text:
Page:United States Statutes at Large Volume 91.djvu/734

 PUBLIC LAW 95-95—AUG. 7, 1977

91 STAT. 700

"(1) The term 'standard of performance' means— "(A) with respect to any air pollutant emitted from a category of fossil fuel fired stationary sources to which subsection (b) applies, a standard— "(i) establishing allowable emission limitations for such category of sources, and "(ii) requiring the achievement of a percentage reduction in the emissions from such category of sources from the emissions which would have resulted from the use of fuels which are not subject to treatment prior to combustion, "(B) with respect to any air pollutant emitted from a category of stationary sources (other than fossil fuel fired sources) to which subsection (b) applies, a standard such as that referred to in subparagraph (A)(i); and "(C) with respect to any air pollutant emitted from a particular source to which subsection (d) applies, a standard which the State (or the Administrator under the conditions specified in subsection (d)(2)) determines is applicable to that source and which reflects the degree of emission reduction achievable through the application of the best system of continuous emission reduction which (taking into consideration the cost of achieving such emission reduction, and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated for that category of sources. For the purpose of subparagraphs (A)(i) and (ii) and (B), a standard of performance shall reflect the degree of emission limitation and the percentage reduction achievable through application of the best technological system of continuous emission reduction which (taking into consideration the cost of achieving such emission reduction, any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated. For the purpose of subparagraph (1)(A) (ii), any cleaning of the fuel or reduction in the pollution characteristics of the fuel after extraction and prior to combustion may be credited, as determined under regulations promulgated by the Administrator, to a source which burns such fuel.". (B) Section 111(a) of such Act is further amended by adding the following new paragraph at the end thereof: "(7) The term 'technological system of continuous emission reduction' means— "(A) a technological process for production or operation by any source which is inherently low-polluting or nonpolluting, or " (B) a technological system for continuous reduction of the pollution generated by a source before such pollution is emitted into the ambient air, including precombustion cleaning or treatment of fuels.". (2) Section 111(b)(1)(B) of such Act is amended by striking: out "may, from time to time," in the next to last sentence thereof and by inserting in lieu thereof "shall, at least every four years, review and, if appropriate,". (3) Section 111(b) of such Act is further amended by inserting at the end thereof the following: "(5) Except as otherwise authorized under subsection (h), nothing in this section shall be construed to require, or to authorize the AdminVJ;::.

Infra.

Ante, p. 699.

"Technological system of continuous emission reduction." Post, p. 703. 42 USC 7411.

Standards for new sources, revision.

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text:
Page:United States Statutes at Large Volume 91.djvu/735

 PUBLIC LAW 95-95—AUG. 7, 1977 istrator to require, any new or modified source to install and operate any particular technological system of continuous emission reduction to comply with any new source standard of performance. "(6) The revised standards of performance required by enactment of subsection (a)(1)(A)(i) and (ii) shall be promulgated not later than one year after enactment of this paragraph. Any new or modified fossil fuel fired stationary source which commences construction prior to the date of publication of the proposed revised standards shall not be required to comply with such revised standards.". (d)(1) The second sentence of section 111(c)(1) is amended by striking out "(except with respect to new sources owned or operated by the United States)". (2) The second sentence of section 112(d)(1) is amended by striking out "(except with respect to stationarv sources owned or operated by the United States)". (3) The second sentence of section 114(b)(1) is amended by striking out "(except with respect to new sources owned or operated by the United States)". (e) Section 111 of such Act is amended by adding the following new subsections at the end thereof: y "(j) As a condition for issuance of any permit required under this title, the owner or operator of each jiew or modified stationary source which is required to obtain such a permit must show to the satisfaction of the permitting authority that the technological system of continuous emission reduction which is to be used at such source will enable it to comply with the standards of performance which are to apply to such source and that the construction or modification and operation of such source will be in compliance with all other requirements of this Act. "(k)(1)(A) Any person proposing to own or operate a new source may request the Administrator for one or more waivers from the requirements of this section for such source or any portion thereof with respect to any air pollutant to encourage the use of an innovative technological system or systems of continuous emission reduction. The Administrator may, with the consent of the Governor of the State in which the source is to be located, grant a waiver under this paragraph, if the Administrator determines after notice and opportunity for public hearing, that— "(i) the proposed system or systems have not been adequately demonstrated, " (ii) the proposed system or systems will operate effectively and there is a substantial likelihood that such system or systems will achieve greater continuous emission reduction than that required to be achieved under the standards of performance which would otherwise apply, or achieve at least an equivalent reduction at lower cost in terms of energy, economic, or nonair quality environmental impact, "(iii) the owner or operator of the proposed source has demonstrated to the satisfaction of the Administrator that the proposed system will not cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation, function, or malfunction, and " (iv) the granting of such waiver is consistent with the requirements of subparagraph (C). In making any determination under clause (ii), the Administrator shall take into account any previous failure of such system or systems to operate effectively or to meet any requirement of the new source performance standards. In determining whether an unreasonable risk

91 STAT. 701

Revised standards, enactment date. Ante, p. 699.

42 USC 7411. 42 USC 7412. 42 USC 7414. Permit conditions. Ante, p. 697.
 * %4 Z^*^''^

Waiver.

Notice and hearing.

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text:
Page:United States Statutes at Large Volume 91.djvu/736

 91 STAT. 702

Ante, p. 700; Post, p. 791. Tests.

Waiver terms and conditions.

Post, pp. 704, 705.

Termination date.

Requirements extension.

