administrator](/usc/42/7602.md?p=a) finds that the [State](/usc/42/7602.md?p=d) regulations are adequate, the [Administrator](/usc/42/7602.md?p=a) shall delegate to that [State](/usc/42/7602.md?p=d) any authority the [Administrator](/usc/42/7602.md?p=a) has under this chapter to implement and enforce such requirements. Nothing in this subsection shall prohibit the [Administrator](/usc/42/7602.md?p=a) from enforcing any requirement of this section.
- (4) **Definitions—** For purposes of subsections [(a)](#a) and [(b)](#b)—
- (A) **Outer Continental Shelf—** The term “Outer Continental Shelf” has the meaning provided by section 2 of the Outer Continental Shelf Lands Act ([43 U.S.C. 1331](/usc/43/1331.md)).
- (B) **Corresponding onshore area—** The term “corresponding onshore area” means, with respect to any [OCS source](#a-4-C), the onshore attainment or [nonattainment area](/usc/42/7501.md?p=2) that is closest to the source, unless the [Administrator](/usc/42/7602.md?p=a) determines that another area with more stringent requirements with respect to the control and abatement of air pollution may reasonably be expected to be affected by such emissions. Such determination shall be based on the potential for [air pollutants](/usc/42/7602.md?p=g) from the [OCS source](#a-4-C) to reach the other onshore area and the potential of such [air pollutants](/usc/42/7602.md?p=g) to affect the efforts of the other onshore area to attain or maintain any Federal or [State](/usc/42/7602.md?p=d) ambient air quality [standard](/usc/42/1320d.md?p=7) or to comply with the provisions of part C of subchapter I.
- (C) **Outer Continental Shelf source—** The terms “Outer Continental Shelf source” and “OCS source” include any equipment, activity, or [facility](/usc/42/11049.md?p=4) which—
- (i) emits or has the potential to emit any [air pollutant](/usc/42/7602.md?p=g),
- (ii) is regulated or authorized under the [Outer Continental Shelf](#a-4-A) Lands Act [[43 U.S.C. 1331](/usc/43/1331.md) et seq.], and
- (iii) is located on the [Outer Continental Shelf](#a-4-A) or in or on waters above the [Outer Continental Shelf](#a-4-A).
Such activities include, but are not limited to, platform and drill ship exploration, [construction](/usc/42/7479.md?p=2-C), development, production, processing, and transportation. For purposes of this subsection, emissions from any vessel servicing or associated with an OCS source, including emissions while at the OCS source or en route to or from the OCS source within 25 miles of the OCS source, shall be considered direct emissions from the OCS source.
- (D) **New and existing OCS sources—** The term “new OCS source” means an [OCS source](#a-4-C) which is a new source within the meaning of [section 7411(a) of this title](/usc/42/7411.md?p=a). The term “existing OCS source” means any [OCS source](#a-4-C) other than a new OCS source.
- (b) **Requirements for other offshore areas—** For portions of the [United States](/usc/42/403.md?p=k) [Outer Continental Shelf](#a-4-A) that are adjacent to the [States](/usc/42/7602.md?p=d) not covered by [subsection (a)](#a) which are Texas, Louisiana, Mississippi, and Alabama or are adjacent to the North Slope Borough of the [State](/usc/42/7602.md?p=d) of Alaska, the [Secretary](/usc/42/242q–4.md?p=2) shall consult with the [Administrator](/usc/42/7602.md?p=a) to assure coordination of air pollution control regulation for [Outer Continental Shelf](#a-4-A) emissions and emissions in adjacent onshore areas. Concurrently with this obligation, the [Secretary](/usc/42/242q–4.md?p=2) shall complete within 3 years of November 15, 1990, a research study examining the impacts of emissions from [Outer Continental Shelf](#a-4-A) activities in such areas that fail to meet the national ambient air quality [standards](/usc/42/1320d.md?p=7) for either ozone or nitrogen dioxide. Based on the results of this study, the [Secretary](/usc/42/242q–4.md?p=2) shall consult with the [Administrator](/usc/42/7602.md?p=a) and determine if any additional actions are necessary. There are authorized to be appropriated such sums as may be necessary to provide funding for the study required under this section.
- (c) **Coastal waters—**
- (1) The study report of [section 7412(n)](/usc/42/7412.md?p=n)[^1] of this title shall apply to the coastal waters of the [United States](/usc/42/403.md?p=k) to the same extent and in the same manner as such requirements apply to the Great Lakes, the Chesapeake Bay, and their tributary waters.
- (2) The regulatory requirements of [section 7412(n)](/usc/42/7412.md?p=n)[^1] of this title shall apply to the coastal waters of the [States](/usc/42/7602.md?p=d) which are subject to [subsection (a)](#a) of this section, to the same extent and in the same manner as such requirements apply to the Great Lakes, the Chesapeake Bay, and their tributary waters.
# §7628. Demonstration grant program for local governments
- (a) **Grant program—**
- (1) **In general—** The [Administrator](/usc/42/7602.md?p=a) shall establish a demonstration [program](/usc/42/274l–1.md?p=4) under which the [Administrator](/usc/42/7602.md?p=a) shall provide competitive grants to assist [local governments](/usc/42/8401a.md) (such as [municipalities](/usc/42/7602.md?p=f) and counties), with respect to [local government](/usc/42/8401a.md) [buildings](/usc/42/6881.md?p=i-3)—
- (A) to deploy [cost-effective technologies and practices](#g); and
- (B) to achieve [operational cost savings](/usc/42/17061.md?p=9-A), through the application of [cost-effective technologies and practices](#g), as verified by the [Administrator](/usc/42/7602.md?p=a).
- (2) **Cost sharing—**
- (A) **In general—** The Federal share of the cost of an activity carried out using a grant provided under this section shall be 40 percent.
- (B) **Waiver of non-Federal share—** The [Administrator](/usc/42/7602.md?p=a) may waive up to 100 percent of the local share of the cost of any grant under this section should the [Administrator](/usc/42/7602.md?p=a) determine that the community is economically distressed, pursuant to objective economic criteria established by the [Administrator](/usc/42/7602.md?p=a) in published guidelines.
- (3) **Maximum amount—** The amount of a grant provided under this subsection shall not exceed $1,000,000.
- (b) **Guidelines—**
- (1) **In general—** Not later than 1 year after December 19, 2007, the [Administrator](/usc/42/7602.md?p=a) shall issue guidelines to implement the grant [program](/usc/42/274l–1.md?p=4) established under [subsection (a)](#a).
- (2) **Requirements—** The guidelines under [paragraph (1)](#b-1) shall establish—
- (A) [standards](/usc/42/1320d.md?p=7) for monitoring and verification of [operational cost savings](/usc/42/17061.md?p=9-A) through the application of [cost-effective technologies and practices](#g) reported by grantees under this section;
- (B) [standards](/usc/42/1320d.md?p=7) for grantees to implement [training](/usc/42/285e–2.md?p=b-2) [programs](/usc/42/274l–1.md?p=4), and to provide technical assistance and education, relating to the retrofit of [buildings](/usc/42/6881.md?p=i-3) using [cost-effective technologies and practices](#g); and
- (C) a requirement that each [local government](/usc/42/8401a.md) that receives a grant under this section shall achieve [facility](/usc/42/11049.md?p=4)-wide cost savings, through renovation of existing [local government](/usc/42/8401a.md) [buildings](/usc/42/6881.md?p=i-3) using [cost-effective technologies and practices](#g), of at least 40 percent as compared to the baseline operational costs of the [buildings](/usc/42/6881.md?p=i-3) before the renovation (as calculated assuming a 3-year, weather-normalized average).
- (c) **Compliance with State and local law—** Nothing in this section or any [program](/usc/42/274l–1.md?p=4) carried out using a grant provided under this section supersedes or otherwise affects any [State](/usc/42/7602.md?p=d) or local law, to the extent that the [State](/usc/42/7602.md?p=d) or local law contains a requirement that is more stringent than the relevant requirement of this section.
- (d) **Authorization of appropriations—** There is authorized to be appropriated to carry out this section $20,000,000 for each of fiscal years 2007 through 2012.
- (e) **Reports—**
- (1) **In general—** The [Administrator](/usc/42/7602.md?p=a) shall provide annual reports to Congress on cost savings achieved and actions taken and recommendations made under this section, and any recommendations for further action.
- (2) **Final report—** The [Administrator](/usc/42/7602.md?p=a) shall issue a final report at the conclusion of the [program](/usc/42/274l–1.md?p=4), including findings, a summary of total cost savings achieved, and recommendations for further action.
- (f) **Termination—** The [program](/usc/42/274l–1.md?p=4) under this section shall terminate on September 30, 2012.
- (g) **Definitions—** In this section, the terms “cost-effective technologies and practices” and “operating[^1] cost savings” shall have the meanings defined in [section 17061 of this title](/usc/42/17061.md).
# §7641. Noise abatement
- (a) **Office of Noise Abatement and Control—** The [Administrator](/usc/42/7602.md?p=a) shall establish within the Environmental Protection Agency an [Office](/usc/42/3058f.md?p=1) of Noise Abatement and Control, and shall carry out through such [Office](/usc/42/3058f.md?p=1) a full and complete investigation and study of noise and its effect on the public health and welfare in order to (1) identify and classify [causes](/usc/42/9908.md?p=c-2) and sources of noise, and (2) determine—
- (A) effects at various levels;
- (B) projected growth of noise levels in urban areas through the year 2000;
- (C) the psychological and physiological effect on humans;
- (D) effects of sporadic extreme noise (such as jet noise near airports) as compared with constant noise;
- (E) effect on wildlife and property (including values);
- (F) effect of sonic booms on property (including values); and
- (G) such other matters as may be of interest in the public welfare.
- (b) **Investigation techniques; report and recommendations—** In conducting such investigation, the [Administrator](/usc/42/7602.md?p=a) shall hold public hearings, conduct research, experiments, demonstrations, and studies. The [Administrator](/usc/42/7602.md?p=a) shall report the results of such investigation and study, together with his recommendations for legislation or other action, to the President and the Congress not later than one year after December 31, 1970.
- (c) **Abatement of noise from Federal activities—** In any case where any Federal department or agency is carrying out or sponsoring any activity resulting in noise which the [Administrator](/usc/42/7602.md?p=a) determines amounts to a public nuisance or is otherwise objectionable, such department or agency shall consult with the [Administrator](/usc/42/7602.md?p=a) to determine possible means of abating such noise.
# §7642. Authorization of appropriations
There is authorized to be appropriated such amount, not to exceed $30,000,000, as may be necessary for the purposes of this subchapter.
# §7651. Findings and purposes
- (a) **Findings—** The Congress finds that—
- (1) the presence of acidic compounds and their precursors in the atmosphere and in deposition from the atmosphere represents a threat to natural resources, ecosystems, materials, visibility, and public health;
- (2) the principal sources of the acidic compounds and their precursors in the atmosphere are emissions of sulfur and nitrogen oxides from the combustion of fossil fuels;
- (3) the problem of acid deposition is of national and international significance;
- (4) strategies and technologies for the control of precursors to acid deposition exist now that are economically feasible, and improved methods are expected to become increasingly available over the next decade;
- (5) current and future generations of Americans will be adversely affected by delaying measures to remedy the problem;
- (6) reduction of total atmospheric loading of sulfur dioxide and nitrogen oxides will enhance protection of the public health and welfare and the environment; and
- (7) control measures to reduce precursor emissions from steam-electric generating [units](/usc/42/7651a.md?p=15) should be initiated without delay.
- (b) **Purposes—** The purpose of this subchapter is to reduce the adverse effects of acid deposition through reductions in annual emissions of sulfur dioxide of ten million tons from 1980 emission levels, and, in combination with other provisions of this chapter, of nitrogen oxides emissions of approximately two million tons from 1980 emission levels, in the forty-eight contiguous [States](/usc/42/7651a.md?p=14) and the District of Columbia. It is the intent of this subchapter to effectuate such reductions by requiring compliance by [affected sources](/usc/42/7651a.md?p=1) with prescribed [emission limitations](/usc/42/7602.md?p=k) by specified deadlines, which limitations may be met through alternative methods of compliance provided by an emission [allocation](/usc/42/2021b.md?p=2) and transfer system. It is also the purpose of this subchapter to encourage [energy](/usc/42/6311.md?p=7) conservation, use of renewable and clean alternative technologies, and pollution prevention as a long-range strategy, consistent with the provisions of this subchapter, for reducing air pollution and other adverse impacts of [energy](/usc/42/6311.md?p=7) production and use.
# §7651a. Definitions
As used in this subchapter:
- (1) The term “affected source” means a source that includes one or more [affected units](#2).
- (2) The term “affected unit” means a [unit](#15) that is subject to emission reduction requirements or limitations under this subchapter.
- (3) The term “allowance” means an [authorization](/usc/42/4370m.md?p=3), allocated to an [affected unit](#2) by the [Administrator](/usc/42/7602.md?p=a) under this subchapter, to emit, during or after a specified calendar year, one ton of sulfur dioxide.
- (4) The term “baseline” means the annual quantity of fossil fuel consumed by an [affected unit](#2), measured in millions of British Thermal [Units](#15) (“mmBtu’s”), calculated as follows:
- (A) For each [utility unit](#17-A) that was in commercial operation prior to January 1, 1985, the [baseline](#4) shall be the annual average quantity of mmBtu’s consumed in fuel during calendar years 1985, 1986, and 1987, as recorded by the Department of [Energy](/usc/42/6311.md?p=7) pursuant to Form 767. For any [utility unit](#17-A) for which such form was not filed, the [baseline](#4) shall be the level specified for such [unit](#15) in the 1985 National Acid Precipitation [Assessment Program](/usc/42/10362.md?p=3) (NAPAP) Emissions [Inventory](/usc/42/4370m.md?p=14), Version 2, National Utility Reference File (NURF) or in a corrected data base as established by the [Administrator](/usc/42/7602.md?p=a) pursuant to [paragraph (3)](#3).[^1] For [nonutility units](#25), the [baseline](#4) is the NAPAP Emissions [Inventory](/usc/42/4370m.md?p=14), Version 2. The [Administrator](/usc/42/7602.md?p=a), in the [Administrator](/usc/42/7602.md?p=a)’s sole discretion, may exclude periods during which a [unit](#15) is shutdown for a continuous period of four calendar months or longer, and make appropriate adjustments under this paragraph. Upon petition of the [owner or operator](/usc/42/9601.md?p=20-B) of any [unit](#15), the [Administrator](/usc/42/7602.md?p=a) may make appropriate [baseline](#4) adjustments for accidents that caused prolonged outages.
- (B) For any other [nonutility unit](#25) that is not included in the NAPAP Emissions [Inventory](/usc/42/4370m.md?p=14), Version 2, or a corrected data base as established by the [Administrator](/usc/42/7602.md?p=a) pursuant to [paragraph (3)](#3),[^1] the [baseline](#4) shall be the annual average quantity, in mmBtu consumed in fuel by that [unit](#15), as calculated pursuant to a method which the [administrator](/usc/42/7602.md?p=a) shall prescribe by regulation to be promulgated not later than eighteen months after November 15, 1990.
- (C) The [Administrator](/usc/42/7602.md?p=a) shall, upon application or on his own motion, by December 31, 1991, supplement data needed in support of this subchapter and correct any factual errors in data from which affected Phase II [units](#15)’ [baselines](#4) or [actual 1985 emission rates](#16) have been calculated. Corrected data shall be used for purposes of issuing [allowances](#3) under the[^2] subchapter. Such corrections shall not be subject to judicial review, nor shall the failure of the [Administrator](/usc/42/7602.md?p=a) to correct an alleged factual error in such reports be subject to judicial review.
- (5) The term “capacity factor” means the ratio between the actual electric output from a [unit](#15) and the potential electric output from that [unit](#15).
- (6) The term “compliance plan” means, for purposes of the requirements of this subchapter, either—
- (A) a statement that the source will comply with all applicable requirements under this subchapter, or
- (B) where applicable, a schedule and description of the method or methods for compliance and certification by the [owner or operator](/usc/42/9601.md?p=20-B) that the source is in compliance with the requirements of this subchapter.
- (7) The term “continuous emission monitoring system” (CEMS) means the equipment as required by [section 7651k of this title](/usc/42/7651k.md), used to sample, analyze, measure, and provide on a continuous basis a permanent record of emissions and flow (expressed in pounds per million British thermal [units](#15) (lbs/mmBtu), pounds per hour (lbs/hr) or such other form as the [Administrator](/usc/42/7602.md?p=a) may prescribe by regulations under [section 7651k of this title](/usc/42/7651k.md)).
- (8) The term “existing unit” means a [unit](#15) (including [units](#15) subject to [section 7411 of this title](/usc/42/7411.md)) that [commenced commercial operation](#22) before November 15, 1990. Any [unit](#15) that [commenced commercial operation](#22) before November 15, 1990, which is [modified](/usc/42/7501.md?p=4), reconstructed, or repowered after November 15, 1990, shall continue to be an existing unit for the purposes of this subchapter. For the purposes of this subchapter, existing units shall not include simple combustion turbines, or [units](#15) which serve a [generator](#9) with a nameplate capacity of 25MWe or less.
- (9) The term “generator” means a device that produces electricity and which is reported as a generating [unit](#15) pursuant to Department of [Energy](/usc/42/6311.md?p=7) Form 860.
- (10) The term “new unit” means a [unit](#15) that commences commercial operation on or after November 15, 1990.
- (11) The term “permitting authority” means the [Administrator](/usc/42/7602.md?p=a), or the [State](#14) or local [air pollution control agency](/usc/42/7602.md?p=b), with an approved permitting [program](/usc/42/274l–1.md?p=4) under part B[^3] of title III of the Act.
- (12) The term “repowering” means replacement of an existing coal-fired boiler with one of the following clean coal technologies: atmospheric or pressurized fluidized bed combustion, integrated gasification combined cycle, magnetohydrodynamics, direct and indirect coal-fired turbines, integrated gasification fuel cells, or as determined by the [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), a derivative of one or more of these technologies, and any other technology capable of controlling multiple combustion emissions simultaneously with improved boiler or generation efficiency and with significantly greater waste reduction relative to the performance of technology in widespread commercial use as of November 15, 1990. Notwithstanding the provisions of [section 7651h(a) of this title](/usc/42/7651h.md?p=a), for the purpose of this subchapter, the term “repowering” shall also include any oil and/or gas-fired [unit](#15) which has been awarded clean coal technology demonstration funding as of January 1, 1991, by the Department of [Energy](/usc/42/6311.md?p=7).
- (13) The term “reserve” means any bank of [allowances](#3) established by the [Administrator](/usc/42/7602.md?p=a) under this subchapter.
- (14) The term “State” means one of the 48 contiguous States and the District of Columbia.
- (15) The term “unit” means a fossil fuel-fired combustion device.
- (16) The term “actual 1985 emission rate”, for electric [utility units](#17-A) means the annual sulfur dioxide or nitrogen oxides emission rate in pounds per million Btu as reported in the NAPAP Emissions [Inventory](/usc/42/4370m.md?p=14), Version 2, National Utility Reference File. For [nonutility units](#25), the term “actual 1985 emission rate” means the annual sulfur dioxide or nitrogen oxides emission rate in pounds per million Btu as reported in the NAPAP Emission [Inventory](/usc/42/4370m.md?p=14), Version 2.
- (17)
- (A) The term “utility unit” means—
- (i) a [unit](#15) that serves a [generator](#9) in any [State](#14) that produces electricity for sale, or
- (ii) a [unit](#15) that, during 1985, served a [generator](#9) in any [State](#14) that produced electricity for sale.
- (B) Notwithstanding [subparagraph (A)](#17-A), a [unit](#15) described in [subparagraph (A)](#17-A) that—
- (i) was in commercial operation during 1985, but
- (ii) did not, during 1985, serve a [generator](#9) in any [State](#14) that produced electricity for sale shall not be a [utility unit](#17-A) for purposes of this subchapter.
- (C) A [unit](#15) that cogenerates steam and electricity is not a “[utility unit](#17-A)” for purposes of this subchapter unless the [unit](#15) is constructed for the purpose of supplying, or commences [construction](#23) after November 15, 1990, and supplies, more than one-third of its potential electric output capacity and more than 25 megawatts electrical output to any utility power distribution system for sale.
- (18) The term “allowable 1985 emissions rate” means a federally enforceable emissions limitation for sulfur dioxide or oxides of nitrogen, applicable to the [unit](#15) in 1985 or the limitation applicable in such other subsequent year as determined by the [Administrator](/usc/42/7602.md?p=a) if such a limitation for 1985 does not exist. Where the emissions limitation for a [unit](#15) is not expressed in pounds of emissions per million Btu, or the averaging period of that emissions limitation is not expressed on an annual basis, the [Administrator](/usc/42/7602.md?p=a) shall calculate the annual equivalent of that emissions limitation in pounds per million Btu to establish the allowable 1985 emissions rate.
- (19) The term “qualifying phase I technology” means a technological system of continuous emission reduction which achieves a 90 percent reduction in emissions of sulfur dioxide from the emissions that would have resulted from the use of fuels which were not subject to [treatment](/usc/42/11851.md?p=11) prior to combustion.
- (20) The term “alternative method of compliance” means a method of compliance in accordance with one or more of the following authorities:
- (A) a substitution plan submitted and approved in accordance with subsections[^4] 7651c(b) and (c) of this title;
- (B) a Phase I extension plan approved by the [Administrator](/usc/42/7602.md?p=a) under [section 7651c(d) of this title](/usc/42/7651c.md?p=d), using [qualifying phase I technology](#19) as determined by the [Administrator](/usc/42/7602.md?p=a) in accordance with that section; or
- (C) [repowering](#12) with a qualifying clean coal technology under [section 7651h of this title](/usc/42/7651h.md).
- (21) The term “commenced” as applied to [construction](#23) of any new electric [utility unit](#17-A) means that an [owner or operator](/usc/42/9601.md?p=20-B) has undertaken a continuous [program](/usc/42/274l–1.md?p=4) of [construction](#23) or that an [owner or operator](/usc/42/9601.md?p=20-B) has entered into a contractual obligation to undertake and complete, within a reasonable time, a continuous [program](/usc/42/274l–1.md?p=4) of [construction](#23).
- (22) The term “commenced commercial operation” means to have begun to [generate](/usc/42/2021b.md?p=8) electricity for sale.
- (23) The term “construction” means fabrication, erection, or installation of an [affected unit](#2).
- (24) The term “industrial source” means a [unit](#15) that does not serve a [generator](#9) that produces electricity, a “[nonutility unit](#25)” as defined in this section, or a process source as defined in [section 7651i(e)](/usc/42/7651i.md?p=e)[^5] of this title.
- (25) The term “nonutility unit” means a [unit](#15) other than a [utility unit](#17-A).
- (26) The term “designated representative” means a responsible [person](/usc/42/7602.md?p=e) or official authorized by the [owner or operator](/usc/42/9601.md?p=20-B) of a [unit](#15) to represent the [owner or operator](/usc/42/9601.md?p=20-B) in matters pertaining to the holding, transfer, or disposition of [allowances](#3) allocated to a [unit](#15), and the submission of and compliance with permits, permit applications, and [compliance plans](#6) for the [unit](#15).
- (27) The term “life-of-the-unit, firm power contractual arrangement” means a [unit](#15) participation power sales [agreement](/usc/42/1320b–8.md?p=a-3-A) under which a utility or industrial [customer](/usc/42/7275.md?p=5) [reserves](#13), or is entitled to receive, a specified amount or percentage of capacity and associated [energy](/usc/42/6311.md?p=7) generated by a specified generating [unit](#15) (or [units](#15)) and pays its proportional amount of such [unit](#15)’s total costs, pursuant to a contract either—
- (A) for the life of the [unit](#15);
- (B) for a cumulative term of no less than 30 years, including contracts that permit an election for early termination; or
- (C) for a period equal to or greater than 25 years or 70 percent of the economic useful life of the [unit](#15) determined as of the time the [unit](#15) was built, with option rights to purchase or re-lease some portion of the capacity and associated [energy](/usc/42/6311.md?p=7) generated by the [unit](#15) (or [units](#15)) at the end of the period.
- (28) The term “basic Phase II allowance allocations” means:
- (A) For calendar years 2000 through 2009 inclusive, [allocations](/usc/42/2021b.md?p=2) of [allowances](#3) made by the [Administrator](/usc/42/7602.md?p=a) pursuant to [section 7651b of this title](/usc/42/7651b.md) and subsections (b)(1), (3), and (4); (c)(1), (2), (3), and (5); (d)(1), (2), (4), and (5); (e); (f); (g)(1), (2), (3), (4), and (5); (h)(1); (i) and (j) of [section 7651d of this title](/usc/42/7651d.md).
- (B) For each calendar year beginning in 2010, [allocations](/usc/42/2021b.md?p=2) of [allowances](#3) made by the [Administrator](/usc/42/7602.md?p=a) pursuant to [section 7651b of this title](/usc/42/7651b.md) and subsections (b)(1), (3), and (4); (c)(1), (2), (3), and (5); (d)(1), (2), (4) and (5); (e); (f); (g)(1), (2), (3), (4), and (5); (h)(1) and (3); (i) and (j) of [section 7651d of this title](/usc/42/7651d.md).
- (29) The term “Phase II bonus allowance allocations” means, for calendar year 2000 through 2009, inclusive, and only for such years, [allocations](/usc/42/2021b.md?p=2) made by the [Administrator](/usc/42/7602.md?p=a) pursuant to [section 7651b of this title](/usc/42/7651b.md), subsections (a)(2), (b)(2), (c)(4), (d)(3) (except as otherwise provided therein), and (h)(2) of [section 7651d of this title](/usc/42/7651d.md), and [section 7651e of this title](/usc/42/7651e.md).
# §7651b. Sulfur dioxide allowance program for existing and new units
- (a) **Allocations of annual allowances for existing and new units—**
- (1) [^1] For the [emission limitation](/usc/42/7602.md?p=k) [programs](/usc/42/274l–1.md?p=4) under this subchapter, the [Administrator](/usc/42/7602.md?p=a) shall allocate annual [allowances](/usc/42/7651a.md?p=3) for the [unit](/usc/42/7651a.md?p=15), to be held or distributed by the [designated representative](/usc/42/7651a.md?p=26) of the [owner or operator](/usc/42/9601.md?p=20-B) of each [affected unit](/usc/42/7651a.md?p=2) at an [affected source](/usc/42/7651a.md?p=1) in accordance with this subchapter, in an amount equal to the annual tonnage [emission limitation](/usc/42/7602.md?p=k) calculated under section [7651c](/usc/42/7651c.md), [7651d](/usc/42/7651d.md), [7651e](/usc/42/7651e.md), [7651h](/usc/42/7651h.md), or [7651i](/usc/42/7651i.md) of this title except as otherwise specifically provided elsewhere in this subchapter. Except as provided in sections [7651d(a)(2)](/usc/42/7651d.md?p=a-2), [7651d(a)(3)](/usc/42/7651d.md?p=a-3), [7651h](/usc/42/7651h.md) and [7651i](/usc/42/7651i.md) of this title, beginning January 1, 2000, the [Administrator](/usc/42/7602.md?p=a) shall not allocate annual [allowances](/usc/42/7651a.md?p=3) to emit sulfur dioxide pursuant to [section 7651d of this title](/usc/42/7651d.md) in such an amount as would result in total annual emissions of sulfur dioxide from [utility units](/usc/42/7651a.md?p=17-A) in excess of 8.90 million tons except that the [Administrator](/usc/42/7602.md?p=a) shall not take into account unused [allowances](/usc/42/7651a.md?p=3) carried forward by [owners](/usc/42/13641.md?p=4) and operators of [affected units](/usc/42/7651a.md?p=2) or by other [persons](/usc/42/7602.md?p=e) holding such [allowances](/usc/42/7651a.md?p=3), following the year for which they were allocated. If necessary to meeting the restrictions imposed in the preceding sentence, the [Administrator](/usc/42/7602.md?p=a) shall reduce, pro rata, the [basic Phase II allowance allocations](/usc/42/7651a.md?p=28) for each [unit](/usc/42/7651a.md?p=15) subject to the requirements of [section 7651d of this title](/usc/42/7651d.md). Subject to the provisions of [section 7651o](/usc/42/7651o.md) of this title, the [Administrator](/usc/42/7602.md?p=a) shall allocate [allowances](/usc/42/7651a.md?p=3) for each [affected unit](/usc/42/7651a.md?p=2) at an [affected source](/usc/42/7651a.md?p=1) annually, as provided in paragraphs (2) and (3)[^1] and [section 7651g of this title](/usc/42/7651g.md). Except as provided in sections [7651h](/usc/42/7651h.md) and [7651i](/usc/42/7651i.md) of this title, the [removal](/usc/42/9601.md?p=23) of an existing [affected unit](/usc/42/7651a.md?p=2) or source from commercial operation at any time after November 15, 1990 (whether before or after January 1, 1995, or January 1, 2000) shall not terminate or otherwise affect the [allocation](/usc/42/2021b.md?p=2) of [allowances](/usc/42/7651a.md?p=3) pursuant to section [7651c](/usc/42/7651c.md) or [7651d](/usc/42/7651d.md) of this title to which the [unit](/usc/42/7651a.md?p=15) is entitled. [Allowances](/usc/42/7651a.md?p=3) shall be allocated by the [Administrator](/usc/42/7602.md?p=a) without cost to the [recipient](/usc/42/2996a.md?p=6), except for [allowances](/usc/42/7651a.md?p=3) sold by the [Administrator](/usc/42/7602.md?p=a) pursuant to [section 7651o](/usc/42/7651o.md) of this title. Not later than December 31, 1991, the [Administrator](/usc/42/7602.md?p=a) shall publish a proposed list of the [basic Phase II allowance allocations](/usc/42/7651a.md?p=28), the [Phase II bonus allowance allocations](/usc/42/7651a.md?p=29) and, if applicable, [allocations](/usc/42/2021b.md?p=2) pursuant to [section 7651d(a)(3) of this title](/usc/42/7651d.md?p=a-3) for each [unit](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of [section 7651d of this title](/usc/42/7651d.md) for the year 2000 and the year 2010. After notice and opportunity for public comment, but not later than December 31, 1992, the [Administrator](/usc/42/7602.md?p=a) shall publish a final list of such [allocations](/usc/42/2021b.md?p=2), subject to the provisions of [section 7651d(a)(2) of this title](/usc/42/7651d.md?p=a-2). Any [owner or operator](/usc/42/9601.md?p=20-B) of an [existing unit](/usc/42/7651a.md?p=8) subject to the requirements of section [7651d(b)](/usc/42/7651d.md?p=b) or [(c)](/usc/42/7651d.md?p=c) of this title who is considering applying for an extension of the [emission limitation](/usc/42/7602.md?p=k) requirement compliance deadline for that [unit](/usc/42/7651a.md?p=15) from January 1, 2000, until not later than December 31, 2000, pursuant to [section 7651h of this title](/usc/42/7651h.md), shall notify the [Administrator](/usc/42/7602.md?p=a) no later than March 31, 1991. Such notification shall be used as the basis for estimating the basic Phase II [allowances](/usc/42/7651a.md?p=3) under this subsection. Prior to June 1, 1998, the [Administrator](/usc/42/7602.md?p=a) shall publish a revised final statement of [allowance](/usc/42/7651a.md?p=3) [allocations](/usc/42/2021b.md?p=2), subject to the provisions of [section 7651d(a)(2) of this title](/usc/42/7651d.md?p=a-2) and taking into account the effect of any compliance date extensions granted pursuant to [section 7651h of this title](/usc/42/7651h.md) on such [allocations](/usc/42/2021b.md?p=2). Any [person](/usc/42/7602.md?p=e) who may make an election concerning the amount of [allowances](/usc/42/7651a.md?p=3) to be allocated to a [unit](/usc/42/7651a.md?p=15) or [units](/usc/42/7651a.md?p=15) shall make such election and so inform the [Administrator](/usc/42/7602.md?p=a) not later than March 31, 1991, in the case of an election under [section 7651d of this title](/usc/42/7651d.md) (or June 30, 1991, in the case of an election under [section 7651e of this title](/usc/42/7651e.md)). If such [person](/usc/42/7602.md?p=e) fails to make such election, the [Administrator](/usc/42/7602.md?p=a) shall set forth for each [unit](/usc/42/7651a.md?p=15) owned or operated by such [person](/usc/42/7602.md?p=e), the amount of [allowances](/usc/42/7651a.md?p=3) reflecting the election that would, in the judgment of the [Administrator](/usc/42/7602.md?p=a), provide the greatest benefit for the [owner or operator](/usc/42/9601.md?p=20-B) of the [unit](/usc/42/7651a.md?p=15). If such [person](/usc/42/7602.md?p=e) is a [Governor](/usc/42/6372.md?p=1) who may make an election under [section 7651e of this title](/usc/42/7651e.md) and the [Governor](/usc/42/6372.md?p=1) fails to make an election, the [Administrator](/usc/42/7602.md?p=a) shall set forth for each [unit](/usc/42/7651a.md?p=15) in the [State](/usc/42/7651a.md?p=14) the amount of [allowances](/usc/42/7651a.md?p=3) reflecting the election that would, in the judgment of the [Administrator](/usc/42/7602.md?p=a), provide the greatest benefit for [units](/usc/42/7651a.md?p=15) in the [State](/usc/42/7651a.md?p=14).
- (b) **Allowance transfer system—** [Allowances](/usc/42/7651a.md?p=3) allocated under this subchapter may be transferred among [designated representatives](/usc/42/7651a.md?p=26) of the [owners](/usc/42/13641.md?p=4) or operators of [affected sources](/usc/42/7651a.md?p=1) under this subchapter and any other [person](/usc/42/7602.md?p=e) who holds such [allowances](/usc/42/7651a.md?p=3), as provided by the [allowance](/usc/42/7651a.md?p=3) system regulations to be promulgated by the [Administrator](/usc/42/7602.md?p=a) not later than eighteen months after November 15, 1990. Such regulations shall establish the [allowance](/usc/42/7651a.md?p=3) system prescribed under this section, including, but not limited to, requirements for the [allocation](/usc/42/2021b.md?p=2), transfer, and use of [allowances](/usc/42/7651a.md?p=3) under this subchapter. Such regulations shall prohibit the use of any [allowance](/usc/42/7651a.md?p=3) prior to the calendar year for which the [allowance](/usc/42/7651a.md?p=3) was allocated, and shall provide, consistent with the purposes of this subchapter, for the identification of unused [allowances](/usc/42/7651a.md?p=3), and for such unused [allowances](/usc/42/7651a.md?p=3) to be carried forward and added to [allowances](/usc/42/7651a.md?p=3) allocated in subsequent years, including [allowances](/usc/42/7651a.md?p=3) allocated to [units](/usc/42/7651a.md?p=15) subject to Phase I requirements (as described in [section 7651c of this title](/usc/42/7651c.md)) which are applied to emissions limitations requirements in Phase II (as described in [section 7651d of this title](/usc/42/7651d.md)). Transfers of [allowances](/usc/42/7651a.md?p=3) shall not be effective until written certification of the transfer, signed by a responsible official of each party to the transfer, is received and recorded by the [Administrator](/usc/42/7602.md?p=a). Such regulations shall permit the transfer of [allowances](/usc/42/7651a.md?p=3) prior to the issuance of such [allowances](/usc/42/7651a.md?p=3). Recorded pre-[allocation](/usc/42/2021b.md?p=2) transfers shall be deducted by the [Administrator](/usc/42/7602.md?p=a) from the number of [allowances](/usc/42/7651a.md?p=3) which would otherwise be allocated to the transferor, and added to those [allowances](/usc/42/7651a.md?p=3) allocated to the transferee. Pre-[allocation](/usc/42/2021b.md?p=2) transfers shall not affect the prohibition contained in this subsection against the use of [allowances](/usc/42/7651a.md?p=3) prior to the year for which they are allocated.
- (c) **Interpollutant trading—** Not later than January 1, 1994, the [Administrator](/usc/42/7602.md?p=a) shall furnish to the Congress a study evaluating the environmental and economic consequences of amending this subchapter to permit trading sulfur dioxide [allowances](/usc/42/7651a.md?p=3) for nitrogen oxides [allowances](/usc/42/7651a.md?p=3).
- (d) **Allowance tracking system—**
- (1) The [Administrator](/usc/42/7602.md?p=a) shall promulgate, not later than 18 months after November 15, 1990, a system for issuing, recording, and tracking [allowances](/usc/42/7651a.md?p=3), which shall specify all necessary procedures and requirements for an orderly and competitive functioning of the [allowance](/usc/42/7651a.md?p=3) system. All [allowance](/usc/42/7651a.md?p=3) [allocations](/usc/42/2021b.md?p=2) and transfers shall, upon recordation by the [Administrator](/usc/42/7602.md?p=a), be deemed a part of each [unit](/usc/42/7651a.md?p=15)’s permit requirements pursuant to [section 7651g of this title](/usc/42/7651g.md), without any further permit review and revision.
- (2) In order to insure electric reliability, such regulations shall not prohibit or affect temporary increases and decreases in emissions within utility systems, power pools, or utilities entering into [allowance](/usc/42/7651a.md?p=3) pool [agreements](/usc/42/1320b–8.md?p=a-3-A), that result from their operations, including emergencies and central dispatch, and such temporary emissions increases and decreases shall not require transfer of [allowances](/usc/42/7651a.md?p=3) among [units](/usc/42/7651a.md?p=15) nor shall it require recordation. The [owners](/usc/42/13641.md?p=4) or operators of such [units](/usc/42/7651a.md?p=15) shall act through a [designated representative](/usc/42/7651a.md?p=26). Notwithstanding the preceding sentence, the total tonnage of emissions in any calendar year (calculated at the end thereof) from all [units](/usc/42/7651a.md?p=15) in such a utility system, power pool, or [allowance](/usc/42/7651a.md?p=3) pool [agreements](/usc/42/1320b–8.md?p=a-3-A) shall not exceed the total [allowances](/usc/42/7651a.md?p=3) for such [units](/usc/42/7651a.md?p=15) for the calendar year concerned.
- (e) **New utility units—** After January 1, 2000, it shall be unlawful for a new [utility unit](/usc/42/7651a.md?p=17-A) to emit an annual tonnage of sulfur dioxide in excess of the number of [allowances](/usc/42/7651a.md?p=3) to emit held for the [unit](/usc/42/7651a.md?p=15) by the [unit](/usc/42/7651a.md?p=15)’s [owner or operator](/usc/42/9601.md?p=20-B). Such new [utility units](/usc/42/7651a.md?p=17-A) shall not be eligible for an [allocation](/usc/42/2021b.md?p=2) of sulfur dioxide [allowances](/usc/42/7651a.md?p=3) under [subsection (a)(1)](#a-1), unless the [unit](/usc/42/7651a.md?p=15) is subject to the provisions of subsection (g)(2) or (3) of [section 7651d of this title](/usc/42/7651d.md). New [utility units](/usc/42/7651a.md?p=17-A) may obtain [allowances](/usc/42/7651a.md?p=3) from any [person](/usc/42/7602.md?p=e), in accordance with this subchapter. The [owner or operator](/usc/42/9601.md?p=20-B) of any new [utility unit](/usc/42/7651a.md?p=17-A) in [violation](/usc/42/2000e–16a.md?p=c) of this subsection shall be liable for fulfilling the obligations specified in [section 7651j of this title](/usc/42/7651j.md).
- (f) **Nature of allowances—** An [allowance](/usc/42/7651a.md?p=3) allocated under this subchapter is a limited [authorization](/usc/42/4370m.md?p=3) to emit sulfur dioxide in accordance with the provisions of this subchapter. Such [allowance](/usc/42/7651a.md?p=3) does not constitute a property right. Nothing in this subchapter or in any other provision of law shall be construed to limit the authority of the [United States](/usc/42/403.md?p=k) to terminate or limit such [authorization](/usc/42/4370m.md?p=3). Nothing in this section relating to [allowances](/usc/42/7651a.md?p=3) shall be construed as affecting the application of, or compliance with, any other provision of this chapter to an [affected unit](/usc/42/7651a.md?p=2) or source, including the provisions related to applicable National Ambient Air Quality [Standards](/usc/42/1320d.md?p=7) and [State](/usc/42/7651a.md?p=14) implementation plans. Nothing in this section shall be construed as requiring a change of any kind in any [State](/usc/42/7651a.md?p=14) law regulating electric utility rates and charges or affecting any [State](/usc/42/7651a.md?p=14) law regarding such [State](/usc/42/7651a.md?p=14) regulation or as limiting [State](/usc/42/7651a.md?p=14) regulation (including any prudency review) under such a [State](/usc/42/7651a.md?p=14) law. Nothing in this section shall be construed as modifying the Federal Power Act [[16 U.S.C. 791a](/usc/16/791a.md) et seq.] or as affecting the authority of the Federal [Energy](/usc/42/6311.md?p=7) Regulatory [Commission](/usc/42/2000ff.md?p=1) under that Act. Nothing in this subchapter shall be construed to interfere with or impair any [program](/usc/42/274l–1.md?p=4) for competitive bidding for power supply in a [State](/usc/42/7651a.md?p=14) in which such [program](/usc/42/274l–1.md?p=4) is established. [Allowances](/usc/42/7651a.md?p=3), once allocated to a [person](/usc/42/7602.md?p=e) by the [Administrator](/usc/42/7602.md?p=a), may be received, held, and temporarily or permanently transferred in accordance with this subchapter and the regulations of the [Administrator](/usc/42/7602.md?p=a) without regard to whether or not a permit is in effect under subchapter V or [section 7651g of this title](/usc/42/7651g.md) with respect to the [unit](/usc/42/7651a.md?p=15) for which such [allowance](/usc/42/7651a.md?p=3) was originally allocated and recorded. Each permit under this subchapter and each permit issued under subchapter V for any [affected unit](/usc/42/7651a.md?p=2) shall provide that the [affected unit](/usc/42/7651a.md?p=2) may not emit an annual tonnage of sulfur dioxide in excess of the [allowances](/usc/42/7651a.md?p=3) held for that [unit](/usc/42/7651a.md?p=15).