PUBLIC LAW 95-95—AUG. 7, 1977 exists under clause (iii), the Administrator shall consider, among other factors, whether and to what extent the use of the proposed technological system will cause, increase, reduce, or eliminate emissions of any unregulated pollutants; available methods for reducing or eliminating any risk to public health, welfare, or safety which may be associated with the use of such system; and the availability of other technological systems which may be used to conform to standards under subsection (b) of this section without causing or contributing to such unreasonable risk. The Administrator may conduct such tests and may require the owner or operator of the proposed source to conduct such tests and provide such information as is necessary to carry out clause (iii) of this subparagraph. Such requirements shall include a requirement for prompt reporting of the emission of any unregulated pollutant from a system if such pollutant was not emitted, or was emitted in significantly lesser amounts without use of such system. "(B) A waiver under this paragraph shall be granted on such terms and conditions as the Administrator determines to be necessary to assure— "(i) emissions from the source will not prevent attainment and maintenance of any national ambient air quality standards, and " (ii) proper functioning of the technological system or systems authorized. Any such term or condition shall be treated as a standard of performance for the purposes of subsection (e) of this section and section 113. "{C) The number of waivers granted under this paragraph with respect to a proposed technological system of continuous emission reduction shall not exceed such number as the Administrator finds necessary to ascertain whether or not such system will achieve the conditions specified in clauses (ii) and (iii) of subparagraph (A). "(D) A waiver under this paragraph shall extend to the sooner of— "(i) the date determined by the Administrator, after consultation with the owner or operator of the source, taking into consideration the design, installation, and capital cost of the technological system or systems being used, or "(ii) the date on which the Administrator determines that such system has failed to— " (I) achieve at least an equivalent continuous emission reduction to that required to be achieved under the standards of performance which would otherwise apply, or " ( II) comply with the condition specified in paragraph (l)(A)(iii), and that such failure cannot be corrected. " (E) In carrying out subparagraph (D)(i), the Administrator shall not permit any waiver for a source or portion thereof to extend beyond the date— "(i) seven years after the date on which any waiver is granted to such source or portion thereof, or "(ii) four years after the date on which such source or portion thereof commences operation, whichever is earlier. " (F) No waiver under this subsection shall apply to any portion of a source other than the portion on which the innovative technological system or systems of continuous emission reduction is used. "(2)(A) If a waiver under paragraph (1) is terminated under clause (ii) of paragraph (1)(D), the Administrator shall grant an

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text:
Page:United States Statutes at Large Volume 91.djvu/737

 PUBLIC LAW 95-95—AUG. 7, 1977 extension of the requirements of this section for such source for such minimum period as may be necessary to comply with the applicable standard of performance under subsection (b) of this section. Such period shall not extend beyond the date three years from the time such waiver is terminated. "(8) An extension granted under this paragraph shall set forth emission limits and a compliance schedule containing increments of progress which require compliance with the applicable standards of performance as expeditiously as practicable and include such measures as are necessary and practicable in the interim to minimize emissions. Such schedule shall be treated as a standard of performance for purposes of subsection (e) of this section and section 113.". (f) Section 111(a) of such Act is amended by adding the following new paragraph at the end thereof: "(7) A conversion to coal (A) by reason of an order under section 2(a) of the Energy Supply and Environmental Coordination Act of 1974 or any amendment thereto, or any subsequent enactment which supersedes such Act, or (B) which qualifies under section 113(d)(5) (A) (ii) of this Act, shall not be deemed to be a modification for purposes of paragraphs (2) and (4) of this subsection.".

91 STAT. 703

Ante, p. 700; Post, p. 791. Emission limits. Compliance schedule. 42 USC 7413.

Post, pp. 704, 705. Ante, p. 700.

15 USC 792. Post, p. 705.

EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS

SEC. 110. Section 112 of the Clean Air Act is amended by adding Design or equipment the following new subsection at the end thereof: standards. "(e)(1) For purposes of this section, if in the judgment of the 42 USC 7412. Administrator, it is not feasible to prescribe or enforce an emission standard for control of a hazardous air pollutant or pollutants, he may instead promulgate a design, equipment, work practice, or operational standard, or combination thereof, which in his judgment is adequate to protect the public health from such pollutant or pollutants with an ample margin of safety. In the event the Administrator promulgates a design or equipment standard under this subsection, he shall include as part of such standard such requirements as will assure the proper operation and maintenance of any such element of design or equipment. "(2) For the purpose of this subsection, the phrase 'not feasible to "Not feasible to prescribe or enforce an emission standard' means any situation in which prescribe or enforce the Administrator determines that (A) a hazardous pollutant or pol- emissionan lutants cannot be emitted through a conveyance designed and con- standard." structed to emit or capture such pollutant, or that any requirement for, or use of, such a conveyance would be inconsistent with any Federal, State, or local law, or (B) the application of measurement methodology to a particular class of sources is not practicable due to technological or economic limitations. "(3) If after notice and opportunity for public hearing, any per- Alternative son establishes to the satisfaction of the Administrator that an alter- emission native means of emission limitation will achieve a reduction in limitation. emissions of any air pollutant at least equivalent to the reduction in Notice and hearing. emissions of such air pollutant achieved under the requirements of paragraph (1), the Administrator shall permit the use of such alternative by the source for purposes of compliance with this section with respect to such pollutant. "(4) Any standard promulgated under paragraph (1) shall be promulgated in terms of an emission standard whenever it becomes feasible to promulgate and enforce such standard in such terms.".

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text:
Page:United States Statutes at Large Volume 91.djvu/738

 91 STAT. 704

PUBLIC LAW 95-95—AUG. 7, 1977 ENFORCEMENT PROVISIONS

Administrative order. 42 USC 7413.

Post, p. 745. Ante, p. 694. Post, p. 746.

Infra.

Post, p. 714. Penalty.

Costs.

Post, pp. 709, 712. Post, p. 782.

SEC. 111. (a) Section 113(a) of the Clean Air Act is amended by inserting the following new paragraph at the end thereof: "(5) Whenever, on the basis of information available to him, the Administrator finds that a State is not acting in compliance with any requirement of the regulation referred to in section 129(a)(1) of the Clean Air Act Amendments of 1977 (relating to certain interpretative regulations) or any plan provisions required under section 110 (a)(2)(I) and part D, he may issue an order prohibiting the construction or modification of any major stationary source in any area to which such provisions apply or he may bring a civil action under subsection (b)(5).". (b)(1) So much of section 113(b) of such Act as precedes paragraph (1) thereof is amended to read as follows: "(b) The Administrator shall, in the case of any person which is the owner or operator of a major stationary source, and may, in the case of any other person, commence a civil action for a permanent or temporary injunction, or to assess and recover a civil penalty of not more than $25,000 per day of violation, or both, whenever such person—". (2) Section 113(b) of such Act is amended by inserting the following after the first sentence thereof: "The Administrator may commence a civil action for recovery of any noncompliance penalty under section 120 or for recovery of any nonpayment penalty-for which any person is liable under section 120 or for both.". (b) Section 113(b) of such Act is amended by striking out the penultimate sentence thereof and substituting: "Any action under this subsection may be brought in the district court of the United States for the district in which the violation occurred or in which the defendant resides or has his principal place of business, and such court shall have jurisdiction to restrain such violation, to require compliance, to assess such civil penalty and to collect any noncompliance penalty (and nonpayment penalty) owed under section 120. In determining the amount of any civil penalty to be assessed under this subsection, the court shall take into consideration (in addition to other factors) the size of the business, the economic impact of the penalty on the business, and the seriousness of the violation.". (3) Section 113(b) of such Act is amended by adding the following at the end thereof: "In the case of any action brought by the Administrator under this subsection, the court may award costs of litigation (including reasonable attorney and expert witness fees) to the party or parties against whom such action was brought in any case where the court finds that such action was unreasonable.". (c)(1) Section 113(b)(3) of such Act is amended by striking out "or section 119(g)" and inserting in lieu thereof "section 119(g) (as in effect before the date of the enactment of the Clean Air Act Amendments of 1977), subsection (d)(5) (relating to coal conversion) section 320 (relating to cost of certain vapor recovery), section 119 (relating to smelter orders) or any regulation under part B (relating to ozone)". (2) Section 113(b)(4) of such Act is amended by inserting "or subsection (d) of this section" after "114". (3) Section 113(b) of such Act is amended by striking out "or" at the end of paragraph (3), striking out the period at the end of paragraph (4) and substituting "; or", and inserting the following new paragraph at the end thereof:

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text:
Page:United States Statutes at Large Volume 91.djvu/739

 PUBLIC LAW 95-95—AUG. 7, 1977 " (5) attempts to construct or modify a major stationary source in any area with respect to which a finding under subsection (a) (5) has been made.", (d)(1) Section 113(c)(1)(B) of such Act is amended to read as follows: "(B) violates or fails or refuses to comply with any order under section 119 or under subsection (a) or (d) of this section, or"; (2) Section 113(c)(1) of such Act is amended by striking out "or" at the end of subparagraph (B), by striking out "section 112(c), or section 119(g)" and inserting in lieu thereof: "section 112(c), or " (D) violates any requirement of section 119(g) (as in effect before the date of the enactment of this Act) subsection (b)(7) or (d)(5) of section 120 (relating to noncompliance penalties) or any requirement of part B (relating to ozone)". (3) Section 113(c) of such Act is amended by adding the following new paragraph at the end thereof: "(3) For the purpose of this subsection, the term 'person' includes, in addition to the entities referred to in section 302(e), any responsible corporate officer.".

91 STAT. 705

Penalties. 42 USC 7413. Post, pp. 709, 712. Supra.

Post, p. 714. Post, p. 726. "Person." Supra. Post, p. 770.

COMPLIANCE ORDERS (INCLUDING COAL CONVERSION)

SEC. 112. (a) Section 113 of the Clean Air Act is amended by adding the following new subsection: "(d)(1) A State (or, after thirty days notice to the State, the Administrator) may issue an order for any stationary source which specifies a date for final compliance with any requirement of an applicable implementation plan later than the date for attainment of any national ambient air quality standard specified in such plan if— "(A) such order is issued after notice to the public (and, as appropriate, to the Administrator) containing the content of the proposed order and opportunity for public hearing; "(B) the order contains a schedule and timetable for compliance; "(C) the order requires compliance with applicable interim requirements as provided in paragraph (5)(B) (relating to sources converting to coal), and paragraph (6) and (7) (relating to all sources receiving such orders) and requires the emission monitoring and reporting by the source authorized to be required under sections 110(a)(2)(F) and 114(a)(1); "(D) the order provides for final compliance with the requirement of the applicable implementation plan as expeditiously as practicable, but (except as provided in paragrah (4) or (5)) in no event later than July 1, 1979, or three years after the date for final compliance with such requirement specified in such plan, whichever is later; and " (E) in the case of a major stationary source, the order notifies the source that it will be required to pay a noncompliance penalty under section 120 or by such later date as is set forth in the order in accordance with section 120 in the event such source fails to achieve final compliance by July 1, 1979. " (2) In the case of any major stationary source, no such order issued by the State shall take effect until the Administrator determines that such order has been issued in accordance with the requirements of this Act. In the case of any source other than a major stationary source, such order issued by the State shall cease to be effective upon a deter-

Ante, p. 704.

Public notice and hearing,

Ante, p. 693. Post, p. 776

Noncompliance penalty,

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text:
Page:United States Statutes at Large Volume 91.djvu/740

 91 STAT. 706

Bond.

Emission limitation. Ante, p. 699.

15 USC 792.

PUBLIC LAW 95-95—AUG. 7, 1977 mination by the Administrator that it was not issued in accordance with the requirements of this Act. If the Administrator so objects, he shall simultaneously proceed to issue an enforcement order in accordance with subsection (a) or an order under this subsection. Nothing in this section shall be construed as limiting the authority of a State or political subdivision to adopt and enforce a more stringent emission limitation or more expeditious schedule or timetable for compliance than that contained in an order by the Administrator, "(3) If any source not in compliance with any requirement of an applicable implementation plan gives written notification to the State (or the Administrator) that such source intends to comply by means of replacement of the facility, a complete change in production process, or a termination of operation, the State (or the Administrator) may issue an order under paragraph (1) of this subsection permitting the source to operate until July 1, 1979, without any interim schedule of compliance: Provided, That as a condition of the issuance of any such order, the owner or operator of such source shall post a bond or other surety in an amount equal to the cost of actual compliance by such facility and any economic value which may accrue to the owner or operator of such source by reason of the failure to comply. If a source for which the bond or other surety required by this paragraph has been posted fails to replace the facility, change the production process, or terminate the operations as specified in the order by the required date, the owner or operator shall immediately forfeit on the bond or other surety and the State (or the Administrator) shall have no discretion to modify the order under this paragraph or to compromise the bond or other surety. "(4) An order under paragraph (1) of this subsection may be issued to an existing stationary source if— "(A) the source will expeditiously use new means of emission limitation which the Administrator determines is likely to be adequately demonstrated (within the meaning of section 111(a) (1) upon expiration of the order, / "(B) such new means of emission limitation is not likely to be used by such scarce unless an order is granted under this subsection. "(C) such new means of emission limitation is determined by the Administrator to have a substantial likelihood of— "(i) achieving greater continuous emission reduction than the means of emission limitation which, but for such order, would be required; or "(ii) achieving an equivalent continuous reduction at lower cost in terms of energy, economic, or nonair quality environmental impact; and "(D) compliance by the source with the requirement of the applicable implementation plan would be impracticable prior to, or during, the installation of such new means. Such an order shall provide for final compliance with the requirement in the applicable implementation plan as expeditiously as practicable, but in no event later than five years after the date on which the source would otherwise be required to be in full compliance with the requirement. "(5)(A) In the case of a major stationary source which is burning petroleum products or natural gas, or both and which— "(i) is prohibited from doing so under an order pursuant to the provisions of section 2(a) of the Energy Supply and Environmental Coordination Act of 1974 or any amendment thereto, or