- (g) **Prohibition—** It shall be unlawful for any [person](/usc/42/7602.md?p=e) to hold, use, or transfer any [allowance](/usc/42/7651a.md?p=3) allocated under this subchapter, except in accordance with regulations promulgated by the [Administrator](/usc/42/7602.md?p=a). It shall be unlawful for any [affected unit](/usc/42/7651a.md?p=2) to emit sulfur dioxide in excess of the number of [allowances](/usc/42/7651a.md?p=3) held for that [unit](/usc/42/7651a.md?p=15) for that year by the [owner or operator](/usc/42/9601.md?p=20-B) of the [unit](/usc/42/7651a.md?p=15). Upon the [allocation](/usc/42/2021b.md?p=2) of [allowances](/usc/42/7651a.md?p=3) under this subchapter, the prohibition contained in the preceding sentence shall supersede any other [emission limitation](/usc/42/7602.md?p=k) applicable under this subchapter to the [units](/usc/42/7651a.md?p=15) for which such [allowances](/usc/42/7651a.md?p=3) are allocated. [Allowances](/usc/42/7651a.md?p=3) may not be used prior to the calendar year for which they are allocated. Nothing in this section or in the [allowance](/usc/42/7651a.md?p=3) system regulations shall relieve the [Administrator](/usc/42/7602.md?p=a) of the [Administrator](/usc/42/7602.md?p=a)’s permitting, monitoring and enforcement obligations under this chapter, nor relieve [affected sources](/usc/42/7651a.md?p=1) of their requirements and liabilities under this chapter.
- (h) **Competitive bidding for power supply—** Nothing in this subchapter shall be construed to interfere with or impair any [program](/usc/42/274l–1.md?p=4) for competitive bidding for power supply in a [State](/usc/42/7651a.md?p=14) in which such [program](/usc/42/274l–1.md?p=4) is established.
- (i) **Applicability of antitrust laws—**
- (1) Nothing in this section affects—
- (A) the applicability of the antitrust laws to the transfer, use, or sale of [allowances](/usc/42/7651a.md?p=3), or
- (B) the authority of the Federal [Energy](/usc/42/6311.md?p=7) Regulatory [Commission](/usc/42/2000ff.md?p=1) under any provision of law respecting unfair methods of competition or anticompetitive acts or [practices](/usc/42/17061.md?p=19).
- (2) As used in this section, “antitrust laws” means those Acts set forth in [section 12 of title 15](/usc/15/12.md).
- (j) **Public Utility Holding Company Act—** The acquisition or disposition of [allowances](/usc/42/7651a.md?p=3) pursuant to this subchapter including the issuance of securities or the undertaking of any other financing transaction in connection with such [allowances](/usc/42/7651a.md?p=3) shall not be subject to the provisions of the Public Utility Holding Company Act of 1935.[^2]
# §7651c. Phase I sulfur dioxide requirements
- (a) **Emission limitations—**
- (1) After January 1, 1995, each source that includes one or more [affected units](/usc/42/7651a.md?p=2) listed in table A is an [affected source](/usc/42/7651a.md?p=1) under this section. After January 1, 1995, it shall be unlawful for any [affected unit](/usc/42/7651a.md?p=2) (other than an eligible phase I [unit](/usc/42/7651a.md?p=15) under [subsection (d)(2)](#d-2)) to emit sulfur dioxide in excess of the tonnage limitation stated as a total number of [allowances](/usc/42/7651a.md?p=3) in table A for phase I, unless (A) the [emissions reduction](/usc/42/17114.md?p=a-3) requirements applicable to such [unit](/usc/42/7651a.md?p=15) have been achieved pursuant to subsection [(b)](#b) or [(d)](#d), or (B) the [owner or operator](/usc/42/9601.md?p=20-B) of such [unit](/usc/42/7651a.md?p=15) holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [unit](/usc/42/7651a.md?p=15)’s total annual emissions, except that, after January 1, 2000, the emissions limitations established in this section shall be superseded by those established in [section 7651d of this title](/usc/42/7651d.md). The [owner or operator](/usc/42/9601.md?p=20-B) of any [unit](/usc/42/7651a.md?p=15) in [violation](/usc/42/2000e–16a.md?p=c) of this section shall be fully liable for such [violation](/usc/42/2000e–16a.md?p=c) including, but not limited to, liability for fulfilling the obligations specified in [section 7651j of this title](/usc/42/7651j.md).
- (2) Not later than December 31, 1991, the [Administrator](/usc/42/7602.md?p=a) shall determine the total tonnage of reductions in the emissions of sulfur dioxide from all [utility units](/usc/42/7651a.md?p=17-A) in calendar year 1995 that will occur as a result of compliance with the emissions limitation requirements of this section, and shall establish a [reserve](/usc/42/7651a.md?p=13) of [allowances](/usc/42/7651a.md?p=3) equal in amount to the number of tons determined thereby not to exceed a total of 3.50 million tons. In making such a determination, the [Administrator](/usc/42/7602.md?p=a) shall compute for each [unit](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of this section the difference between:
- (A) the product of its [baseline](/usc/42/7651a.md?p=4) multiplied by the lesser of each [unit](/usc/42/7651a.md?p=15)’s [allowable 1985 emissions rate](/usc/42/7651a.md?p=18) and its actual 1985 emissions rate, divided by 2,000, and
- (B) the product of each [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by 2.50 lbs/mmBtu divided by 2,000,
and sum the computations. The [Administrator](/usc/42/7602.md?p=a) shall adjust the foregoing calculation to reflect projected calendar year 1995 utilization of the [units](/usc/42/7651a.md?p=15) subject to the emissions limitations of this subchapter that the [Administrator](/usc/42/7602.md?p=a) finds would have occurred in the absence of the imposition of such requirements. Pursuant to [subsection (d)](#d), the [Administrator](/usc/42/7602.md?p=a) shall allocate [allowances](/usc/42/7651a.md?p=3) from the [reserve](/usc/42/7651a.md?p=13) established hereinunder until the earlier of such time as all such [allowances](/usc/42/7651a.md?p=3) in the [reserve](/usc/42/7651a.md?p=13) are allocated or December 31, 1999.
- (3) In addition to [allowances](/usc/42/7651a.md?p=3) allocated pursuant to [paragraph (1)](#a-1), in each calendar year beginning in 1995 and ending in 1999, inclusive, the [Administrator](/usc/42/7602.md?p=a) shall allocate for each [unit](/usc/42/7651a.md?p=15) on Table A that is located in the [States](/usc/42/7651a.md?p=14) of Illinois, Indiana, or Ohio (other than [units](/usc/42/7651a.md?p=15) at Kyger Creek, Clifty Creek and Joppa Steam), [allowances](/usc/42/7651a.md?p=3) in an amount equal to 200,000 multiplied by the [unit](/usc/42/7651a.md?p=15)’s pro rata share of the total number of [allowances](/usc/42/7651a.md?p=3) allocated for all [units](/usc/42/7651a.md?p=15) on Table A in the 3 [States](/usc/42/7651a.md?p=14) (other than [units](/usc/42/7651a.md?p=15) at Kyger Creek, Clifty Creek, and Joppa Steam) pursuant to [paragraph (1)](#a-1). Such [allowances](/usc/42/7651a.md?p=3) shall be excluded from the calculation of the [reserve](/usc/42/7651a.md?p=13) under [paragraph (2)](#a-2).
- (b) **Substitutions—** The [owner or operator](/usc/42/9601.md?p=20-B) of an [affected unit](/usc/42/7651a.md?p=2) under [subsection (a)](#a) may include in its [section 7651g of this title](/usc/42/7651g.md) permit application and proposed [compliance plan](/usc/42/7651a.md?p=6) a proposal to reassign, in whole or in part, the [affected unit](/usc/42/7651a.md?p=2)’s sulfur dioxide reduction requirements to any other [unit](/usc/42/7651a.md?p=15)(s) under the control of such [owner or operator](/usc/42/9601.md?p=20-B). Such proposal shall specify—
- (1) the designation of the substitute [unit](/usc/42/7651a.md?p=15) or [units](/usc/42/7651a.md?p=15) to which any part of the reduction obligations of [subsection (a)](#a) shall be required, in addition to, or in lieu of, any original [affected units](/usc/42/7651a.md?p=2) designated under such subsection;
- (2) the original [affected unit](/usc/42/7651a.md?p=2)’s [baseline](/usc/42/7651a.md?p=4), the actual and [allowable 1985 emissions rate](/usc/42/7651a.md?p=18) for sulfur dioxide, and the authorized annual [allowance](/usc/42/7651a.md?p=3) [allocation](/usc/42/2021b.md?p=2) stated in table A;
- (3) calculation of the annual average tonnage for calendar years 1985, 1986, and 1987, emitted by the substitute [unit](/usc/42/7651a.md?p=15) or [units](/usc/42/7651a.md?p=15), based on the [baseline](/usc/42/7651a.md?p=4) for each [unit](/usc/42/7651a.md?p=15), as defined in [section 7651a(d)](/usc/42/7651a.md)[^1] of this title, multiplied by the lesser of the [unit](/usc/42/7651a.md?p=15)’s actual or [allowable 1985 emissions rate](/usc/42/7651a.md?p=18);
- (4) the emissions rates and tonnage limitations that would be applicable to the original and substitute [affected units](/usc/42/7651a.md?p=2) under the substitution proposal;
- (5) documentation, to the satisfaction of the [Administrator](/usc/42/7602.md?p=a), that the reassigned tonnage limits will, in total, achieve the same or greater [emissions reduction](/usc/42/17114.md?p=a-3) than would have been achieved by the original [affected unit](/usc/42/7651a.md?p=2) and the substitute [unit](/usc/42/7651a.md?p=15) or [units](/usc/42/7651a.md?p=15) without such substitution; and
- (6) such other information as the [Administrator](/usc/42/7602.md?p=a) may require.
- (c) **Administrator’s action on substitution proposals—**
- (1) The [Administrator](/usc/42/7602.md?p=a) shall take final action on such substitution proposal in accordance with [section 7651g(c) of this title](/usc/42/7651g.md?p=c) if the substitution proposal fulfills the requirements of this subsection. The [Administrator](/usc/42/7602.md?p=a) may approve a substitution proposal in whole or in part and with such [modifications](/usc/42/7501.md?p=4) or conditions as may be consistent with the orderly functioning of the [allowance](/usc/42/7651a.md?p=3) system and which will ensure the [emissions reductions](/usc/42/17114.md?p=a-3) contemplated by this subchapter. If a proposal does not meet the requirements of [subsection (b)](#b), the [Administrator](/usc/42/7602.md?p=a) shall disapprove it. The [owner or operator](/usc/42/9601.md?p=20-B) of a [unit](/usc/42/7651a.md?p=15) listed in table A shall not substitute another [unit](/usc/42/7651a.md?p=15) or [units](/usc/42/7651a.md?p=15) without the prior approval of the [Administrator](/usc/42/7602.md?p=a).
- (2) Upon approval of a substitution proposal, each substitute [unit](/usc/42/7651a.md?p=15), and each source with such [unit](/usc/42/7651a.md?p=15), shall be deemed affected under this subchapter, and the [Administrator](/usc/42/7602.md?p=a) shall issue a permit to the original and substitute [affected source](/usc/42/7651a.md?p=1) and [unit](/usc/42/7651a.md?p=15) in accordance with the approved substitution plan and [section 7651g of this title](/usc/42/7651g.md). The [Administrator](/usc/42/7602.md?p=a) shall allocate [allowances](/usc/42/7651a.md?p=3) for the original and substitute [affected units](/usc/42/7651a.md?p=2) in accordance with the approved substitution proposal pursuant to [section 7651b of this title](/usc/42/7651b.md). It shall be unlawful for any source or [unit](/usc/42/7651a.md?p=15) that is allocated [allowances](/usc/42/7651a.md?p=3) pursuant to this section to emit sulfur dioxide in excess of the emissions limitation provided for in the approved substitution permit and plan unless the [owner or operator](/usc/42/9601.md?p=20-B) of each [unit](/usc/42/7651a.md?p=15) governed by the permit and approved substitution plan holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [units](/usc/42/7651a.md?p=15)[^2] total annual emissions. The [owner or operator](/usc/42/9601.md?p=20-B) of any original or substitute [affected unit](/usc/42/7651a.md?p=2) operated in [violation](/usc/42/2000e–16a.md?p=c) of this subsection shall be fully liable for such [violation](/usc/42/2000e–16a.md?p=c), including liability for fulfilling the obligations specified in [section 7651j of this title](/usc/42/7651j.md). If a substitution proposal is disapproved, the [Administrator](/usc/42/7602.md?p=a) shall allocate [allowances](/usc/42/7651a.md?p=3) to the original [affected unit](/usc/42/7651a.md?p=2) or [units](/usc/42/7651a.md?p=15) in accordance with [subsection (a)](#a).
- (d) **Eligible phase I extension units—**
- (1) The [owner or operator](/usc/42/9601.md?p=20-B) of any [affected unit](/usc/42/7651a.md?p=2) subject to an emissions limitation requirement under this section may petition the [Administrator](/usc/42/7602.md?p=a) in its permit application under [section 7651g of this title](/usc/42/7651g.md) for an extension of 2 years of the deadline for meeting such requirement, provided that the [owner or operator](/usc/42/9601.md?p=20-B) of any such [unit](/usc/42/7651a.md?p=15) holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [unit](/usc/42/7651a.md?p=15)’s total annual emissions for each of the 2 years of the period of extension. To qualify for such an extension, the [affected unit](/usc/42/7651a.md?p=2) must either employ a [qualifying phase I technology](/usc/42/7651a.md?p=19), or transfer its phase I [emissions reduction](/usc/42/17114.md?p=a-3) obligation to a [unit](/usc/42/7651a.md?p=15) employing a [qualifying phase I technology](/usc/42/7651a.md?p=19). Such transfer shall be accomplished in accordance with a [compliance plan](/usc/42/7651a.md?p=6), submitted and approved under [section 7651g of this title](/usc/42/7651g.md), that shall govern operations at all [units](/usc/42/7651a.md?p=15) included in the transfer, and that specifies the [emissions reduction](/usc/42/17114.md?p=a-3) requirements imposed pursuant to this subchapter.
- (2) Such extension proposal shall—
- (A) specify the [unit](/usc/42/7651a.md?p=15) or [units](/usc/42/7651a.md?p=15) proposed for designation as an eligible phase I extension [unit](/usc/42/7651a.md?p=15);
- (B) provide a copy of an executed contract, which may be contingent upon the [Administrator](/usc/42/7602.md?p=a) approving the proposal, for the design engineering, and [construction](/usc/42/7651a.md?p=23) of the [qualifying phase I technology](/usc/42/7651a.md?p=19) for the extension [unit](/usc/42/7651a.md?p=15), or for the [unit](/usc/42/7651a.md?p=15) or [units](/usc/42/7651a.md?p=15) to which the extension [unit](/usc/42/7651a.md?p=15)’s emission reduction obligation is to be transferred;
- (C) specify the [unit](/usc/42/7651a.md?p=15)’s or [units](/usc/42/7651a.md?p=15)’ [baseline](/usc/42/7651a.md?p=4), actual 1985 emissions rate, [allowable 1985 emissions rate](/usc/42/7651a.md?p=18), and projected utilization for calendar years 1995 through 1999;
- (D) require CEMS on both the eligible phase I extension [unit](/usc/42/7651a.md?p=15) or [units](/usc/42/7651a.md?p=15) and the transfer [unit](/usc/42/7651a.md?p=15) or [units](/usc/42/7651a.md?p=15) beginning no later than January 1, 1995; and
- (E) specify the [emission limitation](/usc/42/7602.md?p=k) and number of [allowances](/usc/42/7651a.md?p=3) expected to be necessary for annual operation after the [qualifying phase I technology](/usc/42/7651a.md?p=19) has been installed.
- (3) The [Administrator](/usc/42/7602.md?p=a) shall review and take final action on each extension proposal in order of receipt, consistent with [section 7651g of this title](/usc/42/7651g.md), and for an approved proposal shall designate the [unit](/usc/42/7651a.md?p=15) or [units](/usc/42/7651a.md?p=15) as an eligible phase I extension [unit](/usc/42/7651a.md?p=15). The [Administrator](/usc/42/7602.md?p=a) may approve an extension proposal in whole or in part, and with such [modifications](/usc/42/7501.md?p=4) or conditions as may be necessary, consistent with the orderly functioning of the [allowance](/usc/42/7651a.md?p=3) system, and to ensure the [emissions reductions](/usc/42/17114.md?p=a-3) contemplated by the[^3] subchapter.
- (4) In order to determine the number of proposals eligible for [allocations](/usc/42/2021b.md?p=2) from the [reserve](/usc/42/7651a.md?p=13) under [subsection (a)(2)](#a-2) and the number of [allowances](/usc/42/7651a.md?p=3) remaining available after each proposal is acted upon, the [Administrator](/usc/42/7602.md?p=a) shall reduce the total number of [allowances](/usc/42/7651a.md?p=3) remaining available in the [reserve](/usc/42/7651a.md?p=13) by the number of [allowances](/usc/42/7651a.md?p=3) calculated according to subparagraphs [(A)](#d-4-A), [(B)](#d-4-B) and [(C)](#d-4-C) until either no [allowances](/usc/42/7651a.md?p=3) remain available in the [reserve](/usc/42/7651a.md?p=13) for further [allocation](/usc/42/2021b.md?p=2) or all approved proposals have been acted upon. If no [allowances](/usc/42/7651a.md?p=3) remain available in the [reserve](/usc/42/7651a.md?p=13) for further [allocation](/usc/42/2021b.md?p=2) before all proposals have been acted upon by the [Administrator](/usc/42/7602.md?p=a), any pending proposals shall be disapproved. The [Administrator](/usc/42/7602.md?p=a) shall calculate [allowances](/usc/42/7651a.md?p=3) equal to—
- (A) the difference between the lesser of the average annual emissions in calendar years 1988 and 1989 or the projected emissions tonnage for calendar year 1995 of each eligible phase I extension [unit](/usc/42/7651a.md?p=15), as designated under [paragraph (3)](#d-3), and the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by an emission rate of 2.50 lbs/mmBtu, divided by 2,000;
- (B) the difference between the lesser of the average annual emissions in calendar years 1988 and 1989 or the projected emissions tonnage for calendar year 1996 of each eligible phase I extension [unit](/usc/42/7651a.md?p=15), as designated under [paragraph (3)](#d-3), and the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by an emission rate of 2.50 lbs/mmBtu, divided by 2,000; and
- (C) the amount by which (i) the product of each [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by an emission rate of 1.20 lbs/mmBtu, divided by 2,000, exceeds (ii) the tonnage level specified under [subparagraph (E)](#d-2-E) of paragraph (2) of this subsection multiplied by a factor of 3.
- (5) Each eligible Phase I extension [unit](/usc/42/7651a.md?p=15) shall receive [allowances](/usc/42/7651a.md?p=3) determined under subsection [(a)(1)](#a-1) or (c) of this section. In addition, for calendar year 1995, the [Administrator](/usc/42/7602.md?p=a) shall allocate to each eligible Phase I extension [unit](/usc/42/7651a.md?p=15), from the [allowance](/usc/42/7651a.md?p=3) [reserve](/usc/42/7651a.md?p=13) created pursuant to [subsection (a)(2)](#a-2), [allowances](/usc/42/7651a.md?p=3) equal to the difference between the lesser of the average annual emissions in calendar years 1988 and 1989 or its projected emissions tonnage for calendar year 1995 and the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by an emission rate of 2.50 lbs/mmBtu, divided by 2,000. In calendar year 1996, the [Administrator](/usc/42/7602.md?p=a) shall allocate for each eligible [unit](/usc/42/7651a.md?p=15), from the [allowance](/usc/42/7651a.md?p=3) [reserve](/usc/42/7651a.md?p=13) created pursuant to [subsection (a)(2)](#a-2) of this section, [allowances](/usc/42/7651a.md?p=3) equal to the difference between the lesser of the average annual emissions in calendar years 1988 and 1989 or its projected emissions tonnage for calendar year 1996 and the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by an emission rate of 2.50 lbs/mmBtu, divided by 2,000. It shall be unlawful for any source or [unit](/usc/42/7651a.md?p=15) subject to an approved extension plan under this subsection to emit sulfur dioxide in excess of the emissions limitations provided for in the permit and approved extension plan, unless the [owner or operator](/usc/42/9601.md?p=20-B) of each [unit](/usc/42/7651a.md?p=15) governed by the permit and approved plan holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [unit](/usc/42/7651a.md?p=15)’s total annual emissions.
- (6) In addition to [allowances](/usc/42/7651a.md?p=3) specified in [paragraph (5)](#d-5), the [Administrator](/usc/42/7602.md?p=a) shall allocate for each eligible Phase I extension [unit](/usc/42/7651a.md?p=15) employing [qualifying Phase I technology](/usc/42/7651a.md?p=19), for calendar years 1997, 1998, and 1999, additional [allowances](/usc/42/7651a.md?p=3), from any remaining [allowances](/usc/42/7651a.md?p=3) in the [reserve](/usc/42/7651a.md?p=13) created pursuant to [subsection (a)(2)](#a-2), following the reduction in the [reserve](/usc/42/7651a.md?p=13) provided for in [paragraph (4)](#d-4), not to exceed the amount by which (A) the product of each eligible [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) times an emission rate of 1.20 lbs/mmBtu, divided by 2,000, exceeds (B) the tonnage level specified under [subparagraph (E)](#d-2-E) of paragraph (2) of this subsection.
- (7) After January 1, 1997, in addition to any liability under this chapter, including under [section 7651j of this title](/usc/42/7651j.md), if any eligible phase I extension [unit](/usc/42/7651a.md?p=15) employing [qualifying phase I technology](/usc/42/7651a.md?p=19) or any transfer [unit](/usc/42/7651a.md?p=15) under this subsection emits sulfur dioxide in excess of the annual tonnage limitation specified in the extension plan, as approved in paragraph (3) of this subsection, the [Administrator](/usc/42/7602.md?p=a) shall, in the calendar year following such excess, deduct [allowances](/usc/42/7651a.md?p=3) equal to the amount of such excess from such [unit](/usc/42/7651a.md?p=15)’s annual [allowance](/usc/42/7651a.md?p=3) [allocation](/usc/42/2021b.md?p=2).
- (e) **Allocation of allowances—**
- (1) In the case of a [unit](/usc/42/7651a.md?p=15) that receives [authorization](/usc/42/4370m.md?p=3) from the [Governor](/usc/42/6372.md?p=1) of the [State](/usc/42/7651a.md?p=14) in which such [unit](/usc/42/7651a.md?p=15) is located to make reductions in the emissions of sulfur dioxide prior to calendar year 1995 and that is part of a utility system that meets the following requirements: (A) the total coal-fired generation within the utility system as a percentage of total system generation decreased by more than 20 percent between January 1, 1980, and December 31, 1985; and (B) the weighted [capacity factor](/usc/42/7651a.md?p=5) of all coal-fired [units](/usc/42/7651a.md?p=15) within the utility system averaged over the period from January 1, 1985, through December 31, 1987, was below 50 percent, the [Administrator](/usc/42/7602.md?p=a) shall allocate [allowances](/usc/42/7651a.md?p=3) under this paragraph for the [unit](/usc/42/7651a.md?p=15) pursuant to this subsection. The [Administrator](/usc/42/7602.md?p=a) shall allocate [allowances](/usc/42/7651a.md?p=3) for a [unit](/usc/42/7651a.md?p=15) that is an [affected unit](/usc/42/7651a.md?p=2) pursuant to [section 7651d of this title](/usc/42/7651d.md) (but is not also an [affected unit](/usc/42/7651a.md?p=2) under this section) and part of a utility system that includes 1 or more [affected units](/usc/42/7651a.md?p=2) under [section 7651d of this title](/usc/42/7651d.md) for reductions in the emissions of sulfur dioxide made during the period 1995–1999 if the [unit](/usc/42/7651a.md?p=15) meets the requirements of this subsection and the requirements of the preceding sentence, except that for the purposes of applying this subsection to any such [unit](/usc/42/7651a.md?p=15), the prior year concerned as specified below, shall be any year after January 1, 1995 but prior to January 1, 2000.
- (2) In the case of an [affected unit](/usc/42/7651a.md?p=2) under this section described in subparagraph (A),[^4] the [allowances](/usc/42/7651a.md?p=3) allocated under this subsection for early reductions in any prior year may not exceed the amount which (A) the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by the [unit](/usc/42/7651a.md?p=15)’s 1985 actual sulfur dioxide emission rate (in lbs. per mmBtu), divided by 2,000, exceeds (B) the [allowances](/usc/42/7651a.md?p=3) specified for such [unit](/usc/42/7651a.md?p=15) in Table A. In the case of an [affected unit](/usc/42/7651a.md?p=2) under [section 7651d of this title](/usc/42/7651d.md) described in subparagraph (A),[^4] the [allowances](/usc/42/7651a.md?p=3) awarded under this subsection for early reductions in any prior year may not exceed the amount by which (i) the product of the quantity of fossil fuel consumed by the [unit](/usc/42/7651a.md?p=15) (in mmBtu) in the prior year multiplied by the lesser of 2.50 or the most stringent emission rate (in lbs. per mmBtu) applicable to the [unit](/usc/42/7651a.md?p=15) under the [applicable implementation plan](/usc/42/7602.md?p=q), divided by 2,000, exceeds (ii) the [unit](/usc/42/7651a.md?p=15)’s actual tonnage of sulfur dioxide emission for the prior year concerned. [Allowances](/usc/42/7651a.md?p=3) allocated under this subsection for [units](/usc/42/7651a.md?p=15) referred to in subparagraph (A)[^4] may be allocated only for emission reductions achieved as a result of physical changes or changes in the method of operation made after November 15, 1990, including changes in the type or quality of fossil fuel consumed.
- (3) In no event shall the provisions of this paragraph[^5] be interpreted as an event of force majeur[^6] or a commercial impractibility[^7] or in any other way as a basis for excused nonperformance by a utility system under a coal sales contract in effect before November 15, 1990.
| Table A.—[Affected Sources](/usc/42/7651a.md?p=1) and [Units](/usc/42/7651a.md?p=15) in Phase I and Their Sulfur Dioxide [Allowances](/usc/42/7651a.md?p=3) (tons) | | | |
| --- | --- | --- | --- |
| [State](/usc/42/7651a.md?p=14) | Plant Name | [Generator](/usc/42/7651a.md?p=9) | Phase I [Allowances](/usc/42/7651a.md?p=3) |
| Alabama | Colbert | 1
2
3
4
5 | 13,570
15,310
15,400
15,410
37,180 |
| | E.C. Gaston | 1
2
3
4
5 | 18,100
18,540
18,310
19,280
59,840 |
| Florida | Big Bend | 1
2
3 | 28,410
27,100
26,740 |
| | Crist | 6
7 | 19,200
31,680 |
| Georgia | Bowen | 1
2
3
4 | 56,320
54,770
71,750
71,740 |
| | Hammond | 1
2
3
4 | 8,780
9,220
8,910
37,640 |
| | J. McDonough | 1
2 | 19,910
20,600 |
| | Wansley | 1
2 | 70,770
65,430 |
| | Yates | 1
2
3
4
5
6
7 | 7,210
7,040
6,950
8,910
9,410
24,760
21,480 |
| Illinois | Baldwin | 1
2
3 | 42,010
44,420
42,550 |
| | Coffeen | 1
2 | 11,790
35,670 |
| | Grand Tower | 4 | 5,910 |
| | Hennepin | 2 | 18,410 |
| | Joppa Steam | 1
2
3
4
5
6 | 12,590
10,770
12,270
11,360
11,420
10,620 |
| | Kincaid | 1
2 | 31,530
33,810 |
| | Meredosia | 3 | 13,890 |
| | Vermilion | 2 | 8,880 |
| Indiana | Bailly | 7
8 | 11,180
15,630 |
| | Breed | 1 | 18,500 |
| | Cayuga | 1
2 | 33,370
34,130 |
| | Clifty Creek | 1
2
3
4
5
6 | 20,150
19,810
20,410
20,080
19,360
20,380 |
| | E. W. Stout | 5
6
7 | 3,880
4,770
23,610 |
| | F. B. Culley | 2
3 | 4,290
16,970 |
| | F. E. Ratts | 1
2 | 8,330
8,480 |
| | Gibson | 1
2
3
4 | 40,400
41,010
41,080
40,320 |
| | H. T. Pritchard | 6 | 5,770 |
| | Michigan [City](/usc/42/12902.md?p=11) | 12 | 23,310 |
| | Petersburg | 1
2 | 16,430
32,380 |
| | R. Gallagher | 1
2
3
4 | 6,490
7,280
6,530
7,650 |
| | Tanners Creek | 4 | 24,820 |
| | Wabash River | 1
2
3
5
6 | 4,000
2,860
3,750
3,670
12,280 |
| | Warrick | 4 | 26,980 |
| Iowa | Burlington | 1 | 10,710 |
| | Des Moines | 7 | 2,320 |
| | George Neal | 1 | 1,290 |
| | M.L. Kapp | 2 | 13,800 |
| | Prairie Creek | 4 | 8,180 |
| | Riverside | 5 | 3,990 |
| Kansas | Quindaro | 2 | 4,220 |
| Kentucky | Coleman | 1
2
3 | 11,250
12,840
12,340 |
| | Cooper | 1
2 | 7,450
15,320 |
| | E.W. Brown | 1
2
3 | 7,110
10,910
26,100 |
| | Elmer Smith | 1
2 | 6,520
14,410 |
| | Ghent | 1 | 28,410 |
| | Green River | 4 | 7,820 |
| | H.L. Spurlock | 1 | 22,780 |
| | Henderson II | 1
2 | 13,340
12,310 |
| | Paradise | 3 | 59,170 |
| | Shawnee | 10 | 10,170 |
| Maryland | Chalk Point | 1
2 | 21,910
24,330 |
| | C. P. Crane | 1
2 | 10,330
9,230 |
| | Morgantown | 1
2 | 35,260
38,480 |
| Michigan | J. H. Campbell | 1
2 | 19,280
23,060 |
| Minnesota | High Bridge | 6 | 4,270 |
| Mississippi | Jack Watson | 4
5 | 17,910
36,700 |
| Missouri | Asbury | 1 | 16,190 |
| | James River | 5 | 4,850 |
| | Labadie | 1
2
3
4 | 40,110
37,710
40,310
35,940 |
| | Montrose | 1
2
3 | 7,390
8,200
10,090 |
| | New Madrid | 1
2 | 28,240
32,480 |
| | Sibley | 3 | 15,580 |
| | Sioux | 1
2 | 22,570
23,690 |
| | Thomas Hill | 1
2 | 10,250
19,390 |
| New Hampshire | Merrimack | 1
2 | 10,190
22,000 |
| New Jersey | B.L. England | 1
2 | 9,060
11,720 |
| New York | Dunkirk | 3
4 | 12,600
14,060 |
| | Greenidge | 4 | 7,540 |
| | Milliken | 1
2 | 11,170
12,410 |
| | Northport | 1
2
3 | 19,810
24,110
26,480 |
| | Port Jefferson | 3
4 | 10,470
12,330 |
| Ohio | Ashtabula | 5 | 16,740 |
| | Avon Lake | 8
9 | 11,650
30,480 |
| | Cardinal | 1
2 | 34,270
38,320 |
| | Conesville | 1
2
3
4 | 4,210
4,890
5,500
48,770 |
| | Eastlake | 1
2
3
4
5 | 7,800
8,640
10,020
14,510
34,070 |
| | Edgewater | 4 | 5,050 |
| | Gen. J.M. Gavin | 1
2 | 79,080
80,560 |
| | Kyger Creek | 1
2
3
4
5 | 19,280
18,560
17,910
18,710
18,740 |
| | Miami Fort | 5
6
7 | 760
11,380
38,510 |
| | Muskingum River | 1
2
3
4
5 | 14,880
14,170
13,950
11,780
40,470 |
| | Niles | 1
2 | 6,940
9,100 |
| | Picway | 5 | 4,930 |
| | R.E. Burger | 3
4
5 | 6,150
10,780
12,430 |
| | W.H. Sammis | 5
6
7 | 24,170
39,930
43,220 |
| | W.C. Beckjord | 5
6 | 8,950
23,020 |
| Pennsylvania | Armstrong | 1
2 | 14,410
15,430 |
| | Brunner Island | 1
2
3 | 27,760
31,100
53,820 |
| | Cheswick | 1 | 39,170 |
| | Conemaugh | 1
2 | 59,790
66,450 |
| | Hatfield’s Ferry | 1
2
3 | 37,830
37,320
40,270 |
| | Martins Creek | 1
2 | 12,660
12,820 |
| | Portland | 1
2 | 5,940
10,230 |
| | Shawville | 1
2
3
4 | 10,320
10,320
14,220
14,070 |
| | Sunbury | 3
4 | 8,760
11,450 |
| Tennessee | Allen | 1
2
3 | 15,320
16,770
15,670 |
| | Cumberland | 1
2 | 86,700
94,840 |
| | Gallatin | 1
2
3
4 | 17,870
17,310
20,020
21,260 |
| | Johnsonville | 1
2
3
4
5
6
7
8
9
10 | 7,790
8,040
8,410
7,990
8,240
7,890
8,980
8,700
7,080
7,550 |
| West Virginia | Albright | 3 | 12,000 |
| | Fort Martin | 1
2 | 41,590
41,200 |
| | Harrison | 1
2
3 | 48,620
46,150
41,500 |
| | Kammer | 1
2
3 | 18,740
19,460
17,390 |
| | Mitchell | 1
2 | 43,980
45,510 |
| | Mount Storm | 1
2
3 | 43,720
35,580
42,430 |
| Wisconsin | Edgewater | 4 | 24,750 |
| | La Crosse/Genoa | 3 | 22,700 |
| | Nelson Dewey | 1
2 | 6,010
6,680 |
| | N. Oak Creek | 1
2
3
4 | 5,220
5,140
5,370
6,320 |
| | Pulliam | 8 | 7,510 |
| | S. Oak Creek | 5
6
7
8 | 9,670
12,040
16,180
15,790 |
- (f) **Energy conservation and renewable energy—**
- (1) **Definitions—** As used in this subsection:
- (A) **Qualified energy conservation measure—** The term “qualified energy conservation measure” means a cost effective measure, as identified by the [Administrator](/usc/42/7602.md?p=a) in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), that increases the efficiency of the use of electricity provided by an [electric utility](#f-1-C) to its [customers](/usc/42/7275.md?p=5).
- (B) **Qualified renewable energy—** The term “qualified renewable energy” means [energy](/usc/42/6311.md?p=7) derived from [biomass](/usc/42/16317.md?p=f-8-C), solar, geothermal, or wind as identified by the [Administrator](/usc/42/7602.md?p=a) in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7).
- (C) **Electric utility—** The term “electric utility” means any [person](/usc/42/7602.md?p=e), [State agency](/usc/42/1396r–8.md?p=k-9), or Federal agency, which sells electric [energy](/usc/42/6311.md?p=7).
- (2) **Allowances for emissions avoided through energy conservation and renewable energy—**
- (A) **In general—** The regulations under paragraph (4) of this subsection shall provide that for each ton of sulfur dioxide emissions avoided by an [electric utility](#f-1-C), during the applicable period, through the use of [qualified energy conservation measures](#f-1-A) or [qualified renewable energy](#f-1-B), the [Administrator](/usc/42/7602.md?p=a) shall allocate a [single](/usc/42/2304.md?p=m) [allowance](/usc/42/7651a.md?p=3) to such [electric utility](#f-1-C), on a first-come-first-served basis from the Conservation and [Renewable Energy](/usc/42/15852.md?p=b-2) [Reserve](/usc/42/7651a.md?p=13) established under [subsection (g)](#g), up to a total of 300,000 [allowances](/usc/42/7651a.md?p=3) for [allocation](/usc/42/2021b.md?p=2) from such [Reserve](/usc/42/7651a.md?p=13).
- (B) **Requirements for issuance—** The [Administrator](/usc/42/7602.md?p=a) shall allocate [allowances](/usc/42/7651a.md?p=3) to an [electric utility](#f-1-C) under this subsection only if all of the following requirements are met:
- (i) Such [electric utility](#f-1-C) is paying for the [qualified energy conservation measures](#f-1-A) or [qualified renewable energy](#f-1-B) directly or through purchase from another [person](/usc/42/7602.md?p=e).
- (ii) The emissions of sulfur dioxide avoided through the use of [qualified energy conservation measures](#f-1-A) or [qualified renewable energy](#f-1-B) are quantified in accordance with regulations promulgated by the [Administrator](/usc/42/7602.md?p=a) under this subsection.
- (iii)
- (I) Such [electric utility](#f-1-C) has adopted and is implementing a least cost [energy](/usc/42/6311.md?p=7) conservation and electric power plan which evaluates a range of resources, including new power supplies, [energy](/usc/42/6311.md?p=7) conservation, and [renewable energy](/usc/42/15852.md?p=b-2) resources, in order to meet expected future demand at the lowest system cost.
- (II) The [qualified energy conservation measures](#f-1-A) or [qualified renewable energy](#f-1-B), or both, are consistent with that plan.
- (III) [Electric utilities](#f-1-C) subject to the jurisdiction of a [State](/usc/42/7651a.md?p=14) regulatory authority must have such plan approved by such authority. For [electric utilities](#f-1-C) not subject to the jurisdiction of a [State](/usc/42/7651a.md?p=14) regulatory authority such plan shall be approved by the entity with rate-making authority for such utility.
- (iv) In the case of [qualified energy conservation measures](#f-1-A) undertaken by a [State](/usc/42/7651a.md?p=14) regulated [electric utility](#f-1-C), the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7) certifies that the [State](/usc/42/7651a.md?p=14) regulatory authority with jurisdiction over the electric rates of such [electric utility](#f-1-C) has established rates and charges which ensure that the net [income](/usc/42/292s.md?p=c-4) of such [electric utility](#f-1-C) after implementation of specific cost effective [energy conservation measures](/usc/42/8262.md?p=5) is at least as high as such net [income](/usc/42/292s.md?p=c-4) would have been if the [energy conservation measures](/usc/42/8262.md?p=5) had not been implemented. Upon the date of any such certification by the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), all [allowances](/usc/42/7651a.md?p=3) which, but for this paragraph, would have been allocated under [subparagraph (A)](#f-2-A) before such date, shall be allocated to the [electric utility](#f-1-C). This clause is not a requirement for [qualified renewable energy](#f-1-B).
- (v) Such utility or any subsidiary of the utility’s holding company owns or operates at least one [affected unit](/usc/42/7651a.md?p=2).
- (C) **Period of applicability—** [Allowances](/usc/42/7651a.md?p=3) under this subsection shall be allocated only with respect to kilowatt hours of electric [energy](/usc/42/6311.md?p=7) saved by [qualified energy conservation measures](#f-1-A) or generated by [qualified renewable energy](#f-1-B) after January 1, 1992 and before the earlier of (i) December 31, 2000, or (ii) the date on which any [electric utility](#f-1-C) steam generating [unit](/usc/42/7651a.md?p=15) owned or operated by the [electric utility](#f-1-C) to which the [allowances](/usc/42/7651a.md?p=3) are allocated becomes subject to this subchapter (including those sources that elect to become affected by this subchapter, pursuant to [section 7651i of this title](/usc/42/7651i.md)).
- (D) **Determination of avoided emissions—**
- (i) **[^8] Application—** In order to receive [allowances](/usc/42/7651a.md?p=3) under this subsection, an [electric utility](#f-1-C) shall make an application which—
- (I) designates the [qualified energy conservation measures](#f-1-A) implemented and the [qualified renewable energy](#f-1-B) sources used for purposes of avoiding emissions,[^9]
- (II) calculates, in accordance with subparagraphs [(F)](#f-2-F) and [(G)](#f-2-G), the number of tons of emissions avoided by reason of the implementation of such measures or the use of such [renewable energy](/usc/42/15852.md?p=b-2) sources; and
- (III) demonstrates that the requirements of [subparagraph (B)](#f-2-B) have been met.
Such application for [allowances](/usc/42/7651a.md?p=3) by a [State](/usc/42/7651a.md?p=14)-regulated [electric utility](#f-1-C) shall require approval by the [State](/usc/42/7651a.md?p=14) regulatory authority with jurisdiction over such [electric utility](#f-1-C). The authority shall review the application for accuracy and compliance with this subsection and the rules under this subsection. [Electric utilities](#f-1-C) whose retail rates are not subject to the jurisdiction of a [State](/usc/42/7651a.md?p=14) regulatory authority shall apply directly to the [Administrator](/usc/42/7602.md?p=a) for such approval.
- (E) **Avoided emissions from qualified energy conservation measures—** For the purposes of this subsection, the emission tonnage deemed avoided by reason of the implementation of [qualified energy conservation measures](#f-1-A) for any calendar year shall be a tonnage equal to the product of multiplying—
- (i) the kilowatt hours that would otherwise have been supplied by the utility during such year in the absence of such [qualified energy conservation measures](#f-1-A), by
- (ii) 0.004,
and dividing by 2,000.
- (F) **Avoided emissions from the use of qualified renewable energy—** The emissions tonnage deemed avoided by reason of the use of [qualified renewable energy](#f-1-B) by an [electric utility](#f-1-C) for any calendar year shall be a tonnage equal to the product of multiplying—
- (i) the actual kilowatt hours generated by, or purchased from, [qualified renewable energy](#f-1-B), by
- (ii) 0.004,
and dividing by 2,000.
- (G) **Prohibitions—**
- (i) No [allowances](/usc/42/7651a.md?p=3) shall be allocated under this subsection for the implementation of [programs](/usc/42/274l–1.md?p=4) that are exclusively informational or educational in nature.
- (ii) No [allowances](/usc/42/7651a.md?p=3) shall be allocated for [energy conservation measures](/usc/42/8262.md?p=5) or [renewable energy](/usc/42/15852.md?p=b-2) that were operational before January 1, 1992.
- (3) **Savings provision—** Nothing in this subsection precludes a [State](/usc/42/7651a.md?p=14) or [State](/usc/42/7651a.md?p=14) regulatory authority from providing additional incentives to utilities to encourage investment in demand-side resources.
- (4) **Regulations—** Not later than 18 months after November 15, 1990, and in conjunction with the regulations required to be promulgated under subsections [(b)](#b) and [(c)](#c), the [Administrator](/usc/42/7602.md?p=a) shall, in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7), promulgate regulations under this subsection. Such regulations shall list [energy conservation measures](/usc/42/8262.md?p=5) and [renewable energy](/usc/42/15852.md?p=b-2) sources which may be treated as [qualified energy conservation measures](#f-1-A) and [qualified renewable energy](#f-1-B) for purposes of this subsection. [Allowances](/usc/42/7651a.md?p=3) shall only be allocated if all requirements of this subsection and the rules promulgated to implement this subsection are complied with. The [Administrator](/usc/42/7602.md?p=a) shall review the determinations of each [State](/usc/42/7651a.md?p=14) regulatory authority under this subsection to encourage consistency from [electric utility](#f-1-C) to [electric utility](#f-1-C) and from [State](/usc/42/7651a.md?p=14) to [State](/usc/42/7651a.md?p=14) in accordance with the [Administrator](/usc/42/7602.md?p=a)’s rules. The [Administrator](/usc/42/7602.md?p=a) shall publish the findings of this review no less than annually.