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text:
Page:United States Statutes at Large Volume 91.djvu/741

 PUBLIC LAW 95-95—AUG. 7, 1977

91 STAT. 707

any subsequent enactment which supersedes such provisions, or "(ii) within one year after enactment of the Clean Air Act Amendments of 1977 gives notice of intent to convert to coal as its primary e n e r ^ source because of actual or anticipated curtailment of natural gas supplies under any curtailment plan or schedule approved by the Federal Power Commission (or, in the case of intrastate natural gas supplies, approved by the appropriate State regulatory commission), and which thereby would no longer be in compliance with any requirement under an applicable implementation plan, an order may be issued by the Administrator under paragraph (1) of this subsection for such source which specifies a date for final compliance with such requirement as expeditiously as practicable, but not later than December 31, 1980. The Administrator may issue an additional order under paragraph (1) of this subsection for such source providing an additional period of such source to come into compliance with the requirement in the applicable implementation plan, which shall be as expeditiously as practicable, but in no event later than five years after the date required for compliance under the preceding sentence. "(B) In issuing an order pursuant to subparagraph (A), the Administrator shall prescribe (and may from time to time modify) emission limitations, requirements respecting pollution characteristics of coal, or other enforceable measures for control of emissions for each source to which such an order applies. Such limitations, requirements, and measures shall be those which the Administrator determines must be complied with by the source in order to assure (throughout the period before the date for final compliance established in the order) that the burning of coal by such source will not result in emissions which cause or contribute to concentrations of any air pollutant in excess of any national primary ambient air quality standard for such pollutant. "(C) The Administrator may, by regulation, establish priorities Priorities, under which manufacturers of continuous emission reduction systems necessary to carry out this paragraph shall provide such systems to users thereof, if he finds, after consultation with the States, that priorities must be imposed in order to assure that such systems are first provided to sources subject to orders under this paragraph in air quality control regions in which national primary ambient air quality standards have not been achieved. No regulation under this subparagraph may impair the obligation of any contract entered into before the date of enactment of the Clean Air Act Amendments of 1977. "(D) No order issued to a source under this paragraph with respect to an air pollutant shall be effective if the national primary ambient air quality standard with respect to such pollutant is being exceeded at any time in the air quality control region in which such source is located. The preceding sentence shall not apply to a source if, upon submission by any person of evidence satisfactory to the Administra.tor, the Administrator determines (after notice and public hearing) — "(i) that emissions of such air pollutant from such source will affect only infrequently the air quality concentrations of such pollutant in each portion of the region where such standard is being exceeded at any time; "(ii) that emissions of such air pollutant from such source will have only insignificant effect on the air quality concentrations of such pollutant in each portion of the region where such standard is being exceeded at any time; and "(iii) with reasonable statistical assurance that emissions of such air pollutant from such source will not cause or contribute

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text:
Page:United States Statutes at Large Volume 91.djvu/742

 91 STAT. 708

Interim requirements.

Termination of order.

Violations.

Post, p. 714.

Post, pp.771, 772. Ante, pp. 691-696; Post, pp. 772, 776, 777.

Post, pp. 709, 710.

PUBLIC LAW 95-95—AUG. 7, 1977 to air quality concentrations of such pollutant in excess of the national primary ambient air quality standard for such pollutant. "(6) An order issued to a source under this subsection shall set forth compliance schedules containing increments of progress which require compliance with the requirement postponed as expeditiously as practicable. " (7) A source to which an order is issued under paragraph (1), (3), (4), or (5) of this subsection shall use the best practicable system or systems of emission reduction (as determined by the Administrator taking into account the requirement with which the source must ultimately comply) for the period during which such order is in effect and shall comply with such interim requirements as the Administrator determines are reasonable and practicable. Such interim requirements shall include— "(A) such measures as the Administrator determines are necessary to avoid an imminent and substantial endangerment to health of persons, and "(B) a requirement that the source comply with the requirements of the applicable implementation plan during any such period insofar as such source is able to do so (as determmed by the Administrator). "(8) Any order under paragraph (1) or (3) of this subsection shall be terminated if the Administrator determines on the record, after notice and hearing, that the inability of the source to comply no longer exists. If the owner or operator of the source 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 this subsection. "(9) If the Administrator determines that a source to which an order is issued under this subsection is in violation of any requirement of this subsection, he shall— "(A) enforce such requirement under subsections (a), (b), or (c) of this section, "(B) (after notice and opportunity for public hearing) revoke such order and enforce compliance with the requirement with respect to which such order was granted, (C) give notice of noncompliance and commence action under section 120, or "(D) take any appropriate combination of such actions. "(10) During the period of the order issued under this subsection and where the owner or operator is in compliance with the terms of such order, no other enforcement action pursuant to this section or section 304 of this Act shall be pursued against such owner or operator based upon noncompliance during the period the order is in effect with the requirement for the source covered by such order. " (11) For the purposes of sections 110, 304, and 307 of this Act, any order issued by the State (and approved by the Administrator) pursuant to this subsection shall become part of the applicable implementation plan. "(12) Any enforcement order issued under subsection (a) of this section or any consent decree in an enforcement action which is in effect on the day of enactment of the Clean Air Act Amendments of 1977 shall remain in effect to the extent that such order or consent decree is (A) not inconsistent with the requirements of this subsection and section 119 or (B) the administrative orders on consent issued by the

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Page:United States Statutes at Large Volume 91.djvu/743

 PUBLIC LAW 95-95—AUG. 7, 1977 Administrator on November 5, 1975 and February 26, 1976 and requiring compliance with sulfur dioxide emission limitations or standards at least as stringent as those promulgated under section 111. Any such enforcement order issued under subsection (a) of this section or consent decree which provides for an extension beyond July 1, 1979, except such administrative orders on consent, is void unless modified under this subsection within one year after the enactment of the Clean Air Act Amendments of 1977 to comply with the requirements of this subsection.". (b)(1) Section 119 of such Act is hereby repealed. All references to such section 119 or subsections thereof in section 2 of the Energy Supply and Environmental Coordination Act of 1974 (Public Law 93-319) or any amendment thereto, or any subsequent enactment which supersedes such Act, shall be construed to refer to section 113(d) of the Clean Air Act and to paragraph (5) thereof in particular. Any certification or notification required to be given by the Administrator of the Environmental Protection Agency under section 2 of the Energy Supply and Environmental Coordination Act of 1974 or any amendment thereto, or any subsequent enactment which supersedes such Act, shall be given only when the Governor of the State in which is located the source to which the proposed order under section 113(d) (5) of the Clean Air Act is to be issued gives his prior written concurrence. (2) In the case of any major stationary source to which any requirement is applicable under section 113(d)(5)(B) of the Clean Air Act and for which certification is required under section 2 of the Energy Supply and Environmental Coordination Act of 1974 or any amendment thereto, or any subsequent enactment which supersedes such Act, the Administrator of the Environmental Protection Agency shall certify the date which he determines is the earliest date that such source will be able to comply with all such requirements. In the case of any plant or installation which the Administrator of the Environmental Protection Agency determines (after consultation with the State) will not be subject to an order under section 113(d) of the Clean Air Act and for which certification is required under section 2 of the Energy Supply and Environmental Coordination Act of 1974 or any amendment thereto, or any subsequent enactment which supersedes such Act, the Administrator of the Environmental Protection Agency shall certify the date which he determines is the earliest date that such plant or installation will be able to burn coal in compliance with all applicable emission limitations under the implementation plan. (3) Any certification required under section 2 of the Energy Supply and Environmental Coordination Act of 1974 or any amendment thereto, or any subsequent enactment which supersedes such Act, or under this subsection may be provided in an order under section 113(d) of the Clean Air Act.

91 STAT. 709

Ante, pp. 697, 699-701, 703; ^*'*^' P- '^^•

Repeal, ^<'*' P-^^2. focy TQ jc TJOT. JM 15 USC 792. ^"^e. p- 705.

NOTICE TO STATE I N CASE OF CERTAIN INSPECTIONS, ETC.

SEC. 113. Section 114 of the Clean Air Act is amended by adding 42 USC 7414. at the end thereof the following new subsection: "(d)(1) In the case of any emission standard or limitation or other requirement which is adopted by a State, as part of an applicable implementation plan or as part of an order under section 113(d), before carrying out an entry, inspection, or monitoring under paragraph (2) of subsection (a) with respect to such standard, limitation,

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text:
Page:United States Statutes at Large Volume 91.djvu/744

 91 STAT. 710

Ante, p. 694.

PUBLIC LAW 95-95—AUG. 7, 1977 or other requirement, the Administrator (or his representatives) shall provide the State air pollution control agency with reasonable prior notice of such action, indicating the purpose of such action. No State agency which receives notice under this paragraph of an action proposed to be taken may use the information contained in the notice to inform the person whose property is proposed to be affected of the proposed action. If the Administrator has reasonable basis for believing that a State agency is so using or will so use such information, notice to the agency under this paragraph is not required until such time as the Administrator determines the agency will no longer so use information contained in a notice under this paragraph. Nothing in this section shall be construed to require notification to any State agency of any action taken by the Administrator with respect to any standard, limitation, or other requirement which is not part of an applicable implementation plan or which was promulgated by the Administrator under section 110(c). "(2) Nothing in paragraph (1) shall be construed to provide that any failure of the Administrator to comply with the requirements of such paragraph shall be a defense in any enforcement action brought by the Administrator or shall make inadmissible as evidence in any such action any information or material obtained notwithstanding such failure to comply with such requirements. INTERNATIONAL AIR POLLUTION

42 USC 7415.

SEC. 114. Section 115 of the Clean Air Act is amended to read as follows: uINTERNATIONAL AIR POLLUTION

Plan revision. Ante, pp. 693, 694.

Ante, p. 691.

"SEC. 115. (a) Whenever the Administrator, upon receipt of reports, surveys or studies from any duly constituted international agency has reason to believe that any air pollutant or pollutants emitted in the United States cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare in a foreign country or whenever the Secretary of State requests him to do so with respect to such pollution which the Secretary of State alleges is of such a nature, the Administrator shall give formal notification thereof to the Governor of the State in which such emissions originate. " (b) The notice of the Administrator shall be deemed to be a finding under section 110(a)(2)(H)(ii) which requires a plan revision with respect to so much of the applicable implementation plan as is inadequate to prevent or eliminate the endangerment referred to in subsection (a). Any foreign country so affected by such emission of pollutant or pollutants shall be invited to appear at any public hearing associated with any revision of the appropriate portion of the applicable implementation plan. "(c) This section shall apply only to a foreign country which the Administrator determines has given the United States essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country by this section. "(d) Recommendations issued following any abatement conference conducted prior to the enactment of the Clean Air Act Amendments of 1977 shall remain in effect with respect to any pollutant for which no national ambient air quality standard has been established under section 109 of this Act unless the Administrator, after consultation

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Page:United States Statutes at Large Volume 91.djvu/745

 PUBLIC LAW 95-95—AUG. 7, 1977

91 STAT. 711

with all agencies which were party to the conference, rescinds any such recommendation on grounds of obsolescence.". PRESIDENT'S AIR QUALITY ADVISORY BOARD

SEC. 115. Section 117 of the Clean Air Act is amended— 42 USC 7417. (1) to strike subsections (a) through (c); (2) to renumber subsections (d) and (e) as subsections (a) and (b), respectively; and (3) to amend redesignated subsection (b)— (A) by striking the words "the Board and" the first time the word "Board" appears and inserting in lieu thereof the word "any"; and (B) by striking the words "of the Board" the second time the word "Board" appears. CONTROL OF POLLUTION FROM FEDERAL FACILITIES