- (g) **Conservation and Renewable Energy Reserve—** The [Administrator](/usc/42/7602.md?p=a) shall establish a Conservation and [Renewable Energy](/usc/42/15852.md?p=b-2) [Reserve](/usc/42/7651a.md?p=13) under this subsection. Beginning on January 1, 1995, the [Administrator](/usc/42/7602.md?p=a) may allocate from the Conservation and [Renewable Energy](/usc/42/15852.md?p=b-2) [Reserve](/usc/42/7651a.md?p=13) an amount equal to a total of 300,000 [allowances](/usc/42/7651a.md?p=3) for emissions of sulfur dioxide pursuant to [section 7651b of this title](/usc/42/7651b.md). In order to provide 300,000 [allowances](/usc/42/7651a.md?p=3) for such [reserve](/usc/42/7651a.md?p=13), in each year beginning in calendar year 2000 and until calendar year 2009, inclusive, the [Administrator](/usc/42/7602.md?p=a) shall reduce each [unit](/usc/42/7651a.md?p=15)’s basic Phase II [allowance](/usc/42/7651a.md?p=3) [allocation](/usc/42/2021b.md?p=2) on the basis of its pro rata share of 30,000 [allowances](/usc/42/7651a.md?p=3). If [allowances](/usc/42/7651a.md?p=3) remain in the [reserve](/usc/42/7651a.md?p=13) after January 2, 2010, the [Administrator](/usc/42/7602.md?p=a) shall allocate such [allowances](/usc/42/7651a.md?p=3) for [affected units](/usc/42/7651a.md?p=2) under [section 7651d of this title](/usc/42/7651d.md) on a pro rata basis. For purposes of this subsection, for any [unit](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of [section 7651d of this title](/usc/42/7651d.md), the term “pro rata basis” refers to the ratio which the reductions made in such [unit](/usc/42/7651a.md?p=15)’s [allowances](/usc/42/7651a.md?p=3) in order to establish the [reserve](/usc/42/7651a.md?p=13) under this subsection bears to the total of such reductions for all such [units](/usc/42/7651a.md?p=15).
- (h) **Alternative allowance allocation for units in certain utility systems with optional baseline—**
- (1) **Optional baseline for units in certain systems—** In the case of a [unit](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of this section which (as of November 15, 1990)—
- (A) has an emission rate below 1.0 lbs/mmBtu,
- (B) has decreased its sulfur dioxide emissions rate by 60 percent or greater since 1980, and
- (C) is part of a utility system which has a weighted average sulfur dioxide emissions rate for all fossil fueled-fired [units](/usc/42/7651a.md?p=15) below 1.0 lbs/mmBtu,
at the election of the [owner or operator](/usc/42/9601.md?p=20-B) of such [unit](/usc/42/7651a.md?p=15), the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) may be calculated (i) as provided under [section 7651a(d)](/usc/42/7651a.md)[^1] of this title, or (ii) by utilizing the [unit](/usc/42/7651a.md?p=15)’s average annual fuel consumption at a 60 percent [capacity factor](/usc/42/7651a.md?p=5). Such election shall be made no later than March 1, 1991.
- (2) **Allowance allocation—** Whenever a [unit](/usc/42/7651a.md?p=15) referred to in [paragraph (1)](#h-1) elects to calculate its [baseline](/usc/42/7651a.md?p=4) as provided in clause (ii) of paragraph (1), the [Administrator](/usc/42/7602.md?p=a) shall allocate [allowances](/usc/42/7651a.md?p=3) for the [unit](/usc/42/7651a.md?p=15) pursuant to [section 7651b(a)(1) of this title](/usc/42/7651b.md?p=a-1), this section, and [section 7651d of this title](/usc/42/7651d.md) (as [basic Phase II allowance allocations](/usc/42/7651a.md?p=28)) in an amount equal to the [baseline](/usc/42/7651a.md?p=4) selected multiplied by the lower of the average annual emission rate for such [unit](/usc/42/7651a.md?p=15) in 1989, or 1.0 lbs./mmBtu. Such [allowance](/usc/42/7651a.md?p=3) [allocation](/usc/42/2021b.md?p=2) shall be in lieu of any [allocation](/usc/42/2021b.md?p=2) of [allowances](/usc/42/7651a.md?p=3) under this section and [section 7651d of this title](/usc/42/7651d.md).
# §7651d. Phase II sulfur dioxide requirements
- (a) **Applicability—**
- (1) After January 1, 2000, each existing [utility unit](/usc/42/7651a.md?p=17-A) as provided below is subject to the limitations or requirements of this section. Each [utility unit](/usc/42/7651a.md?p=17-A) subject to an annual sulfur dioxide tonnage [emission limitation](/usc/42/7602.md?p=k) under this section is an [affected unit](/usc/42/7651a.md?p=2) under this subchapter. Each source that includes one or more [affected units](/usc/42/7651a.md?p=2) is an [affected source](/usc/42/7651a.md?p=1). In the case of an [existing unit](/usc/42/7651a.md?p=8) that was not in operation during calendar year 1985, the emission rate for a calendar year after 1985, as determined by the [Administrator](/usc/42/7602.md?p=a), shall be used in lieu of the 1985 rate. The [owner or operator](/usc/42/9601.md?p=20-B) of any [unit](/usc/42/7651a.md?p=15) operated in [violation](/usc/42/2000e–16a.md?p=c) of this section shall be fully liable under this chapter for fulfilling the obligations specified in [section 7651j of this title](/usc/42/7651j.md).
- (2) In addition to [basic Phase II allowance allocations](/usc/42/7651a.md?p=28), in each year beginning in calendar year 2000 and ending in calendar year 2009, inclusive, the [Administrator](/usc/42/7602.md?p=a) shall allocate up to 530,000 Phase II bonus [allowances](/usc/42/7651a.md?p=3) pursuant to subsections [(b)(2)](#b-2), [(c)(4)](#c-4), [(d)(3)(A)](#d-3-A) and [(B)](#d-3-B), and (h)(2) of this section and [section 7651e of this title](/usc/42/7651e.md). Not later than June 1, 1998, the [Administrator](/usc/42/7602.md?p=a) shall calculate, for each [unit](/usc/42/7651a.md?p=15) granted an extension pursuant to [section 7651h of this title](/usc/42/7651h.md) the difference between (A) the number of [allowances](/usc/42/7651a.md?p=3) allocated for the [unit](/usc/42/7651a.md?p=15) in calendar year 2000, and (B) the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by 1.20 lbs/mmBtu, divided by 2000, and sum the computations. In each year, beginning in calendar year 2000 and ending in calendar year 2009, inclusive, the [Administrator](/usc/42/7602.md?p=a) shall deduct from each [unit](/usc/42/7651a.md?p=15)’s basic Phase II [allowance](/usc/42/7651a.md?p=3) [allocation](/usc/42/2021b.md?p=2) its pro rata share of 10 percent of the sum calculated pursuant to the preceding sentence.
- (3) In addition to [basic Phase II allowance allocations](/usc/42/7651a.md?p=28) and [Phase II bonus allowance allocations](/usc/42/7651a.md?p=29), beginning January 1, 2000, the [Administrator](/usc/42/7602.md?p=a) shall allocate for each [unit](/usc/42/7651a.md?p=15) listed on Table A in [section 7651c of this title](/usc/42/7651c.md) (other than [units](/usc/42/7651a.md?p=15) at Kyger Creek, Clifty Creek, and Joppa Steam) and located in the [States](/usc/42/7651a.md?p=14) of Illinois, Indiana, Ohio, Georgia, Alabama, Missouri, Pennsylvania, West Virginia, Kentucky, or Tennessee [allowances](/usc/42/7651a.md?p=3) in an amount equal to 50,000 multiplied by the [unit](/usc/42/7651a.md?p=15)’s pro rata share of the total number of basic [allowances](/usc/42/7651a.md?p=3) allocated for all [units](/usc/42/7651a.md?p=15) listed on Table A (other than [units](/usc/42/7651a.md?p=15) at Kyger Creek, Clifty Creek, and Joppa Steam). [Allowances](/usc/42/7651a.md?p=3) allocated pursuant to this paragraph shall not be subject to the 8,900,000 ton limitation in [section 7651b(a) of this title](/usc/42/7651b.md?p=a).
- (b) **Units equal to, or above, 75 MWe and 1.20 lbs/mmBtu—**
- (1) Except as otherwise provided in [paragraph (3)](#b-3), after January 1, 2000, it shall be unlawful for any existing [utility unit](/usc/42/7651a.md?p=17-A) that serves a [generator](/usc/42/7651a.md?p=9) with nameplate capacity equal to, or greater, than 75 MWe and an [actual 1985 emission rate](/usc/42/7651a.md?p=16) equal to or greater than 1.20 lbs/mmBtu to exceed an annual sulfur dioxide tonnage [emission limitation](/usc/42/7602.md?p=k) equal to the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by an emission rate equal to 1.20 lbs/mmBtu, divided by 2,000, unless the [owner or operator](/usc/42/9601.md?p=20-B) of such [unit](/usc/42/7651a.md?p=15) holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [unit](/usc/42/7651a.md?p=15)’s total annual emissions.
- (2) In addition to [allowances](/usc/42/7651a.md?p=3) allocated pursuant to [paragraph (1)](#b-1) and [section 7651b(a)(1) of this title](/usc/42/7651b.md?p=a-1) as [basic Phase II allowance allocations](/usc/42/7651a.md?p=28), beginning January 1, 2000, and for each calendar year thereafter until and including 2009, the [Administrator](/usc/42/7602.md?p=a) shall allocate annually for each [unit](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of [paragraph (1)](#b-1) with an actual 1985 emissions rate greater than 1.20 lbs/mmBtu and less than 2.50 lbs/mmBtu and a [baseline](/usc/42/7651a.md?p=4) [capacity factor](/usc/42/7651a.md?p=5) of less than 60 percent, [allowances](/usc/42/7651a.md?p=3) from the [reserve](/usc/42/7651a.md?p=13) created pursuant to [subsection (a)(2)](#a-2) in an amount equal to 1.20 lbs/mmBtu multiplied by 50 percent of the difference, on a Btu basis, between the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) and the [unit](/usc/42/7651a.md?p=15)’s fuel consumption at a 60 percent [capacity factor](/usc/42/7651a.md?p=5).
- (3) After January 1, 2000, it shall be unlawful for any existing [utility unit](/usc/42/7651a.md?p=17-A) with an actual 1985 emissions rate equal to or greater than 1.20 lbs/mmBtu whose annual average fuel consumption during 1985, 1986, and 1987 on a Btu basis exceeded 90 percent in the form of lignite coal which is located in a [State](/usc/42/7651a.md?p=14) in which, as of July 1, 1989, no county or portion of a county was designated nonattainment under [section 7407 of this title](/usc/42/7407.md) for any [pollutant](/usc/42/1397h.md?p=c-4) subject to the requirements of [section 7409 of this title](/usc/42/7409.md) to exceed an annual sulfur dioxide tonnage limitation equal to the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by the lesser of the [unit](/usc/42/7651a.md?p=15)’s actual 1985 emissions rate or its [allowable 1985 emissions rate](/usc/42/7651a.md?p=18), divided by 2,000, unless the [owner or operator](/usc/42/9601.md?p=20-B) of such [unit](/usc/42/7651a.md?p=15) holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [unit](/usc/42/7651a.md?p=15)’s total annual emissions.
- (4) After January 1, 2000, the [Administrator](/usc/42/7602.md?p=a) shall allocate annually for each [unit](/usc/42/7651a.md?p=15), subject to the emissions limitation requirements of [paragraph (1)](#b-1), which is located in a [State](/usc/42/7651a.md?p=14) with an installed electrical generating capacity of more than 30,000,000 kw in 1988 and for which was issued a prohibition order or a proposed prohibition order (from burning oil), which [unit](/usc/42/7651a.md?p=15) subsequently converted to coal between January 1, 1980 and December 31, 1985, [allowances](/usc/42/7651a.md?p=3) equal to the difference between (A) the product of the [unit](/usc/42/7651a.md?p=15)’s annual fuel consumption, on a Btu basis, at a 65 percent [capacity factor](/usc/42/7651a.md?p=5) multiplied by the lesser of its actual or allowable emissions rate during the first full calendar year after conversion, divided by 2,000, and (B) the number of [allowances](/usc/42/7651a.md?p=3) allocated for the [unit](/usc/42/7651a.md?p=15) pursuant to [paragraph (1)](#b-1): Provided, That the number of [allowances](/usc/42/7651a.md?p=3) allocated pursuant to this paragraph shall not exceed an annual total of five thousand. If necessary to meeting the restriction imposed in the preceding sentence the [Administrator](/usc/42/7602.md?p=a) shall reduce, pro rata, the annual [allowances](/usc/42/7651a.md?p=3) allocated for each [unit](/usc/42/7651a.md?p=15) under this paragraph.
- (c) **Coal or oil-fired units below 75 MWe and above 1.20 lbs/mmBtu—**
- (1) Except as otherwise provided in [paragraph (3)](#c-3), after January 1, 2000, it shall be unlawful for a coal or oil-fired existing [utility unit](/usc/42/7651a.md?p=17-A) that serves a [generator](/usc/42/7651a.md?p=9) with nameplate capacity of less than 75 MWe and an [actual 1985 emission rate](/usc/42/7651a.md?p=16) equal to, or greater than, 1.20 lbs/mmBtu and which is a [unit](/usc/42/7651a.md?p=15) owned by a utility operating company whose aggregate nameplate fossil fuel steam-electric capacity is, as of December 31, 1989, equal to, or greater than, 250 MWe to exceed an annual sulfur dioxide emissions limitation equal to the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by an emission rate equal to 1.20 lbs/mmBtu, divided by 2,000, unless the [owner or operator](/usc/42/9601.md?p=20-B) of such [unit](/usc/42/7651a.md?p=15) holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [unit](/usc/42/7651a.md?p=15)’s total annual emissions.
- (2) After January 1, 2000, it shall be unlawful for a coal or oil-fired existing [utility unit](/usc/42/7651a.md?p=17-A) that serves a [generator](/usc/42/7651a.md?p=9) with nameplate capacity of less than 75 MWe and an [actual 1985 emission rate](/usc/42/7651a.md?p=16) equal to, or greater than, 1.20 lbs/mmBtu (excluding [units](/usc/42/7651a.md?p=15) subject to [section 7411 of this title](/usc/42/7411.md) or to a federally enforceable emissions limitation for sulfur dioxide equivalent to an annual rate of less than 1.20 lbs/mmBtu) and which is a [unit](/usc/42/7651a.md?p=15) owned by a utility operating company whose aggregate nameplate fossil fuel steam-electric capacity is, as of December 31, 1989, less than 250 MWe, to exceed an annual sulfur dioxide tonnage emissions limitation equal to the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by the lesser of its actual 1985 emissions rate or its [allowable 1985 emissions rate](/usc/42/7651a.md?p=18), divided by 2,000, unless the [owner or operator](/usc/42/9601.md?p=20-B) of such [unit](/usc/42/7651a.md?p=15) holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [unit](/usc/42/7651a.md?p=15)’s total annual emissions.
- (3) After January 1, 2000, it shall be unlawful for any existing [utility unit](/usc/42/7651a.md?p=17-A) with a nameplate capacity below 75 MWe and an actual 1985 emissions rate equal to, or greater than, 1.20 lbs/mmBtu which became operational on or before December 31, 1965, which is owned by a utility operating company with, as of December 31, 1989, a total fossil fuel steam-electric generating capacity greater than 250 MWe, and less than 450 MWe which serves fewer than 78,000 electrical [customers](/usc/42/7275.md?p=5) as of November 15, 1990, to exceed an annual sulfur dioxide emissions tonnage limitation equal to the product of its [baseline](/usc/42/7651a.md?p=4) multiplied by the lesser of its actual or allowable 1985 emission rate, divided by 2,000, unless the [owner or operator](/usc/42/9601.md?p=20-B) holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [units](/usc/42/7651a.md?p=15)[^1] total annual emissions. After January 1, 2010, it shall be unlawful for each [unit](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of this paragraph to exceed an annual emissions tonnage limitation equal to the product of its [baseline](/usc/42/7651a.md?p=4) multiplied by an emissions rate of 1.20 lbs/mmBtu, divided by 2,000, unless the [owner or operator](/usc/42/9601.md?p=20-B) holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [unit](/usc/42/7651a.md?p=15)’s total annual emissions.
- (4) In addition to [allowances](/usc/42/7651a.md?p=3) allocated pursuant to [paragraph (1)](#c-1) and [section 7651b(a)(1) of this title](/usc/42/7651b.md?p=a-1) as [basic Phase II allowance allocations](/usc/42/7651a.md?p=28), beginning January 1, 2000, and for each calendar year thereafter until and including 2009, inclusive, the [Administrator](/usc/42/7602.md?p=a) shall allocate annually for each [unit](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of [paragraph (1)](#c-1) with an actual 1985 emissions rate equal to, or greater than, 1.20 lbs/mmBtu and less than 2.50 lbs/mmBtu and a [baseline](/usc/42/7651a.md?p=4) [capacity factor](/usc/42/7651a.md?p=5) of less than 60 percent, [allowances](/usc/42/7651a.md?p=3) from the [reserve](/usc/42/7651a.md?p=13) created pursuant to [subsection (a)(2)](#a-2) in an amount equal to 1.20 lbs/mmBtu multiplied by 50 percent of the difference, on a Btu basis, between the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) and the [unit](/usc/42/7651a.md?p=15)’s fuel consumption at a 60 percent [capacity factor](/usc/42/7651a.md?p=5).
- (5) After January 1, 2000, it shall be unlawful for any existing [utility unit](/usc/42/7651a.md?p=17-A) with a nameplate capacity below 75 MWe and an actual 1985 emissions rate equal to, or greater than, 1.20 lbs/mmBtu which is part of an electric utility system which, as of November 15, 1990, (A) has at least 20 percent of its fossil-fuel capacity controlled by flue gas desulfurization devices, (B) has more than 10 percent of its fossil-fuel capacity consisting of coal-fired [units](/usc/42/7651a.md?p=15) of less than 75 MWe, and (C) has large [units](/usc/42/7651a.md?p=15) (greater than 400 MWe) all of which have difficult or very difficult FGD Retrofit Cost Factors (according to the Emissions and the FGD Retrofit Feasibility at the 200 Top Emitting Generating Stations, prepared for the [United States](/usc/42/403.md?p=k) Environmental Protection Agency on January 10, 1986) to exceed an annual sulfur dioxide emissions tonnage limitation equal to the product of its [baseline](/usc/42/7651a.md?p=4) multiplied by an emissions rate of 2.5 lbs/mmBtu, divided by 2,000, unless the [owner or operator](/usc/42/9601.md?p=20-B) holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [unit](/usc/42/7651a.md?p=15)’s total annual emissions. After January 1, 2010, it shall be unlawful for each [unit](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of this paragraph to exceed an annual emissions tonnage limitation equal to the product of its [baseline](/usc/42/7651a.md?p=4) multiplied by an emissions rate of 1.20 lbs/mmBtu, divided by 2,000, unless the [owner or operator](/usc/42/9601.md?p=20-B) holds for use [allowances](/usc/42/7651a.md?p=3) to emit not less than the [unit](/usc/42/7651a.md?p=15)’s total annual emissions.
- (d) **Coal-fired units below 1.20 lbs/mmBtu—**
- (1) After January 1, 2000, it shall be unlawful for any existing coal-fired [utility unit](/usc/42/7651a.md?p=17-A) the lesser of whose actual or allowable 1985 sulfur dioxide emissions rate is less than 0.60 lbs/mmBtu to exceed an annual sulfur dioxide tonnage [emission limitation](/usc/42/7602.md?p=k) equal to the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by (A) the lesser of 0.60 lbs/mmBtu or the [unit](/usc/42/7651a.md?p=15)’s [allowable 1985 emissions rate](/usc/42/7651a.md?p=18), and (B) a numerical factor of 120 percent, divided by 2,000, unless the [owner or operator](/usc/42/9601.md?p=20-B) of such [unit](/usc/42/7651a.md?p=15) holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [unit](/usc/42/7651a.md?p=15)’s total annual emissions.
- (2) After January 1, 2000, it shall be unlawful for any existing coal-fired [utility unit](/usc/42/7651a.md?p=17-A) the lesser of whose actual or allowable 1985 sulfur dioxide emissions rate is equal to, or greater than, 0.60 lbs/mmBtu and less than 1.20 lbs/mmBtu to exceed an annual sulfur dioxide tonnage emissions limitation equal to the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by (A) the lesser of its actual 1985 emissions rate or its [allowable 1985 emissions rate](/usc/42/7651a.md?p=18), and (B) a numerical factor of 120 percent, divided by 2,000, unless the [owner or operator](/usc/42/9601.md?p=20-B) of such [unit](/usc/42/7651a.md?p=15) holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [unit](/usc/42/7651a.md?p=15)’s total annual emissions.
- (3)
- (A) In addition to [allowances](/usc/42/7651a.md?p=3) allocated pursuant to [paragraph (1)](#d-1) and [section 7651b(a)(1) of this title](/usc/42/7651b.md?p=a-1) as [basic Phase II allowance allocations](/usc/42/7651a.md?p=28), at the election of the [designated representative](/usc/42/7651a.md?p=26) of the operating company, beginning January 1, 2000, and for each calendar year thereafter until and including 2009, the [Administrator](/usc/42/7602.md?p=a) shall allocate annually for each [unit](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of [paragraph (1)](#d-1) [allowances](/usc/42/7651a.md?p=3) from the [reserve](/usc/42/7651a.md?p=13) created pursuant to [subsection (a)(2)](#a-2) in an amount equal to the amount by which (i) the product of the lesser of 0.60 lbs/mmBtu or the [unit](/usc/42/7651a.md?p=15)’s [allowable 1985 emissions rate](/usc/42/7651a.md?p=18) multiplied by the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) adjusted to reflect operation at a 60 percent [capacity factor](/usc/42/7651a.md?p=5), divided by 2,000, exceeds (ii) the number of [allowances](/usc/42/7651a.md?p=3) allocated for the [unit](/usc/42/7651a.md?p=15) pursuant to [paragraph (1)](#d-1) and [section 7651b(a)(1) of this title](/usc/42/7651b.md?p=a-1) as [basic Phase II allowance allocations](/usc/42/7651a.md?p=28).
- (B) In addition to [allowances](/usc/42/7651a.md?p=3) allocated pursuant to [paragraph (2)](#d-2) and [section 7651b(a)(1) of this title](/usc/42/7651b.md?p=a-1) as [basic Phase II allowance allocations](/usc/42/7651a.md?p=28), at the election of the [designated representative](/usc/42/7651a.md?p=26) of the operating company, beginning January 1, 2000, and for each calendar year thereafter until and including 2009, the [Administrator](/usc/42/7602.md?p=a) shall allocate annually for each [unit](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of [paragraph (2)](#d-2) [allowances](/usc/42/7651a.md?p=3) from the [reserve](/usc/42/7651a.md?p=13) created pursuant to [subsection (a)(2)](#a-2) in an amount equal to the amount by which (i) the product of the lesser of the [unit](/usc/42/7651a.md?p=15)’s actual 1985 emissions rate or its [allowable 1985 emissions rate](/usc/42/7651a.md?p=18) multiplied by the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) adjusted to reflect operation at a 60 percent [capacity factor](/usc/42/7651a.md?p=5), divided by 2,000, exceeds (ii) the number of [allowances](/usc/42/7651a.md?p=3) allocated for the [unit](/usc/42/7651a.md?p=15) pursuant to [paragraph (2)](#d-2) and [section 7651b(a)(1) of this title](/usc/42/7651b.md?p=a-1) as [basic Phase II allowance allocations](/usc/42/7651a.md?p=28).
- (C) An operating company with [units](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of this subsection may elect the [allocation](/usc/42/2021b.md?p=2) of [allowances](/usc/42/7651a.md?p=3) as provided under subparagraphs [(A)](#d-3-A) and [(B)](#d-3-B). Such election shall apply to the annual [allowance](/usc/42/7651a.md?p=3) [allocation](/usc/42/2021b.md?p=2) for each and every [unit](/usc/42/7651a.md?p=15) in the operating company subject to the emissions limitation requirements of this subsection. The [Administrator](/usc/42/7602.md?p=a) shall allocate [allowances](/usc/42/7651a.md?p=3) pursuant to subparagraphs [(A)](#d-3-A) and [(B)](#d-3-B) only in accordance with this subparagraph.
- (4) Notwithstanding any other provision of this section, at the election of the [owner or operator](/usc/42/9601.md?p=20-B), after January 1, 2000, the [Administrator](/usc/42/7602.md?p=a) shall allocate in lieu of [allocation](/usc/42/2021b.md?p=2), pursuant to paragraph [(1)](#d-1), [(2)](#d-2), [(3)](#d-3), [(5)](#d-5), or (6),[^2] [allowances](/usc/42/7651a.md?p=3) for a [unit](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of this subsection which [commenced commercial operation](/usc/42/7651a.md?p=22) on or after January 1, 1981 and before December 31, 1985, which was subject to, and in compliance with, [section 7411 of this title](/usc/42/7411.md) in an amount equal to the [unit](/usc/42/7651a.md?p=15)’s annual fuel consumption, on a Btu basis, at a 65 percent [capacity factor](/usc/42/7651a.md?p=5) multiplied by the [unit](/usc/42/7651a.md?p=15)’s [allowable 1985 emissions rate](/usc/42/7651a.md?p=18), divided by 2,000.
- (5) For the purposes of this section, in the case of an oil- and gas-fired [unit](/usc/42/7651a.md?p=15) which has been awarded a clean coal technology demonstration grant as of January 1, 1991, by the [United States](/usc/42/403.md?p=k) Department of [Energy](/usc/42/6311.md?p=7), beginning January 1, 2000, the [Administrator](/usc/42/7602.md?p=a) shall allocate for the [unit](/usc/42/7651a.md?p=15) [allowances](/usc/42/7651a.md?p=3) in an amount equal to the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by 1.20 lbs/mmBtu, divided by 2,000.
- (e) **Oil and gas-fired units equal to or greater than 0.60 lbs/mmBtu and less than 1.20 lbs/mmBtu—** After January 1, 2000, it shall be unlawful for any existing oil and gas-fired [utility unit](/usc/42/7651a.md?p=17-A) the lesser of whose actual or allowable 1985 sulfur dioxide emission rate is equal to, or greater than, 0.60 lbs/mmBtu, but less than 1.20 lbs/mmBtu to exceed an annual sulfur dioxide tonnage limitation equal to the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by (A) the lesser of the [unit](/usc/42/7651a.md?p=15)’s [allowable 1985 emissions rate](/usc/42/7651a.md?p=18) or its actual 1985 emissions rate and (B) a numerical factor of 120 percent divided by 2,000, unless the [owner or operator](/usc/42/9601.md?p=20-B) of such [unit](/usc/42/7651a.md?p=15) holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [unit](/usc/42/7651a.md?p=15)’s total annual emissions.
- (f) **Oil and gas-fired units less than 0.60 lbs/mmBtu—**
- (1) After January 1, 2000, it shall be unlawful for any oil and gas-fired existing [utility unit](/usc/42/7651a.md?p=17-A) the lesser of whose actual or allowable 1985 emission rate is less than 0.60 lbs/mmBtu and whose average annual fuel consumption during the period 1980 through 1989 on a Btu basis was 90 percent or less in the form of natural gas to exceed an annual sulfur dioxide tonnage emissions limitation equal to the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by (A) the lesser of 0.60 lbs/mmBtu or the [unit](/usc/42/7651a.md?p=15)’s allowable 1985 emissions, and (B) a numerical factor of 120 percent, divided by 2,000, unless the [owner or operator](/usc/42/9601.md?p=20-B) of such [unit](/usc/42/7651a.md?p=15) holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [unit](/usc/42/7651a.md?p=15)’s total annual emissions.
- (2) In addition to [allowances](/usc/42/7651a.md?p=3) allocated pursuant to [paragraph (1)](#f-1) as [basic Phase II allowance allocations](/usc/42/7651a.md?p=28) and [section 7651b(a)(1) of this title](/usc/42/7651b.md?p=a-1), beginning January 1, 2000, the [Administrator](/usc/42/7602.md?p=a) shall,[^3] in the case of any [unit](/usc/42/7651a.md?p=15) operated by a utility that furnishes electricity, electric [energy](/usc/42/6311.md?p=7), steam, and natural gas within an area consisting of a [city](/usc/42/12902.md?p=11) and 1 contiguous county, and in the case of any [unit](/usc/42/7651a.md?p=15) owned by a [State authority](/usc/42/6903.md?p=32), the output of which [unit](/usc/42/7651a.md?p=15) is furnished within that same area consisting of a [city](/usc/42/12902.md?p=11) and 1 contiguous county, the [Administrator](/usc/42/7602.md?p=a) shall allocate for each [unit](/usc/42/7651a.md?p=15) in the utility its pro rata share of 7,000 [allowances](/usc/42/7651a.md?p=3) and for each [unit](/usc/42/7651a.md?p=15) in the [State authority](/usc/42/6903.md?p=32) its pro rata share of 2,000 [allowances](/usc/42/7651a.md?p=3).
- (g) **Units that commence operation between 1986 and December 31, 1995—**
- (1) After January 1, 2000, it shall be unlawful for any [utility unit](/usc/42/7651a.md?p=17-A) that has [commenced commercial operation](/usc/42/7651a.md?p=22) on or after January 1, 1986, but not later than September 30, 1990 to exceed an annual tonnage [emission limitation](/usc/42/7602.md?p=k) equal to the product of the [unit](/usc/42/7651a.md?p=15)’s annual fuel consumption, on a Btu basis, at a 65 percent [capacity factor](/usc/42/7651a.md?p=5) multiplied by the [unit](/usc/42/7651a.md?p=15)’s allowable 1985 sulfur dioxide emission rate (converted, if necessary, to pounds per mmBtu), divided by 2,000 unless the [owner or operator](/usc/42/9601.md?p=20-B) of such [unit](/usc/42/7651a.md?p=15) holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [unit](/usc/42/7651a.md?p=15)’s total annual emissions.
- (2) After January 1, 2000, the [Administrator](/usc/42/7602.md?p=a) shall allocate [allowances](/usc/42/7651a.md?p=3) pursuant to [section 7651b of this title](/usc/42/7651b.md) to each [unit](/usc/42/7651a.md?p=15) which is listed in table B of this paragraph in an annual amount equal to the amount specified in table B.
| TABLE B | |
| --- | --- |
| [Unit](/usc/42/7651a.md?p=15) | [Allowances](/usc/42/7651a.md?p=3) |
| Brandon Shores | 8,907 |
| Miller 4 | 9,197 |
| TNP One 2 | 4,000 |
| Zimmer 1 | 18,458 |
| Spruce 1 | 7,647 |
| Clover 1 | 2,796 |
| Clover 2 | 2,796 |
| Twin Oak 2 | 1,760 |
| Twin Oak 1 | 9,158 |
| Cross 1 | 6,401 |
| Malakoff 1 | 1,759 |
Notwithstanding any other paragraph of this subsection, for [units](/usc/42/7651a.md?p=15) subject to this paragraph, the [Administrator](/usc/42/7602.md?p=a) shall not allocate [allowances](/usc/42/7651a.md?p=3) pursuant to any other paragraph of this subsection, Provided[^4] that the [owner or operator](/usc/42/9601.md?p=20-B) of a [unit](/usc/42/7651a.md?p=15) listed on Table B may elect an [allocation](/usc/42/2021b.md?p=2) of [allowances](/usc/42/7651a.md?p=3) under another paragraph of this subsection in lieu of an [allocation](/usc/42/2021b.md?p=2) under this paragraph.
- (3) Beginning January 1, 2000, the [Administrator](/usc/42/7602.md?p=a) shall allocate to the [owner or operator](/usc/42/9601.md?p=20-B) of any [utility unit](/usc/42/7651a.md?p=17-A) that commences commercial operation, or has [commenced commercial operation](/usc/42/7651a.md?p=22), on or after October 1, 1990, but not later than December 31, 1992 [allowances](/usc/42/7651a.md?p=3) in an amount equal to the product of the [unit](/usc/42/7651a.md?p=15)’s annual fuel consumption, on a Btu basis, at a 65 percent [capacity factor](/usc/42/7651a.md?p=5) multiplied by the lesser of 0.30 lbs/mmBtu or the [unit](/usc/42/7651a.md?p=15)’s allowable sulfur dioxide emission rate (converted, if necessary, to pounds per mmBtu), divided by 2,000.
- (4) Beginning January 1, 2000, the [Administrator](/usc/42/7602.md?p=a) shall allocate to the [owner or operator](/usc/42/9601.md?p=20-B) of any [utility unit](/usc/42/7651a.md?p=17-A) that has [commenced](/usc/42/7651a.md?p=21) [construction](/usc/42/7651a.md?p=23) before December 31, 1990 and that commences commercial operation between January 1, 1993 and December 31, 1995, [allowances](/usc/42/7651a.md?p=3) in an amount equal to the product of the [unit](/usc/42/7651a.md?p=15)’s annual fuel consumption, on a Btu basis, at a 65 percent [capacity factor](/usc/42/7651a.md?p=5) multiplied by the lesser of 0.30 lbs/mmBtu or the [unit](/usc/42/7651a.md?p=15)’s allowable sulfur dioxide emission rate (converted, if necessary, to pounds per mmBtu), divided by 2,000.
- (5) After January 1, 2000, it shall be unlawful for any existing [utility unit](/usc/42/7651a.md?p=17-A) that has completed conversion from predominantly gas fired existing operation to coal fired operation between January 1, 1985 and December 31, 1987, for which there has been allocated a proposed or final prohibition order pursuant to [section 301(b)](/usc/42/301.md)[^5] of the Powerplant and Industrial Fuel Use Act of 1978 ([42 U.S.C. 8301](/usc/42/8301.md) et seq,[^6] repealed 1987) to exceed an annual sulfur dioxide tonnage emissions limitation equal to the product of the [unit](/usc/42/7651a.md?p=15)’s annual fuel consumption, on a Btu basis, at a 65 percent [capacity factor](/usc/42/7651a.md?p=5) multiplied by the lesser of 1.20 lbs/mmBtu or the [unit](/usc/42/7651a.md?p=15)’s allowable 1987 sulfur dioxide emissions rate, divided by 2,000, unless the [owner or operator](/usc/42/9601.md?p=20-B) of such [unit](/usc/42/7651a.md?p=15) has obtained [allowances](/usc/42/7651a.md?p=3) equal to its actual emissions.
- (6)
- (A) [^7] Unless the [Administrator](/usc/42/7602.md?p=a) has approved a designation of such [facility](/usc/42/11049.md?p=4) under [section 7651i of this title](/usc/42/7651i.md), the provisions of this subchapter shall not apply to a “qualifying small power production [facility](/usc/42/11049.md?p=4)” or “qualifying cogeneration [facility](/usc/42/11049.md?p=4)” (within the meaning of section [796(17)(C)](/usc/16/796.md?p=17-C) or [796(18)(B)](/usc/16/796.md?p=18-B) of title 16) or to a “new independent power production [facility](/usc/42/11049.md?p=4)” as defined in [section 7651o](/usc/42/7651o.md) of this title except[^8] that [clause (iii)](#g-6-A-iii)[^9] of such definition in [section 7651o](/usc/42/7651o.md) of this title shall not apply for purposes of this paragraph if, as of November 15, 1990,
- (i) an applicable power sales [agreement](/usc/42/1320b–8.md?p=a-3-A) has been executed;
- (ii) the [facility](/usc/42/11049.md?p=4) is the subject of a [State](/usc/42/7651a.md?p=14) regulatory authority order requiring an electric utility to enter into a power sales [agreement](/usc/42/1320b–8.md?p=a-3-A) with, purchase capacity from, or (for purposes of establishing terms and conditions of the electric utility’s purchase of power) enter into arbitration concerning, the [facility](/usc/42/11049.md?p=4);
- (iii) an electric utility has issued a letter of intent or similar instrument committing to purchase power from the [facility](/usc/42/11049.md?p=4) at a previously offered or lower price and a power sales [agreement](/usc/42/1320b–8.md?p=a-3-A) is executed within a reasonable period of time; or
- (iv) the [facility](/usc/42/11049.md?p=4) has been selected as a winning bidder in a utility competitive bid solicitation.
- (h) **Oil and gas-fired units less than 10 percent oil consumed—**
- (1) After January 1, 2000, it shall be unlawful for any oil- and gas-fired [utility unit](/usc/42/7651a.md?p=17-A) whose average annual fuel consumption during the period 1980 through 1989 on a Btu basis exceeded 90 percent in the form of natural gas to exceed an annual sulfur dioxide tonnage limitation equal to the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by the [unit](/usc/42/7651a.md?p=15)’s actual 1985 emissions rate divided by 2,000 unless the [owner or operator](/usc/42/9601.md?p=20-B) of such [unit](/usc/42/7651a.md?p=15) holds [allowances](/usc/42/7651a.md?p=3) to emit not less than the [unit](/usc/42/7651a.md?p=15)’s total annual emissions.
- (2) In addition to [allowances](/usc/42/7651a.md?p=3) allocated pursuant to [paragraph (1)](#h-1) and [section 7651b(a)(1) of this title](/usc/42/7651b.md?p=a-1) as [basic Phase II allowance allocations](/usc/42/7651a.md?p=28), beginning January 1, 2000, and for each calendar year thereafter until and including 2009, the [Administrator](/usc/42/7602.md?p=a) shall allocate annually for each [unit](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of [paragraph (1)](#h-1) [allowances](/usc/42/7651a.md?p=3) from the [reserve](/usc/42/7651a.md?p=13) created pursuant to [subsection (a)(2)](#a-2) of this section in an amount equal to the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by 0.050 lbs/mmBtu, divided by 2,000.
- (3) In addition to [allowances](/usc/42/7651a.md?p=3) allocated pursuant to [paragraph (1)](#h-1) and [section 7651b(a)(1) of this title](/usc/42/7651b.md?p=a-1), beginning January 1, 2010, the [Administrator](/usc/42/7602.md?p=a) shall allocate annually for each [unit](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of [paragraph (1)](#h-1) [allowances](/usc/42/7651a.md?p=3) in an amount equal to the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by 0.050 lbs/mmBtu, divided by 2,000.
- (i) **Units in high growth States—**
- (1) In addition to [allowances](/usc/42/7651a.md?p=3) allocated pursuant to this section and [section 7651b(a)(1) of this title](/usc/42/7651b.md?p=a-1) as [basic Phase II allowance allocations](/usc/42/7651a.md?p=28), beginning January 1, 2000, the [Administrator](/usc/42/7602.md?p=a) shall allocate annually [allowances](/usc/42/7651a.md?p=3) for each [unit](/usc/42/7651a.md?p=15), subject to an emissions limitation requirement under this section, and located in a [State](/usc/42/7651a.md?p=14) that—
- (A) has experienced a growth in population in excess of 25 percent between 1980 and 1988 according to [State](/usc/42/7651a.md?p=14) Population and Household Estimates, With Age, Sex, and Components of Change: 1981–1988 allocated by the [United States](/usc/42/403.md?p=k) Department of [Commerce](/usc/42/6311.md?p=7), and
- (B) had an installed electrical generating capacity of more than 30,000,000 kw in 1988,
in an amount equal to the difference between (A) the number of [allowances](/usc/42/7651a.md?p=3) that would be allocated for the [unit](/usc/42/7651a.md?p=15) pursuant to the emissions limitation requirements of this section applicable to the [unit](/usc/42/7651a.md?p=15) adjusted to reflect the [unit](/usc/42/7651a.md?p=15)’s annual average fuel consumption on a Btu basis of any three consecutive calendar years between 1980 and 1989 (inclusive) as elected by the [owner or operator](/usc/42/9601.md?p=20-B) and (B) the number of [allowances](/usc/42/7651a.md?p=3) allocated for the [unit](/usc/42/7651a.md?p=15) pursuant to the emissions limitation requirements of this section: Provided, That the number of [allowances](/usc/42/7651a.md?p=3) allocated pursuant to this subsection shall not exceed an annual total of 40,000. If necessary to meeting the 40,000 [allowance](/usc/42/7651a.md?p=3) restriction imposed under this subsection the [Administrator](/usc/42/7602.md?p=a) shall reduce, pro rata, the additional annual [allowances](/usc/42/7651a.md?p=3) allocated to each [unit](/usc/42/7651a.md?p=15) under this subsection.
- (2) Beginning January 1, 2000, in addition to [allowances](/usc/42/7651a.md?p=3) allocated pursuant to this section and [section 7651b(a)(1) of this title](/usc/42/7651b.md?p=a-1) as [basic Phase II allowance allocations](/usc/42/7651a.md?p=28), the [Administrator](/usc/42/7602.md?p=a) shall allocate annually for each [unit](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of subsection [(b)(1)](#b-1), (A) the lesser of whose actual or allowable 1980 emissions rate has declined by 50 percent or more as of November 15, 1990, (B) whose actual emissions rate is less than 1.2 lbs/mmBtu as of January 1, 2000, (C) which [commenced](/usc/42/7651a.md?p=21) operation after January 1, 1970, (D) which is owned by a utility company whose combined commercial and industrial kilowatt-hour sales have increased by more than 20 percent between calendar year 1980 and November 15, 1990, and (E) whose company-wide fossil-fuel sulfur dioxide emissions rate has declined 40 per centum or more from 1980 to 1988, [allowances](/usc/42/7651a.md?p=3) in an amount equal to the difference between (i) the number of [allowances](/usc/42/7651a.md?p=3) that would be allocated for the [unit](/usc/42/7651a.md?p=15) pursuant to the emissions limitation requirements of [subsection (b)(1)](#b-1) adjusted to reflect the [unit](/usc/42/7651a.md?p=15)’s annual average fuel consumption on a Btu basis for any three consecutive years between 1980 and 1989 (inclusive) as elected by the [owner or operator](/usc/42/9601.md?p=20-B) and (ii) the number of [allowances](/usc/42/7651a.md?p=3) allocated for the [unit](/usc/42/7651a.md?p=15) pursuant to the emissions limitation requirements of [subsection (b)(1)](#b-1) of this section: Provided, That the number of [allowances](/usc/42/7651a.md?p=3) allocated pursuant to this paragraph shall not exceed an annual total of 5,000. If necessary to meeting the 5,000-[allowance](/usc/42/7651a.md?p=3) restriction imposed in the last clause of the preceding sentence the [Administrator](/usc/42/7602.md?p=a) shall reduce, pro rata, the additional [allowances](/usc/42/7651a.md?p=3) allocated to each [unit](/usc/42/7651a.md?p=15) pursuant to this paragraph.