SEC. 116. (a) Section 118 of the Clean Air Act, relating to control 42 USC 7418. of pollution from Federal facilities, is amended— (1) by inserting " (a) " after "118", and (2) by striking out "shall comply with Federal, State, interstate, and local requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements" and inserting in lieu thereof "and each officer, agent, or employee thereof, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of air pollution in the same manner, and to the same extent as any nongovernmental entity. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law. ISTo officer, agent, or employee of the United States shall be personally liable for any civil penalty for which he is not otherwise liable.". (b) Section 118 of such Act is amended by striking out "The President may exempt" and inserting in lieu thereof: '"(b) The President may exempt". (c) Section 118(b) of such Act, as amended by subsection (b) of Exemption, this Act, is amended by inserting the following immediately before the last sentence thereof: "In addition to any such exemption of a Regulations, particular emission source, the President may, if he determines it to be in the paramount interest of the United States to do so, issue regulations exempting from compliance with the requirements of this section any weaponry, equipment, aircraft, vehicles, or other classes or categories of property which are owned or operated by the Armed Forces of the United States (including the Coast Guard) or by the National Guard of any State and which are uniquely military in nature. The President shall reconsider the need for such regulations at threeyear intervals.".

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Page:United States Statutes at Large Volume 91.djvu/746

 91 STAT. 712

PUBLIC LAW 95-95—AUG. 7, 1977 PRIMARY NONFERROUS SMELTER ORDERS

42 USC 7401.

SEC. 117. (a) Title I of the Clean Air Act is amended by inserting immediately before section 101 the following: "PART A — A I R QUALITY AND E M I S S I O N L I M I T A T I O N S ".

(b) Part A of title I of the Clean Air Act is amended by adding the following new section at the end thereof: "PRIMARY NONFERROUS SMELTER ORDERS Ante, p. 709. 42 USC 7419.

Hearing.

Ante, p. 705. Statement.

Findings.

"SEC. 119. (a)(1) Upon application by the owner or operator of a primary nonferrous smelter, a primary nonferrous smelter order under subsection (b) may be issued— "(A) by the Administrator, after thirty days' notice to the State, or "(B) by the State in which such source is located, but no such order issued by the State shall take effect until the Administrator determines that such order has been issued in accordance with the requirements of this Act. Not later than ninety days after submission by the State to the Administrator of notice of the issuance of a primary nonferrous smelter order under this section, the Administrator shall determine whether or not such order has been issued by the State in accordance with the requirements of this Act. If the Administrator 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 113(d) and a primary nonferrous smelter order under this section. "(B) Before any hearing conducted under this section, in the case of an application made by the owner or operator of a primary nonferrous smelter for a second order under this section, the applicant shall furnish the Administrator (or the State as the case may be) with a statement of the grounds on which such application is based (including all supporting documents and information). The statement of the grounds for the proposed order shall be provided by the Administrator or the State in any case in which such State or Administrator is acting on its own initiative. Such statement (including such documents and information) shall be made available to the public for a thirty-day period before such hearing and shall be considered as part of such hearing. No primary nonferrous smelter order may be granted unless the applicant establishes that he meets the conditions required for the issuance of such order (or the Administrator or State establishes the meeting of such conditions when acting on their own initiative). "(C) Any decision with respect to the issuance of a primary nonferrous smelter order shall be accompanied by a concise statement of the findings and of the basis of such findings. " (b) A primary nonferrous smelter order under this section may be issued to a primary nonferrous smelter if— "(1) such smelter is in existence on the date of the enactment of this section; "(2) the requirement of the applicable implementation plan with respect to which the order is issued is an emission limitation

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Page:United States Statutes at Large Volume 91.djvu/747

 PUBLIC LAW 95-95—AUG. 7, 1977

91 STAT. 713

or standard for sulfur oxides which is necessary and intended to be itself sufficient to enable attainment and maintenance of national primary and secondary ambient air quality standards for sulfur oxides; and "(3) such smelter is unable to comply with such requirement by the applicable date for compliance because no means of emission limitation applicable to such smelter which will enable it to achieve compliance with such requirement has been adequately demonstrated to be reasonably available (as determined by the Administrator, taking into account the cost of compliance, nonair quality health and environmental impact, and energy consideration). "(c)(1) A second order issued to a smelter under this section shall Orders. 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) and, in the case of a second order, to procuring, installing, and operating the necessary means of emission limitation as expeditiously as practicable after the Administrator determines such means have been adequately demonstrated to be reasonably available within the meaning of subsection (b)(3). "(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)(1)(A) Each primary nonferrous smelter to which an order Interim is issued under this section shall be required to use such interim meas- measures. ures for the period during which such order is in effect as may be necessary in the judgment of the Administrator to assure attainment and maintenance of the national f)rimary and secondary ambient air quality standards during such period, taking into account the aggregate effect on air quality of such order together with all variances, extensions, waivers, enforcement orders, delayed compliance orders and primary nonferrous smelter orders previously issued under this Act. "(B) Such interim requirements shall include— "(i) a requirement that the source to which the order applies comply with such reporting requirements and conduct such monitoring as the Administrator determines may be necessary, and "(ii) such measures as the Administrator determines are necessary to avoid an imminent and substantial endangerment to health of persons. "(C) Such interim measures shall also, except as provided in paragraph (2), include continuous emission reduction technology. The Agreement. Administrator shall condition the use of any such interim measures upon the agreement of the owner or operator of the smelter— " (i) to comply with such conditions as the Administrator determines are necessary to maximize the reliability and enforceability of such interim measures, as applied to the smelter, in attaining and maintaining the national ambient air quality standards to which the order relates, and "(ii) to commit reasonable resources to research and development of appropriate emission control technology. "(2) The requirement of paragraph (1) for the use of continuous Waiver. Notice and hearing.

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Page:United States Statutes at Large Volume 91.djvu/748

 91 STAT. 714

Information, availability to public. Investigation. Post, p. 781. Notice and hearing.

Hearing. Termination, notice and hearing.

Ante, pp. 704, 705.

Iiifra.

PUBLIC LAW 95-95—AUG. 7, 1977 emission reduction technology may be waived with respect to a particular smelter by the State or the Administrator, after notice and a hearing on the record, and upon a showing by the owner or operator of the smelter that such requirement would be so costly as to necessitate permanent or prolonged temporary cessation of operations of the smelter. Upon application for such waiver, the Administrator shall be notified and shall, within ninety days, hold a hearing on the record in accordance with section 554 of title 5 of the United States Code. At such hearing the Administrator shall require the smelter involved to present information relating to any alleged cessation of operations nnd the detailed reasons or justifications therefor. On the basis of such hearing the Administrator shall make findings of fact as to the effect of such requirement and on the alleged cessation of operations and shall make such recommendations as he deems appropriate. Such report, findings, and recommendations shall be available to the public, and shall be taken into account by the State or the Administrator in making the decision whether or not to grant such waiver. "(3) In order to obtain information for purposes of a waiver under paragraph (2), the Administrator may, on his own motion, conduct an investigation and use the authority of section 319. "(4) In the case of any smelter which on the date of enactment of this section uses continuous emission reduction technology and supplemental controls and which receives an initial primary nonferrous smelter order under this section, no additional continuous emission reduction technology shall be required as a condition of such order unless the Administrator determines, at any time, after notice and public hearing, that such additional continuous emission reduction technology is adequately demonstrated to be reasonably available for the primary nonferrous smelter industry, "(e) At any time during which such order applies, the Administrator may enter upon a public hearing respecting the availability of technology. Any order under this section shall be terminated if the Administrator determines on the record, after notice and public hearing, that the conditions upon which the order was based no longer exist. If the owner or operator of the snielter 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 "(f) If the Administrator determines that a smelter to which an order is issued under this section is in violation of any requirement of subsection (c) or (d), he shall— " (1) enforce such requirement under section 113, "(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 120, or "(4) take any appropriate combination of such actions.". NONCOMPLIANCE PKNALTY

SEC. 118. Part A of title I of the Clean Air Act is amended by adding the following new section at the end thereof:

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Page:United States Statutes at Large Volume 91.djvu/749

 PUBLIC LAW 95-95—AUG. 7, 1977 NONCOMPLIANCE

91 STAT. 715

PENALTY

"SEC. 120. (a)(1)(A) Not later than 6 months after the date of Notice and enactment of this section, and after notice and opportunity for a hearing. public hearing, the Administrator shall promulgate regulations Regulations. requiring the assessment and collection of a, noncompliance penalty 42 USC 7420. against persons referred to in paragraph (2)(A). "(B)(i) Each State may develop and submit to the Administrator State plans. a plan for carrying out this section in such State. If the Administrator Delegation of finds that the State plan meets the requirements of this section, he authority. may delegate to such State any authority he has to carry out this section. "(ii) Notwithstanding a delegation to a State under clause (i), the Administrator may carry out this section in such State under the circumstances described in subsection (b)(2)(B). "(2)(A) Except as provided in subparagraph (B) or (C) of this paragraph, the State or the Administrator shall assess and collect a noncompliance penalty against every person who owns or operates— "(i) a major stationary source (other than a primary nonferrous smelter which has received a primary nonferrous smelter order under section 119) which is not in compliance with any emission limitation, emission standard or compliance schedule under any applicable implementation plan, or "(ii) a stationary source which is not in compliance with an emission limitation, emission standard, standard of performance, or other requirement established under section 111 or 112 of this Ante, pp. 697, Act, or "(iii) any source referred to in clause (i) or (ii) (for which an 699-701, 703; Post, extension, order, or suspension referred to in subparagraph (B) is Ante, p. 791; pp. 701, in effect), or a primary nonferrous smelter which has received a 70S; Post, f. 791. primary nonferrous smelter order under section 119 which is not Ante, pp. 709, in compliance with any interim emission control requirement or 712. schedule of compliance under such extension, order, or suspension. For purposes of subsection (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) 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) Exemption. and (ii), the owner or operator of any source shall be exempted from the duty to pay a noncompliance penalty under such requirements with respect to that source if, in accordance with the procedures in subsection (b)(5), the owner or operator demonstrates that the failure of such source to comply with any such requirement is due solely to— "(i) a conversion by such source from the burning of petroleum products or natural gas, or both, as the permanent primary energy source to the burning of coal pursuant to an order under section 119; "(ii) in the case of a coal-burning source granted an extension under the second sentence of section 119(c)(1), a prohibition from using petroleum products or natural gas or both, by reason of an order under the provisions of section 2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 or under 15 USC 792. any legislation which amends or supersedes such provisions; "(iii) the use of innovative technology sanctioned by an Ante, p. 705. enforcement order under section 113(d)(4);

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Page:United States Statutes at Large Volume 91.djvu/750

 91 STAT. 716

Ante, p. 705.

Ante, pp. 691, 692.

Notice and hearing.

Regulations.

Notice.

Penalty, calculation.

Petition.

Hearing.

PUBLIC LAW 95-95—AUG. 7, 1977 "(iv) an inability to comply with any such requirement, for which inability the source has received an order under section 113(d) (or an order under section 113 issued before the date of enactment of this section) which has the effect of permitting a delay or violation of any requirement of this Act (including a requirement of an applicable implementation plan) which inability results from reasons entirely beyond the control of the owner or operator of such source or of any entity controlling, controlled by, or under common control with the owner or operator of such source; or "(v) the conditions by reason of which a temporary emergency suspension is authorized under section 110(f) or (g). An exemption under this subparagraph shall cease to be effective if the source fails to comply with the interim emission control requirements or schedules of compliance (including increments of progress) under any such extension, order, or suspension, "(C) The Administrator may, after notice and opportunity for public hearing, exempt any source from the requirements of this section with respect to a particular instance of noncompliance if he finds that such instance of noncompliance is de minimis in nature and in duration. "(b) Regulations under subsection (a) shall— "(1) permit the assessment and collection of such penalty by the State if the State has a delegation of authority in effect under subsection (a)(1)(B)(i); "(2) provide for the assessment and collection of such penalty by the Administrator, if— "(A) the State does not have a delegation of authority in effect under subsection (e), or "(B) the State has such a delegation in effect but fails with respect to any particular person or source to assess or collect the penalty in accordance with the requirements of this section; "(3) require the States, or in the event the States fail to do so, the Administrator, to give a brief but reasonably specific notice of noncompliance under this section to each person referred to in subsection (a)(2)(A) with respect to each source owned or operated by such person which is not in compliance as provided in such subsection, not later than July 1, 1979, or thirty days after the discovery of such noncompliance, whichever is later; "(4) require each person to whom notice is given under paragraph (3) to— "(A) calculate the amount of the penalty owed (determined in accordance with subsection (d)(2)) and the schedule of payments (determined in accordance with subsection (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), to submit that calculation and proposed schedule, together with the information necessary for an independent verification thereof, to the State and to the Administrator, or "(B) submit a petition, within forty-five days after the issuance of such notice, challenging such notice of noncompliance or alleging entitlement to an exemption under subsection (a)(2)(B) with respect to a particular source; "(5) require the Administrator to provide a hearing on the