- (j) **Certain municipally owned power plants—** Beginning January 1, 2000, in addition to [allowances](/usc/42/7651a.md?p=3) allocated pursuant to this section and [section 7651b(a)(1) of this title](/usc/42/7651b.md?p=a-1) as [basic Phase II allowance allocations](/usc/42/7651a.md?p=28), the [Administrator](/usc/42/7602.md?p=a) shall allocate annually for each existing municipally owned oil and gas-fired [utility unit](/usc/42/7651a.md?p=17-A) with nameplate capacity equal to, or less than, 40 MWe, the lesser of whose actual or allowable 1985 sulfur dioxide emission rate is less than 1.20 lbs/mmBtu, [allowances](/usc/42/7651a.md?p=3) in an amount equal to the product of the [unit](/usc/42/7651a.md?p=15)’s annual fuel consumption on a Btu basis at a 60 percent [capacity factor](/usc/42/7651a.md?p=5) multiplied by the lesser of its allowable 1985 emission rate or its [actual 1985 emission rate](/usc/42/7651a.md?p=16), divided by 2,000.
# §7651e. Allowances for States with emissions rates at or below 0.80 lbs/mmBtu
- (a) **Election of Governor—** In addition to [basic Phase II allowance allocations](/usc/42/7651a.md?p=28), upon the election of the [Governor](/usc/42/6372.md?p=1) of any [State](/usc/42/7651a.md?p=14), with a 1985 [state](/usc/42/7651a.md?p=14)-wide annual sulfur dioxide emissions rate equal to or less than, 0.80 lbs/mmBtu, averaged over all fossil fuel-fired utility steam generating [units](/usc/42/7651a.md?p=15), beginning January 1, 2000, and for each calendar year thereafter until and including 2009, the [Administrator](/usc/42/7602.md?p=a) shall allocate, in lieu of other [Phase II bonus allowance allocations](/usc/42/7651a.md?p=29), [allowances](/usc/42/7651a.md?p=3) from the [reserve](/usc/42/7651a.md?p=13) created pursuant to [section 7651d(a)(2) of this title](/usc/42/7651d.md?p=a-2) to all such [units](/usc/42/7651a.md?p=15) in the [State](/usc/42/7651a.md?p=14) in an amount equal to 125,000 multiplied by the [unit](/usc/42/7651a.md?p=15)’s pro rata share of electricity generated in calendar year 1985 at fossil fuel-fired utility steam [units](/usc/42/7651a.md?p=15) in all [States](/usc/42/7651a.md?p=14) eligible for the election.
- (b) **Notification of Administrator—** Pursuant to [section 7651b(a)(1) of this title](/usc/42/7651b.md?p=a-1), each [Governor](/usc/42/6372.md?p=1) of a [State](/usc/42/7651a.md?p=14) eligible to make an election under paragraph[^1] (a) shall notify the [Administrator](/usc/42/7602.md?p=a) of such election. In the event that the [Governor](/usc/42/6372.md?p=1) of any such [State](/usc/42/7651a.md?p=14) fails to notify the [Administrator](/usc/42/7602.md?p=a) of the [Governor](/usc/42/6372.md?p=1)’s elections, the [Administrator](/usc/42/7602.md?p=a) shall allocate [allowances](/usc/42/7651a.md?p=3) pursuant to [section 7651d of this title](/usc/42/7651d.md).
- (c) **Allowances after January 1, 2010—** After January 1, 2010, the [Administrator](/usc/42/7602.md?p=a) shall allocate [allowances](/usc/42/7651a.md?p=3) to [units](/usc/42/7651a.md?p=15) subject to the provisions of this section pursuant to [section 7651d of this title](/usc/42/7651d.md).
# §7651f. Nitrogen oxides emission reduction program
- (a) **Applicability—** On the date that a coal-fired [utility unit](/usc/42/7651a.md?p=17-A) becomes an [affected unit](/usc/42/7651a.md?p=2) pursuant to sections 7651c, 7651d,[^1] 7651h of this title, or on the date a [unit](/usc/42/7651a.md?p=15) subject to the provisions of section [7651c(d)](/usc/42/7651c.md?p=d) or [7651h(b)](/usc/42/7651h.md?p=b) of this title, must meet the SO2 reduction requirements, each such [unit](/usc/42/7651a.md?p=15) shall become an [affected unit](/usc/42/7651a.md?p=2) for purposes of this section and shall be subject to the [emission limitations](/usc/42/7602.md?p=k) for nitrogen oxides set forth herein.
- (b) **Emission limitations—**
- (1) Not later than eighteen months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall by regulation establish annual allowable [emission limitations](/usc/42/7602.md?p=k) for nitrogen oxides for the types of utility boilers listed below, which limitations shall not exceed the rates listed below: Provided, That the [Administrator](/usc/42/7602.md?p=a) may set a rate higher than that listed for any type of utility boiler if the [Administrator](/usc/42/7602.md?p=a) finds that the maximum listed rate for that boiler type cannot be achieved using low NOx burner technology. The maximum allowable emission rates are as follows:
- (A) for tangentially fired boilers, 0.45 lb/mmBtu;
- (B) for dry bottom wall-fired boilers (other than [units](/usc/42/7651a.md?p=15) applying cell burner technology), 0.50 lb/mmBtu.
After January 1, 1995, it shall be unlawful for any [unit](/usc/42/7651a.md?p=15) that is an [affected unit](/usc/42/7651a.md?p=2) on that date and is of the type listed in this paragraph to emit nitrogen oxides in excess of the emission rates set by the [Administrator](/usc/42/7602.md?p=a) pursuant to this paragraph.
- (2) Not later than January 1, 1997, the [Administrator](/usc/42/7602.md?p=a) shall, by regulation, establish allowable [emission limitations](/usc/42/7602.md?p=k) on a lb/mmBtu, annual average basis, for nitrogen oxides for the following types of utility boilers:
- (A) wet bottom wall-fired boilers;
- (B) cyclones;
- (C) [units](/usc/42/7651a.md?p=15) applying cell burner technology;
- (D) all other types of utility boilers.
The [Administrator](/usc/42/7602.md?p=a) shall base such rates on the degree of reduction achievable through the retrofit application of the best system of continuous emission reduction, taking into account available technology, costs and [energy](/usc/42/6311.md?p=7) and environmental impacts; and which is comparable to the costs of nitrogen oxides controls set pursuant to [subsection (b)(1)](#b-1). Not later than January 1, 1997, the [Administrator](/usc/42/7602.md?p=a) may revise the applicable [emission limitations](/usc/42/7602.md?p=k) for tangentially fired and dry bottom, wall-fired boilers (other than cell burners) to be more stringent if the [Administrator](/usc/42/7602.md?p=a) determines that more effective low NOx burner technology is available: Provided, That, no [unit](/usc/42/7651a.md?p=15) that is an [affected unit](/usc/42/7651a.md?p=2) pursuant to [section 7651c of this title](/usc/42/7651c.md) and that is subject to the requirements of [subsection (b)(1)](#b-1), shall be subject to the revised [emission limitations](/usc/42/7602.md?p=k), if any.
- (c) **Revised performance standards—**
- (1) [^2] Not later than January 1, 1993, the [Administrator](/usc/42/7602.md?p=a) shall propose revised [standards](/usc/42/1320d.md?p=7) of performance to [section 7411 of this title](/usc/42/7411.md) for nitrogen oxides emissions from fossil-fuel fired steam generating [units](/usc/42/7651a.md?p=15), including both electric utility and [nonutility units](/usc/42/7651a.md?p=25). Not later than January 1, 1994, the [Administrator](/usc/42/7602.md?p=a) shall promulgate such revised [standards](/usc/42/1320d.md?p=7) of performance. Such revised [standards](/usc/42/1320d.md?p=7) of performance shall reflect improvements in methods for the reduction of emissions of oxides of nitrogen.
- (d) **Alternative emission limitations—** The [permitting authority](/usc/42/7651a.md?p=11) shall, upon request of an [owner or operator](/usc/42/9601.md?p=20-B) of a [unit](/usc/42/7651a.md?p=15) subject to this section, authorize an [emission limitation](/usc/42/7602.md?p=k) less stringent than the applicable limitation established under subsection [(b)(1)](#b-1) or [(b)(2)](#b-2) upon a determination that—
- (1) a [unit](/usc/42/7651a.md?p=15) subject to [subsection (b)(1)](#b-1) cannot meet the applicable limitation using low NOx burner technology; or
- (2) a [unit](/usc/42/7651a.md?p=15) subject to [subsection (b)(2)](#b-2) cannot meet the applicable rate using the technology on which the [Administrator](/usc/42/7602.md?p=a) based the applicable [emission limitation](/usc/42/7602.md?p=k).
The [permitting authority](/usc/42/7651a.md?p=11) shall base such determination upon a showing satisfactory to the [permitting authority](/usc/42/7651a.md?p=11), in accordance with regulations established by the [Administrator](/usc/42/7602.md?p=a) not later than eighteen months after November 15, 1990, that the [owner or operator](/usc/42/9601.md?p=20-B)—
- (1) has properly installed appropriate control equipment designed to meet the applicable emission rate;
- (2) has properly operated such equipment for a period of fifteen months (or such other period of time as the [Administrator](/usc/42/7602.md?p=a) determines through the regulations), and provides operating and monitoring data for such period demonstrating that the [unit](/usc/42/7651a.md?p=15) cannot meet the applicable emission rate; and
- (3) has specified an emission rate that such [unit](/usc/42/7651a.md?p=15) can meet on an annual average basis.
The [permitting authority](/usc/42/7651a.md?p=11) shall issue an operating permit for the [unit](/usc/42/7651a.md?p=15) in question, in accordance with [section 7651g of this title](/usc/42/7651g.md) and part B[^3] of title III—
- (i) that permits the [unit](/usc/42/7651a.md?p=15) during the demonstration period referred to in [subparagraph (2)](#d-2) above, to emit at a rate in excess of the applicable emission rate;
- (ii) at the conclusion of the demonstration period to revise the operating permit to reflect the alternative emission rate demonstrated in paragraphs [(2)](#d-2) and [(3)](#d-3) above.
[Units](/usc/42/7651a.md?p=15) subject to [subsection (b)(1)](#b-1) for which an alternative [emission limitation](/usc/42/7602.md?p=k) is established shall not be required to install any additional control technology beyond low NOx burners. Nothing in this section shall preclude an [owner or operator](/usc/42/9601.md?p=20-B) from installing and operating an alternative NOx control technology capable of achieving the applicable [emission limitation](/usc/42/7602.md?p=k). If the [owner or operator](/usc/42/9601.md?p=20-B) of a [unit](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of [subsection (b)(1)](#b-1) demonstrates to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that the technology necessary to meet such requirements is not in adequate supply to enable its installation and operation at the [unit](/usc/42/7651a.md?p=15), consistent with system reliability, by January 1, 1995, then the [Administrator](/usc/42/7602.md?p=a) shall extend the deadline for compliance for the [unit](/usc/42/7651a.md?p=15) by a period of 15 months. Any [owner or operator](/usc/42/9601.md?p=20-B) may petition the [Administrator](/usc/42/7602.md?p=a) to make a determination under the previous sentence. The [Administrator](/usc/42/7602.md?p=a) shall grant or deny such petition within 3 months of submittal.
- (e) **Emissions averaging—** In lieu of complying with the applicable [emission limitations](/usc/42/7602.md?p=k) under subsection [(b)(1)](#b-1), [(2)](#b-2), or (d), the [owner or operator](/usc/42/9601.md?p=20-B) of two or more [units](/usc/42/7651a.md?p=15) subject to one or more of the applicable [emission limitations](/usc/42/7602.md?p=k) set pursuant to these sections,[^4] may petition the [permitting authority](/usc/42/7651a.md?p=11) for alternative contemporaneous annual [emission limitations](/usc/42/7602.md?p=k) for such [units](/usc/42/7651a.md?p=15) that ensure that (1) the actual annual emission rate in pounds of nitrogen oxides per million Btu averaged over the [units](/usc/42/7651a.md?p=15) in question is a rate that is less than or equal to (2) the Btu-weighted average annual emission rate for the same [units](/usc/42/7651a.md?p=15) if they had been operated, during the same period of time, in compliance with limitations set in accordance with the applicable emission rates set pursuant to subsections [(b)(1)](#b-1) and [(2)](#b-2).
If the [permitting authority](/usc/42/7651a.md?p=11) determines, in accordance with regulations issued by the [Administrator](/usc/42/7602.md?p=a) not later than eighteen months after November 15, 1990;[^5] that the conditions in the paragraph above can be met, the [permitting authority](/usc/42/7651a.md?p=11) shall issue operating permits for such [units](/usc/42/7651a.md?p=15), in accordance with [section 7651g of this title](/usc/42/7651g.md) and part B[^3] of title III, that allow alternative contemporaneous annual [emission limitations](/usc/42/7602.md?p=k). Such [emission limitations](/usc/42/7602.md?p=k) shall only remain in effect while both [units](/usc/42/7651a.md?p=15) continue operation under the conditions specified in their respective operating permits.
# §7651g. Permits and compliance plans
- (a) **Permit program—** The provisions of this subchapter shall be implemented, subject to [section 7651b of this title](/usc/42/7651b.md), by permits issued to [units](/usc/42/7651a.md?p=15) subject to this subchapter (and enforced) in accordance with the provisions of subchapter V, as [modified](/usc/42/7501.md?p=4) by this subchapter. Any such permit issued by the [Administrator](/usc/42/7602.md?p=a), or by a [State](/usc/42/7651a.md?p=14) with an approved permit [program](/usc/42/274l–1.md?p=4), shall prohibit—
- (1) annual emissions of sulfur dioxide in excess of the number of [allowances](/usc/42/7651a.md?p=3) to emit sulfur dioxide the [owner or operator](/usc/42/9601.md?p=20-B), or the [designated representative](/usc/42/7651a.md?p=26) of the [owners](/usc/42/13641.md?p=4) or operators, of the [unit](/usc/42/7651a.md?p=15) hold for the [unit](/usc/42/7651a.md?p=15),
- (2) exceedances of applicable emissions rates,
- (3) the use of any [allowance](/usc/42/7651a.md?p=3) prior to the year for which it was allocated, and
- (4) contravention of any other provision of the permit.
Permits issued to implement this subchapter shall be issued for a period of 5 years, notwithstanding subchapter V. No permit shall be issued that is inconsistent with the requirements of this subchapter, and subchapter V as applicable.
- (b) **Compliance plan—** Each initial permit application shall be accompanied by a [compliance plan](/usc/42/7651a.md?p=6) for the source to comply with its requirements under this subchapter. Where an [affected source](/usc/42/7651a.md?p=1) consists of more than one [affected unit](/usc/42/7651a.md?p=2), such plan shall cover all such [units](/usc/42/7651a.md?p=15), and for purposes of [section 7661a(c) of this title](/usc/42/7661a.md?p=c), such source shall be considered a “[facility](/usc/42/11049.md?p=4)”. Nothing in this section regarding [compliance plans](/usc/42/7651a.md?p=6) or in subchapter V shall be construed as affecting [allowances](/usc/42/7651a.md?p=3). Except as provided under [subsection (c)(1)(B)](#c-1-B), submission of a statement by the [owner or operator](/usc/42/9601.md?p=20-B), or the [designated representative](/usc/42/7651a.md?p=26) of the [owners](/usc/42/13641.md?p=4) and operators, of a [unit](/usc/42/7651a.md?p=15) subject to the emissions limitation requirements of sections [7651c](/usc/42/7651c.md), [7651d](/usc/42/7651d.md), and [7651f](/usc/42/7651f.md) of this title, that the [unit](/usc/42/7651a.md?p=15) will meet the applicable emissions limitation requirements of such sections in a timely manner or that, in the case of the emissions limitation requirements of sections [7651c](/usc/42/7651c.md) and [7651d](/usc/42/7651d.md) of this title, the [owners](/usc/42/13641.md?p=4) and operators will hold [allowances](/usc/42/7651a.md?p=3) to emit not less than the total annual emissions of the [unit](/usc/42/7651a.md?p=15), shall be deemed to meet the proposed and approved compliance planning requirements of this section and subchapter V, except that, for any [unit](/usc/42/7651a.md?p=15) that will meet the requirements of this subchapter by means of an [alternative method of compliance](/usc/42/7651a.md?p=20) authorized under section [7651c(b)](/usc/42/7651c.md?p=b), [(c)](/usc/42/7651c.md?p=c), [(d)](/usc/42/7651c.md?p=d), or [(f)](/usc/42/7651c.md?p=f) of this title[^1] section [7651f(d)](/usc/42/7651f.md?p=d) or [(e)](/usc/42/7651f.md?p=e) of this title, [section 7651h of this title](/usc/42/7651h.md) and [section 7651i of this title](/usc/42/7651i.md), the proposed and approved [compliance plan](/usc/42/7651a.md?p=6), permit application and permit shall include, pursuant to regulations promulgated by the [Administrator](/usc/42/7602.md?p=a), for each [alternative method of compliance](/usc/42/7651a.md?p=20) a comprehensive description of the schedule and means by which the [unit](/usc/42/7651a.md?p=15) will rely on one or more alternative methods of compliance in the manner and time authorized under this subchapter. Recordation by the [Administrator](/usc/42/7602.md?p=a) of transfers of [allowances](/usc/42/7651a.md?p=3) shall amend automatically all applicable proposed or approved permit applications, [compliance plans](/usc/42/7651a.md?p=6) and permits. The [Administrator](/usc/42/7602.md?p=a) may also require—
- (1) for a source, a demonstration of attainment of national ambient air quality [standards](/usc/42/1320d.md?p=7), and
- (2) from the [owner or operator](/usc/42/9601.md?p=20-B) of two or more [affected sources](/usc/42/7651a.md?p=1), an integrated [compliance plan](/usc/42/7651a.md?p=6) providing an overall plan for achieving compliance at the [affected sources](/usc/42/7651a.md?p=1).
- (c) **First phase permits—** The [Administrator](/usc/42/7602.md?p=a) shall issue permits to [affected sources](/usc/42/7651a.md?p=1) under sections [7651c](/usc/42/7651c.md) and [7651f](/usc/42/7651f.md) of this title.
- (1) **Permit application and compliance plan—**
- (A) Not later than 27 months after November 15, 1990, the [designated representative](/usc/42/7651a.md?p=26) of the [owners](/usc/42/13641.md?p=4) or operators, or the [owner](/usc/42/13641.md?p=4) and operator, of each [affected source](/usc/42/7651a.md?p=1) under sections [7651c](/usc/42/7651c.md) and [7651f](/usc/42/7651f.md) of this title shall submit a permit application and [compliance plan](/usc/42/7651a.md?p=6) for that source in accordance with regulations issued by the [Administrator](/usc/42/7602.md?p=a) under [paragraph (3)](#c-3). The permit application and the [compliance plan](/usc/42/7651a.md?p=6) shall be binding on the [owner or operator](/usc/42/9601.md?p=20-B) or the [designated representative](/usc/42/7651a.md?p=26) of [owners](/usc/42/13641.md?p=4) and operators for purposes of this subchapter and [section 7651a(a)](/usc/42/7651a.md)[^2] of this title, and shall be enforceable in lieu of a permit until a permit is issued by the [Administrator](/usc/42/7602.md?p=a) for the source.
- (B) In the case of a [compliance plan](/usc/42/7651a.md?p=6) for an [affected source](/usc/42/7651a.md?p=1) under sections [7651c](/usc/42/7651c.md) and [7651f](/usc/42/7651f.md) of this title for which the [owner or operator](/usc/42/9601.md?p=20-B) proposes to meet the requirements of that section by reducing utilization of the [unit](/usc/42/7651a.md?p=15) as compared with its [baseline](/usc/42/7651a.md?p=4) or by shutting down the [unit](/usc/42/7651a.md?p=15), the [owner or operator](/usc/42/9601.md?p=20-B) shall include in the proposed [compliance plan](/usc/42/7651a.md?p=6) a specification of the [unit](/usc/42/7651a.md?p=15) or [units](/usc/42/7651a.md?p=15) that will provide electrical generation to compensate for the reduced output at the [affected source](/usc/42/7651a.md?p=1), or a demonstration that such reduced utilization will be accomplished through [energy](/usc/42/6311.md?p=7) conservation or improved [unit](/usc/42/7651a.md?p=15) efficiency. The [unit](/usc/42/7651a.md?p=15) to be used for such compensating generation, which is not otherwise an [affected unit](/usc/42/7651a.md?p=2) under sections [7651c](/usc/42/7651c.md) and [7651f](/usc/42/7651f.md) of this title, shall be deemed an [affected unit](/usc/42/7651a.md?p=2) under [section 7651c of this title](/usc/42/7651c.md), subject to all of the requirements for such [units](/usc/42/7651a.md?p=15) under this subchapter, except that [allowances](/usc/42/7651a.md?p=3) shall be allocated to such compensating [unit](/usc/42/7651a.md?p=15) in the amount of an annual limitation equal to the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by the lesser of the [unit](/usc/42/7651a.md?p=15)’s actual 1985 emissions rate or its [allowable 1985 emissions rate](/usc/42/7651a.md?p=18), divided by 2,000.
- (2) **EPA action on compliance plans—** The [Administrator](/usc/42/7602.md?p=a) shall review each proposed [compliance plan](/usc/42/7651a.md?p=6) to determine whether it satisfies the requirements of this subchapter, and shall approve or disapprove such plan within 6 months after receipt of a complete submission. If a plan is disapproved, it may be resubmitted for approval with such changes as the [Administrator](/usc/42/7602.md?p=a) shall require consistent with the requirements of this subchapter and within such period as the [Administrator](/usc/42/7602.md?p=a) prescribes as part of such disapproval.
- (3) **Regulations; issuance of permits—** Not later than 18 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations, in accordance with subchapter V, to implement a Federal permit [program](/usc/42/274l–1.md?p=4) to issue permits for [affected sources](/usc/42/7651a.md?p=1) under this subchapter. Following promulgation, the [Administrator](/usc/42/7602.md?p=a) shall issue a permit to implement the requirements of [section 7651c of this title](/usc/42/7651c.md) and the [allowances](/usc/42/7651a.md?p=3) provided under [section 7651b of this title](/usc/42/7651b.md) to the [owner or operator](/usc/42/9601.md?p=20-B) of each [affected source](/usc/42/7651a.md?p=1) under [section 7651c of this title](/usc/42/7651c.md). Such a permit shall supersede any permit application and [compliance plan](/usc/42/7651a.md?p=6) submitted under [paragraph (1)](#c-1).
- (4) **Fees—** During the years 1995 through 1999 inclusive, no fee shall be required to be paid under [section 7661a(b)(3) of this title](/usc/42/7661a.md?p=b-3) or under [section 7410(a)(2)(L) of this title](/usc/42/7410.md?p=a-2-L) with respect to emissions from any [unit](/usc/42/7651a.md?p=15) which is an [affected unit](/usc/42/7651a.md?p=2) under [section 7651c of this title](/usc/42/7651c.md).
- (d) **Second phase permits—**
- (1) To provide for permits for (A) new electric utility steam generating [units](/usc/42/7651a.md?p=15) required under [section 7651b(e) of this title](/usc/42/7651b.md?p=e) to have [allowances](/usc/42/7651a.md?p=3), (B) [affected units](/usc/42/7651a.md?p=2) or sources under [section 7651d of this title](/usc/42/7651d.md), and (C) [existing units](/usc/42/7651a.md?p=8) subject to nitrogen oxide emission reductions under [section 7651f of this title](/usc/42/7651f.md), each [State](/usc/42/7651a.md?p=14) in which one or more such [units](/usc/42/7651a.md?p=15) or sources are located shall submit in accordance with subchapter V, a permit [program](/usc/42/274l–1.md?p=4) for approval as provided by that subchapter. Upon approval of such [program](/usc/42/274l–1.md?p=4), for the [units](/usc/42/7651a.md?p=15) or sources subject to such approved [program](/usc/42/274l–1.md?p=4) the [Administrator](/usc/42/7602.md?p=a) shall suspend the issuance of permits as provided in subchapter V.
- (2) The [owner or operator](/usc/42/9601.md?p=20-B) or the [designated representative](/usc/42/7651a.md?p=26) of each [affected source](/usc/42/7651a.md?p=1) under [section 7651d of this title](/usc/42/7651d.md) shall submit a permit application and [compliance plan](/usc/42/7651a.md?p=6) for that source to the [permitting authority](/usc/42/7651a.md?p=11), not later than January 1, 1996.
- (3) Not later than December 31, 1997, each [State](/usc/42/7651a.md?p=14) with an approved permit [program](/usc/42/274l–1.md?p=4) shall issue permits to the [owner or operator](/usc/42/9601.md?p=20-B), or the [designated representative](/usc/42/7651a.md?p=26) of the [owners](/usc/42/13641.md?p=4) and operators, of [affected sources](/usc/42/7651a.md?p=1) under [section 7651d of this title](/usc/42/7651d.md) that satisfy the requirements of subchapter V and this subchapter and that submitted to such [State](/usc/42/7651a.md?p=14) a permit application and [compliance plan](/usc/42/7651a.md?p=6) pursuant to [paragraph (2)](#d-2). In the case of a [State](/usc/42/7651a.md?p=14) without an approved permit [program](/usc/42/274l–1.md?p=4) by July 1, 1996, the [Administrator](/usc/42/7602.md?p=a) shall, not later than January 1, 1998, issue a permit to the [owner or operator](/usc/42/9601.md?p=20-B) or the [designated representative](/usc/42/7651a.md?p=26) of each such [affected source](/usc/42/7651a.md?p=1). In the case of [affected sources](/usc/42/7651a.md?p=1) for which applications and plans are timely received under [paragraph (2)](#d-2), the permit application and the [compliance plan](/usc/42/7651a.md?p=6), including amendments thereto, shall be binding on the [owner or operator](/usc/42/9601.md?p=20-B) or the [designated representative](/usc/42/7651a.md?p=26) of the [owners](/usc/42/13641.md?p=4) or operators and shall be enforceable as a permit for purposes of this subchapter and subchapter V until a permit is issued by the [permitting authority](/usc/42/7651a.md?p=11) for the [affected source](/usc/42/7651a.md?p=1). The provisions of [section 558(c) of title 5](/usc/5/558.md?p=c) (relating to renewals) shall apply to permits issued by a [permitting authority](/usc/42/7651a.md?p=11) under this subchapter and subchapter V.
- (4) The permit issued in accordance with this subsection for an [affected source](/usc/42/7651a.md?p=1) shall provide that the [affected units](/usc/42/7651a.md?p=2) at the [affected source](/usc/42/7651a.md?p=1) may not emit an annual tonnage of sulfur dioxide in excess of the number of [allowances](/usc/42/7651a.md?p=3) to emit sulfur dioxide the [owner or operator](/usc/42/9601.md?p=20-B) or [designated representative](/usc/42/7651a.md?p=26) hold for the [unit](/usc/42/7651a.md?p=15).
- (e) **New units—** The [owner or operator](/usc/42/9601.md?p=20-B) of each source that includes a new electric utility steam generating [unit](/usc/42/7651a.md?p=15) shall submit a permit application and [compliance plan](/usc/42/7651a.md?p=6) to the [permitting authority](/usc/42/7651a.md?p=11) not later than 24 months before the later of (1) January 1, 2000, or (2) the date on which the [unit](/usc/42/7651a.md?p=15) commences operation. The [permitting authority](/usc/42/7651a.md?p=11) shall issue a permit to the [owner or operator](/usc/42/9601.md?p=20-B), or the [designated representative](/usc/42/7651a.md?p=26) thereof, of the [unit](/usc/42/7651a.md?p=15) that satisfies the requirements of subchapter V and this subchapter.
- (f) **Units subject to certain other limits—** The [owner or operator](/usc/42/9601.md?p=20-B), or [designated representative](/usc/42/7651a.md?p=26) thereof, of any [unit](/usc/42/7651a.md?p=15) subject to an emission rate requirement under [section 7651f of this title](/usc/42/7651f.md) shall submit a permit application and [compliance plan](/usc/42/7651a.md?p=6) for such [unit](/usc/42/7651a.md?p=15) to the [permitting authority](/usc/42/7651a.md?p=11), not later than January 1, 1998. The [permitting authority](/usc/42/7651a.md?p=11) shall issue a permit to the [owner or operator](/usc/42/9601.md?p=20-B) that satisfies the requirements of subchapter V and this subchapter, including any appropriate monitoring and reporting requirements.
- (g) **Amendment of application and compliance plan—** At any time after the submission of an application and [compliance plan](/usc/42/7651a.md?p=6) under this section, the applicant may submit a revised application and [compliance plan](/usc/42/7651a.md?p=6), in accordance with the requirements of this section. In considering any permit application and [compliance plan](/usc/42/7651a.md?p=6) under this subchapter, the [permitting authority](/usc/42/7651a.md?p=11) shall ensure coordination with the applicable electric ratemaking authority, in the case of regulated utilities, and with unregulated public utilities.
- (h) **Prohibition—**
- (1) It shall be unlawful for an [owner or operator](/usc/42/9601.md?p=20-B), or [designated representative](/usc/42/7651a.md?p=26), required to submit a permit application or [compliance plan](/usc/42/7651a.md?p=6) under this subchapter to fail to submit such application or plan in accordance with the deadlines specified in this section or to otherwise fail to comply with regulations implementing this section.
- (2) It shall be unlawful for any [person](/usc/42/7602.md?p=e) to operate any source subject to this subchapter except in compliance with the terms and requirements of a permit application and [compliance plan](/usc/42/7651a.md?p=6) (including amendments thereto) or permit issued by the [Administrator](/usc/42/7602.md?p=a) or a [State](/usc/42/7651a.md?p=14) with an approved permit [program](/usc/42/274l–1.md?p=4). For purposes of this subsection, compliance, as provided in [section 7661c(f) of this title](/usc/42/7661c.md?p=f), with a permit issued under subchapter V which complies with this subchapter for sources subject to this subchapter shall be deemed compliance with this subsection as well as [section 7661a(a) of this title](/usc/42/7661a.md?p=a).
- (3) In order to ensure reliability of electric power, nothing in this subchapter or subchapter V shall be construed as requiring termination of operations of an electric utility steam generating [unit](/usc/42/7651a.md?p=15) for failure to have an approved permit or [compliance plan](/usc/42/7651a.md?p=6), except that any such [unit](/usc/42/7651a.md?p=15) may be subject to the applicable enforcement provisions of [section 7413 of this title](/usc/42/7413.md).
- (i) **Multiple owners—** No permit shall be issued under this section to an [affected unit](/usc/42/7651a.md?p=2) until the [designated representative](/usc/42/7651a.md?p=26) of the [owners](/usc/42/13641.md?p=4) or operators has filed a certificate of representation with regard to matters under this subchapter, including the holding and distribution of [allowances](/usc/42/7651a.md?p=3) and the proceeds of transactions involving [allowances](/usc/42/7651a.md?p=3). Where there are multiple holders of a legal or equitable title to, or a leasehold interest in, such a [unit](/usc/42/7651a.md?p=15), or where a utility or industrial [customer](/usc/42/7275.md?p=5) purchases power from an [affected unit](/usc/42/7651a.md?p=2) (or [units](/usc/42/7651a.md?p=15)) under [life-of-the-unit, firm power contractual arrangements](/usc/42/7651a.md?p=27), the certificate shall [state](/usc/42/7651a.md?p=14) (1) that [allowances](/usc/42/7651a.md?p=3) and the proceeds of transactions involving [allowances](/usc/42/7651a.md?p=3) will be deemed to be held or distributed in proportion to each holder’s legal, equitable, leasehold, or contractual reservation or entitlement, or (2) if such multiple holders have expressly provided for a different distribution of [allowances](/usc/42/7651a.md?p=3) by contract, that [allowances](/usc/42/7651a.md?p=3) and the proceeds of transactions involving [allowances](/usc/42/7651a.md?p=3) will be deemed to be held or distributed in accordance with the contract. A passive lessor, or a [person](/usc/42/7602.md?p=e) who has an equitable interest through such lessor, whose rental payments are not based, either directly or indirectly, upon the revenues or [income](/usc/42/292s.md?p=c-4) from the [affected unit](/usc/42/7651a.md?p=2) shall not be deemed to be a holder of a legal, equitable, leasehold, or contractual interest for the purpose of holding or distributing [allowances](/usc/42/7651a.md?p=3) as provided in this subsection, during either the term of such leasehold or thereafter, unless expressly provided for in the leasehold [agreement](/usc/42/1320b–8.md?p=a-3-A). Except as otherwise provided in this subsection, where all legal or equitable title to or interest in an [affected unit](/usc/42/7651a.md?p=2) is held by a [single](/usc/42/2304.md?p=m) [person](/usc/42/7602.md?p=e), the certification shall [state](/usc/42/7651a.md?p=14) that all [allowances](/usc/42/7651a.md?p=3) received by the [unit](/usc/42/7651a.md?p=15) are deemed to be held for that [person](/usc/42/7602.md?p=e).
# §7651h. Repowered sources
- (a) **Availability—** Not later than December 31, 1997, the [owner or operator](/usc/42/9601.md?p=20-B) of an [existing unit](/usc/42/7651a.md?p=8) subject to the emissions limitation requirements of section [7651d(b)](/usc/42/7651d.md?p=b) and [(c)](/usc/42/7651d.md?p=c) of this title may demonstrate to the [permitting authority](/usc/42/7651a.md?p=11) that one or more [units](/usc/42/7651a.md?p=15) will be repowered with a qualifying clean coal technology to comply with the requirements under [section 7651d of this title](/usc/42/7651d.md). The [owner or operator](/usc/42/9601.md?p=20-B) shall, as part of any such demonstration, provide, not later than January 1, 2000, satisfactory documentation of a preliminary design and engineering effort for such [repowering](/usc/42/7651a.md?p=12) and an executed and binding contract for the majority of the equipment to repower such [unit](/usc/42/7651a.md?p=15) and such other information as the [Administrator](/usc/42/7602.md?p=a) may require by regulation. The replacement of an existing [utility unit](/usc/42/7651a.md?p=17-A) with a new [utility unit](/usc/42/7651a.md?p=17-A) using a [repowering](/usc/42/7651a.md?p=12) technology referred to in [section 7651a(2)](/usc/42/7651a.md?p=2)[^1] of this title which is located at a different site, shall be treated as [repowering](/usc/42/7651a.md?p=12) of the [existing unit](/usc/42/7651a.md?p=8) for purposes of this subchapter, if—
- (1) the replacement [unit](/usc/42/7651a.md?p=15) is designated by the [owner or operator](/usc/42/9601.md?p=20-B) to replace such [existing unit](/usc/42/7651a.md?p=8), and
- (2) the [existing unit](/usc/42/7651a.md?p=8) is retired from service on or before the date on which the designated replacement [unit](/usc/42/7651a.md?p=15) enters commercial operation.
- (b) **Extension—**
- (1) An [owner or operator](/usc/42/9601.md?p=20-B) satisfying the requirements of [subsection (a)](#a) shall be granted an extension of the [emission limitation](/usc/42/7602.md?p=k) requirement compliance date for that [unit](/usc/42/7651a.md?p=15) from January 1, 2000, to December 31, 2003. The extension shall be specified in the permit issued to the source under [section 7651g of this title](/usc/42/7651g.md), together with any compliance schedule and other requirements necessary to meet second phase requirements by the extended date. Any [unit](/usc/42/7651a.md?p=15) that is granted an extension under this section shall not be eligible for a waiver under [section 7411(j) of this title](/usc/42/7411.md?p=j), and shall continue to be subject to requirements under this subchapter as if it were a [unit](/usc/42/7651a.md?p=15) subject to [section 7651d of this title](/usc/42/7651d.md).
- (2) If (A) the [owner or operator](/usc/42/9601.md?p=20-B) of an [existing unit](/usc/42/7651a.md?p=8) has been granted an extension under [paragraph (1)](#b-1) in order to repower such [unit](/usc/42/7651a.md?p=15) with a clean coal [unit](/usc/42/7651a.md?p=15), and (B) such [owner or operator](/usc/42/9601.md?p=20-B) demonstrates to the satisfaction of the [Administrator](/usc/42/7602.md?p=a) that the [repowering](/usc/42/7651a.md?p=12) technology to be utilized by such [unit](/usc/42/7651a.md?p=15) has been properly constructed and tested on such [unit](/usc/42/7651a.md?p=15), but nevertheless has been unable to achieve the emission reduction limitations and is economically or technologically infeasible, such [existing unit](/usc/42/7651a.md?p=8) may be retrofitted or repowered with equipment or [facilities](/usc/42/11049.md?p=4) utilizing another clean coal technology or other available control technology.
- (c) **Allowances—**
- (1) For the period of the extension under this section, the [Administrator](/usc/42/7602.md?p=a) shall allocate to the [owner or operator](/usc/42/9601.md?p=20-B) of the [affected unit](/usc/42/7651a.md?p=2), annual [allowances](/usc/42/7651a.md?p=3) for sulfur dioxide equal to the [affected unit](/usc/42/7651a.md?p=2)’s [baseline](/usc/42/7651a.md?p=4) multiplied by the lesser of the [unit](/usc/42/7651a.md?p=15)’s federally approved [State](/usc/42/7651a.md?p=14) Implementation Plan emissions limitation or its actual emission rate for 1995 in lieu of any other [allocation](/usc/42/2021b.md?p=2). Such [allowances](/usc/42/7651a.md?p=3) may not be transferred or used by any other source to meet emission requirements under this subchapter. The source [owner or operator](/usc/42/9601.md?p=20-B) shall notify the [Administrator](/usc/42/7602.md?p=a) sixty days in advance of the date on which the [affected unit](/usc/42/7651a.md?p=2) for which the extension has been granted is to be removed from operation to install the [repowering](/usc/42/7651a.md?p=12) technology.
- (2) Effective on that date, the [unit](/usc/42/7651a.md?p=15) shall be subject to the requirements of [section 7651d of this title](/usc/42/7651d.md). [Allowances](/usc/42/7651a.md?p=3) for the year in which the [unit](/usc/42/7651a.md?p=15) is removed from operation to install the [repowering](/usc/42/7651a.md?p=12) technology shall be calculated as the product of the [unit](/usc/42/7651a.md?p=15)’s [baseline](/usc/42/7651a.md?p=4) multiplied by 1.20 lbs/mmBtu, divided by 2,000, and prorated accordingly, and are transferable.
- (3) [Allowances](/usc/42/7651a.md?p=3) for such existing [utility units](/usc/42/7651a.md?p=17-A) for calendar years after the year the [repowering](/usc/42/7651a.md?p=12) is complete shall be calculated as the product of the [existing unit](/usc/42/7651a.md?p=8)’s [baseline](/usc/42/7651a.md?p=4) multiplied by 1.20 lbs/mmBtu, divided by 2,000.
- (4) Notwithstanding the provisions of section [7651b(a)](/usc/42/7651b.md?p=a) and [(e)](/usc/42/7651b.md?p=e) of this title, [allowances](/usc/42/7651a.md?p=3) shall be allocated under this section for a designated replacement [unit](/usc/42/7651a.md?p=15) which replaces an [existing unit](/usc/42/7651a.md?p=8) (as provided in the last sentence of [subsection (a)](#a)) in lieu of any further [allocations](/usc/42/2021b.md?p=2) of [allowances](/usc/42/7651a.md?p=3) for the [existing unit](/usc/42/7651a.md?p=8).
- (5) For the purpose of meeting the aggregate emissions limitation requirement set forth in [section 7651b(a)(1) of this title](/usc/42/7651b.md?p=a-1), the [units](/usc/42/7651a.md?p=15) with an extension under this subsection shall be treated in each calendar year during the extension period as holding [allowances](/usc/42/7651a.md?p=3) allocated under [paragraph (3)](#c-3).
- (d) **Control requirements—** Any [unit](/usc/42/7651a.md?p=15) qualifying for an extension under this section that does not increase actual hourly emissions for any [pollutant](/usc/42/1397h.md?p=c-4) regulated under the[^2] chapter shall not be subject to any [standard of performance](/usc/42/7602.md?p=l) under [section 7411 of this title](/usc/42/7411.md). Notwithstanding the provisions of this subsection, no [new unit](/usc/42/7651a.md?p=10) (1) designated as a replacement for an [existing unit](/usc/42/7651a.md?p=8), (2) qualifying for the extension under subsection [(b)](#b), and (3) located at a different site than the [existing unit](/usc/42/7651a.md?p=8) shall receive an exemption from the requirements imposed under [section 7411 of this title](/usc/42/7411.md).
- (e) **Expedited permitting—** [State](/usc/42/7651a.md?p=14) [permitting authorities](/usc/42/7651a.md?p=11) and, where applicable, the [Administrator](/usc/42/7602.md?p=a), are encouraged to give expedited consideration to permit applications under parts C and D of subchapter I of this chapter for any source qualifying for an extension under this section.
- (f) **Prohibition—** It shall be unlawful for the [owner or operator](/usc/42/9601.md?p=20-B) of a repowered source to fail to comply with the requirement of this section, or any regulations of permit requirements to implement this section, including the prohibition against emitting sulfur dioxide in excess of [allowances](/usc/42/7651a.md?p=3) held.
# §7651i. Election for additional sources
- (a) **Applicability—** The [owner or operator](/usc/42/9601.md?p=20-B) of any [unit](/usc/42/7651a.md?p=15) that is not, nor will become, an [affected unit](/usc/42/7651a.md?p=2) under section [7651b(e)](/usc/42/7651b.md?p=e), [7651c](/usc/42/7651c.md), or [7651d](/usc/42/7651d.md) of this title, or that is a process source under [subsection (d)](#d), that emits sulfur dioxide, may elect to designate that [unit](/usc/42/7651a.md?p=15) or source to become an [affected unit](/usc/42/7651a.md?p=2) and to receive [allowances](/usc/42/7651a.md?p=3) under this subchapter. An election shall be submitted to the [Administrator](/usc/42/7602.md?p=a) for approval, along with a permit application and proposed [compliance plan](/usc/42/7651a.md?p=6) in accordance with [section 7651g of this title](/usc/42/7651g.md). The [Administrator](/usc/42/7602.md?p=a) shall approve a designation that meets the requirements of this section, and such designated [unit](/usc/42/7651a.md?p=15), or source, shall be allocated [allowances](/usc/42/7651a.md?p=3), and be an [affected unit](/usc/42/7651a.md?p=2) for purposes of this subchapter.
- (b) **Establishment of baseline—** The [baseline](/usc/42/7651a.md?p=4) for a [unit](/usc/42/7651a.md?p=15) designated under this section shall be established by the [Administrator](/usc/42/7602.md?p=a) by regulation, based on fuel consumption and operating data for the [unit](/usc/42/7651a.md?p=15) for calendar years 1985, 1986, and 1987, or if such data is not available, the [Administrator](/usc/42/7602.md?p=a) may prescribe a [baseline](/usc/42/7651a.md?p=4) based on alternative [representative](/usc/42/3058f.md?p=5) data.
- (c) **Emission limitations—** Annual emissions limitations for sulfur dioxide shall be equal to the product of the [baseline](/usc/42/7651a.md?p=4) multiplied by the lesser of the [unit](/usc/42/7651a.md?p=15)’s 1985 actual or allowable emission rate in lbs/mmBtu, or, if the [unit](/usc/42/7651a.md?p=15) did not operate in 1985, by the lesser of the [unit](/usc/42/7651a.md?p=15)’s actual or allowable emission rate for a calendar year after 1985 (as determined by the [Administrator](/usc/42/7602.md?p=a)), divided by 2,000.
- (d) **Process sources—** Not later than 18 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall establish a [program](/usc/42/274l–1.md?p=4) under which the [owner or operator](/usc/42/9601.md?p=20-B) of a process source that emits sulfur dioxide may elect to designate that source as an [affected unit](/usc/42/7651a.md?p=2) for the purpose of receiving [allowances](/usc/42/7651a.md?p=3) under this subchapter. The [Administrator](/usc/42/7602.md?p=a) shall, by regulation, define the sources that may be designated; specify the emissions limitation; specify the operating, emission [baseline](/usc/42/7651a.md?p=4), and other data requirements; prescribe CEMS or other monitoring requirements; and promulgate permit, reporting, and any other requirements necessary to implement such a [program](/usc/42/274l–1.md?p=4).
- (e) **Allowances and permits—** The [Administrator](/usc/42/7602.md?p=a) shall issue [allowances](/usc/42/7651a.md?p=3) to an [affected unit](/usc/42/7651a.md?p=2) under this section in an amount equal to the emissions limitation calculated under subsection [(c)](#c) or [(d)](#d), in accordance with [section 7651b of this title](/usc/42/7651b.md). Such [allowance](/usc/42/7651a.md?p=3) may be used in accordance with, and shall be subject to, the provisions of [section 7651b of this title](/usc/42/7651b.md). [Affected sources](/usc/42/7651a.md?p=1) under this section shall be subject to the requirements of sections [7651b](/usc/42/7651b.md), [7651g](/usc/42/7651g.md), [7651j](/usc/42/7651j.md), [7651k](/usc/42/7651k.md), [7651l](/usc/42/7651l.md), and [7651m](/usc/42/7651m.md) of this title.
- (f) **Limitation—** Any [unit](/usc/42/7651a.md?p=15) designated under this section shall not transfer or bank [allowances](/usc/42/7651a.md?p=3) produced as a result of reduced utilization or shutdown, except that, such [allowances](/usc/42/7651a.md?p=3) may be transferred or carried forward for use in subsequent years to the extent that the reduced utilization or shutdown results from the replacement of thermal [energy](/usc/42/6311.md?p=7) from the [unit](/usc/42/7651a.md?p=15) designated under this section, with thermal [energy](/usc/42/6311.md?p=7) generated by any other [unit](/usc/42/7651a.md?p=15) or [units](/usc/42/7651a.md?p=15) subject to the requirements of this subchapter, and the designated [unit](/usc/42/7651a.md?p=15)’s [allowances](/usc/42/7651a.md?p=3) are transferred or carried forward for use at such other replacement [unit](/usc/42/7651a.md?p=15) or [units](/usc/42/7651a.md?p=15). In no case may the [Administrator](/usc/42/7602.md?p=a) allocate to a source designated under this section [allowances](/usc/42/7651a.md?p=3) in an amount greater than the emissions resulting from operation of the source in full compliance with the requirements of this chapter. No such [allowances](/usc/42/7651a.md?p=3) shall authorize operation of a [unit](/usc/42/7651a.md?p=15) in [violation](/usc/42/2000e–16a.md?p=c) of any other requirements of this chapter.
- (g) **Implementation—** The [Administrator](/usc/42/7602.md?p=a) shall issue regulations to implement this section not later than eighteen months after November 15, 1990.
- (h) **Small diesel refineries—** The [Administrator](/usc/42/7602.md?p=a) shall issue [allowances](/usc/42/7651a.md?p=3) to [owners](/usc/42/13641.md?p=4) or operators of small diesel refineries who produce diesel fuel after October 1, 1993, meeting the requirements of subsection[^1] 7545(i) of this title.
- (1) **Allowance period—** [Allowances](/usc/42/7651a.md?p=3) may be allocated under this subsection only for the period from October 1, 1993, through December 31, 1999.
- (2) **Allowance determination—** The number of [allowances](/usc/42/7651a.md?p=3) allocated pursuant to this paragraph shall equal the annual number of pounds of sulfur dioxide reduction attributable to desulfurization by a [small refinery](#h-3) divided by 2,000. For the purposes of this calculation, the concentration of sulfur removed from diesel fuel shall be the difference between 0.274 percent (by weight) and 0.050 percent (by weight).
- (3) **Refinery eligibility—** As used in this subsection, the term “small refinery” shall mean a refinery or portion of a refinery—
- (A) which, as of November 15, 1990, has bona fide crude oil throughput of less than 18,250,000 barrels per year, as reported to the Department of [Energy](/usc/42/6311.md?p=7), and
- (B) which, as of November 15, 1990, is owned or controlled by a refiner with a total combined bona fide crude oil throughput of less than 50,187,500 barrels per year, as reported to the Department of [Energy](/usc/42/6311.md?p=7).
- (4) **Limitation per refinery—** The maximum number of [allowances](/usc/42/7651a.md?p=3) that can be annually allocated to a [small refinery](#h-3) pursuant to this subsection is one thousand and five hundred.
- (5) **Limitation on total—** In any given year, the total number of [allowances](/usc/42/7651a.md?p=3) allocated pursuant to this subsection shall not exceed thirty-five thousand.
- (6) **Required certification—** The [Administrator](/usc/42/7602.md?p=a) shall not allocate any [allowances](/usc/42/7651a.md?p=3) pursuant to this subsection unless the [owner or operator](/usc/42/9601.md?p=20-B) of a small diesel refinery shall have certified, at a time and in a manner prescribed by the [Administrator](/usc/42/7602.md?p=a), that all motor diesel fuel produced by the refinery for which [allowances](/usc/42/7651a.md?p=3) are claimed, including motor diesel fuel for off-highway use, shall have met the requirements of subsection[^1] 7545(i) of this title.
# §7651j. Excess emissions penalty
- (a) **Excess emissions penalty—** The [owner or operator](/usc/42/9601.md?p=20-B) of any [unit](/usc/42/7651a.md?p=15) or process source subject to the requirements of sections[^1] 7651b, 7651c, 7651d, 7651e, 7651f or 7651h of this title, or designated under [section 7651i of this title](/usc/42/7651i.md), that emits sulfur dioxide or nitrogen oxides for any calendar year in excess of the [unit](/usc/42/7651a.md?p=15)’s emissions limitation requirement or, in the case of sulfur dioxide, of the [allowances](/usc/42/7651a.md?p=3) the [owner or operator](/usc/42/9601.md?p=20-B) holds for use for the [unit](/usc/42/7651a.md?p=15) for that calendar year shall be liable for the payment of an excess emissions penalty, except where such emissions were authorized pursuant to [section 7410(f) of this title](/usc/42/7410.md?p=f). That penalty shall be calculated on the basis of the number of tons emitted in excess of the [unit](/usc/42/7651a.md?p=15)’s emissions limitation requirement or, in the case of sulfur dioxide, of the [allowances](/usc/42/7651a.md?p=3) the operator holds for use for the [unit](/usc/42/7651a.md?p=15) for that year, multiplied by $2,000. Any such penalty shall be due and payable without demand to the [Administrator](/usc/42/7602.md?p=a) as provided in regulations to be issued by the [Administrator](/usc/42/7602.md?p=a) by no later than eighteen months after November 15, 1990. Any such payment shall be deposited in the [United States](/usc/42/403.md?p=k) Treasury pursuant to the Miscellaneous Receipts Act.[^2] Any penalty due and payable under this section shall not diminish the liability of the [unit](/usc/42/7651a.md?p=15)’s [owner or operator](/usc/42/9601.md?p=20-B) for any fine, penalty or assessment against the [unit](/usc/42/7651a.md?p=15) for the same [violation](/usc/42/2000e–16a.md?p=c) under any other section of this chapter.
- (b) **Excess emissions offset—** The [owner or operator](/usc/42/9601.md?p=20-B) of any [affected source](/usc/42/7651a.md?p=1) that emits sulfur dioxide during any calendar year in excess of the [unit](/usc/42/7651a.md?p=15)’s emissions limitation requirement or of the [allowances](/usc/42/7651a.md?p=3) held for the [unit](/usc/42/7651a.md?p=15) for the calendar year, shall be liable to offset the excess emissions by an equal tonnage amount in the following calendar year, or such longer period as the [Administrator](/usc/42/7602.md?p=a) may prescribe. The [owner or operator](/usc/42/9601.md?p=20-B) of the source shall, within sixty days after the end of the year in which the excess emissions occured,[^3] submit to the [Administrator](/usc/42/7602.md?p=a), and to the [State](/usc/42/7651a.md?p=14) in which the source is located, a proposed plan to achieve the required offsets. Upon approval of the proposed plan by the [Administrator](/usc/42/7602.md?p=a), as submitted, [modified](/usc/42/7501.md?p=4) or conditioned, the plan shall be deemed at[^4] a condition of the operating permit for the [unit](/usc/42/7651a.md?p=15) without further review or revision of the permit. The [Administrator](/usc/42/7602.md?p=a) shall also deduct [allowances](/usc/42/7651a.md?p=3) equal to the excess tonnage from those allocated for the source for the calendar year, or succeeding years during which offsets are required, following the year in which the excess emissions occurred.
- (c) **Penalty adjustment—** The [Administrator](/usc/42/7602.md?p=a) shall, by regulation, adjust the penalty specified in [subsection (a)](#a) for inflation, based on the Consumer Price Index, on November 15, 1990, and annually thereafter.
- (d) **Prohibition—** It shall be unlawful for the [owner or operator](/usc/42/9601.md?p=20-B) of any source liable for a penalty and offset under this section to fail (1) to pay the penalty under subsection [(a)](#a), (2) to provide, and thereafter comply with, a [compliance plan](/usc/42/7651a.md?p=6) as required by subsection [(b)](#b), or (3) to offset excess emissions as required by [subsection (b)](#b).
- (e) **Savings provision—** Nothing in this subchapter shall limit or otherwise affect the application of section [7413](/usc/42/7413.md), [7414](/usc/42/7414.md), [7420](/usc/42/7420.md), or [7604](/usc/42/7604.md) of this title except as otherwise explicitly provided in this subchapter.
# §7651k. Monitoring, reporting, and recordkeeping requirements
- (a) **Applicability—** The [owner](/usc/42/13641.md?p=4) and operator of any source subject to this subchapter shall be required to install and operate CEMS on each [affected unit](/usc/42/7651a.md?p=2) at the source, and to quality assure the data for sulfur dioxide, nitrogen oxides, opacity and volumetric flow at each such [unit](/usc/42/7651a.md?p=15). The [Administrator](/usc/42/7602.md?p=a) shall, by regulations issued not later than eighteen months after November 15, 1990, specify the requirements for CEMS, for any alternative monitoring system that is demonstrated as providing information with the same precision, reliability, accessibility, and timeliness as that provided by CEMS, and for recordkeeping and reporting of information from such systems. Such regulations may include limitations or the use of alternative compliance methods by [units](/usc/42/7651a.md?p=15) equipped with an alternative monitoring system as may be necessary to preserve the orderly functioning of the [allowance](/usc/42/7651a.md?p=3) system, and which will ensure the [emissions reductions](/usc/42/17114.md?p=a-3) contemplated by this subchapter. Where 2 or more [units](/usc/42/7651a.md?p=15) utilize a [single](/usc/42/2304.md?p=m) stack, a separate CEMS shall not be required for each [unit](/usc/42/7651a.md?p=15), and for such [units](/usc/42/7651a.md?p=15) the regulations shall require that the [owner or operator](/usc/42/9601.md?p=20-B) collect sufficient information to permit reliable compliance determinations for each such [unit](/usc/42/7651a.md?p=15).
- (b) **First phase requirements—** Not later than thirty-six months after November 15, 1990, the [owner or operator](/usc/42/9601.md?p=20-B) of each [affected unit](/usc/42/7651a.md?p=2) under [section 7651c of this title](/usc/42/7651c.md), including, but not limited to, [units](/usc/42/7651a.md?p=15) that become [affected units](/usc/42/7651a.md?p=2) pursuant to subsections [(b)](#b) and [(c)](#c) and eligible [units](/usc/42/7651a.md?p=15) under [subsection (d)](#d), shall install and operate CEMS, quality assure the data, and keep records and reports in accordance with the regulations issued under [subsection (a)](#a).
- (c) **Second phase requirements—** Not later than January 1, 1995, the [owner or operator](/usc/42/9601.md?p=20-B) of each [affected unit](/usc/42/7651a.md?p=2) that has not previously met the requirements of subsections [(a)](#a) and [(b)](#b) shall install and operate CEMS, quality assure the data, and keep records and reports in accordance with the regulations issued under [subsection (a)](#a). Upon commencement of commercial operation of each new [utility unit](/usc/42/7651a.md?p=17-A), the [unit](/usc/42/7651a.md?p=15) shall comply with the requirements of [subsection (a)](#a).
- (d) **Unavailability of emissions data—** If CEMS data or data from an alternative monitoring system approved by the [Administrator](/usc/42/7602.md?p=a) under [subsection (a)](#a) is not available for any [affected unit](/usc/42/7651a.md?p=2) during any period of a calendar year in which such data is required under this subchapter, and the [owner or operator](/usc/42/9601.md?p=20-B) cannot provide information, satisfactory to the [Administrator](/usc/42/7602.md?p=a), on emissions during that period, the [Administrator](/usc/42/7602.md?p=a) shall deem the [unit](/usc/42/7651a.md?p=15) to be operating in an uncontrolled manner during the entire period for which the data was not available and shall, by regulation which shall be issued not later than eighteen months after November 15, 1990, prescribe means to calculate emissions for that period. The [owner or operator](/usc/42/9601.md?p=20-B) shall be liable for excess emissions fees and offsets under [section 7651j of this title](/usc/42/7651j.md) in accordance with such regulations. Any fee due and payable under this subsection shall not diminish the liability of the [unit](/usc/42/7651a.md?p=15)’s [owner or operator](/usc/42/9601.md?p=20-B) for any fine, penalty, fee or assessment against the [unit](/usc/42/7651a.md?p=15) for the same [violation](/usc/42/2000e–16a.md?p=c) under any other section of this chapter.
- (e) **Prohibition—** It shall be unlawful for the [owner or operator](/usc/42/9601.md?p=20-B) of any source subject to this subchapter to operate a source without complying with the requirements of this section, and any regulations implementing this section.
# §7651l. General compliance with other provisions
Except as expressly provided, compliance with the requirements of this subchapter shall not exempt or exclude the [owner or operator](/usc/42/9601.md?p=20-B) of any source subject to this subchapter from compliance with any other applicable requirements of this chapter.
# §7651m. Enforcement
It shall be unlawful for any [person](/usc/42/7602.md?p=e) subject to this subchapter to violate any prohibition of, requirement of, or regulation promulgated pursuant to this subchapter shall be a [violation](/usc/42/2000e–16a.md?p=c) of this chapter.[^1] In addition to the other requirements and prohibitions provided for in this subchapter, the operation of any [affected unit](/usc/42/7651a.md?p=2) to emit sulfur dioxide in excess of [allowances](/usc/42/7651a.md?p=3) held for such [unit](/usc/42/7651a.md?p=15) shall be deemed a [violation](/usc/42/2000e–16a.md?p=c), with each ton emitted in excess of [allowances](/usc/42/7651a.md?p=3) held constituting a separate [violation](/usc/42/2000e–16a.md?p=c).
# §7651n. Clean coal technology regulatory incentives
- (a) **“Clean coal technology” defined—** For purposes of this section, “clean coal technology” means any technology, including technologies applied at the precombustion, combustion, or post combustion stage, at a new or existing [facility](/usc/42/11049.md?p=4) which will achieve significant reductions in air emissions of sulfur dioxide or oxides of nitrogen associated with the utilization of coal in the generation of electricity, process steam, or industrial products, which is not in widespread use as of November 15, 1990.
- (b) **Revised regulations for clean coal technology demonstrations—**
- (1) **Applicability—** This subsection applies to physical or operational changes to existing [facilities](/usc/42/11049.md?p=4) for the sole purpose of installation, operation, cessation, or [removal](/usc/42/9601.md?p=23) of a temporary or permanent clean coal technology [demonstration project](/usc/42/16281.md?p=d-2). For the purposes of this section, a clean coal technology [demonstration project](/usc/42/16281.md?p=d-2) shall mean a [project](/usc/42/11360.md?p=20) using [funds](/usc/42/12854.md?p=3) appropriated under the heading “Department of [Energy](/usc/42/6311.md?p=7)—Clean Coal Technology”, up to a total amount of $2,500,000,000 for commercial demonstration of clean coal technology, or similar [projects](/usc/42/11360.md?p=20) funded through appropriations for the Environmental Protection Agency. The Federal contribution for a qualifying [project](/usc/42/11360.md?p=20) shall be at least 20 percent of the total cost of the [demonstration project](/usc/42/16281.md?p=d-2).
- (2) **Temporary projects—** Installation, operation, cessation, or [removal](/usc/42/9601.md?p=23) of a temporary clean coal technology [demonstration project](/usc/42/16281.md?p=d-2) that is operated for a period of five years or less, and which complies with the [State](/usc/42/7651a.md?p=14) implementation plans for the [State](/usc/42/7651a.md?p=14) in which the [project](/usc/42/11360.md?p=20) is located and other requirements necessary to attain and maintain the national ambient air quality [standards](/usc/42/1320d.md?p=7) during and after the [project](/usc/42/11360.md?p=20) is terminated, shall not subject such [facility](/usc/42/11049.md?p=4) to the requirements of [section 7411 of this title](/usc/42/7411.md) or part C or D of subchapter I.
- (3) **Permanent projects—** For permanent clean coal technology [demonstration projects](/usc/42/16281.md?p=d-2) that constitute [repowering](/usc/42/7651a.md?p=12) as defined in [section 7651a(l)](/usc/42/7651a.md)[^1] of this title, any qualifying [project](/usc/42/11360.md?p=20) shall not be subject to [standards](/usc/42/1320d.md?p=7) of performance under [section 7411 of this title](/usc/42/7411.md) or to the review and permitting requirements of part C[^2] for any [pollutant](/usc/42/1397h.md?p=c-4) the potential emissions of which will not increase as a result of the [demonstration project](/usc/42/16281.md?p=d-2).
- (4) **EPA regulations—** Not later than 12 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations or interpretive rulings to revise requirements under [section 7411 of this title](/usc/42/7411.md) and parts C and D,[^2] as appropriate, to facilitate [projects](/usc/42/11360.md?p=20) consistent in[^3] this subsection. With respect to parts C and D,[^2] such regulations or rulings shall apply to all areas in which EPA is the [permitting authority](/usc/42/7651a.md?p=11). In those instances in which the [State](/usc/42/7651a.md?p=14) is the [permitting authority](/usc/42/7651a.md?p=11) under part C or D,[^2] any [State](/usc/42/7651a.md?p=14) may adopt and submit to the [Administrator](/usc/42/7602.md?p=a) for approval revisions to its implementation plan to apply the regulations or rulings promulgated under this subsection.
- (c) **Exemption for reactivation of very clean units—** Physical changes or changes in the method of operation associated with the commencement of commercial operations by a coal-fired [utility unit](/usc/42/7651a.md?p=17-A) after a period of discontinued operation shall not subject the [unit](/usc/42/7651a.md?p=15) to the requirements of [section 7411 of this title](/usc/42/7411.md) or part C of the Act[^2] where the [unit](/usc/42/7651a.md?p=15) (1) has not been in operation for the two-year period prior to the enactment of the Clean Air Act Amendments of 1990 [November 15, 1990], and the emissions from such [unit](/usc/42/7651a.md?p=15) continue to be carried in the [permitting authority](/usc/42/7651a.md?p=11)’s emissions [inventory](/usc/42/4370m.md?p=14) at the time of enactment, (2) was equipped prior to shut-down with a continuous system of emissions control that achieves a [removal](/usc/42/9601.md?p=23) efficiency for sulfur dioxide of no less than 85 percent and a [removal](/usc/42/9601.md?p=23) efficiency for particulates of no less than 98 percent, (3) is equipped with low-NOx burners prior to the time of commencement, and (4) is otherwise in compliance with the requirements of this chapter.
# §7651o. Contingency guarantee, auctions, reserve
- (a) **Definitions—** For purposes of this section—
- (1) The term “independent power producer” means any [person](/usc/42/7602.md?p=e) who owns or operates, in whole or in part, one or more [new independent power production facilities](#a-2).
- (2) The term “new independent power production facility” means a [facility](/usc/42/11049.md?p=4) that—
- (A) is used for the generation of electric [energy](/usc/42/6311.md?p=7), 80 percent or more of which is sold at wholesale;
- (B) is nonrecourse [project](/usc/42/11360.md?p=20)-financed (as such term is defined by the [Secretary](/usc/42/242q–4.md?p=2) of [Energy](/usc/42/6311.md?p=7) within 3 months of November 15, 1990);
- (C) does not [generate](/usc/42/2021b.md?p=8) electric [energy](/usc/42/6311.md?p=7) sold to any affiliate (as defined in section 79b(a)(11)[^1] of [title 15](/usc/15.md)) of the [facility](/usc/42/11049.md?p=4)’s [owner or operator](/usc/42/9601.md?p=20-B) unless the [owner or operator](/usc/42/9601.md?p=20-B) of the [facility](/usc/42/11049.md?p=4) demonstrates that it cannot obtain [allowances](/usc/42/7651a.md?p=3) from the affiliate; and
- (D) is a [new unit](/usc/42/7651a.md?p=10) required to hold [allowances](/usc/42/7651a.md?p=3) under this subchapter.
- (3) The term “required allowances” means the [allowances](/usc/42/7651a.md?p=3) required to operate such [unit](/usc/42/7651a.md?p=15) for so much of the [unit](/usc/42/7651a.md?p=15)’s useful life as occurs after January 1, 2000.
- (b) **Special reserve of allowances—** Within 36 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations establishing a Special [Allowance](/usc/42/7651a.md?p=3) [Reserve](/usc/42/7651a.md?p=13) containing [allowances](/usc/42/7651a.md?p=3) to be sold under this section. For purposes of establishing the Special [Allowance](/usc/42/7651a.md?p=3) [Reserve](/usc/42/7651a.md?p=13), the [Administrator](/usc/42/7602.md?p=a) shall withhold—
- (1) 2.8 percent of the [allocation](/usc/42/2021b.md?p=2) of [allowances](/usc/42/7651a.md?p=3) for each year from 1995 through 1999 inclusive; and
- (2) 2.8 percent of the basic Phase II [allowance](/usc/42/7651a.md?p=3) [allocation](/usc/42/2021b.md?p=2) of [allowances](/usc/42/7651a.md?p=3) for each year beginning in the year 2000
which would (but for this subsection) be issued for each [affected unit](/usc/42/7651a.md?p=2) at an [affected source](/usc/42/7651a.md?p=1). The [Administrator](/usc/42/7602.md?p=a) shall record such withholding for purposes of transferring the proceeds of the [allowance](/usc/42/7651a.md?p=3) sales under this subsection. The [allowances](/usc/42/7651a.md?p=3) so withheld shall be deposited in the [Reserve](/usc/42/7651a.md?p=13) under this section.
- (c) **Direct sale at $1,500 per ton—**
- (1) **Subaccount for direct sales—** In accordance with regulations under this section, the [Administrator](/usc/42/7602.md?p=a) shall establish a Direct Sale Subaccount in the Special [Allowance](/usc/42/7651a.md?p=3) [Reserve](/usc/42/7651a.md?p=13) established under this section. The Direct Sale Subaccount shall contain [allowances](/usc/42/7651a.md?p=3) in the amount of 50,000 tons per year for each year beginning in the year 2000.
- (2) **Sales—** [Allowances](/usc/42/7651a.md?p=3) in the subaccount shall be offered for direct sale to any [person](/usc/42/7602.md?p=e) at the times and in the amounts specified in table 1 at a price of $1,500 per [allowance](/usc/42/7651a.md?p=3), adjusted by the Consumer Price Index in the same manner as provided in [paragraph (3)](#c-3). Requests to purchase [allowances](/usc/42/7651a.md?p=3) from the Direct Sale Subaccount established under [paragraph (1)](#c-1) shall be approved in the order of receipt until no [allowances](/usc/42/7651a.md?p=3) remain in such subaccount, except that an opportunity to purchase such [allowances](/usc/42/7651a.md?p=3) shall be provided to the [independent power producers](#a-1) referred to in this subsection before such [allowances](/usc/42/7651a.md?p=3) are offered to any other [person](/usc/42/7602.md?p=e). Each applicant shall be required to pay 50 percent of the total purchase price of the [allowances](/usc/42/7651a.md?p=3) within 6 months after the approval of the request to purchase. The remainder shall be paid on or before the transfer of the [allowances](/usc/42/7651a.md?p=3).
| Table 1—Number of [Allowances](/usc/42/7651a.md?p=3) Available for Sale at $1,500 Per Ton | | |
| --- | --- | --- |
| Year of Sale | Spot Sale (same year) | Advance Sale |
| 1993–1999 | | 25,000 |
| 2000 and after | 25,000 | 25,000 |
| [Allowances](/usc/42/7651a.md?p=3) sold in the spot sale in any year are [allowances](/usc/42/7651a.md?p=3) which may only be used in that year (unless banked for use in a later year). [Allowances](/usc/42/7651a.md?p=3) sold in the advance sale in any year are [allowances](/usc/42/7651a.md?p=3) which may only be used in the 7th year after the year in which they are first offered for sale (unless banked for use in a later year). | | |
- (3) **Entitlement to written guarantee—** Any [independent power producer](#a-1) that submits an application to the [Administrator](/usc/42/7602.md?p=a) establishing that such [independent power producer](#a-1)—
- (A) proposes to construct a [new independent power production facility](#a-2) for which [allowances](/usc/42/7651a.md?p=3) are required under this subchapter;
- (B) will apply for financing to construct such [facility](/usc/42/11049.md?p=4) after January 1, 1990, and before the date of the first auction under this section;
- (C) has submitted to each [owner or operator](/usc/42/9601.md?p=20-B) of an [affected unit](/usc/42/7651a.md?p=2) listed in table A (in [section 7651c of this title](/usc/42/7651c.md)) a written offer to purchase the [required allowances](#a-3) for $750 per ton; and
- (D) has not received (within 180 days after submitting offers to purchase under [subparagraph (C)](#c-3-C)) an acceptance of the offer to purchase the [required allowances](#a-3),
shall, within 30 days after submission of such application, be entitled to receive the [Administrator](/usc/42/7602.md?p=a)’s written guarantee (subject to the eligibility requirements set forth in [paragraph (4)](#c-4)) that such [required allowances](#a-3) will be made available for purchase from the Direct Sale Subaccount established under this subsection and at a guaranteed price. The guaranteed price at which such [allowances](/usc/42/7651a.md?p=3) shall be made available for purchase shall be $1,500 per ton, adjusted by the percentage, if any, by which the Consumer Price Index (as determined under [section 7661a(b)(3)(B)(v) of this title](/usc/42/7661a.md?p=b-3-B-v)) for the year in which the [allowance](/usc/42/7651a.md?p=3) is purchased exceeds the Consumer Price Index for the calendar year 1990.
- (4) **Eligibility requirements—** The guarantee issued by the [Administrator](/usc/42/7602.md?p=a) under [paragraph (3)](#c-3) shall be subject to a demonstration by the [independent power producer](#a-1), satisfactory to the [Administrator](/usc/42/7602.md?p=a), that—
- (A) the [independent power producer](#a-1) has—
- (i) made good faith efforts to purchase the [required allowances](#a-3) from the [owners](/usc/42/13641.md?p=4) or operators of [affected units](/usc/42/7651a.md?p=2) to which [allowances](/usc/42/7651a.md?p=3) will be allocated, including efforts to purchase at annual auctions under this section, and from industrial sources that have elected to become [affected units](/usc/42/7651a.md?p=2) pursuant to [section 7651i of this title](/usc/42/7651i.md); and
- (ii) such bids and efforts were unsuccessful in obtaining the [required allowances](#a-3); and
- (B) the [independent power producer](#a-1) will continue to make good faith efforts to purchase the [required allowances](#a-3) from the [owners](/usc/42/13641.md?p=4) or operators of [affected units](/usc/42/7651a.md?p=2) and from industrial sources.
- (5) **Issuance of guaranteed allowances from Direct Sale Subaccount under this section—** From the [allowances](/usc/42/7651a.md?p=3) available in the Direct Sale Subaccount established under this subsection, upon payment of the guaranteed price, the [Administrator](/usc/42/7602.md?p=a) shall issue to any [person](/usc/42/7602.md?p=e) exercising the right to purchase [allowances](/usc/42/7651a.md?p=3) pursuant to a guarantee under this subsection the [allowances](/usc/42/7651a.md?p=3) covered by such guarantee. [Persons](/usc/42/7602.md?p=e) to which guarantees under this subsection have been issued shall have the opportunity to purchase [allowances](/usc/42/7651a.md?p=3) pursuant to such guarantee from such subaccount before the [allowances](/usc/42/7651a.md?p=3) in such [reserve](/usc/42/7651a.md?p=13) are offered for sale to any other [person](/usc/42/7602.md?p=e).
- (6) **Proceeds—** Notwithstanding [section 3302 of title 31](/usc/31/3302.md) or any other provision of law, the [Administrator](/usc/42/7602.md?p=a) shall require that the proceeds of any sale under this subsection be transferred, within 90 days after the sale, without charge, on a pro rata basis to the [owners](/usc/42/13641.md?p=4) or operators of the [affected units](/usc/42/7651a.md?p=2) from whom the [allowances](/usc/42/7651a.md?p=3) were withheld under [subsection (b)](#b) and that any unsold [allowances](/usc/42/7651a.md?p=3) be transferred to the Subaccount for Auction Sales established under [subsection (d)](#d). No proceeds of any sale under this subsection shall be held by any officer or [employee](/usc/42/1320a–7h.md?p=e-7) of the [United States](/usc/42/403.md?p=k) or treated for any purpose as revenue to the [United States](/usc/42/403.md?p=k) or to the [Administrator](/usc/42/7602.md?p=a).
- (7) **Termination of subaccount—** If the [Administrator](/usc/42/7602.md?p=a) determines that, during any period of 2 consecutive calendar years, less than 20 percent of the [allowances](/usc/42/7651a.md?p=3) available in the subaccount for direct sales established under this subsection have been purchased under this paragraph, the [Administrator](/usc/42/7602.md?p=a) shall terminate the subaccount and transfer such [allowances](/usc/42/7651a.md?p=3) to the Auction Subaccount under [subsection (d)](#d).
- (d) **Auction sales—**
- (1) **Subaccount for auctions—** The [Administrator](/usc/42/7602.md?p=a) shall establish an Auction Subaccount in the Special [Reserve](/usc/42/7651a.md?p=13) established under this section. The Auction Subaccount shall contain [allowances](/usc/42/7651a.md?p=3) to be sold at auction under this section in the amount of 150,000 tons per year for each year from 1995 through 1999, inclusive and 250,000 tons per year for each year beginning in the calendar year 2000.
- (2) **Annual auctions—** Commencing in 1993 and in each year thereafter, the [Administrator](/usc/42/7602.md?p=a) shall conduct auctions at which the [allowances](/usc/42/7651a.md?p=3) referred to in [paragraph (1)](#d-1) shall be offered for sale in accordance with regulations promulgated by the [Administrator](/usc/42/7602.md?p=a), in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of the Treasury, within 12 months of November 15, 1990. The [allowances](/usc/42/7651a.md?p=3) referred to in [paragraph (1)](#d-1) shall be offered for sale at auction in the amounts specified in table 2. The auction shall be open to any [person](/usc/42/7602.md?p=e). A [person](/usc/42/7602.md?p=e) wishing to bid for such [allowances](/usc/42/7651a.md?p=3) shall submit (by a date set by the [Administrator](/usc/42/7602.md?p=a)) to the [Administrator](/usc/42/7602.md?p=a) (on a sealed bid schedule provided by the [Administrator](/usc/42/7602.md?p=a)) offers to purchase specified numbers of [allowances](/usc/42/7651a.md?p=3) at specified prices. Such regulations shall specify that the auctioned [allowances](/usc/42/7651a.md?p=3) shall be allocated and sold on the basis of bid price, starting with the highest-priced bid and continuing until all [allowances](/usc/42/7651a.md?p=3) for sale at such auction have been allocated. The regulations shall not permit that a minimum price be set for the purchase of withheld [allowances](/usc/42/7651a.md?p=3). [Allowances](/usc/42/7651a.md?p=3) purchased at the auction may be used for any purpose and at any time after the auction, subject to the provisions of this subchapter.
| Table 2—Number of [Allowances](/usc/42/7651a.md?p=3) Available for Auction | | |
| --- | --- | --- |
| Year of Sale | Spot
Auction (same year) | Advance Auction |
| 1993 | 50,000* | 100,000 |
| 1994 | 50,000* | 100,000 |
| 1995 | 50,000* | 100,000 |
| 1996 | 150,000 | 100,000 |
| 1997 | 150,000 | 100,000 |
| 1998 | 150,000 | 100,000 |
| 1999 | 150,000 | 100,000 |
| 2000 and after | 100,000 | 100,000 |
| [Allowances](/usc/42/7651a.md?p=3) sold in the spot sale in any year are [allowances](/usc/42/7651a.md?p=3) which may only be used in that year (unless banked for use in a later year), except as otherwise noted. [Allowances](/usc/42/7651a.md?p=3) sold in the advance auction in any year are [allowances](/usc/42/7651a.md?p=3) which may only be used in the 7th year after the year in which they are first offered for sale (unless banked for use in a later year). | | |
| *Available for use only in 1995 (unless banked for use in a later year). | | |
- (3) **Proceeds—**
- (A) Notwithstanding [section 3302 of title 31](/usc/31/3302.md) or any other provision of law, within 90 days of receipt, the [Administrator](/usc/42/7602.md?p=a) shall transfer the proceeds from the auction under this section, on a pro rata basis, to the [owners](/usc/42/13641.md?p=4) or operators of the [affected units](/usc/42/7651a.md?p=2) at an [affected source](/usc/42/7651a.md?p=1) from whom [allowances](/usc/42/7651a.md?p=3) were withheld under [subsection (b)](#b). No [funds](/usc/42/12854.md?p=3) transferred from a purchaser to a seller of [allowances](/usc/42/7651a.md?p=3) under this paragraph shall be held by any officer or [employee](/usc/42/1320a–7h.md?p=e-7) of the [United States](/usc/42/403.md?p=k) or treated for any purpose as revenue to the [United States](/usc/42/403.md?p=k) or the [Administrator](/usc/42/7602.md?p=a).
- (B) At the end of each year, any [allowances](/usc/42/7651a.md?p=3) offered for sale but not sold at the auction shall be returned without charge, on a pro rata basis, to the [owner or operator](/usc/42/9601.md?p=20-B) of the [affected units](/usc/42/7651a.md?p=2) from whose [allocation](/usc/42/2021b.md?p=2) the [allowances](/usc/42/7651a.md?p=3) were withheld.
- (4) **Additional auction participants—** Any [person](/usc/42/7602.md?p=e) holding [allowances](/usc/42/7651a.md?p=3) or to whom [allowances](/usc/42/7651a.md?p=3) are allocated by the [Administrator](/usc/42/7602.md?p=a) may submit those [allowances](/usc/42/7651a.md?p=3) to the [Administrator](/usc/42/7602.md?p=a) to be offered for sale at auction under this subsection. The proceeds of any such sale shall be transferred at the time of sale by the purchaser to the [person](/usc/42/7602.md?p=e) submitting such [allowances](/usc/42/7651a.md?p=3) for sale. The holder of [allowances](/usc/42/7651a.md?p=3) offered for sale under this paragraph may specify a minimum sale price. Any [person](/usc/42/7602.md?p=e) may purchase [allowances](/usc/42/7651a.md?p=3) offered for auction under this paragraph. Such [allowances](/usc/42/7651a.md?p=3) shall be allocated and sold to purchasers on the basis of bid price after the auction under [paragraph (2)](#d-2) is complete. No [funds](/usc/42/12854.md?p=3) transferred from a purchaser to a seller of [allowances](/usc/42/7651a.md?p=3) under this paragraph shall be held by any officer or [employee](/usc/42/1320a–7h.md?p=e-7) of the [United States](/usc/42/403.md?p=k) or treated for any purpose as revenue to the [United States](/usc/42/403.md?p=k) or the [Administrator](/usc/42/7602.md?p=a).
- (5) **Recording by EPA—** The [Administrator](/usc/42/7602.md?p=a) shall record and publicly report the nature, prices and results of each auction under this subsection, including the prices of successful bids, and shall record the transfers of [allowances](/usc/42/7651a.md?p=3) as a result of each auction in accordance with the requirements of this section. The transfer of [allowances](/usc/42/7651a.md?p=3) at such auction shall be recorded in accordance with the regulations promulgated by the [Administrator](/usc/42/7602.md?p=a) under this subchapter.
- (e) **Changes in sales, auctions, and withholding—** Pursuant to rulemaking after public notice and comment the [Administrator](/usc/42/7602.md?p=a) may at any time after the year 1998 (in the case of advance sales or advance auctions) and 2005 (in the case of spot sales or spot auctions) decrease the number of [allowances](/usc/42/7651a.md?p=3) withheld and sold under this section.
- (f) **Termination of auctions—** The [Administrator](/usc/42/7602.md?p=a) may terminate the withholding of [allowances](/usc/42/7651a.md?p=3) and the auction sales under this section if the [Administrator](/usc/42/7602.md?p=a) determines that, during any period of 3 consecutive calendar years after 2002, less than 20 percent of the [allowances](/usc/42/7651a.md?p=3) available in the auction subaccount have been purchased. Pursuant to regulations under this section, the [Administrator](/usc/42/7602.md?p=a) may by delegation or contract provide for the conduct of sales or auctions under the [Administrator](/usc/42/7602.md?p=a)’s supervision by other departments or agencies of the [United States](/usc/42/403.md?p=k) Government or by nongovernmental agencies, groups, or organizations.
# §7661. Definitions
As used in this subchapter—
- (1) **Affected source—** The term “affected source” shall have the meaning given such term in subchapter IV–A.
- (2) **Major source—** The term “major source” means any [stationary source](/usc/42/7411.md?p=a-3) (or any group of [stationary sources](/usc/42/7411.md?p=a-3) located within a contiguous area and under common control) that is either of the following:
- (A) A [major source](#2) as defined in [section 7412 of this title](/usc/42/7412.md).
- (B) A [major stationary source](/usc/42/7602.md?p=j) as defined in [section 7602 of this title](/usc/42/7602.md) or part D of subchapter I.
- (3) **Schedule of compliance—** The term “schedule of compliance” means a schedule of remedial measures, including an enforceable sequence of actions or operations, leading to compliance with an [applicable implementation plan](/usc/42/7602.md?p=q), [emission standard](/usc/42/7602.md?p=k), [emission limitation](/usc/42/7602.md?p=k), or emission prohibition.
- (4) **Permitting authority—** The term “permitting authority” means the [Administrator](/usc/42/7602.md?p=a) or the [air pollution control agency](/usc/42/7602.md?p=b) authorized by the [Administrator](/usc/42/7602.md?p=a) to carry out a permit [program](/usc/42/274l–1.md?p=4) under this subchapter.
# §7661a. Permit programs
- (a) **Violations—** After the effective date of any permit [program](/usc/42/274l–1.md?p=4) approved or promulgated under this subchapter, it shall be unlawful for any [person](/usc/42/7602.md?p=e) to violate any requirement of a permit issued under this subchapter, or to operate an [affected source](/usc/42/7661.md?p=1) (as provided in subchapter IV–A), a [major source](/usc/42/7661.md?p=2), any other source (including an area source) subject to [standards](/usc/42/1320d.md?p=7) or regulations under section [7411](/usc/42/7411.md) or [7412](/usc/42/7412.md) of this title, any other source required to have a permit under parts[^1] C or D of subchapter I, or any other [stationary source](/usc/42/7411.md?p=a-3) in a [category](/usc/42/1395w–4.md?p=j-1) designated (in whole or in part) by regulations promulgated by the [Administrator](/usc/42/7602.md?p=a) (after notice and public comment) which shall include a finding setting forth the basis for such designation, except in compliance with a permit issued by a [permitting authority](/usc/42/7661.md?p=4) under this subchapter. (Nothing in this subsection shall be construed to alter the applicable requirements of this chapter that a permit be obtained before [construction](/usc/42/7479.md?p=2-C) or [modification](/usc/42/7501.md?p=4).) The [Administrator](/usc/42/7602.md?p=a) may, in the [Administrator](/usc/42/7602.md?p=a)’s discretion and consistent with the applicable provisions of this chapter, promulgate regulations to exempt one or more source [categories](/usc/42/1395w–4.md?p=j-1) (in whole or in part) from the requirements of this subsection if the [Administrator](/usc/42/7602.md?p=a) finds that compliance with such requirements is impracticable, infeasible, or unnecessarily burdensome on such [categories](/usc/42/1395w–4.md?p=j-1), except that the [Administrator](/usc/42/7602.md?p=a) may not exempt any [major source](/usc/42/7661.md?p=2) from such requirements.
- (b) **Regulations—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate within 12 months after November 15, 1990, regulations establishing the minimum elements of a permit [program](/usc/42/274l–1.md?p=4) to be administered by any [air pollution control agency](/usc/42/7602.md?p=b). These elements shall include each of the following:
- (1) Requirements for permit applications, including a [standard](/usc/42/1320d.md?p=7) application form and criteria for determining in a timely fashion the completeness of applications.
- (2) Monitoring and reporting requirements.
- (3)
- (A) A requirement under [State](/usc/42/7602.md?p=d) or local law or interstate [compact](/usc/42/2021b.md?p=4) that the [owner or operator](/usc/42/9601.md?p=20-B) of all sources subject to the requirement to obtain a permit under this subchapter pay an annual fee, or the equivalent over some other period, sufficient to cover all reasonable (direct and indirect) costs required to develop and administer the permit [program](/usc/42/274l–1.md?p=4) requirements of this subchapter, including [section 7661f of this title](/usc/42/7661f.md), including the reasonable costs of—
- (i) reviewing and acting upon any application for such a permit,
- (ii) if the [owner or operator](/usc/42/9601.md?p=20-B) receives a permit for such source, whether before or after November 15, 1990, implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i)),
- (iii) emissions and ambient monitoring,
- (iv) preparing generally applicable regulations, or guidance,
- (v) modeling, analyses, and demonstrations, and
- (vi) preparing [inventories](/usc/42/4370m.md?p=14) and tracking emissions.
- (B) The total amount of fees collected by the [permitting authority](/usc/42/7661.md?p=4) shall conform to the following requirements:
- (i) The [Administrator](/usc/42/7602.md?p=a) shall not approve a [program](/usc/42/274l–1.md?p=4) as meeting the requirements of this paragraph unless the [State](/usc/42/7602.md?p=d) demonstrates that, except as otherwise provided in subparagraphs[^2] (ii) through (v) of this subparagraph, the [program](/usc/42/274l–1.md?p=4) will result in the collection, in the aggregate, from all sources subject to [subparagraph (A)](#b-3-A), of an amount not less than $25 per ton of each [regulated pollutant](#b-3-B-ii), or such other amount as the [Administrator](/usc/42/7602.md?p=a) may determine adequately reflects the reasonable costs of the permit [program](/usc/42/274l–1.md?p=4).
- (ii) As used in this subparagraph, the term “regulated pollutant” shall mean (I) a volatile organic compound; (II) each [pollutant](/usc/42/1397h.md?p=c-4) regulated under section [7411](/usc/42/7411.md) or [7412](/usc/42/7412.md) of this title; and (III) each [pollutant](/usc/42/1397h.md?p=c-4) for which a national primary ambient air quality [standard](/usc/42/1320d.md?p=7) has been promulgated (except that carbon monoxide shall be excluded from this reference).
- (iii) In determining the amount under [clause (i)](#b-3-B-i), the [permitting authority](/usc/42/7661.md?p=4) is not required to include any amount of [regulated pollutant](#b-3-B-ii) emitted by any source in excess of 4,000 tons per year of that [regulated pollutant](#b-3-B-ii).
- (iv) The requirements of [clause (i)](#b-3-B-i) shall not apply if the [permitting authority](/usc/42/7661.md?p=4) demonstrates that collecting an amount less than the amount specified under [clause (i)](#b-3-B-i) will meet the requirements of [subparagraph (A)](#b-3-A).
- (v) The fee calculated under [clause (i)](#b-3-B-i) shall be increased (consistent with the need to cover the reasonable costs authorized by [subparagraph (A)](#b-3-A)) in each year beginning after 1990, by the percentage, if any, by which the Consumer Price Index for the most recent calendar year ending before the beginning of such year exceeds the Consumer Price Index for the calendar year 1989. For purposes of this clause—
- (I) the Consumer Price Index for any calendar year is the average of the Consumer Price Index for all-urban consumers published by the Department of Labor, as of the close of the 12-month period ending on August 31 of each calendar year, and
- (II) the revision of the Consumer Price Index which is most consistent with the Consumer Price Index for calendar year 1989 shall be used.
- (C)
- (i) If the [Administrator](/usc/42/7602.md?p=a) determines, under [subsection (d)](#d), that the fee provisions of the operating permit [program](/usc/42/274l–1.md?p=4) do not meet the requirements of this paragraph, or if the [Administrator](/usc/42/7602.md?p=a) makes a determination, under [subsection (i)](#i), that the [permitting authority](/usc/42/7661.md?p=4) is not adequately administering or enforcing an approved fee [program](/usc/42/274l–1.md?p=4), the [Administrator](/usc/42/7602.md?p=a) may, in addition to taking any other action authorized under this subchapter, collect reasonable fees from the sources identified under [subparagraph (A)](#b-3-A). Such fees shall be designed solely to cover the [Administrator](/usc/42/7602.md?p=a)’s costs of administering the provisions of the permit [program](/usc/42/274l–1.md?p=4) promulgated by the [Administrator](/usc/42/7602.md?p=a).
- (ii) Any source that fails to pay fees lawfully imposed by the [Administrator](/usc/42/7602.md?p=a) under this subparagraph shall pay a penalty of 50 percent of the fee amount, plus interest on the fee amount computed in accordance with [section 6621(a)(2) of title 26](/usc/26/6621.md?p=a-2) (relating to computation of interest on underpayment of Federal taxes).
- (iii) Any fees, penalties, and interest collected under this subparagraph shall be deposited in a special [fund](/usc/42/12854.md?p=3) in the [United States](/usc/42/403.md?p=k) Treasury for licensing and other services, which thereafter shall be available for appropriation, to remain available until expended, subject to appropriation, to carry out the Agency’s activities for which the fees were collected. Any fee required to be collected by a [State](/usc/42/7602.md?p=d), local, or interstate agency under this subsection shall be utilized solely to cover all reasonable (direct and indirect) costs required to support the permit [program](/usc/42/274l–1.md?p=4) as set forth in [subparagraph (A)](#b-3-A).
- (4) Requirements for adequate personnel and funding to administer the [program](/usc/42/274l–1.md?p=4).
- (5) A requirement that the [permitting authority](/usc/42/7661.md?p=4) have adequate authority to:
- (A) issue permits and assure compliance by all sources required to have a permit under this subchapter with each applicable [standard](/usc/42/1320d.md?p=7), regulation or requirement under this chapter;
- (B) issue permits for a fixed term, not to exceed 5 years;
- (C) assure that upon issuance or renewal permits incorporate [emission limitations](/usc/42/7602.md?p=k) and other requirements in an [applicable implementation plan](/usc/42/7602.md?p=q);
- (D) terminate, modify, or revoke and reissue permits for [cause](/usc/42/9908.md?p=c-2);
- (E) enforce permits, permit fee requirements, and the requirement to obtain a permit, including authority to recover civil penalties in a maximum amount of not less than $10,000 per day for each [violation](/usc/42/2000e–16a.md?p=c), and provide appropriate criminal penalties; and
- (F) assure that no permit will be issued if the [Administrator](/usc/42/7602.md?p=a) objects to its issuance in a timely manner under this subchapter.
- (6) Adequate, streamlined, and reasonable procedures for expeditiously determining when applications are complete, for processing such applications, for public notice, including offering an opportunity for public comment and a hearing, and for expeditious review of permit actions, including applications, renewals, or revisions, and including an opportunity for judicial review in [State](/usc/42/7602.md?p=d) court of the final permit action by the applicant, any [person](/usc/42/7602.md?p=e) who participated in the public comment process, and any other [person](/usc/42/7602.md?p=e) who could obtain judicial review of that action under applicable law.
- (7) To ensure against unreasonable delay by the [permitting authority](/usc/42/7661.md?p=4), adequate authority and procedures to provide that a failure of such [permitting authority](/usc/42/7661.md?p=4) to act on a permit application or permit renewal application (in accordance with the time periods specified in [section 7661b of this title](/usc/42/7661b.md) or, as appropriate, subchapter IV–A) shall be treated as a final permit action solely for purposes of obtaining judicial review in [State](/usc/42/7602.md?p=d) court of an action brought by any [person](/usc/42/7602.md?p=e) referred to in [paragraph (6)](#b-6) to require that action be taken by the [permitting authority](/usc/42/7661.md?p=4) on such application without additional delay.
- (8) Authority, and reasonable procedures consistent with the need for expeditious action by the [permitting authority](/usc/42/7661.md?p=4) on permit applications and related matters, to make available to the public any permit application, compliance plan, permit, and monitoring or compliance report under [section 7661b(e) of this title](/usc/42/7661b.md?p=e), subject to the provisions of [section 7414(c) of this title](/usc/42/7414.md?p=c).
- (9) A requirement that the [permitting authority](/usc/42/7661.md?p=4), in the case of permits with a term of 3 or more years for [major sources](/usc/42/7661.md?p=2), shall require revisions to the permit to incorporate applicable [standards](/usc/42/1320d.md?p=7) and regulations promulgated under this chapter after the issuance of such permit. Such revisions shall occur as expeditiously as practicable and consistent with the procedures established under [paragraph (6)](#b-6) but not later than 18 months after the promulgation of such [standards](/usc/42/1320d.md?p=7) and regulations. No such revision shall be required if the effective date of the [standards](/usc/42/1320d.md?p=7) or regulations is a date after the expiration of the permit term. Such permit revision shall be treated as a permit renewal if it complies with the requirements of this subchapter regarding renewals.
- (10) Provisions to allow changes within a permitted [facility](/usc/42/11049.md?p=4) (or one operating pursuant to [section 7661b(d) of this title](/usc/42/7661b.md?p=d)) without requiring a permit revision, if the changes are not [modifications](/usc/42/7501.md?p=4) under any provision of subchapter I and the changes do not exceed the emissions allowable under the permit (whether expressed therein as a rate of emissions or in terms of total emissions:[^3] Provided, That the [facility](/usc/42/11049.md?p=4) provides the [Administrator](/usc/42/7602.md?p=a) and the [permitting authority](/usc/42/7661.md?p=4) with written notification in advance of the proposed changes which shall be a minimum of 7 days, unless the [permitting authority](/usc/42/7661.md?p=4) provides in its regulations a different timeframe for emergencies.
- (c) **Single permit—** A [single](/usc/42/2304.md?p=m) permit may be issued for a [facility](/usc/42/11049.md?p=4) with multiple sources.
- (d) **Submission and approval—**
- (1) Not later than 3 years after November 15, 1990, the [Governor](/usc/42/6372.md?p=1) of each [State](/usc/42/7602.md?p=d) shall develop and submit to the [Administrator](/usc/42/7602.md?p=a) a permit [program](/usc/42/274l–1.md?p=4) under [State](/usc/42/7602.md?p=d) or local law or under an interstate [compact](/usc/42/2021b.md?p=4) meeting the requirements of this subchapter. In addition, the [Governor](/usc/42/6372.md?p=1) shall submit a legal opinion from the [attorney general](/usc/42/14902.md?p=6) (or the attorney for those [State](/usc/42/7602.md?p=d) [air pollution control agencies](/usc/42/7602.md?p=b) that have independent legal counsel), or from the chief legal officer of an interstate agency, that the laws of the [State](/usc/42/7602.md?p=d), locality, or the interstate [compact](/usc/42/2021b.md?p=4) provide adequate authority to carry out the [program](/usc/42/274l–1.md?p=4). Not later than 1 year after receiving a [program](/usc/42/274l–1.md?p=4), and after notice and opportunity for public comment, the [Administrator](/usc/42/7602.md?p=a) shall approve or disapprove such [program](/usc/42/274l–1.md?p=4), in whole or in part. The [Administrator](/usc/42/7602.md?p=a) may approve a [program](/usc/42/274l–1.md?p=4) to the extent that the [program](/usc/42/274l–1.md?p=4) meets the requirements of this chapter, including the regulations issued under [subsection (b)](#b). If the [program](/usc/42/274l–1.md?p=4) is disapproved, in whole or in part, the [Administrator](/usc/42/7602.md?p=a) shall notify the [Governor](/usc/42/6372.md?p=1) of any revisions or [modifications](/usc/42/7501.md?p=4) necessary to obtain approval. The [Governor](/usc/42/6372.md?p=1) shall revise and resubmit the [program](/usc/42/274l–1.md?p=4) for review under this section within 180 days after receiving notification.
- (2)
- (A) If the [Governor](/usc/42/6372.md?p=1) does not submit a [program](/usc/42/274l–1.md?p=4) as required under [paragraph (1)](#d-1) or if the [Administrator](/usc/42/7602.md?p=a) disapproves a [program](/usc/42/274l–1.md?p=4) submitted by the [Governor](/usc/42/6372.md?p=1) under [paragraph (1)](#d-1), in whole or in part, the [Administrator](/usc/42/7602.md?p=a) may, prior to the expiration of the 18-month period referred to in [subparagraph (B)](#d-2-B), in the [Administrator](/usc/42/7602.md?p=a)’s discretion, apply any of the sanctions specified in [section 7509(b) of this title](/usc/42/7509.md?p=b).
- (B) If the [Governor](/usc/42/6372.md?p=1) does not submit a [program](/usc/42/274l–1.md?p=4) as required under [paragraph (1)](#d-1), or if the [Administrator](/usc/42/7602.md?p=a) disapproves any such [program](/usc/42/274l–1.md?p=4) submitted by the [Governor](/usc/42/6372.md?p=1) under [paragraph (1)](#d-1), in whole or in part, 18 months after the date required for such submittal or the date of such disapproval, as the case may be, the [Administrator](/usc/42/7602.md?p=a) shall apply sanctions under [section 7509(b) of this title](/usc/42/7509.md?p=b) in the same manner and subject to the same deadlines and other conditions as are applicable in the case of a determination, disapproval, or finding under [section 7509(a) of this title](/usc/42/7509.md?p=a).
- (C) The sanctions under [section 7509(b)(2) of this title](/usc/42/7509.md?p=b-2) shall not apply pursuant to this paragraph in any area unless the failure to submit or the disapproval referred to in subparagraph [(A)](#d-2-A) or [(B)](#d-2-B) relates to an [air pollutant](/usc/42/7602.md?p=g) for which such area has been designated a [nonattainment area](/usc/42/7501.md?p=2) (as defined in part D of subchapter I).
- (3) If a [program](/usc/42/274l–1.md?p=4) meeting the requirements of this subchapter has not been approved in whole for any [State](/usc/42/7602.md?p=d), the [Administrator](/usc/42/7602.md?p=a) shall, 2 years after the date required for submission of such a [program](/usc/42/274l–1.md?p=4) under [paragraph (1)](#d-1), promulgate, administer, and enforce a [program](/usc/42/274l–1.md?p=4) under this subchapter for that [State](/usc/42/7602.md?p=d).
- (e) **Suspension—** The [Administrator](/usc/42/7602.md?p=a) shall suspend the issuance of permits promptly upon publication of notice of approval of a permit [program](/usc/42/274l–1.md?p=4) under this section, but may, in such notice, retain jurisdiction over permits that have been federally issued, but for which the administrative or judicial review process is not complete. The [Administrator](/usc/42/7602.md?p=a) shall continue to administer and enforce federally issued permits under this subchapter until they are replaced by a permit issued by a permitting [program](/usc/42/274l–1.md?p=4). Nothing in this subsection should be construed to limit the [Administrator](/usc/42/7602.md?p=a)’s ability to enforce permits issued by a [State](/usc/42/7602.md?p=d).
- (f) **Prohibition—** No partial permit [program](/usc/42/274l–1.md?p=4) shall be approved unless, at a minimum, it applies, and ensures compliance with, this subchapter and each of the following:
- (1) All requirements established under subchapter IV–A applicable to “[affected sources](/usc/42/7661.md?p=1)”.
- (2) All requirements established under [section 7412 of this title](/usc/42/7412.md) applicable to “[major sources](/usc/42/7661.md?p=2)”, “area sources,” and “new sources”.
- (3) All requirements of subchapter I (other than [section 7412 of this title](/usc/42/7412.md)) applicable to sources required to have a permit under this subchapter.
Approval of a partial [program](/usc/42/274l–1.md?p=4) shall not relieve the [State](/usc/42/7602.md?p=d) of its obligation to submit a complete [program](/usc/42/274l–1.md?p=4), nor from the application of any sanctions under this chapter for failure to submit an approvable permit [program](/usc/42/274l–1.md?p=4).
- (g) **Interim approval—** If a [program](/usc/42/274l–1.md?p=4) (including a partial permit [program](/usc/42/274l–1.md?p=4)) submitted under this subchapter substantially meets the requirements of this subchapter, but is not fully approvable, the [Administrator](/usc/42/7602.md?p=a) may by rule grant the [program](/usc/42/274l–1.md?p=4) interim approval. In the notice of final rulemaking, the [Administrator](/usc/42/7602.md?p=a) shall specify the changes that must be made before the [program](/usc/42/274l–1.md?p=4) can receive full approval. An interim approval under this subsection shall expire on a date set by the [Administrator](/usc/42/7602.md?p=a) not later than 2 years after such approval, and may not be renewed. For the period of any such interim approval, the provisions of [subsection (d)(2)](#d-2), and the obligation of the [Administrator](/usc/42/7602.md?p=a) to promulgate a [program](/usc/42/274l–1.md?p=4) under this subchapter for the [State](/usc/42/7602.md?p=d) pursuant to [subsection (d)(3)](#d-3), shall be suspended. Such provisions and such obligation of the [Administrator](/usc/42/7602.md?p=a) shall apply after the expiration of such interim approval.
- (h) **Effective date—** The effective date of a permit [program](/usc/42/274l–1.md?p=4), or partial or interim [program](/usc/42/274l–1.md?p=4), approved under this subchapter, shall be the effective date of approval by the [Administrator](/usc/42/7602.md?p=a). The effective date of a permit [program](/usc/42/274l–1.md?p=4), or partial permit [program](/usc/42/274l–1.md?p=4), promulgated by the [Administrator](/usc/42/7602.md?p=a) shall be the date of promulgation.
- (i) **Administration and enforcement—**
- (1) Whenever the [Administrator](/usc/42/7602.md?p=a) makes a determination that a [permitting authority](/usc/42/7661.md?p=4) is not adequately administering and enforcing a [program](/usc/42/274l–1.md?p=4), or portion thereof, in accordance with the requirements of this subchapter, the [Administrator](/usc/42/7602.md?p=a) shall provide notice to the [State](/usc/42/7602.md?p=d) and may, prior to the expiration of the 18-month period referred to in [paragraph (2)](#i-2), in the [Administrator](/usc/42/7602.md?p=a)’s discretion, apply any of the sanctions specified in [section 7509(b) of this title](/usc/42/7509.md?p=b).
- (2) Whenever the [Administrator](/usc/42/7602.md?p=a) makes a determination that a [permitting authority](/usc/42/7661.md?p=4) is not adequately administering and enforcing a [program](/usc/42/274l–1.md?p=4), or portion thereof, in accordance with the requirements of this subchapter, 18 months after the date of the notice under [paragraph (1)](#i-1), the [Administrator](/usc/42/7602.md?p=a) shall apply the sanctions under [section 7509(b) of this title](/usc/42/7509.md?p=b) in the same manner and subject to the same deadlines and other conditions as are applicable in the case of a determination, disapproval, or finding under [section 7509(a) of this title](/usc/42/7509.md?p=a).
- (3) The sanctions under [section 7509(b)(2) of this title](/usc/42/7509.md?p=b-2) shall not apply pursuant to this subsection in any area unless the failure to adequately enforce and administer the [program](/usc/42/274l–1.md?p=4) relates to an [air pollutant](/usc/42/7602.md?p=g) for which such area has been designated a [nonattainment area](/usc/42/7501.md?p=2).
- (4) Whenever the [Administrator](/usc/42/7602.md?p=a) has made a finding under [paragraph (1)](#i-1) with respect to any [State](/usc/42/7602.md?p=d), unless the [State](/usc/42/7602.md?p=d) has corrected such deficiency within 18 months after the date of such finding, the [Administrator](/usc/42/7602.md?p=a) shall, 2 years after the date of such finding, promulgate, administer, and enforce a [program](/usc/42/274l–1.md?p=4) under this subchapter for that [State](/usc/42/7602.md?p=d). Nothing in this paragraph shall be construed to affect the validity of a [program](/usc/42/274l–1.md?p=4) which has been approved under this subchapter or the authority of any [permitting authority](/usc/42/7661.md?p=4) acting under such [program](/usc/42/274l–1.md?p=4) until such time as such [program](/usc/42/274l–1.md?p=4) is promulgated by the [Administrator](/usc/42/7602.md?p=a) under this paragraph.
# §7661b. Permit applications
- (a) **Applicable date—** Any source specified in [section 7661a(a) of this title](/usc/42/7661a.md?p=a) shall become subject to a permit [program](/usc/42/274l–1.md?p=4), and required to have a permit, on the later of the following dates—
- (1) the effective date of a permit [program](/usc/42/274l–1.md?p=4) or partial or interim permit [program](/usc/42/274l–1.md?p=4) applicable to the source; or
- (2) the date such source becomes subject to [section 7661a(a) of this title](/usc/42/7661a.md?p=a).
- (b) **Compliance plan—**
- (1) The regulations required by [section 7661a(b) of this title](/usc/42/7661a.md?p=b) shall include a requirement that the applicant submit with the permit application a compliance plan describing how the source will comply with all applicable requirements under this chapter. The compliance plan shall include a [schedule of compliance](/usc/42/7661.md?p=3), and a schedule under which the permittee will submit progress reports to the [permitting authority](/usc/42/7661.md?p=4) no less frequently than every 6 months.
- (2) The regulations shall further require the permittee to periodically (but no less frequently than annually) certify that the [facility](/usc/42/11049.md?p=4) is in compliance with any applicable requirements of the permit, and to promptly report any deviations from permit requirements to the [permitting authority](/usc/42/7661.md?p=4).
- (c) **Deadline—** Any [person](/usc/42/7602.md?p=e) required to have a permit shall, not later than 12 months after the date on which the source becomes subject to a permit [program](/usc/42/274l–1.md?p=4) approved or promulgated under this subchapter, or such earlier date as the [permitting authority](/usc/42/7661.md?p=4) may establish, submit to the [permitting authority](/usc/42/7661.md?p=4) a compliance plan and an application for a permit signed by a responsible official, who shall certify the accuracy of the information submitted. The [permitting authority](/usc/42/7661.md?p=4) shall approve or disapprove a completed application (consistent with the procedures established under this subchapter for consideration of such applications), and shall issue or deny the permit, within 18 months after the date of receipt thereof, except that the [permitting authority](/usc/42/7661.md?p=4) shall establish a phased schedule for acting on permit applications submitted within the first full year after the effective date of a permit [program](/usc/42/274l–1.md?p=4) (or a partial or interim [program](/usc/42/274l–1.md?p=4)). Any such schedule shall assure that at least one-third of such permits will be acted on by such authority annually over a period of not to exceed 3 years after such effective date. Such authority shall establish reasonable procedures to prioritize such approval or disapproval actions in the case of applications for [construction](/usc/42/7479.md?p=2-C) or [modification](/usc/42/7501.md?p=4) under the applicable requirements of this chapter.
- (d) **Timely and complete applications—** Except for sources required to have a permit before [construction](/usc/42/7479.md?p=2-C) or [modification](/usc/42/7501.md?p=4) under the applicable requirements of this chapter, if an applicant has submitted a timely and complete application for a permit required by this subchapter (including renewals), but final action has not been taken on such application, the source’s failure to have a permit shall not be a [violation](/usc/42/2000e–16a.md?p=c) of this chapter, unless the delay in final action was due to the failure of the applicant timely to submit information required or requested to process the application. No source required to have a permit under this subchapter shall be in [violation](/usc/42/2000e–16a.md?p=c) of [section 7661a(a) of this title](/usc/42/7661a.md?p=a) before the date on which the source is required to submit an application under [subsection (c)](#c).
- (e) **Copies; availability—** A copy of each permit application, compliance plan (including the [schedule of compliance](/usc/42/7661.md?p=3)), emissions or compliance monitoring report, certification, and each permit issued under this subchapter, shall be available to the public. If an applicant or permittee is required to submit information entitled to protection from disclosure under [section 7414(c) of this title](/usc/42/7414.md?p=c), the applicant or permittee may submit such information separately. The requirements of [section 7414(c) of this title](/usc/42/7414.md?p=c) shall apply to such information. The contents of a permit shall not be entitled to protection under [section 7414(c) of this title](/usc/42/7414.md?p=c).
# §7661c. Permit requirements and conditions
- (a) **Conditions—** Each permit issued under this subchapter shall include enforceable [emission limitations](/usc/42/7602.md?p=k) and [standards](/usc/42/1320d.md?p=7), a [schedule of compliance](/usc/42/7661.md?p=3), a requirement that the permittee submit to the [permitting authority](/usc/42/7661.md?p=4), no less often than every 6 months, the results of any required monitoring, and such other conditions as are necessary to assure compliance with applicable requirements of this chapter, including the requirements of the [applicable implementation plan](/usc/42/7602.md?p=q).
- (b) **Monitoring and analysis—** The [Administrator](/usc/42/7602.md?p=a) may by rule prescribe procedures and methods for determining compliance and for monitoring and analysis of [pollutants](/usc/42/1397h.md?p=c-4) regulated under this chapter, but continuous emissions monitoring need not be required if alternative methods are available that provide sufficiently reliable and timely information for determining compliance. Nothing in this subsection shall be construed to affect any continuous emissions monitoring requirement of subchapter IV–A, or where required elsewhere in this chapter.
- (c) **Inspection, entry, monitoring, certification, and reporting—** Each permit issued under this subchapter shall set forth [inspection](/usc/42/4851b.md?p=12), entry, monitoring, compliance certification, and reporting requirements to assure compliance with the permit terms and conditions. Such monitoring and reporting requirements shall conform to any applicable regulation under [subsection (b)](#b). Any report required to be submitted by a permit issued to a [corporation](/usc/42/2296b–7.md?p=1) under this subchapter shall be signed by a responsible corporate official, who shall certify its accuracy.
- (d) **General permits—** The [permitting authority](/usc/42/7661.md?p=4) may, after notice and opportunity for public hearing, issue a general permit covering numerous similar sources. Any general permit shall comply with all requirements applicable to permits under this subchapter. No source covered by a general permit shall thereby be relieved from the obligation to file an application under [section 7661b of this title](/usc/42/7661b.md).
- (e) **Temporary sources—** The [permitting authority](/usc/42/7661.md?p=4) may issue a [single](/usc/42/2304.md?p=m) permit authorizing emissions from similar operations at multiple temporary locations. No such permit shall be issued unless it includes conditions that will assure compliance with all the requirements of this chapter at all authorized locations, including, but not limited to, ambient [standards](/usc/42/1320d.md?p=7) and compliance with any applicable increment or visibility requirements under part C of subchapter I. Any such permit shall in addition require the [owner or operator](/usc/42/9601.md?p=20-B) to notify the [permitting authority](/usc/42/7661.md?p=4) in advance of each change in location. The [permitting authority](/usc/42/7661.md?p=4) may require a separate permit fee for operations at each location.
- (f) **Permit shield—** Compliance with a permit issued in accordance with this subchapter shall be deemed compliance with [section 7661a of this title](/usc/42/7661a.md). Except as otherwise provided by the [Administrator](/usc/42/7602.md?p=a) by rule, the permit may also provide that compliance with the permit shall be deemed compliance with other applicable provisions of this chapter that relate to the permittee if—
- (1) the permit includes the applicable requirements of such provisions, or
- (2) the [permitting authority](/usc/42/7661.md?p=4) in acting on the permit application makes a determination relating to the permittee that such other provisions (which shall be referred to in such determination) are not applicable and the permit includes the determination or a concise summary thereof.
Nothing in the preceding sentence shall alter or affect the provisions of [section 7603 of this title](/usc/42/7603.md), including the authority of the [Administrator](/usc/42/7602.md?p=a) under that section.
# §7661d. Notification to Administrator and contiguous States
- (a) **Transmission and notice—**
- (1) Each [permitting authority](/usc/42/7661.md?p=4)—
- (A) shall transmit to the [Administrator](/usc/42/7602.md?p=a) a copy of each permit application (and any application for a permit [modification](/usc/42/7501.md?p=4) or renewal) or such portion thereof, including any compliance plan, as the [Administrator](/usc/42/7602.md?p=a) may require to effectively review the application and otherwise to carry out the [Administrator](/usc/42/7602.md?p=a)’s responsibilities under this chapter, and
- (B) shall provide to the [Administrator](/usc/42/7602.md?p=a) a copy of each permit proposed to be issued and issued as a final permit.
- (2) The [permitting authority](/usc/42/7661.md?p=4) shall notify all [States](/usc/42/7602.md?p=d)—
- (A) whose air quality may be affected and that are contiguous to the [State](/usc/42/7602.md?p=d) in which the emission originates, or
- (B) that are within 50 miles of the source,
of each permit application or proposed permit forwarded to the [Administrator](/usc/42/7602.md?p=a) under this section, and shall provide an opportunity for such [States](/usc/42/7602.md?p=d) to submit written recommendations respecting the issuance of the permit and its terms and conditions. If any part of those recommendations are not accepted by the [permitting authority](/usc/42/7661.md?p=4), such authority shall notify the [State](/usc/42/7602.md?p=d) submitting the recommendations and the [Administrator](/usc/42/7602.md?p=a) in writing of its failure to accept those recommendations and the reasons therefor.
- (b) **Objection by EPA—**
- (1) If any permit contains provisions that are determined by the [Administrator](/usc/42/7602.md?p=a) as not in compliance with the applicable requirements of this chapter, including the requirements of an [applicable implementation plan](/usc/42/7602.md?p=q), the [Administrator](/usc/42/7602.md?p=a) shall, in accordance with this subsection, object to its issuance. The [permitting authority](/usc/42/7661.md?p=4) shall respond in writing if the [Administrator](/usc/42/7602.md?p=a) (A) within 45 days after receiving a copy of the proposed permit under subsection [(a)(1)](#a-1), or (B) within 45 days after receiving notification under [subsection (a)(2)](#a-2), objects in writing to its issuance as not in compliance with such requirements. With the objection, the [Administrator](/usc/42/7602.md?p=a) shall provide a statement of the reasons for the objection. A copy of the objection and statement shall be provided to the applicant.
- (2) If the [Administrator](/usc/42/7602.md?p=a) does not object in writing to the issuance of a permit pursuant to [paragraph (1)](#b-1), any [person](/usc/42/7602.md?p=e) may petition the [Administrator](/usc/42/7602.md?p=a) within 60 days after the expiration of the 45-day review period specified in [paragraph (1)](#b-1) to take such action. A copy of such petition shall be provided to the [permitting authority](/usc/42/7661.md?p=4) and the applicant by the petitioner. The petition shall be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the permitting agency (unless the petitioner demonstrates in the petition to the [Administrator](/usc/42/7602.md?p=a) that it was impracticable to raise such objections within such period or unless the grounds for such objection arose after such period). The petition shall identify all such objections. If the permit has been issued by the permitting agency, such petition shall not postpone the effectiveness of the permit. The [Administrator](/usc/42/7602.md?p=a) shall grant or deny such petition within 60 days after the petition is filed. The [Administrator](/usc/42/7602.md?p=a) shall issue an objection within such period if the petitioner demonstrates to the [Administrator](/usc/42/7602.md?p=a) that the permit is not in compliance with the requirements of this chapter, including the requirements of the [applicable implementation plan](/usc/42/7602.md?p=q). Any denial of such petition shall be subject to judicial review under [section 7607 of this title](/usc/42/7607.md). The [Administrator](/usc/42/7602.md?p=a) shall include in regulations under this subchapter provisions to implement this paragraph. The [Administrator](/usc/42/7602.md?p=a) may not delegate the requirements of this paragraph.
- (3) Upon receipt of an objection by the [Administrator](/usc/42/7602.md?p=a) under this subsection, the [permitting authority](/usc/42/7661.md?p=4) may not issue the permit unless it is revised and issued in accordance with [subsection (c)](#c). If the [permitting authority](/usc/42/7661.md?p=4) has issued a permit prior to receipt of an objection by the [Administrator](/usc/42/7602.md?p=a) under paragraph (2) of this subsection, the [Administrator](/usc/42/7602.md?p=a) shall modify, terminate, or revoke such permit and the [permitting authority](/usc/42/7661.md?p=4) may thereafter only issue a revised permit in accordance with [subsection (c)](#c).
- (c) **Issuance or denial—** If the [permitting authority](/usc/42/7661.md?p=4) fails, within 90 days after the date of an objection under [subsection (b)](#b), to submit a permit revised to meet the objection, the [Administrator](/usc/42/7602.md?p=a) shall issue or deny the permit in accordance with the requirements of this subchapter. No objection shall be subject to judicial review until the [Administrator](/usc/42/7602.md?p=a) takes final action to issue or deny a permit under this subsection.
- (d) **Waiver of notification requirements—**
- (1) The [Administrator](/usc/42/7602.md?p=a) may waive the requirements of subsections [(a)](#a) and [(b)](#b) at the time of approval of a permit [program](/usc/42/274l–1.md?p=4) under this subchapter for any [category](/usc/42/1395w–4.md?p=j-1) (including any class, type, or size within such [category](/usc/42/1395w–4.md?p=j-1)) of sources covered by the [program](/usc/42/274l–1.md?p=4) other than [major sources](/usc/42/7661.md?p=2).
- (2) The [Administrator](/usc/42/7602.md?p=a) may, by regulation, establish [categories](/usc/42/1395w–4.md?p=j-1) of sources (including any class, type, or size within such [category](/usc/42/1395w–4.md?p=j-1)) to which the requirements of subsections [(a)](#a) and [(b)](#b) shall not apply. The preceding sentence shall not apply to [major sources](/usc/42/7661.md?p=2).
- (3) The [Administrator](/usc/42/7602.md?p=a) may exclude from any waiver under this subsection notification under [subsection (a)(2)](#a-2). Any waiver granted under this subsection may be revoked or [modified](/usc/42/7501.md?p=4) by the [Administrator](/usc/42/7602.md?p=a) by rule.
- (e) **Refusal of permitting authority to terminate, modify, or revoke and reissue—** If the [Administrator](/usc/42/7602.md?p=a) finds that [cause](/usc/42/9908.md?p=c-2) exists to terminate, modify, or revoke and reissue a permit under this subchapter, the [Administrator](/usc/42/7602.md?p=a) shall notify the [permitting authority](/usc/42/7661.md?p=4) and the source of the [Administrator](/usc/42/7602.md?p=a)’s finding. The [permitting authority](/usc/42/7661.md?p=4) shall, within 90 days after receipt of such notification, forward to the [Administrator](/usc/42/7602.md?p=a) under this section a proposed determination of termination, [modification](/usc/42/7501.md?p=4), or revocation and reissuance, as appropriate. The [Administrator](/usc/42/7602.md?p=a) may extend such 90 day period for an additional 90 days if the [Administrator](/usc/42/7602.md?p=a) finds that a new or revised permit application is necessary, or that the [permitting authority](/usc/42/7661.md?p=4) must require the permittee to submit additional information. The [Administrator](/usc/42/7602.md?p=a) may review such proposed determination under the provisions of subsections [(a)](#a) and [(b)](#b). If the [permitting authority](/usc/42/7661.md?p=4) fails to submit the required proposed determination, or if the [Administrator](/usc/42/7602.md?p=a) objects and the [permitting authority](/usc/42/7661.md?p=4) fails to resolve the objection within 90 days, the [Administrator](/usc/42/7602.md?p=a) may, after notice and in accordance with fair and reasonable procedures, terminate, modify, or revoke and reissue the permit.
# §7661e. Other authorities
- (a) **In general—** Nothing in this subchapter shall prevent a [State](/usc/42/7602.md?p=d), or interstate [permitting authority](/usc/42/7661.md?p=4), from establishing additional permitting requirements not inconsistent with this chapter.
- (b) **Permits implementing acid rain provisions—** The provisions of this subchapter, including provisions regarding schedules for submission and approval or disapproval of permit applications, shall apply to permits implementing the requirements of subchapter IV–A except as [modified](/usc/42/7501.md?p=4) by that subchapter.
# §7661f. Small business stationary source technical and environmental compliance assistance program
- (a) **Plan revisions—** Consistent with sections [7410](/usc/42/7410.md) and [7412](/usc/42/7412.md) of this title, each [State](/usc/42/7602.md?p=d) shall, after reasonable notice and public hearings, adopt and submit to the [Administrator](/usc/42/7602.md?p=a) as part of the [State](/usc/42/7602.md?p=d) implementation plan for such [State](/usc/42/7602.md?p=d) or as a revision to such [State](/usc/42/7602.md?p=d) implementation plan under [section 7410 of this title](/usc/42/7410.md), plans for establishing a [small business stationary source](#c-1) technical and environmental compliance assistance [program](/usc/42/274l–1.md?p=4). Such submission shall be made within 24 months after November 15, 1990. The [Administrator](/usc/42/7602.md?p=a) shall approve such [program](/usc/42/274l–1.md?p=4) if it includes each of the following:
- (1) Adequate mechanisms for developing, collecting, and coordinating information concerning compliance methods and technologies for [small business stationary sources](#c-1), and [programs](/usc/42/274l–1.md?p=4) to encourage lawful cooperation among such sources and other [persons](/usc/42/7602.md?p=e) to further compliance with this chapter.
- (2) Adequate mechanisms for assisting [small business stationary sources](#c-1) with pollution prevention and accidental [release](/usc/42/9601.md?p=22) detection and prevention, including providing information concerning alternative technologies, process changes, products, and methods of operation that help reduce air pollution.
- (3) A designated [State](/usc/42/7602.md?p=d) [office](/usc/42/3058f.md?p=1) within the relevant [State agency](/usc/42/1396r–8.md?p=k-9) to serve as [ombudsman](/usc/42/3058f.md?p=2) for [small business stationary sources](#c-1) in connection with the implementation of this chapter.
- (4) A compliance assistance [program](/usc/42/274l–1.md?p=4) for [small business stationary sources](#c-1) which assists [small business stationary sources](#c-1) in determining applicable requirements and in receiving permits under this chapter in a timely and efficient manner.
- (5) Adequate mechanisms to assure that [small business stationary sources](#c-1) receive notice of their rights under this chapter in such manner and form as to assure reasonably adequate time for such sources to evaluate compliance methods and any relevant or applicable proposed or final regulation or [standard](/usc/42/1320d.md?p=7) issued under this chapter.
- (6) Adequate mechanisms for informing [small business stationary sources](#c-1) of their obligations under this chapter, including mechanisms for referring such sources to qualified auditors or, at the option of the [State](/usc/42/7602.md?p=d), for providing audits of the operations of such sources to determine compliance with this chapter.
- (7) Procedures for consideration of requests from a [small business stationary source](#c-1) for [modification](/usc/42/7501.md?p=4) of—
- (A) any work practice or technological method of compliance, or
- (B) the schedule of milestones for implementing such work practice or method of compliance preceding any applicable compliance date,
based on the technological and financial capability of any such [small business stationary source](#c-1). No such [modification](/usc/42/7501.md?p=4) may be granted unless it is in compliance with the applicable requirements of this chapter, including the requirements of the [applicable implementation plan](/usc/42/7602.md?p=q). Where such applicable requirements are set forth in Federal regulations, only [modifications](/usc/42/7501.md?p=4) authorized in such regulations may be allowed.
- (b) **Program—** The [Administrator](/usc/42/7602.md?p=a) shall establish within 9 months after November 15, 1990, a [small business stationary source](#c-1) technical and environmental compliance assistance [program](/usc/42/274l–1.md?p=4). Such [program](/usc/42/274l–1.md?p=4) shall—
- (1) assist the [States](/usc/42/7602.md?p=d) in the development of the [program](/usc/42/274l–1.md?p=4) required under [subsection (a)](#a) (relating to assistance for [small business stationary sources](#c-1));
- (2) issue guidance for the use of the [States](/usc/42/7602.md?p=d) in the implementation of these [programs](/usc/42/274l–1.md?p=4) that includes alternative control technologies and pollution prevention methods applicable to [small business stationary sources](#c-1); and
- (3) provide for implementation of the [program](/usc/42/274l–1.md?p=4) provisions required under [subsection (a)(4)](#a-4) in any [State](/usc/42/7602.md?p=d) that fails to submit such a [program](/usc/42/274l–1.md?p=4) under that subsection.
- (c) **Eligibility—**
- (1) Except as provided in paragraphs [(2)](#c-2) and [(3)](#c-3), for purposes of this section, the term “small business stationary source” means a [stationary source](/usc/42/7411.md?p=a-3) that—
- (A) is owned or operated by a [person](/usc/42/7602.md?p=e) that employs 100 or fewer individuals,[^1]
- (B) is a small business concern as defined in the Small Business Act [[15 U.S.C. 631](/usc/15/631.md) et seq.];
- (C) is not a [major stationary source](/usc/42/7602.md?p=j);
- (D) does not emit 50 tons or more per year of any regulated [pollutant](/usc/42/1397h.md?p=c-4); and
- (E) emits less than 75 tons per year of all regulated [pollutants](/usc/42/1397h.md?p=c-4).
- (2) Upon petition by a source, the [State](/usc/42/7602.md?p=d) may, after notice and opportunity for public comment, include as a [small business stationary source](#c-1) for purposes of this section any [stationary source](/usc/42/7411.md?p=a-3) which does not meet the criteria of subparagraphs[^2] (C), (D), or (E) of [paragraph (1)](#c-1) but which does not emit more than 100 tons per year of all regulated [pollutants](/usc/42/1397h.md?p=c-4).
- (3)
- (A) The [Administrator](/usc/42/7602.md?p=a), in consultation with the [Administrator](/usc/42/7602.md?p=a) of the Small Business Administration and after providing notice and opportunity for public comment, may exclude from the [small business stationary source](#c-1) definition under this section any [category](/usc/42/1395w–4.md?p=j-1) or subcategory of sources that the [Administrator](/usc/42/7602.md?p=a) determines to have sufficient technical and financial capabilities to meet the requirements of this chapter without the application of this subsection.
- (B) The [State](/usc/42/7602.md?p=d), in consultation with the [Administrator](/usc/42/7602.md?p=a) and the [Administrator](/usc/42/7602.md?p=a) of the Small Business Administration and after providing notice and opportunity for public hearing, may exclude from the [small business stationary source](#c-1) definition under this section any [category](/usc/42/1395w–4.md?p=j-1) or subcategory of sources that the [State](/usc/42/7602.md?p=d) determines to have sufficient technical and financial capabilities to meet the requirements of this chapter without the application of this subsection.
- (d) **Monitoring—** The [Administrator](/usc/42/7602.md?p=a) shall direct the Agency’s [Office](/usc/42/3058f.md?p=1) of Small and Disadvantaged Business Utilization through the Small Business [Ombudsman](/usc/42/3058f.md?p=2) (hereinafter in this section referred to as the “[Ombudsman](/usc/42/3058f.md?p=2)”) to monitor the [small business stationary source](#c-1) technical and environmental compliance assistance [program](/usc/42/274l–1.md?p=4) under this section. In carrying out such monitoring activities, the [Ombudsman](/usc/42/3058f.md?p=2) shall—
- (1) render advisory opinions on the overall effectiveness of the [Small Business Stationary Source](#c-1) Technical and Environmental Compliance Assistance [Program](/usc/42/274l–1.md?p=4), difficulties encountered, and degree and severity of enforcement;
- (2) make periodic reports to the Congress on the compliance of the [Small Business Stationary Source](#c-1) Technical and Environmental Compliance Assistance [Program](/usc/42/274l–1.md?p=4) with the requirements of the Paperwork Reduction Act,[^3] the Regulatory Flexibility Act [[5 U.S.C. 601](/usc/5/601.md) et seq.], and the Equal Access to Justice Act;
- (3) review information to be issued by the [Small Business Stationary Source](#c-1) Technical and Environmental Compliance Assistance [Program](/usc/42/274l–1.md?p=4) for [small business stationary sources](#c-1) to ensure that the information is understandable by the layperson; and
- (4) have the [Small Business Stationary Source](#c-1) Technical and Environmental Compliance Assistance [Program](/usc/42/274l–1.md?p=4) serve as the secretariat for the development and dissemination of such reports and advisory opinions.
- (e) **Compliance Advisory Panel—**
- (1) There shall be created a Compliance Advisory [Panel](/usc/42/10362.md?p=16) (hereinafter referred to as the “[Panel](/usc/42/10362.md?p=16)”) on the [State](/usc/42/7602.md?p=d) level of not less than 7 individuals. This [Panel](/usc/42/10362.md?p=16) shall—
- (A) render advisory opinions concerning the effectiveness of the [small business stationary source](#c-1) technical and environmental compliance assistance [program](/usc/42/274l–1.md?p=4), difficulties encountered, and degree and severity of enforcement;
- (B) make periodic reports to the [Administrator](/usc/42/7602.md?p=a) concerning the compliance of the [State](/usc/42/7602.md?p=d) [Small Business Stationary Source](#c-1) Technical and Environmental Compliance Assistance [Program](/usc/42/274l–1.md?p=4) with the requirements of the Paperwork Reduction Act,[^3] the Regulatory Flexibility Act [[5 U.S.C. 601](/usc/5/601.md) et seq.], and the Equal Access to Justice Act;
- (C) review information for [small business stationary sources](#c-1) to assure such information is understandable by the layperson; and
- (D) have the [Small Business Stationary Source](#c-1) Technical and Environmental Compliance Assistance [Program](/usc/42/274l–1.md?p=4) serve as the secretariat for the development and dissemination of such reports and advisory opinions.
- (2) The [Panel](/usc/42/10362.md?p=16) shall consist of—
- (A) 2 members, who are not [owners](/usc/42/13641.md?p=4), or [representatives](/usc/42/3058f.md?p=5) of [owners](/usc/42/13641.md?p=4), of [small business stationary sources](#c-1), selected by the [Governor](/usc/42/6372.md?p=1) to represent the general public;
- (B) 2 members selected by the [State](/usc/42/7602.md?p=d) legislature who are [owners](/usc/42/13641.md?p=4), or who represent [owners](/usc/42/13641.md?p=4), of [small business stationary sources](#c-1) (1 member each by the majority and [minority](/usc/42/299a–1.md?p=d-2) leadership of the lower house, or in the case of a unicameral [State](/usc/42/7602.md?p=d) legislature, 2 members each shall be selected by the majority leadership and the [minority](/usc/42/299a–1.md?p=d-2) leadership, respectively, of such legislature, and [subparagraph (C)](#e-2-C) shall not apply);
- (C) 2 members selected by the [State](/usc/42/7602.md?p=d) legislature who are [owners](/usc/42/13641.md?p=4), or who represent [owners](/usc/42/13641.md?p=4), of [small business stationary sources](#c-1) (1 member each by the majority and [minority](/usc/42/299a–1.md?p=d-2) leadership of the upper house, or the equivalent [State](/usc/42/7602.md?p=d) entity); and
- (D) 1 member selected by the head of the department or agency of the [State](/usc/42/7602.md?p=d) responsible for air pollution permit [programs](/usc/42/274l–1.md?p=4) to represent that agency.
- (f) **Fees—** The [State](/usc/42/7602.md?p=d) (or the [Administrator](/usc/42/7602.md?p=a)) may reduce any fee required under this chapter to take into account the financial resources of [small business stationary sources](#c-1).
- (g) **Continuous emission monitors—** In developing regulations and [CTGs](/usc/42/7602.md?p=u) under this chapter that contain continuous emission monitoring requirements, the [Administrator](/usc/42/7602.md?p=a), consistent with the requirements of this chapter, before applying such requirements to [small business stationary sources](#c-1), shall consider the necessity and appropriateness of such requirements for such sources. Nothing in this subsection shall affect the applicability of subchapter IV–A provisions relating to continuous emissions monitoring.
- (h) **Control technique guidelines—** The [Administrator](/usc/42/7602.md?p=a) shall consider, consistent with the requirements of this chapter, the size, type, and technical capabilities of [small business stationary sources](#c-1) (and sources which are eligible under [subsection (c)(2)](#c-2) to be treated as [small business stationary sources](#c-1)) in developing [CTGs](/usc/42/7602.md?p=u) applicable to such sources under this chapter.
# §7671. Definitions
As used in this subchapter—
- (1) **Appliance—** The term “appliance” means any device which contains and uses a class I or [class II substance](#4) as a refrigerant and which is used for household or commercial purposes, including any air conditioner, refrigerator, chiller, or freezer.
- (2) **Baseline year—** The term “baseline year” means—
- (A) the calendar year 1986, in the case of any [class I substance](#3) listed in Group I or II under [section 7671a(a) of this title](/usc/42/7671a.md?p=a),
- (B) the calendar year 1989, in the case of any [class I substance](#3) listed in Group III, IV, or V under [section 7671a(a) of this title](/usc/42/7671a.md?p=a), and
- (C) a [representative](/usc/42/3058f.md?p=5) calendar year selected by the [Administrator](/usc/42/7602.md?p=a), in the case of—
- (i) any substance added to the list of [class I substances](#3) after the publication of the initial list under [section 7671a(a) of this title](/usc/42/7671a.md?p=a), and
- (ii) any [class II substance](#4).
- (3) **Class I substance—** The term “class I substance” means each of the substances listed as provided in [section 7671a(a) of this title](/usc/42/7671a.md?p=a).
- (4) **Class II substance—** The term “class II substance” means each of the substances listed as provided in [section 7671a(b) of this title](/usc/42/7671a.md?p=b).
- (5) **Commissioner—** The term “Commissioner” means the Commissioner of the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) Administration.
- (6) **Consumption—** The term “consumption” means, with respect to any substance, the amount of that substance [produced](#11) in the [United States](/usc/42/403.md?p=k), plus the amount imported, minus the amount exported to Parties to the [Montreal Protocol](#9). Such term shall be construed in a manner consistent with the [Montreal Protocol](#9).
- (7) **Import—** The term “import” means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the [United States](/usc/42/403.md?p=k), whether or not such landing, bringing, or introduction constitutes an [importation](/usc/42/6311.md?p=7) within the meaning of the customs laws of the [United States](/usc/42/403.md?p=k).
- (8) **Medical device—** The term “medical device” means any device (as defined in the Federal Food, [Drug](/usc/42/282.md?p=j-1-A-vii), and Cosmetic Act ([21 U.S.C. 321](/usc/21/321.md))), diagnostic product, [drug](/usc/42/282.md?p=j-1-A-vii) (as defined in the Federal Food, [Drug](/usc/42/282.md?p=j-1-A-vii), and Cosmetic Act), and [drug](/usc/42/282.md?p=j-1-A-vii) delivery system—
- (A) if such device, product, [drug](/usc/42/282.md?p=j-1-A-vii), or [drug](/usc/42/282.md?p=j-1-A-vii) delivery system utilizes a class I or [class II substance](#4) for which no safe and effective alternative has been developed, and where necessary, approved by the [Commissioner](#5); and
- (B) if such device, product, [drug](/usc/42/282.md?p=j-1-A-vii), or [drug](/usc/42/282.md?p=j-1-A-vii) delivery system, has, after notice and opportunity for public comment, been approved and determined to be essential by the [Commissioner](#5) in consultation with the [Administrator](/usc/42/7602.md?p=a).
- (9) **Montreal Protocol—** The terms “Montreal Protocol” and “the Protocol” mean the Montreal Protocol on Substances that Deplete the Ozone Layer, a protocol to the Vienna Convention for the Protection of the Ozone Layer, including adjustments adopted by Parties thereto and amendments that have entered into force.
- (10) **Ozone-depletion potential—** The term “ozone-depletion potential” means a factor established by the [Administrator](/usc/42/7602.md?p=a) to reflect the ozone-depletion potential of a substance, on a mass per kilogram basis, as compared to chlorofluorocarbon-11 (CFC–11). Such factor shall be based upon the substance’s atmospheric lifetime, the molecular weight of bromine and chlorine, and the substance’s ability to be photolytically disassociated, and upon other factors determined to be an accurate measure of relative ozone-depletion potential.
- (11) **Produce, produced, and production—** The terms “produce”, “produced”, and “production”, refer to the [manufacture](/usc/42/300aa–33.md?p=3) of a substance from any raw material or feedstock chemical, but such terms do not include—
- (A) the [manufacture](/usc/42/300aa–33.md?p=3) of a substance that is used and entirely consumed (except for trace quantities) in the [manufacture](/usc/42/300aa–33.md?p=3) of other chemicals, or
- (B) the reuse or recycling of a substance.
# §7671a. Listing of class I and class II substances
- (a) **List of class I substances—** Within 60 days after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall publish an initial list of [class I substances](/usc/42/7671.md?p=3), which list shall contain the following substances:
Group I
chlorofluorocarbon-11 (CFC–11)
chlorofluorocarbon-12 (CFC–12)
chlorofluorocarbon-113 (CFC–113)
chlorofluorocarbon-114 (CFC–114)
chlorofluorocarbon-115 (CFC–115)
Group II
halon-1211
halon-1301
halon-2402
Group III
chlorofluorocarbon-13 (CFC–13)
chlorofluorocarbon-111 (CFC–111)
chlorofluorocarbon-112 (CFC–112)
chlorofluorocarbon-211 (CFC–211)
chlorofluorocarbon-212 (CFC–212)
chlorofluorocarbon-213 (CFC–213)
chlorofluorocarbon-214 (CFC–214)
chlorofluorocarbon-215 (CFC–215)
chlorofluorocarbon-216 (CFC–216)
chlorofluorocarbon-217 (CFC–217)
Group IV
carbon tetrachloride
Group V
methyl chloroform
The initial list under this subsection shall also include the isomers of the substances listed above, other than 1,1,2-trichloroethane (an isomer of methyl chloroform). Pursuant to [subsection (c)](#c), the [Administrator](/usc/42/7602.md?p=a) shall add to the list of [class I substances](/usc/42/7671.md?p=3) any other substance that the [Administrator](/usc/42/7602.md?p=a) finds [causes](/usc/42/9908.md?p=c-2) or contributes significantly to harmful effects on the stratospheric ozone layer. The [Administrator](/usc/42/7602.md?p=a) shall, pursuant to [subsection (c)](#c), add to such list all substances that the [Administrator](/usc/42/7602.md?p=a) determines have an ozone depletion potential of 0.2 or greater.
- (b) **List of class II substances—** Simultaneously with publication of the initial list of [class I substances](/usc/42/7671.md?p=3), the [Administrator](/usc/42/7602.md?p=a) shall publish an initial list of [class II substances](/usc/42/7671.md?p=4), which shall contain the following substances:
hydrochlorofluorocarbon-21 (HCFC–21)
hydrochlorofluorocarbon-22 (HCFC–22)
hydrochlorofluorocarbon-31 (HCFC–31)
hydrochlorofluorocarbon-121 (HCFC–121)
hydrochlorofluorocarbon-122 (HCFC–122)
hydrochlorofluorocarbon-123 (HCFC–123)
hydrochlorofluorocarbon-124 (HCFC–124)
hydrochlorofluorocarbon-131 (HCFC–131)
hydrochlorofluorocarbon-132 (HCFC–132)
hydrochlorofluorocarbon-133 (HCFC–133)
hydrochlorofluorocarbon-141 (HCFC–141)
hydrochlorofluorocarbon-142 (HCFC–142)
hydrochlorofluorocarbon-221 (HCFC–221)
hydrochlorofluorocarbon-222 (HCFC–222)
hydrochlorofluorocarbon-223 (HCFC–223)
hydrochlorofluorocarbon-224 (HCFC–224)
hydrochlorofluorocarbon-225 (HCFC–225)
hydrochlorofluorocarbon-226 (HCFC–226)
hydrochlorofluorocarbon-231 (HCFC–231)
hydrochlorofluorocarbon-232 (HCFC–232)
hydrochlorofluorocarbon-233 (HCFC–233)
hydrochlorofluorocarbon-234 (HCFC–234)
hydrochlorofluorocarbon-235 (HCFC–235)
hydrochlorofluorocarbon-241 (HCFC–241)
hydrochlorofluorocarbon-242 (HCFC–242)
hydrochlorofluorocarbon-243 (HCFC–243)
hydrochlorofluorocarbon-244 (HCFC–244)
hydrochlorofluorocarbon-251 (HCFC–251)
hydrochlorofluorocarbon-252 (HCFC–252)
hydrochlorofluorocarbon-253 (HCFC–253)
hydrochlorofluorocarbon-261 (HCFC–261)
hydrochlorofluorocarbon-262 (HCFC–262)
hydrochlorofluorocarbon-271 (HCFC–271)
The initial list under this subsection shall also include the isomers of the substances listed above. Pursuant to [subsection (c)](#c), the [Administrator](/usc/42/7602.md?p=a) shall add to the list of [class II substances](/usc/42/7671.md?p=4) any other substance that the [Administrator](/usc/42/7602.md?p=a) finds is known or may reasonably be anticipated to [cause](/usc/42/9908.md?p=c-2) or contribute to harmful effects on the stratospheric ozone layer.
- (c) **Additions to the lists—**
- (1) The [Administrator](/usc/42/7602.md?p=a) may add, by rule, in accordance with the criteria set forth in subsection [(a)](#a) or [(b)](#b), as the case may be, any substance to the list of class I or [class II substances](/usc/42/7671.md?p=4) under subsection [(a)](#a) or [(b)](#b). For purposes of [exchanges](/usc/42/300gg–91.md?p=d-21) under [section 7661f](/usc/42/7661f.md)[^1] of this title, whenever a substance is added to the list of [class I substances](/usc/42/7671.md?p=3) the [Administrator](/usc/42/7602.md?p=a) shall, to the extent consistent with the [Montreal Protocol](/usc/42/7671.md?p=9), assign such substance to existing Group I, II, III, IV, or V or place such substance in a new Group.
- (2) Periodically, but not less frequently than every 3 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall list, by rule, as additional class I or [class II substances](/usc/42/7671.md?p=4) those substances which the [Administrator](/usc/42/7602.md?p=a) finds meet the criteria of subsection [(a)](#a) or [(b)](#b), as the case may be.
- (3) At any time, any [person](/usc/42/7602.md?p=e) may petition the [Administrator](/usc/42/7602.md?p=a) to add a substance to the list of class I or [class II substances](/usc/42/7671.md?p=4). Pursuant to the criteria set forth in subsection [(a)](#a) or [(b)](#b) as the case may be, within 180 days after receiving such a petition, the [Administrator](/usc/42/7602.md?p=a) shall either propose to add the substance to such list or publish an explanation of the petition denial. In any case where the [Administrator](/usc/42/7602.md?p=a) proposes to add a substance to such list, the [Administrator](/usc/42/7602.md?p=a) shall add, by rule, (or make a final determination not to add) such substance to such list within 1 year after receiving such petition. Any petition under this paragraph shall include a showing by the petitioner that there are data on the substance adequate to support the petition. If the [Administrator](/usc/42/7602.md?p=a) determines that information on the substance is not sufficient to make a determination under this paragraph, the [Administrator](/usc/42/7602.md?p=a) shall use any authority available to the [Administrator](/usc/42/7602.md?p=a), under any law administered by the [Administrator](/usc/42/7602.md?p=a), to acquire such information.
- (4) Only a [class II substance](/usc/42/7671.md?p=4) which is added to the list of [class I substances](/usc/42/7671.md?p=3) may be removed from the list of [class II substances](/usc/42/7671.md?p=4). No substance referred to in [subsection (a)](#a), including methyl chloroform, may be removed from the list of [class I substances](/usc/42/7671.md?p=3).
- (d) **New listed substances—** In the case of any substance added to the list of class I or [class II substances](/usc/42/7671.md?p=4) after publication of the initial list of such substances under this section, the [Administrator](/usc/42/7602.md?p=a) may extend any schedule or compliance deadline contained in section [7671c](/usc/42/7671c.md) or [7671d](/usc/42/7671d.md) of this title to a later date than specified in such sections if such schedule or deadline is unattainable, considering when such substance is added to the list. No extension under this subsection may extend the date for termination of [production](/usc/42/7671.md?p=11) of any [class I substance](/usc/42/7671.md?p=3) to a date more than 7 years after January 1 of the year after the year in which the substance is added to the list of [class I substances](/usc/42/7671.md?p=3). No extension under this subsection may extend the date for termination of [production](/usc/42/7671.md?p=11) of any [class II substance](/usc/42/7671.md?p=4) to a date more than 10 years after January 1 of the year after the year in which the substance is added to the list of [class II substances](/usc/42/7671.md?p=4).
- (e) **Ozone-depletion and global warming potential—** Simultaneously with publication of the lists under this section and simultaneously with any addition to either of such lists, the [Administrator](/usc/42/7602.md?p=a) shall assign to each listed substance a numerical value representing the substance’s [ozone-depletion potential](/usc/42/7671.md?p=10). In addition, the [Administrator](/usc/42/7602.md?p=a) shall publish the chlorine and bromine loading potential and the atmospheric lifetime of each listed substance. One year after November 15, 1990 (one year after the addition of a substance to either of such lists in the case of a substance added after the publication of the initial lists of such substances), and after notice and opportunity for public comment, the [Administrator](/usc/42/7602.md?p=a) shall publish the global warming potential of each listed substance. The preceding sentence shall not be construed to be the basis of any additional regulation under this chapter. In the case of the substances referred to in table 1, the [ozone-depletion potential](/usc/42/7671.md?p=10) shall be as specified in table 1, unless the [Administrator](/usc/42/7602.md?p=a) adjusts the substance’s [ozone-depletion potential](/usc/42/7671.md?p=10) based on criteria referred to in [section 7671(10) of this title](/usc/42/7671.md?p=10):
| Table 1 | |
| --- | --- |
| Substance | Ozone- depletion potential |
| chlorofluorocarbon-11 (CFC–11) | 1.0 |
| chlorofluorocarbon-12 (CFC–12) | 1.0 |
| chlorofluorocarbon-13 (CFC–13) | 1.0 |
| chlorofluorocarbon-111 (CFC–111) | 1.0 |
| chlorofluorocarbon-112 (CFC–112) | 1.0 |
| chlorofluorocarbon-113 (CFC–113) | 0.8 |
| chlorofluorocarbon-114 (CFC–114) | 1.0 |
| chlorofluorocarbon-115 (CFC–115) | 0.6 |
| chlorofluorocarbon-211 (CFC–211) | 1.0 |
| chlorofluorocarbon-212 (CFC–212) | 1.0 |
| chlorofluorocarbon-213 (CFC–213) | 1.0 |
| chlorofluorocarbon-214 (CFC–214) | 1.0 |
| chlorofluorocarbon-215 (CFC–215) | 1.0 |
| chlorofluorocarbon-216 (CFC–216) | 1.0 |
| chlorofluorocarbon-217 (CFC–217) | 1.0 |
| halon-1211 | 3.0 |
| halon-1301 | 10.0 |
| halon-2402 | 6.0 |
| carbon tetrachloride | 1.1 |
| methyl chloroform | 0.1 |
| hydrochlorofluorocarbon-22 (HCFC–22) | 0.05 |
| hydrochlorofluorocarbon-123 (HCFC–123) | 0.02 |
| hydrochlorofluorocarbon-124 (HCFC–124) | 0.02 |
| hydrochlorofluorocarbon-141(b) (HCFC–141(b)) | 0.1 |
| hydrochlorofluorocarbon-142(b) (HCFC–142(b)) | 0.06 |
Where the [ozone-depletion potential](/usc/42/7671.md?p=10) of a substance is specified in the [Montreal Protocol](/usc/42/7671.md?p=9), the [ozone-depletion potential](/usc/42/7671.md?p=10) specified for that substance under this section shall be consistent with the [Montreal Protocol](/usc/42/7671.md?p=9).
# §7671b. Monitoring and reporting requirements
- (a) **Regulations—** Within 270 days after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall amend the regulations of the [Administrator](/usc/42/7602.md?p=a) in effect on such date regarding monitoring and reporting of class I and [class II substances](/usc/42/7671.md?p=4). Such amendments shall conform to the requirements of this section. The amended regulations shall include requirements with respect to the time and manner of monitoring and reporting as required under this section.
- (b) **Production, import, and export level reports—** On a quarterly basis, or such other basis (not less than annually) as determined by the [Administrator](/usc/42/7602.md?p=a), each [person](/usc/42/7602.md?p=e) who [produced](/usc/42/7671.md?p=11), imported, or exported a class I or [class II substance](/usc/42/7671.md?p=4) shall file a report with the [Administrator](/usc/42/7602.md?p=a) setting forth the amount of the substance that such [person](/usc/42/7602.md?p=e) [produced](/usc/42/7671.md?p=11), imported, and exported during the preceding reporting period. Each such report shall be signed and attested by a responsible officer. No such report shall be required from a [person](/usc/42/7602.md?p=e) after April 1 of the calendar year after such [person](/usc/42/7602.md?p=e) permanently ceases [production](/usc/42/7671.md?p=11), [importation](/usc/42/6311.md?p=7), and exportation of the substance and so notifies the [Administrator](/usc/42/7602.md?p=a) in writing.
- (c) **Baseline reports for class I substances—** Unless such information has previously been reported to the [Administrator](/usc/42/7602.md?p=a), on the date on which the first report under [subsection (b)](#b) is required to be filed, each [person](/usc/42/7602.md?p=e) who [produced](/usc/42/7671.md?p=11), imported, or exported a [class I substance](/usc/42/7671.md?p=3) (other than a substance added to the list of [class I substances](/usc/42/7671.md?p=3) after the publication of the initial list of such substances under this section) shall file a report with the [Administrator](/usc/42/7602.md?p=a) setting forth the amount of such substance that such [person](/usc/42/7602.md?p=e) [produced](/usc/42/7671.md?p=11), imported, and exported during the [baseline year](/usc/42/7671.md?p=2). In the case of a substance added to the list of [class I substances](/usc/42/7671.md?p=3) after publication of the initial list of such substances under this section, the regulations shall require that each [person](/usc/42/7602.md?p=e) who [produced](/usc/42/7671.md?p=11), imported, or exported such substance shall file a report with the [Administrator](/usc/42/7602.md?p=a) within 180 days after the date on which such substance is added to the list, setting forth the amount of the substance that such [person](/usc/42/7602.md?p=e) [produced](/usc/42/7671.md?p=11), imported, and exported in the [baseline year](/usc/42/7671.md?p=2).
- (d) **Monitoring and reports to Congress—**
- (1) The [Administrator](/usc/42/7602.md?p=a) shall monitor and, not less often than every 3 years following November 15, 1990, submit a report to Congress on the [production](/usc/42/7671.md?p=11), use and [consumption](/usc/42/7671.md?p=6) of class I and [class II substances](/usc/42/7671.md?p=4). Such report shall include data on domestic [production](/usc/42/7671.md?p=11), use and [consumption](/usc/42/7671.md?p=6), and an estimate of worldwide [production](/usc/42/7671.md?p=11), use and [consumption](/usc/42/7671.md?p=6) of such substances. Not less frequently than every 6 years the [Administrator](/usc/42/7602.md?p=a) shall report to Congress on the environmental and economic effects of any stratospheric ozone depletion.
- (2) The [Administrators](/usc/42/7602.md?p=a) of the National Aeronautics and Space Administration and the National Oceanic and Atmospheric Administration shall monitor, and not less often than every 3 years following November 15, 1990, submit a report to Congress on the current average tropospheric concentration of chlorine and bromine and on the level of stratospheric ozone depletion. Such reports shall include updated projections of—
- (A) peak chlorine loading;
- (B) the rate at which the atmospheric abundance of chlorine is projected to decrease after the year 2000; and
- (C) the date by which the atmospheric abundance of chlorine is projected to return to a level of two parts per billion.
Such updated projections shall be made on the basis of current international and domestic controls on substances covered by this subchapter as well as on the basis of such controls supplemented by a year 2000 global phase out of all halocarbon emissions (the base case). It is the purpose of the Congress through the provisions of this section to monitor closely the [production](/usc/42/7671.md?p=11) and [consumption](/usc/42/7671.md?p=6) of [class II substances](/usc/42/7671.md?p=4) to assure that the [production](/usc/42/7671.md?p=11) and [consumption](/usc/42/7671.md?p=6) of such substances will not:
- (i) increase significantly the peak chlorine loading that is projected to occur under the base case established for purposes of this section;
- (ii) reduce significantly the rate at which the atmospheric abundance of chlorine is projected to decrease under the base case; or
- (iii) delay the date by which the average atmospheric concentration of chlorine is projected under the base case to return to a level of two parts per billion.
- (e) **Technology status report in 2015—** The [Administrator](/usc/42/7602.md?p=a) shall review, on a periodic basis, the progress being made in the development of alternative systems or products necessary to [manufacture](/usc/42/300aa–33.md?p=3) and operate [appliances](/usc/42/7671.md?p=1) without [class II substances](/usc/42/7671.md?p=4). If the [Administrator](/usc/42/7602.md?p=a) finds, after notice and opportunity for public comment, that as a result of technological development problems, the development of such alternative systems or products will not occur within the time necessary to provide for the [manufacture](/usc/42/300aa–33.md?p=3) of such equipment without such substances prior to the applicable deadlines under [section 7671d of this title](/usc/42/7671d.md), the [Administrator](/usc/42/7602.md?p=a) shall, not later than January 1, 2015, so inform the Congress.
- (f) **Emergency report—** If, in consultation with the [Administrators](/usc/42/7602.md?p=a) of the National Aeronautics and Space Administration and the National Oceanic and Atmospheric Administration, and after notice and opportunity for public comment, the [Administrator](/usc/42/7602.md?p=a) determines that the global [production](/usc/42/7671.md?p=11), [consumption](/usc/42/7671.md?p=6), and use of [class II substances](/usc/42/7671.md?p=4) are projected to contribute to an atmospheric chlorine loading in excess of the base case projections by more than 5⁄10ths parts per billion, the [Administrator](/usc/42/7602.md?p=a) shall so inform the Congress immediately. The determination referred to in the preceding sentence shall be based on the monitoring under [subsection (d)](#d) and updated not less often than every 3 years.
# §7671c. Phase-out of production and consumption of class I substances
- (a) **Production phase-out—** Effective on January 1 of each year specified in Table 2, it shall be unlawful for any [person](/usc/42/7602.md?p=e) to [produce](/usc/42/7671.md?p=11) any [class I substance](/usc/42/7671.md?p=3) in an annual quantity greater than the relevant percentage specified in Table 2. The percentages in Table 2 refer to a maximum allowable [production](/usc/42/7671.md?p=11) as a percentage of the quantity of the substance [produced](/usc/42/7671.md?p=11) by the [person](/usc/42/7602.md?p=e) concerned in the [baseline year](/usc/42/7671.md?p=2).
| Table 2 | | | |
| --- | --- | --- | --- |
| Date | Carbon tetrachloride | Methyl chloroform | Other [class I substances](/usc/42/7671.md?p=3) |
| 1991 | 100% | 100% | 85% |
| 1992 | 90% | 100% | 80% |
| 1993 | 80% | 90% | 75% |
| 1994 | 70% | 85% | 65% |
| 1995 | 15% | 70% | 50% |
| 1996 | 15% | 50% | 40% |
| 1997 | 15% | 50% | 15% |
| 1998 | 15% | 50% | 15% |
| 1999 | 15% | 50% | 15% |
| 2000 | | 20% | |
| 2001 | | 20% | |
- (b) **Termination of production of class I substances—** Effective January 1, 2000 (January 1, 2002 in the case of methyl chloroform), it shall be unlawful for any [person](/usc/42/7602.md?p=e) to [produce](/usc/42/7671.md?p=11) any amount of a [class I substance](/usc/42/7671.md?p=3).
- (c) **Regulations regarding production and consumption of class I substances—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations within 10 months after November 15, 1990, phasing out the [production](/usc/42/7671.md?p=11) of [class I substances](/usc/42/7671.md?p=3) in accordance with this section and other applicable provisions of this subchapter. The [Administrator](/usc/42/7602.md?p=a) shall also promulgate regulations to insure that the [consumption](/usc/42/7671.md?p=6) of [class I substances](/usc/42/7671.md?p=3) in the [United States](/usc/42/403.md?p=k) is phased out and terminated in accordance with the same schedule (subject to the same exceptions and other provisions) as is applicable to the phase-out and termination of [production](/usc/42/7671.md?p=11) of [class I substances](/usc/42/7671.md?p=3) under this subchapter.
- (d) **Exceptions for essential uses of methyl chloroform, medical devices, and aviation safety—**
- (1) **Essential uses of methyl chloroform—** Notwithstanding the termination of [production](/usc/42/7671.md?p=11) required by [subsection (b)](#b), during the period beginning on January 1, 2002, and ending on January 1, 2005, the [Administrator](/usc/42/7602.md?p=a), after notice and opportunity for public comment, may, to the extent such action is consistent with the [Montreal Protocol](/usc/42/7671.md?p=9), authorize the [production](/usc/42/7671.md?p=11) of limited quantities of methyl chloroform solely for use in essential applications (such as nondestructive testing for metal fatigue and corrosion of existing airplane engines and airplane parts susceptible to metal fatigue) for which no safe and effective substitute is available. Notwithstanding this paragraph, the authority to [produce](/usc/42/7671.md?p=11) methyl chloroform for use in [medical devices](/usc/42/7671.md?p=8) shall be provided in accordance with [paragraph (2)](#d-2).
- (2) **Medical devices—** Notwithstanding the termination of [production](/usc/42/7671.md?p=11) required by [subsection (b)](#b), the [Administrator](/usc/42/7602.md?p=a), after notice and opportunity for public comment, shall, to the extent such action is consistent with the [Montreal Protocol](/usc/42/7671.md?p=9), authorize the [production](/usc/42/7671.md?p=11) of limited quantities of [class I substances](/usc/42/7671.md?p=3) solely for use in [medical devices](/usc/42/7671.md?p=8) if such [authorization](/usc/42/4370m.md?p=3) is determined by the [Commissioner](/usc/42/7671.md?p=5), in consultation with the [Administrator](/usc/42/7602.md?p=a), to be necessary for use in [medical devices](/usc/42/7671.md?p=8).
- (3) **Aviation safety—**
- (A) Notwithstanding the termination of [production](/usc/42/7671.md?p=11) required by [subsection (b)](#b), the [Administrator](/usc/42/7602.md?p=a), after notice and opportunity for public comment, may, to the extent such action is consistent with the [Montreal Protocol](/usc/42/7671.md?p=9), authorize the [production](/usc/42/7671.md?p=11) of limited quantities of halon-1211 (bromochlorodifluoromethane), halon-1301 (bromotrifluoromethane), and halon-2402 (dibromotetrafluoroethane) solely for purposes of aviation safety if the [Administrator](/usc/42/7602.md?p=a) of the Federal Aviation Administration, in consultation with the [Administrator](/usc/42/7602.md?p=a), determines that no safe and effective substitute has been developed and that such [authorization](/usc/42/4370m.md?p=3) is necessary for aviation safety purposes.
- (B) The [Administrator](/usc/42/7602.md?p=a) of the Federal Aviation Administration shall, in consultation with the [Administrator](/usc/42/7602.md?p=a), examine whether safe and effective substitutes for methyl chloroform or alternative techniques will be available for nondestructive testing for metal fatigue and corrosion of existing airplane engines and airplane parts susceptible to metal fatigue and whether an exception for such uses of methyl chloroform under this paragraph will be necessary for purposes of airline safety after January 1, 2005 and provide a report to Congress in 1998.
- (4) **Cap on certain exceptions—** Under no circumstances may the authority set forth in paragraphs [(1)](#d-1), [(2)](#d-2), and [(3)](#d-3) of subsection (d) be applied to authorize any [person](/usc/42/7602.md?p=e) to [produce](/usc/42/7671.md?p=11) a [class I substance](/usc/42/7671.md?p=3) in annual quantities greater than 10 percent of that [produced](/usc/42/7671.md?p=11) by such [person](/usc/42/7602.md?p=e) during the [baseline year](/usc/42/7671.md?p=2).
- (5) **Sanitation and food protection—** To the extent consistent with the [Montreal Protocol](/usc/42/7671.md?p=9)’s quarantine and preshipment provisions, the [Administrator](/usc/42/7602.md?p=a) shall exempt the [production](/usc/42/7671.md?p=11), [importation](/usc/42/6311.md?p=7), and [consumption](/usc/42/7671.md?p=6) of methyl bromide to fumigate commodities entering or leaving the [United States](/usc/42/403.md?p=k) or any [State](/usc/42/7602.md?p=d) (or political subdivision thereof) for purposes of compliance with Animal and Plant Health [Inspection](/usc/42/4851b.md?p=12) Service requirements or with any international, Federal, [State](/usc/42/7602.md?p=d), or local sanitation or food protection [standard](/usc/42/1320d.md?p=7).
- (6) **Critical uses—** To the extent consistent with the [Montreal Protocol](/usc/42/7671.md?p=9), the [Administrator](/usc/42/7602.md?p=a), after notice and the opportunity for public comment, and after consultation with other departments or instrumentalities of the Federal Government having regulatory authority related to methyl bromide, including the [Secretary](/usc/42/242q–4.md?p=2) of Agriculture, may exempt the [production](/usc/42/7671.md?p=11), [importation](/usc/42/6311.md?p=7), and [consumption](/usc/42/7671.md?p=6) of methyl bromide for critical uses.
- (e) **Developing countries—**
- (1) **Exception—** Notwithstanding the phase-out and termination of [production](/usc/42/7671.md?p=11) required under subsections [(a)](#a) and [(b)](#b), the [Administrator](/usc/42/7602.md?p=a), after notice and opportunity for public comment, may, consistent with the [Montreal Protocol](/usc/42/7671.md?p=9), authorize the [production](/usc/42/7671.md?p=11) of limited quantities of a [class I substance](/usc/42/7671.md?p=3) in excess of the amounts otherwise allowable under subsection [(a)](#a) or [(b)](#b), or both, solely for export to, and use in, [developing countries](/usc/42/13389.md?p=a-4) that are Parties to the [Montreal Protocol](/usc/42/7671.md?p=9) and are operating under article 5 of such Protocol. Any [production](/usc/42/7671.md?p=11) authorized under this paragraph shall be solely for purposes of satisfying the basic domestic needs of such countries.
- (2) **Cap on exception—**
- (A) Under no circumstances may the authority set forth in [paragraph (1)](#e-1) be applied to authorize any [person](/usc/42/7602.md?p=e) to [produce](/usc/42/7671.md?p=11) a [class I substance](/usc/42/7671.md?p=3) in any year for which a [production](/usc/42/7671.md?p=11) percentage is specified in Table 2 of [subsection (a)](#a) in an annual quantity greater than the specified percentage, plus an amount equal to 10 percent of the amount [produced](/usc/42/7671.md?p=11) by such [person](/usc/42/7602.md?p=e) in the [baseline year](/usc/42/7671.md?p=2).
- (B) Under no circumstances may the authority set forth in [paragraph (1)](#e-1) be applied to authorize any [person](/usc/42/7602.md?p=e) to [produce](/usc/42/7671.md?p=11) a [class I substance](/usc/42/7671.md?p=3) in the applicable termination year referred to in [subsection (b)](#b), or in any year thereafter, in an annual quantity greater than 15 percent of the baseline quantity of such substance [produced](/usc/42/7671.md?p=11) by such [person](/usc/42/7602.md?p=e).
- (C) An exception authorized under this subsection shall terminate no later than January 1, 2010 (2012 in the case of methyl chloroform).
- (3) **Methyl bromide—** Notwithstanding the phaseout and termination of [production](/usc/42/7671.md?p=11) of methyl bromide pursuant to [subsection (h)](#h), the [Administrator](/usc/42/7602.md?p=a) may, consistent with the [Montreal Protocol](/usc/42/7671.md?p=9), authorize the [production](/usc/42/7671.md?p=11) of limited quantities of methyl bromide, solely for use in [developing countries](/usc/42/13389.md?p=a-4) that are Parties to the Copenhagen Amendments to the [Montreal Protocol](/usc/42/7671.md?p=9).
- (f) **National security—** The President may, to the extent such action is consistent with the [Montreal Protocol](/usc/42/7671.md?p=9), issue such orders regarding [production](/usc/42/7671.md?p=11) and use of CFC–114 (chlorofluorocarbon-114), halon-1211, halon-1301, and halon-2402, at any specified site or [facility](/usc/42/11049.md?p=4) or on any vessel as may be necessary to protect the national security interests of the [United States](/usc/42/403.md?p=k) if the President finds that adequate substitutes are not available and that the [production](/usc/42/7671.md?p=11) and use of such substance are necessary to protect such national security interest. Such orders may include, where necessary to protect such interests, an exemption from any prohibition or requirement contained in this subchapter. The President shall notify the Congress within 30 days of the issuance of an order under this paragraph providing for any such exemption. Such notification shall include a statement of the reasons for the granting of the exemption. An exemption under this paragraph shall be for a specified period which may not exceed one year. Additional exemptions may be granted, each upon the President’s issuance of a new order under this paragraph. Each such additional exemption shall be for a specified period which may not exceed one year. No exemption shall be granted under this paragraph due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation.
- (g) **Fire suppression and explosion prevention—**
- (1) Notwithstanding the [production](/usc/42/7671.md?p=11) phase-out set forth in [subsection (a)](#a), the [Administrator](/usc/42/7602.md?p=a), after notice and opportunity for public comment, may, to the extent such action is consistent with the [Montreal Protocol](/usc/42/7671.md?p=9), authorize the [production](/usc/42/7671.md?p=11) of limited quantities of halon-1211, halon-1301, and halon-2402 in excess of the amount otherwise permitted pursuant to the schedule under [subsection (a)](#a) solely for purposes of fire suppression or explosion prevention if the [Administrator](/usc/42/7602.md?p=a), in consultation with the [Administrator](/usc/42/7602.md?p=a) of the [United States](/usc/42/403.md?p=k) Fire Administration, determines that no safe and effective substitute has been developed and that such [authorization](/usc/42/4370m.md?p=3) is necessary for fire suppression or explosion prevention purposes. The [Administrator](/usc/42/7602.md?p=a) shall not authorize [production](/usc/42/7671.md?p=11) under this paragraph for purposes of fire safety or explosion prevention [training](/usc/42/285e–2.md?p=b-2) or testing of fire suppression or explosion prevention equipment. In no event shall the [Administrator](/usc/42/7602.md?p=a) grant an exception under this paragraph that permits [production](/usc/42/7671.md?p=11) after December 31, 1999.
- (2) The [Administrator](/usc/42/7602.md?p=a) shall periodically monitor and assess the status of efforts to obtain substitutes for the substances referred to in [paragraph (1)](#g-1) for purposes of fire suppression or explosion prevention and the probability of such substitutes being available by December 31, 1999. The [Administrator](/usc/42/7602.md?p=a), as part of such assessment, shall consider any relevant assessments under the [Montreal Protocol](/usc/42/7671.md?p=9) and the actions of the Parties pursuant to Article 2B of the [Montreal Protocol](/usc/42/7671.md?p=9) in identifying essential uses and in permitting a level of [production](/usc/42/7671.md?p=11) or [consumption](/usc/42/7671.md?p=6) that is necessary to satisfy such uses for which no adequate alternatives are available after December 31, 1999. The [Administrator](/usc/42/7602.md?p=a) shall report to Congress the results of such assessment in 1994 and again in 1998.
- (3) Notwithstanding the termination of [production](/usc/42/7671.md?p=11) set forth in [subsection (b)](#b), the [Administrator](/usc/42/7602.md?p=a), after notice and opportunity for public comment, may, to the extent consistent with the [Montreal Protocol](/usc/42/7671.md?p=9), authorize the [production](/usc/42/7671.md?p=11) of limited quantities of halon-1211, halon-1301, and halon-2402 in the period after December 31, 1999, and before December 31, 2004, solely for purposes of fire suppression or explosion prevention in association with domestic [production](/usc/42/7671.md?p=11) of crude oil and natural gas [energy](/usc/42/6311.md?p=7) supplies on the North Slope of Alaska, if the [Administrator](/usc/42/7602.md?p=a), in consultation with the [Administrator](/usc/42/7602.md?p=a) of the [United States](/usc/42/403.md?p=k) Fire Administration, determines that no safe and effective substitute has been developed and that such [authorization](/usc/42/4370m.md?p=3) is necessary for fire suppression and explosion prevention purposes. The [Administrator](/usc/42/7602.md?p=a) shall not authorize [production](/usc/42/7671.md?p=11) under the paragraph for purposes of fire safety or explosion prevention [training](/usc/42/285e–2.md?p=b-2) or testing of fire suppression or explosion prevention equipment. In no event shall the [Administrator](/usc/42/7602.md?p=a) authorize under this paragraph any [person](/usc/42/7602.md?p=e) to [produce](/usc/42/7671.md?p=11) any such halon in an amount greater than 3 percent of that [produced](/usc/42/7671.md?p=11) by such [person](/usc/42/7602.md?p=e) during the [baseline year](/usc/42/7671.md?p=2).
- (h) **Methyl bromide—** Notwithstanding subsections [(b)](#b) and [(d)](#d), the [Administrator](/usc/42/7602.md?p=a) shall not terminate [production](/usc/42/7671.md?p=11) of methyl bromide prior to January 1, 2005. The [Administrator](/usc/42/7602.md?p=a) shall promulgate rules for reductions in, and terminate the [production](/usc/42/7671.md?p=11), [importation](/usc/42/6311.md?p=7), and [consumption](/usc/42/7671.md?p=6) of, methyl bromide under a schedule that is in accordance with, but not more stringent than, the phaseout schedule of the [Montreal Protocol](/usc/42/7671.md?p=9) Treaty as in effect on October 21, 1998.
# §7671d. Phase-out of production and consumption of class II substances
- (a) **Restriction of use of class II substances—** Effective January 1, 2015, it shall be unlawful for any [person](/usc/42/7602.md?p=e) to introduce into interstate [commerce](/usc/42/6311.md?p=7) or use any [class II substance](/usc/42/7671.md?p=4) unless such substance—
- (1) has been used, recovered, and recycled;
- (2) is used and entirely consumed (except for trace quantities) in the [production](/usc/42/7671.md?p=11) of other chemicals;
- (3) is used as a [refrigerant](#a) in [appliances](/usc/42/7671.md?p=1) manufactured prior to January 1, 2020; or
- (4) is listed as acceptable for use as a fire suppression agent for nonresidential applications in accordance with [section 7671k(c) of this title](/usc/42/7671k.md?p=c).
As used in this subsection, the term “refrigerant” means any [class II substance](/usc/42/7671.md?p=4) used for heat transfer in a refrigerating system.
- (b) **Production phase-out—**
- (1) Effective January 1, 2015, it shall be unlawful for any [person](/usc/42/7602.md?p=e) to [produce](/usc/42/7671.md?p=11) any [class II substance](/usc/42/7671.md?p=4) in an annual quantity greater than the quantity of such substance [produced](/usc/42/7671.md?p=11) by such [person](/usc/42/7602.md?p=e) during the [baseline year](/usc/42/7671.md?p=2).
- (2) Effective January 1, 2030, it shall be unlawful for any [person](/usc/42/7602.md?p=e) to [produce](/usc/42/7671.md?p=11) any [class II substance](/usc/42/7671.md?p=4).
- (c) **Regulations regarding production and consumption of class II substances—** By December 31, 1999, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations phasing out the [production](/usc/42/7671.md?p=11), and restricting the use, of [class II substances](/usc/42/7671.md?p=4) in accordance with this section, subject to any acceleration of the phase-out of [production](/usc/42/7671.md?p=11) under [section 7671e of this title](/usc/42/7671e.md). The [Administrator](/usc/42/7602.md?p=a) shall also promulgate regulations to insure that the [consumption](/usc/42/7671.md?p=6) of [class II substances](/usc/42/7671.md?p=4) in the [United States](/usc/42/403.md?p=k) is phased out and terminated in accordance with the same schedule (subject to the same exceptions and other provisions) as is applicable to the phase-out and termination of [production](/usc/42/7671.md?p=11) of [class II substances](/usc/42/7671.md?p=4) under this subchapter.
- (d) **Exceptions—**
- (1) **Medical devices—**
- (A) **In general—** Notwithstanding the termination of [production](/usc/42/7671.md?p=11) required under [subsection (b)(2)](#b-2) and the restriction on use referred to in [subsection (a)](#a), the [Administrator](/usc/42/7602.md?p=a), after notice and opportunity for public comment, shall, to the extent such action is consistent with the [Montreal Protocol](/usc/42/7671.md?p=9), authorize the [production](/usc/42/7671.md?p=11) and use of limited quantities of [class II substances](/usc/42/7671.md?p=4) solely for purposes of use in [medical devices](/usc/42/7671.md?p=8) if such [authorization](/usc/42/4370m.md?p=3) is determined by the [Commissioner](/usc/42/7671.md?p=5), in consultation with the [Administrator](/usc/42/7602.md?p=a), to be necessary for use in [medical devices](/usc/42/7671.md?p=8).
- (B) **Cap on exception—** Under no circumstances may the authority set forth in [subparagraph (A)](#d-1-A) be applied to authorize any [person](/usc/42/7602.md?p=e) to [produce](/usc/42/7671.md?p=11) a [class II substance](/usc/42/7671.md?p=4) in annual quantities greater than 10 percent of that [produced](/usc/42/7671.md?p=11) by such [person](/usc/42/7602.md?p=e) during the [baseline year](/usc/42/7671.md?p=2).
- (2) **Developing countries—**
- (A) **In general—** Notwithstanding the provisions of subsection [(a)](#a) or [(b)](#b), the [Administrator](/usc/42/7602.md?p=a), after notice and opportunity for public comment, may authorize the [production](/usc/42/7671.md?p=11) of limited quantities of a [class II substance](/usc/42/7671.md?p=4) in excess of the quantities otherwise permitted under such provisions solely for export to and use in [developing countries](/usc/42/13389.md?p=a-4) that are Parties to the [Montreal Protocol](/usc/42/7671.md?p=9), as determined by the [Administrator](/usc/42/7602.md?p=a). Any [production](/usc/42/7671.md?p=11) authorized under this subsection shall be solely for purposes of satisfying the basic domestic needs of such countries.
- (B) **Cap on exception—**
- (i) Under no circumstances may the authority set forth in [subparagraph (A)](#d-2-A) be applied to authorize any [person](/usc/42/7602.md?p=e) to [produce](/usc/42/7671.md?p=11) a [class II substance](/usc/42/7671.md?p=4) in any year following the effective date of [subsection (b)(1)](#b-1) and before the year 2030 in annual quantities greater than 110 percent of the quantity of such substance [produced](/usc/42/7671.md?p=11) by such [person](/usc/42/7602.md?p=e) during the [baseline year](/usc/42/7671.md?p=2).
- (ii) Under no circumstances may the authority set forth in [subparagraph (A)](#d-2-A) be applied to authorize any [person](/usc/42/7602.md?p=e) to [produce](/usc/42/7671.md?p=11) a [class II substance](/usc/42/7671.md?p=4) in the year 2030, or any year thereafter, in an annual quantity greater than 15 percent of the quantity of such substance [produced](/usc/42/7671.md?p=11) by such [person](/usc/42/7602.md?p=e) during the [baseline year](/usc/42/7671.md?p=2).
- (iii) Each exception authorized under this paragraph shall terminate no later than January 1, 2040.
# §7671e. Accelerated schedule
- (a) **In general—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations, after notice and opportunity for public comment, which establish a schedule for phasing out the [production](/usc/42/7671.md?p=11) and [consumption](/usc/42/7671.md?p=6) of class I and [class II substances](/usc/42/7671.md?p=4) (or use of [class II substances](/usc/42/7671.md?p=4)) that is more stringent than set forth in section [7671c](/usc/42/7671c.md) or [7671d](/usc/42/7671d.md) of this title, or both, if—
- (1) based on an assessment of credible current scientific information (including any assessment under the [Montreal Protocol](/usc/42/7671.md?p=9)) regarding harmful effects on the stratospheric ozone layer associated with a class I or [class II substance](/usc/42/7671.md?p=4), the [Administrator](/usc/42/7602.md?p=a) determines that such more stringent schedule may be necessary to protect human health and the environment against such effects,
- (2) based on the availability of substitutes for listed substances, the [Administrator](/usc/42/7602.md?p=a) determines that such more stringent schedule is practicable, taking into account technological achievability, safety, and other relevant factors, or
- (3) the [Montreal Protocol](/usc/42/7671.md?p=9) is [modified](/usc/42/7501.md?p=4) to include a schedule to control or reduce [production](/usc/42/7671.md?p=11), [consumption](/usc/42/7671.md?p=6), or use of any substance more rapidly than the applicable schedule under this subchapter.
In making any determination under paragraphs [(1)](#a-1) and [(2)](#a-2), the [Administrator](/usc/42/7602.md?p=a) shall consider the status of the period remaining under the applicable schedule under this subchapter.
- (b) **Petition—** Any [person](/usc/42/7602.md?p=e) may petition the [Administrator](/usc/42/7602.md?p=a) to promulgate regulations under this section. The [Administrator](/usc/42/7602.md?p=a) shall grant or deny the petition within 180 days after receipt of any such petition. If the [Administrator](/usc/42/7602.md?p=a) denies the petition, the [Administrator](/usc/42/7602.md?p=a) shall publish an explanation of why the petition was denied. If the [Administrator](/usc/42/7602.md?p=a) grants such petition, such final regulations shall be promulgated within 1 year. Any petition under this subsection shall include a showing by the petitioner that there are data adequate to support the petition. If the [Administrator](/usc/42/7602.md?p=a) determines that information is not sufficient to make a determination under this subsection, the [Administrator](/usc/42/7602.md?p=a) shall use any authority available to the [Administrator](/usc/42/7602.md?p=a), under any law administered by the [Administrator](/usc/42/7602.md?p=a), to acquire such information.
# §7671f. Exchange authority
- (a) **Transfers—** The [Administrator](/usc/42/7602.md?p=a) shall, within 10 months after November 15, 1990, promulgate rules under this subchapter providing for the issuance of allowances for the [production](/usc/42/7671.md?p=11) of class I and II substances in accordance with the requirements of this subchapter and governing the transfer of such allowances. Such rules shall insure that the transactions under the authority of this section will result in greater total reductions in the [production](/usc/42/7671.md?p=11) in each year of class I and [class II substances](/usc/42/7671.md?p=4) than would occur in that year in the absence of such transactions.
- (b) **Interpollutant transfers—**
- (1) The rules under this section shall permit a [production](/usc/42/7671.md?p=11) allowance for a substance for any year to be transferred for a [production](/usc/42/7671.md?p=11) allowance for another substance for the same year on an ozone depletion weighted basis.
- (2) Allowances for substances in each group of [class I substances](/usc/42/7671.md?p=3) (as listed pursuant to [section 7671a of this title](/usc/42/7671a.md)) may only be transferred for allowances for other substances in the same Group.
- (3) The [Administrator](/usc/42/7602.md?p=a) shall, as appropriate, establish groups of [class II substances](/usc/42/7671.md?p=4) for trading purposes and assign [class II substances](/usc/42/7671.md?p=4) to such groups. In the case of [class II substances](/usc/42/7671.md?p=4), allowances may only be transferred for allowances for other [class II substances](/usc/42/7671.md?p=4) that are in the same Group.
- (c) **Trades with other persons—** The rules under this section shall permit 2 or more [persons](/usc/42/7602.md?p=e) to transfer [production](/usc/42/7671.md?p=11) allowances (including interpollutant transfers which meet the requirements of subsections [(a)](#a) and [(b)](#b)) if the transferor of such allowances will be subject, under such rules, to an enforceable and quantifiable reduction in annual [production](/usc/42/7671.md?p=11) which—
- (1) exceeds the reduction otherwise applicable to the transferor under this subchapter,
- (2) exceeds the [production](/usc/42/7671.md?p=11) allowances transferred to the transferee, and
- (3) would not have occurred in the absence of such transaction.
- (d) **Consumption—** The rules under this section shall also provide for the issuance of [consumption](/usc/42/7671.md?p=6) allowances in accordance with the requirements of this subchapter and for the trading of such allowances in the same manner as is applicable under this section to the trading of [production](/usc/42/7671.md?p=11) allowances under this section.
# §7671g. National recycling and emission reduction program
- (a) **In general—**
- (1) The [Administrator](/usc/42/7602.md?p=a) shall, by not later than January 1, 1992, promulgate regulations establishing [standards](/usc/42/1320d.md?p=7) and requirements regarding the use and [disposal](/usc/42/2021b.md?p=7) of [class I substances](/usc/42/7671.md?p=3) during the service, repair, or [disposal](/usc/42/2021b.md?p=7) of [appliances](/usc/42/7671.md?p=1) and industrial process refrigeration. Such [standards](/usc/42/1320d.md?p=7) and requirements shall become effective not later than July 1, 1992.
- (2) The [Administrator](/usc/42/7602.md?p=a) shall, within 4 years after November 15, 1990, promulgate regulations establishing [standards](/usc/42/1320d.md?p=7) and requirements regarding use and [disposal](/usc/42/2021b.md?p=7) of class I and II substances not covered by [paragraph (1)](#a-1), including the use and [disposal](/usc/42/2021b.md?p=7) of [class II substances](/usc/42/7671.md?p=4) during service, repair, or [disposal](/usc/42/2021b.md?p=7) of [appliances](/usc/42/7671.md?p=1) and industrial process refrigeration. Such [standards](/usc/42/1320d.md?p=7) and requirements shall become effective not later than 12 months after promulgation of the regulations.
- (3) The regulations under this subsection shall include requirements that—
- (A) reduce the use and emission of such substances to the lowest achievable level, and
- (B) maximize the recapture and recycling of such substances.
Such regulations may include requirements to use alternative substances (including substances which are not class I or [class II substances](/usc/42/7671.md?p=4)) or to minimize use of class I or [class II substances](/usc/42/7671.md?p=4), or to promote the use of safe alternatives pursuant to [section 7671k of this title](/usc/42/7671k.md) or any combination of the foregoing.
- (b) **Safe disposal—** The regulations under [subsection (a)](#a) shall establish [standards](/usc/42/1320d.md?p=7) and requirements for the safe [disposal](/usc/42/2021b.md?p=7) of class I and II substances. Such regulations shall include each of the following—
- (1) Requirements that class I or [class II substances](/usc/42/7671.md?p=4) contained in bulk in [appliances](/usc/42/7671.md?p=1), machines or other goods shall be removed from each such [appliance](/usc/42/7671.md?p=1), machine or other good prior to the [disposal](/usc/42/2021b.md?p=7) of such items or their delivery for recycling.
- (2) Requirements that any [appliance](/usc/42/7671.md?p=1), machine or other good containing a class I or [class II substance](/usc/42/7671.md?p=4) in bulk shall not be manufactured, sold, or distributed in interstate [commerce](/usc/42/6311.md?p=7) or offered for sale or distribution in interstate [commerce](/usc/42/6311.md?p=7) unless it is equipped with a servicing aperture or an equally effective design feature which will facilitate the recapture of such substance during service and repair or [disposal](/usc/42/2021b.md?p=7) of such item.
- (3) Requirements that any product in which a class I or [class II substance](/usc/42/7671.md?p=4) is incorporated so as to constitute an inherent element of such product shall be disposed of in a manner that reduces, to the maximum extent practicable, the [release](/usc/42/9601.md?p=22) of such substance into the environment. If the [Administrator](/usc/42/7602.md?p=a) determines that the application of this paragraph to any product would result in producing only insignificant environmental benefits, the [Administrator](/usc/42/7602.md?p=a) shall include in such regulations an exception for such product.
- (c) **Prohibitions—**
- (1) Effective July 1, 1992, it shall be unlawful for any [person](/usc/42/7602.md?p=e), in the course of maintaining, servicing, repairing, or disposing of an [appliance](/usc/42/7671.md?p=1) or industrial process refrigeration, to knowingly vent or otherwise knowingly [release](/usc/42/9601.md?p=22) or dispose of any class I or [class II substance](/usc/42/7671.md?p=4) used as a refrigerant in such [appliance](/usc/42/7671.md?p=1) (or industrial process refrigeration) in a manner which permits such substance to enter the environment. De minimis [releases](/usc/42/9601.md?p=22) associated with good faith attempts to recapture and recycle or safely dispose of any such substance shall not be subject to the prohibition set forth in the preceding sentence.
- (2) Effective 5 years after November 15, 1990, [paragraph (1)](#c-1) shall also apply to the venting, [release](/usc/42/9601.md?p=22), or [disposal](/usc/42/2021b.md?p=7) of any substitute substance for a class I or [class II substance](/usc/42/7671.md?p=4) by any [person](/usc/42/7602.md?p=e) maintaining, servicing, repairing, or disposing of an appliance or industrial process refrigeration which contains and uses as a refrigerant any such substance, unless the [Administrator](/usc/42/7602.md?p=a) determines that venting, releasing, or disposing of such substance does not pose a threat to the environment. For purposes of this paragraph, the term “appliance” includes any device which contains and uses as a refrigerant a substitute substance and which is used for household or commercial purposes, including any air conditioner, refrigerator, chiller, or freezer.
# §7671h. Servicing of motor vehicle air conditioners
- (a) **Regulations—** Within 1 year after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations in accordance with this section establishing [standards](/usc/42/1320d.md?p=7) and requirements regarding the servicing of [motor vehicle](/usc/42/13211.md?p=13) air conditioners.
- (b) **Definitions—** As used in this section—
- (1) The term “refrigerant” means any class I or [class II substance](/usc/42/7671.md?p=4) used in a [motor vehicle](/usc/42/13211.md?p=13) air conditioner. Effective 5 years after November 15, 1990, the term “refrigerant” shall also include any substitute substance.
- (2)
- (A) The term “approved refrigerant recycling equipment” means equipment certified by the [Administrator](/usc/42/7602.md?p=a) (or an independent [standards](/usc/42/1320d.md?p=7) testing organization approved by the [Administrator](/usc/42/7602.md?p=a)) to meet the [standards](/usc/42/1320d.md?p=7) established by the [Administrator](/usc/42/7602.md?p=a) and applicable to equipment for the extraction and reclamation of [refrigerant](#b-1) from [motor vehicle](/usc/42/13211.md?p=13) air conditioners. Such [standards](/usc/42/1320d.md?p=7) shall, at a minimum, be at least as stringent as the [standards](/usc/42/1320d.md?p=7) of the Society of Automotive Engineers in effect as of November 15, 1990, and applicable to such equipment (SAE [standard](/usc/42/1320d.md?p=7) J–1990).
- (B) Equipment purchased before the proposal of regulations under this section shall be considered certified if it is substantially identical to equipment certified as provided in [subparagraph (A)](#b-2-A).
- (3) The term “properly using” means, with respect to [approved refrigerant recycling equipment](#b-2-A), using such equipment in conformity with [standards](/usc/42/1320d.md?p=7) established by the [Administrator](/usc/42/7602.md?p=a) and applicable to the use of such equipment. Such [standards](/usc/42/1320d.md?p=7) shall, at a minimum, be at least as stringent as the [standards](/usc/42/1320d.md?p=7) of the Society of Automotive Engineers in effect as of November 15, 1990, and applicable to the use of such equipment (SAE [standard](/usc/42/1320d.md?p=7) J–1989).
- (4) The term “properly trained and certified” means [training](/usc/42/285e–2.md?p=b-2) and certification in the proper use of [approved refrigerant recycling equipment](#b-2-A) for [motor vehicle](/usc/42/13211.md?p=13) air conditioners in conformity with [standards](/usc/42/1320d.md?p=7) established by the [Administrator](/usc/42/7602.md?p=a) and applicable to the performance of service on [motor vehicle](/usc/42/13211.md?p=13) air conditioners. Such [standards](/usc/42/1320d.md?p=7) shall, at a minimum, be at least as stringent as specified, as of November 15, 1990, in SAE [standard](/usc/42/1320d.md?p=7) J–1989 under the certification [program](/usc/42/274l–1.md?p=4) of the National Institute for Automotive Service Excellence (ASE) or under a similar [program](/usc/42/274l–1.md?p=4) such as the [training](/usc/42/285e–2.md?p=b-2) and certification [program](/usc/42/274l–1.md?p=4) of the Mobile Air Conditioning Society (MACS).
- (c) **Servicing motor vehicle air conditioners—** Effective January 1, 1992, no [person](/usc/42/7602.md?p=e) repairing or servicing [motor vehicles](/usc/42/13211.md?p=13) for consideration may perform any service on a [motor vehicle](/usc/42/13211.md?p=13) air conditioner involving the [refrigerant](#b-1) for such air conditioner without [properly using](#b-3) [approved refrigerant recycling equipment](#b-2-A) and no such [person](/usc/42/7602.md?p=e) may perform such service unless such [person](/usc/42/7602.md?p=e) has been [properly trained and certified](#b-4). The requirements of the previous sentence shall not apply until January 1, 1993 in the case of a [person](/usc/42/7602.md?p=e) repairing or servicing [motor vehicles](/usc/42/13211.md?p=13) for consideration at an entity which performed service on fewer than 100 [motor vehicle](/usc/42/13211.md?p=13) air conditioners during calendar year 1990 and if such [person](/usc/42/7602.md?p=e) so certifies, pursuant to [subsection (d)(2)](#d-2), to the [Administrator](/usc/42/7602.md?p=a) by January 1, 1992.
- (d) **Certification—**
- (1) Effective 2 years after November 15, 1990, each [person](/usc/42/7602.md?p=e) performing service on [motor vehicle](/usc/42/13211.md?p=13) air conditioners for consideration shall certify to the [Administrator](/usc/42/7602.md?p=a) either—
- (A) that such [person](/usc/42/7602.md?p=e) has acquired, and is [properly using](#b-3), [approved refrigerant recycling equipment](#b-2-A) in service on [motor vehicle](/usc/42/13211.md?p=13) air conditioners involving [refrigerant](#b-1) and that each individual authorized by such [person](/usc/42/7602.md?p=e) to perform such service is [properly trained and certified](#b-4); or
- (B) that such [person](/usc/42/7602.md?p=e) is performing such service at an entity which serviced fewer than 100 [motor vehicle](/usc/42/13211.md?p=13) air conditioners in 1991.
- (2) Effective January 1, 1993, each [person](/usc/42/7602.md?p=e) who certified under [paragraph (1)(B)](#d-1-B) shall submit a certification under [paragraph (1)(A)](#d-1-A).
- (3) Each certification under this subsection shall contain the name and address of the [person](/usc/42/7602.md?p=e) certifying under this subsection and the serial number of each [unit](/usc/42/1395w–114b.md?p=g-2) of approved recycling equipment acquired by such [person](/usc/42/7602.md?p=e) and shall be signed and attested by the [owner](/usc/42/13641.md?p=4) or another responsible officer. Certifications under [paragraph (1)(A)](#d-1-A) may be made by submitting the required information to the [Administrator](/usc/42/7602.md?p=a) on a [standard](/usc/42/1320d.md?p=7) form provided by the [manufacturer](/usc/42/300aa–33.md?p=3) of certified [refrigerant](#b-1) recycling equipment.
- (e) **Small containers of class I or class II substances—** Effective 2 years after November 15, 1990, it shall be unlawful for any [person](/usc/42/7602.md?p=e) to sell or distribute, or offer for sale or distribution, in interstate [commerce](/usc/42/6311.md?p=7) to any [person](/usc/42/7602.md?p=e) (other than a [person](/usc/42/7602.md?p=e) performing service for consideration on [motor vehicle](/usc/42/13211.md?p=13) air-conditioning systems in compliance with this section) any class I or [class II substance](/usc/42/7671.md?p=4) that is suitable for use as a [refrigerant](#b-1) in a [motor vehicle](/usc/42/13211.md?p=13) air-conditioning system and that is in a container which contains less than 20 pounds of such [refrigerant](#b-1).
# §7671i. Nonessential products containing chlorofluorocarbons
- (a) **Regulations—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations to carry out the requirements of this section within 1 year after November 15, 1990.
- (b) **Nonessential products—** The regulations under this section shall identify nonessential products that [release](/usc/42/9601.md?p=22) [class I substances](/usc/42/7671.md?p=3) into the environment (including any [release](/usc/42/9601.md?p=22) occurring during [manufacture](/usc/42/300aa–33.md?p=3), use, storage, or [disposal](/usc/42/2021b.md?p=7)) and prohibit any [person](/usc/42/7602.md?p=e) from selling or distributing any such product, or offering any such product for sale or distribution, in interstate [commerce](/usc/42/6311.md?p=7). At a minimum, such prohibition shall apply to—
- (1) chlorofluorocarbon-propelled plastic party streamers and noise horns,
- (2) chlorofluorocarbon-containing cleaning fluids for noncommercial electronic and photographic equipment, and
- (3) other [consumer products](/usc/42/6311.md?p=7) that are determined by the [Administrator](/usc/42/7602.md?p=a)—
- (A) to [release](/usc/42/9601.md?p=22) [class I substances](/usc/42/7671.md?p=3) into the environment (including any [release](/usc/42/9601.md?p=22) occurring during [manufacture](/usc/42/300aa–33.md?p=3), use, storage, or [disposal](/usc/42/2021b.md?p=7)), and
- (B) to be nonessential.
In determining whether a product is nonessential, the [Administrator](/usc/42/7602.md?p=a) shall consider the purpose or intended use of the product, the technological availability of substitutes for such product and for such [class I substance](/usc/42/7671.md?p=3), safety, health, and other relevant factors.
- (c) **Effective date—** Effective 24 months after November 15, 1990, it shall be unlawful for any [person](/usc/42/7602.md?p=e) to sell or distribute, or offer for sale or distribution, in interstate [commerce](/usc/42/6311.md?p=7) any nonessential product to which regulations under [subsection (a)](#a) implementing [subsection (b)](#b) are applicable.
- (d) **Other products—**
- (1) Effective January 1, 1994, it shall be unlawful for any [person](/usc/42/7602.md?p=e) to sell or distribute, or offer for sale or distribution, in interstate [commerce](/usc/42/6311.md?p=7)—
- (A) any aerosol product or other pressurized dispenser which contains a [class II substance](/usc/42/7671.md?p=4); or
- (B) any plastic foam product which contains, or is manufactured with, a [class II substance](/usc/42/7671.md?p=4).
- (2) The [Administrator](/usc/42/7602.md?p=a) is authorized to grant exceptions from the prohibition under [subparagraph (A)](#d-1-A) of paragraph (1) where—
- (A) the use of the aerosol product or pressurized dispenser is determined by the [Administrator](/usc/42/7602.md?p=a) to be essential as a result of flammability or worker safety concerns, and
- (B) the only available alternative to use of a [class II substance](/usc/42/7671.md?p=4) is use of a [class I substance](/usc/42/7671.md?p=3) which legally could be substituted for such [class II substance](/usc/42/7671.md?p=4).
- (3) [Subparagraph (B)](#d-1-B) of paragraph (1) shall not apply to—
- (A) a foam insulation product, or
- (B) an integral skin, rigid, or semi-rigid foam utilized to provide for [motor vehicle](/usc/42/13211.md?p=13) safety in accordance with Federal [Motor Vehicle](/usc/42/13211.md?p=13) Safety [Standards](/usc/42/1320d.md?p=7) where no adequate substitute substance (other than a class I or [class II substance](/usc/42/7671.md?p=4)) is practicable for effectively meeting such [Standards](/usc/42/1320d.md?p=7).
- (e) **Medical devices—** Nothing in this section shall apply to any [medical device](/usc/42/7671.md?p=8) as defined in [section 7671(8) of this title](/usc/42/7671.md?p=8).
# §7671j. Labeling
- (a) **Regulations—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate regulations to implement the labeling requirements of this section within 18 months after November 15, 1990, after notice and opportunity for public comment.
- (b) **Containers containing class I or class II substances and products containing class I substances—** Effective 30 months after November 15, 1990, no container in which a class I or [class II substance](/usc/42/7671.md?p=4) is stored or transported, and no product containing a [class I substance](/usc/42/7671.md?p=3), shall be introduced into interstate [commerce](/usc/42/6311.md?p=7) unless it bears a clearly legible and conspicuous label stating:
“Warning: Contains [insert name of substance], a substance which harms public health and environment by destroying ozone in the upper atmosphere”.
- (c) **Products containing class II substances—**
- (1) After 30 months after November 15, 1990, and before January 1, 2015, no product containing a [class II substance](/usc/42/7671.md?p=4) shall be introduced into interstate [commerce](/usc/42/6311.md?p=7) unless it bears the label referred to in [subsection (b)](#b) if the [Administrator](/usc/42/7602.md?p=a) determines, after notice and opportunity for public comment, that there are substitute products or manufacturing processes (A) that do not rely on the use of such [class II substance](/usc/42/7671.md?p=4), (B) that reduce the overall risk to human health and the environment, and (C) that are currently or potentially available.
- (2) Effective January 1, 2015, the requirements of [subsection (b)](#b) shall apply to all products containing a [class II substance](/usc/42/7671.md?p=4).
- (d) **Products manufactured with class I and class II substances—**
- (1) In the case of a [class II substance](/usc/42/7671.md?p=4), after 30 months after November 15, 1990, and before January 1, 2015, if the [Administrator](/usc/42/7602.md?p=a), after notice and opportunity for public comment, makes the determination referred to in [subsection (c)](#c) with respect to a product manufactured with a process that uses such [class II substance](/usc/42/7671.md?p=4), no such product shall be introduced into interstate [commerce](/usc/42/6311.md?p=7) unless it bears a clearly legible and conspicuous label stating:
“Warning: Manufactured with [insert name of substance], a substance which harms public health and environment by destroying ozone in the upper atmosphere”[^1]
- (2) In the case of a [class I substance](/usc/42/7671.md?p=3), effective 30 months after November 15, 1990, and before January 1, 2015, the labeling requirements of this subsection shall apply to all products manufactured with a process that uses such [class I substance](/usc/42/7671.md?p=3) unless the [Administrator](/usc/42/7602.md?p=a) determines that there are no substitute products or manufacturing processes that (A) do not rely on the use of such [class I substance](/usc/42/7671.md?p=3), (B) reduce the overall risk to human health and the environment, and (C) are currently or potentially available.
- (e) **Petitions—**
- (1) Any [person](/usc/42/7602.md?p=e) may, at any time after 18 months after November 15, 1990, petition the [Administrator](/usc/42/7602.md?p=a) to apply the requirements of this section to a product containing a [class II substance](/usc/42/7671.md?p=4) or a product manufactured with a class I or II substance which is not otherwise subject to such requirements. Within 180 days after receiving such petition, the [Administrator](/usc/42/7602.md?p=a) shall, pursuant to the criteria set forth in [subsection (c)](#c), either propose to apply the requirements of this section to such product or publish an explanation of the petition denial. If the [Administrator](/usc/42/7602.md?p=a) proposes to apply such requirements to such product, the [Administrator](/usc/42/7602.md?p=a) shall, by rule, render a final determination pursuant to such criteria within 1 year after receiving such petition.
- (2) Any petition under this paragaph[^2] shall include a showing by the petitioner that there are data on the product adequate to support the petition.
- (3) If the [Administrator](/usc/42/7602.md?p=a) determines that information on the product is not sufficient to make the required determination the [Administrator](/usc/42/7602.md?p=a) shall use any authority available to the [Administrator](/usc/42/7602.md?p=a) under any law administered by the [Administrator](/usc/42/7602.md?p=a) to acquire such information.
- (4) In the case of a product determined by the [Administrator](/usc/42/7602.md?p=a), upon petition or on the [Administrator](/usc/42/7602.md?p=a)’s own motion, to be subject to the requirements of this section, the [Administrator](/usc/42/7602.md?p=a) shall establish an effective date for such requirements. The effective date shall be 1 year after such determination or 30 months after November 15, 1990, whichever is later.
- (5) Effective January 1, 2015, the labeling requirements of this subsection[^3] shall apply to all products manufactured with a process that uses a class I or [class II substance](/usc/42/7671.md?p=4).
- (f) **Relationship to other law—**
- (1) The labeling requirements of this section shall not constitute, in whole or part, a defense to liability or a [cause](/usc/42/9908.md?p=c-2) for reduction in [damages](/usc/42/9601.md?p=6) in any suit, whether civil or criminal, brought under any law, whether Federal or [State](/usc/42/7602.md?p=d), other than a suit for failure to comply with the labeling requirements of this section.
- (2) No other approval of such label by the [Administrator](/usc/42/7602.md?p=a) under any other law administered by the [Administrator](/usc/42/7602.md?p=a) shall be required with respect to the labeling requirements of this section.
# §7671k. Safe alternatives policy
- (a) **Policy—** To the maximum extent practicable, class I and [class II substances](/usc/42/7671.md?p=4) shall be replaced by chemicals, product substitutes, or alternative manufacturing processes that reduce overall risks to human health and the environment.
- (b) **Reviews and reports—** The [Administrator](/usc/42/7602.md?p=a) shall—
- (1) in consultation and coordination with interested members of the public and the heads of relevant Federal agencies and departments, recommend Federal research [programs](/usc/42/274l–1.md?p=4) and other activities to assist in identifying alternatives to the use of class I and [class II substances](/usc/42/7671.md?p=4) as refrigerants, solvents, fire retardants, foam blowing agents, and other commercial applications and in achieving a transition to such alternatives, and, where appropriate, seek to maximize the use of Federal research [facilities](/usc/42/11049.md?p=4) and resources to assist users of class I and [class II substances](/usc/42/7671.md?p=4) in identifying and developing alternatives to the use of such substances as refrigerants, solvents, fire retardants, foam blowing agents, and other commercial applications;
- (2) examine in consultation and coordination with the [Secretary](/usc/42/242q–4.md?p=2) of Defense and the heads of other relevant Federal agencies and departments, including the General Services Administration, Federal procurement [practices](/usc/42/17061.md?p=19) with respect to class I and [class II substances](/usc/42/7671.md?p=4) and recommend measures to promote the transition by the Federal Government, as expeditiously as possible, to the use of safe substitutes;
- (3) specify [initiatives](/usc/42/19131.md?p=1), including appropriate intergovernmental, international, and commercial information and technology transfers, to promote the development and use of safe substitutes for class I and [class II substances](/usc/42/7671.md?p=4), including alternative chemicals, product substitutes, and alternative manufacturing processes; and
- (4) maintain a public clearinghouse of alternative chemicals, product substitutes, and alternative manufacturing processes that are available for products and manufacturing processes which use class I and [class II substances](/usc/42/7671.md?p=4).
- (c) **Alternatives for class I or II substances—** Within 2 years after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a) shall promulgate rules under this section providing that it shall be unlawful to replace any class I or [class II substance](/usc/42/7671.md?p=4) with any substitute substance which the [Administrator](/usc/42/7602.md?p=a) determines may present adverse effects to human health or the environment, where the [Administrator](/usc/42/7602.md?p=a) has identified an alternative to such replacement that—
- (1) reduces the overall risk to human health and the environment; and
- (2) is currently or potentially available.
The [Administrator](/usc/42/7602.md?p=a) shall publish a list of (A) the substitutes prohibited under this subsection for specific uses and (B) the safe alternatives identified under this subsection for specific uses.
- (d) **Right to petition—** Any [person](/usc/42/7602.md?p=e) may petition the [Administrator](/usc/42/7602.md?p=a) to add a substance to the lists under [subsection (c)](#c) or to [remove](/usc/42/9601.md?p=23) a substance from either of such lists. The [Administrator](/usc/42/7602.md?p=a) shall grant or deny the petition within 90 days after receipt of any such petition. If the [Administrator](/usc/42/7602.md?p=a) denies the petition, the [Administrator](/usc/42/7602.md?p=a) shall publish an explanation of why the petition was denied. If the [Administrator](/usc/42/7602.md?p=a) grants such petition the [Administrator](/usc/42/7602.md?p=a) shall publish such revised list within 6 months thereafter. Any petition under this subsection shall include a showing by the petitioner that there are data on the substance adequate to support the petition. If the [Administrator](/usc/42/7602.md?p=a) determines that information on the substance is not sufficient to make a determination under this subsection, the [Administrator](/usc/42/7602.md?p=a) shall use any authority available to the [Administrator](/usc/42/7602.md?p=a), under any law administered by the [Administrator](/usc/42/7602.md?p=a), to acquire such information.
- (e) **Studies and notification—** The [Administrator](/usc/42/7602.md?p=a) shall require any [person](/usc/42/7602.md?p=e) who [produces](/usc/42/7671.md?p=11) a chemical substitute for a [class I substance](/usc/42/7671.md?p=3) to provide the [Administrator](/usc/42/7602.md?p=a) with such [person](/usc/42/7602.md?p=e)’s unpublished health and safety studies on such substitute and require producers to notify the [Administrator](/usc/42/7602.md?p=a) not less than 90 days before new or existing chemicals are introduced into interstate [commerce](/usc/42/6311.md?p=7) for significant new uses as substitutes for a [class I substance](/usc/42/7671.md?p=3). This subsection shall be subject to [section 7414(c) of this title](/usc/42/7414.md?p=c).
# §7671l. Federal procurement
Not later than 18 months after November 15, 1990, the [Administrator](/usc/42/7602.md?p=a), in consultation with the [Administrator](/usc/42/7602.md?p=a) of the General Services Administration and the [Secretary](/usc/42/242q–4.md?p=2) of Defense, shall promulgate regulations requiring each department, agency, and instrumentality of the [United States](/usc/42/403.md?p=k) to conform its procurement regulations to the policies and requirements of this subchapter and to maximize the substitution of safe alternatives identified under [section 7671k of this title](/usc/42/7671k.md) for class I and [class II substances](/usc/42/7671.md?p=4). Not later than 30 months after November 15, 1990, each department, agency, and instrumentality of the [United States](/usc/42/403.md?p=k) shall so conform its procurement regulations and certify to the President that its regulations have been [modified](/usc/42/7501.md?p=4) in accordance with this section.
# §7671m. Relationship to other laws
- (a) **State laws—** Notwithstanding [section 7416 of this title](/usc/42/7416.md), during the 2-year period beginning on November 15, 1990, no [State](/usc/42/7602.md?p=d) or [local government](/usc/42/8401a.md) may enforce any requirement concerning the design of any new or recalled [appliance](/usc/42/7671.md?p=1) for the purpose of protecting the stratospheric ozone layer.
- (b) **Montreal Protocol—** This subchapter as added by the Clean Air Act Amendments of 1990 shall be construed, interpreted, and applied as a supplement to the terms and conditions of the [Montreal Protocol](/usc/42/7671.md?p=9), as provided in Article 2, paragraph 11 thereof, and shall not be construed, interpreted, or applied to abrogate the responsibilities or obligations of the [United States](/usc/42/403.md?p=k) to implement fully the provisions of the [Montreal Protocol](/usc/42/7671.md?p=9). In the case of conflict between any provision of this subchapter and any provision of the [Montreal Protocol](/usc/42/7671.md?p=9), the more stringent provision shall govern. Nothing in this subchapter shall be construed, interpreted, or applied to affect the authority or responsibility of the [Administrator](/usc/42/7602.md?p=a) to implement Article 4 of the [Montreal Protocol](/usc/42/7671.md?p=9) with other appropriate agencies.
- (c) **Technology export and overseas investment—** Upon November 15, 1990, the President shall—
- (1) prohibit the export of technologies used to [produce](/usc/42/7671.md?p=11) a [class I substance](/usc/42/7671.md?p=3);
- (2) prohibit direct or indirect investments by any [person](/usc/42/7602.md?p=e) in [facilities](/usc/42/11049.md?p=4) designed to [produce](/usc/42/7671.md?p=11) a class I or [class II substance](/usc/42/7671.md?p=4) in nations that are not parties to the [Montreal Protocol](/usc/42/7671.md?p=9); and
- (3) direct that no agency of the government provide bilateral or multilateral subsidies, aids, credits, guarantees, or insurance [programs](/usc/42/274l–1.md?p=4), for the purpose of producing any [class I substance](/usc/42/7671.md?p=3).
# §7671n. Authority of Administrator
If, in the [Administrator](/usc/42/7602.md?p=a)’s judgment, any substance, practice, process, or activity may reasonably be anticipated to affect the stratosphere, especially ozone in the stratosphere, and such effect may reasonably be anticipated to endanger public health or welfare, the [Administrator](/usc/42/7602.md?p=a) shall promptly promulgate regulations respecting the control of such substance, practice, process, or activity, and shall submit notice of the proposal and promulgation of such regulation to the Congress.
# §7671o. Transfers among Parties to Montreal Protocol
- (a) **In general—** Consistent with the [Montreal Protocol](/usc/42/7671.md?p=9), the [United States](/usc/42/403.md?p=k) may engage in transfers with other Parties to [the Protocol](/usc/42/7671.md?p=9) under the following conditions:
- (1) The [United States](/usc/42/403.md?p=k) may transfer [production](/usc/42/7671.md?p=11) allowances to another Party if, at the time of such transfer, the [Administrator](/usc/42/7602.md?p=a) establishes revised [production](/usc/42/7671.md?p=11) limits for the [United States](/usc/42/403.md?p=k) such that the aggregate national [United States](/usc/42/403.md?p=k) [production](/usc/42/7671.md?p=11) permitted under the revised [production](/usc/42/7671.md?p=11) limits equals the lesser of (A) the maximum [production](/usc/42/7671.md?p=11) level permitted for the substance or substances concerned in the transfer year under [the Protocol](/usc/42/7671.md?p=9) minus the [production](/usc/42/7671.md?p=11) allowances transferred, (B) the maximum [production](/usc/42/7671.md?p=11) level permitted for the substance or substances concerned in the transfer year under [applicable domestic law](#d) minus the [production](/usc/42/7671.md?p=11) allowances transferred, or (C) the average of the actual national [production](/usc/42/7671.md?p=11) level of the substance or substances concerned for the 3 years prior to the transfer minus the [production](/usc/42/7671.md?p=11) allowances transferred.
- (2) The [United States](/usc/42/403.md?p=k) may acquire [production](/usc/42/7671.md?p=11) allowances from another Party if, at the time of such transfer, the [Administrator](/usc/42/7602.md?p=a) finds that the other Party has revised its domestic [production](/usc/42/7671.md?p=11) limits in the same manner as provided with respect to transfers by the [United States](/usc/42/403.md?p=k) in this subsection.
- (b) **Effect of transfers on production limits—** The [Administrator](/usc/42/7602.md?p=a) is authorized to reduce the [production](/usc/42/7671.md?p=11) limits established under this chapter as required as a prerequisite to transfers under [paragraph (1)](#a-1) of subsection (a) or to increase [production](/usc/42/7671.md?p=11) limits established under this chapter to reflect [production](/usc/42/7671.md?p=11) allowances acquired under a transfer under [paragraph (2)](#a-2) of subsection (a).
- (c) **Regulations—** The [Administrator](/usc/42/7602.md?p=a) shall promulgate, within 2 years after November 15, 1990, regulations to implement this section.
- (d) **“Applicable domestic law” defined—** In the case of the [United States](/usc/42/403.md?p=k), the term “applicable domestic law” means this chapter.
# §7671p. International cooperation
- (a) **In general—** The President shall undertake to enter into international [agreements](/usc/42/1320b–8.md?p=a-3-A) to foster cooperative research which complements studies and research authorized by this subchapter, and to develop [standards](/usc/42/1320d.md?p=7) and regulations which protect the stratosphere consistent with regulations applicable within the [United States](/usc/42/403.md?p=k). For these purposes the President through the Secretary of State and the Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs, shall negotiate multilateral treaties, conventions, resolutions, or other [agreements](/usc/42/1320b–8.md?p=a-3-A), and formulate, present, or support proposals at the United Nations and other appropriate international forums and shall report to the Congress periodically on efforts to arrive at such [agreements](/usc/42/1320b–8.md?p=a-3-A).
- (b) **Assistance to developing countries—** The [Administrator](/usc/42/7602.md?p=a), in consultation with the Secretary of State, shall support global participation in the [Montreal Protocol](/usc/42/7671.md?p=9) by providing technical and financial assistance to [developing countries](/usc/42/13389.md?p=a-4) that are Parties to the [Montreal Protocol](/usc/42/7671.md?p=9) and operating under article 5 of [the Protocol](/usc/42/7671.md?p=9). There are authorized to be appropriated not more than $30,000,000 to carry out this section in fiscal years 1991, 1992 and 1993 and such sums as may be necessary in fiscal years 1994 and 1995. If China and India become Parties to the [Montreal Protocol](/usc/42/7671.md?p=9), there are authorized to be appropriated not more than an additional $30,000,000 to carry out this section in fiscal years 1991, 1992, and 1993.
# §7671q. Miscellaneous provisions
For purposes of [section 7416 of this title](/usc/42/7416.md), requirements concerning the areas addressed by this subchapter for the protection of the stratosphere against ozone layer depletion shall be treated as requirements for the control and abatement of air pollution. For purposes of [section 7418 of this title](/usc/42/7418.md), the requirements of this subchapter and corresponding [State](/usc/42/7602.md?p=d), interstate, and local requirements, administrative authority, and process, and sanctions respecting the protection of the stratospheric ozone layer shall be treated as requirements for the control and abatement of air pollution within the meaning of [section 7418 of this title](/usc/42/7418.md).