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Page:United States Statutes at Large Volume 91.djvu/751

 PUBLIC LAW 95-95—AUG. 7, 1977 record (within the meaning of subchapter II of chapter 5 of title 5, United States Code) and to make a decision on such petition (including findings of fact and conclusions of law) not later than ninety days after the receipt of any petition under paragraph (4) (B), unless the State agrees to provide a hearing which is substantially similar to such a hearing on the record and to make a decision on such petition (including such findings and conclusions) within such ninety-day period; "(6)(A) authorize the Administrator on his own initiative to review the decision of the State under paragraph (5) and disapprove it if it is not in accordance with the requirements of this section, and (B) require the Administrator to do so not later than sixty days after receipt of a petition under this subparagraph, notice, and public hearing and a showing by such petitioner that the State decision under paragraph (5) is not in accordance with the requirements of this section; "(7) require payment, in accordance with subsection (d), of the penalty by each person to whom notice of noncompliance is given under paragraph (3) with respect to each noncomplying source for which such notice is given unless there has been a final determination granting a petition under paragraph (4)(B) with respect to such source; "(8) authorize the State or the Administrator to adjust (and from time to time to readjust) the amount of the penalty assessment calculated or the payment schedule proposed by such owner or operator under paragraph (6), if the Administrator finds after notice and opportunity for a hearing on the record that the penalty or schedule does not meet the requirements of this section; and "(9) require a final adjustment of the penalty within 180 days after such source comes into compliance m accordance with subsection (d)(4). A delayed compliance penalty established by a State under this section shall apply unless the Administrator, within ninety days after the date of publication of the proposed penalty under this section, objects in writing to the amount of the penalty as less than would be required to comply with guidelines established by the Administrator. If the Administrator objects, he shall immediately establish a substitute delayed compliance penalty applicable to such facility. "(c) If the owner or operator of any stationary source to whom a notice is issued under subsection (b)(3) — "(1) does not submit a timely petition under subsection (b)(4)(B), or "(2) submits a petition under subsection (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 (or the Administrator, as the case may be) may enter into a contract with any person who has no financial interest in the owner or operator of the source (or in any person controlling, controlled by or under common control with such source) to assist in determining the amount of the penalty assessment or payment schedule with respect to such source. The cost of carrying out such contract may be added to the penalty to be assessed against the owner or operator of such source.

91 STAT. 717 5 USC 551.

Review. Notice and hearing.

Payment,

Adjustment,

Delayed penalty, objection.

Substitution.

Contract

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Page:United States Statutes at Large Volume 91.djvu/752

 91 STAT. 718 Payment.

Quarterly payments.

"Period of covered noncompliance.'

Review.

PUBLIC LAW 95-95—AUG. 7, 1977 "(d)(1) All penalties assessed by the Administrator under this section shall be paid to the United States Treasury. All penalties assessed by the State under this section shall be paid to such State. "(2) The amount of the penalty which shall be assessed and collected with respect to any source under this section shall be equal to— "(A) the amount determined in accordance with regulations promulgated by the Administrator under subsection (a), which is no less than 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 a delay in compliance beyond July 1, 1979, may have for the owner or operator of such source, minus "(B) the amount of any expenditure made by the owner or operator of that source during any such quarter for the purpose of bringing that source into, and maintaining compliance with, such requirement, to the extent that such expenditures have not been taken into account in the calculation of the penalty under subparagraph (A). To the extent that any expenditure under subparagraph (B) made during any quarter is not subtracted for such quarter from the costs under subparagraph (A), such expenditure may be subtracted for any subsequent quarter from such costs. In no event shall the amount paid be less than the quarterly payment minus the amount attributed to actual cost of construction. "(3)(A) The assessed penalty required under this section shall be paid in quarterly installments for the period of covered noncompliance. All quarterly payments (determined without regard to any adjustment or any subtraction under paragraph (2)(B)) after the first payment shall be equal. "(B) The first payment sihall be due on the date six months after the date of issuance of the notice of noncompliance under subsection (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 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 the date of enactment of this section, in the case of a source for which notice of noncompliance under subsection (b)(3) is issued on or before the date two years after such date of enactment, or "(ii) on the date of issuance of the notice of noncompliance under subsection (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 (or the Administrator as the case may be) s'hall review the actual expenditures made by the owner or operator of such source for the purpose of attaining and maintaining compliance, and shall within 180 days after such source comes into compliance—

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Page:United States Statutes at Large Volume 91.djvu/753

 PUBLIC LAW 95-95—AUG. 7, 1977 "(A) provide reimbursement with interest (to be paid by the State or Secretary of the Treasury, as the case may be) at appropriate prevailing rates (as determined by the Secretary of the Treasury) for any overpayment by such person, or "(B) assess and collect an additional payment with interest at appropriate prevailing rates (as determined by the Secretary of the Treasury) for any underpayment by such person. "(5) Any person who fails to pay the amount of any penalty with respect to any source under this section on a timely basis shall be required to pay in addition a quarterly nonpayment penalty for each quarter during which such failure to pay persists. Such nonpayment penalty shall be in an amount equal to 20 percent of the aggregate amount of such person's penalties and nonpayment penalties with respect to such source which are unpaid as of the beginning of such quarter. "(e) Any action pursuant to this section, including any objection of the Administrator under the last sentence of subsection (b) shall be considered a final action for purposes of judicial review of any penalty under section 307 of this Act. "(f) 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 Act, and shall in no way affect any civil or criminal enforcement proceedings brought under any provision of this Act or State or local law. "(g) In the case of any emission limitation or other requirement approved or promulgated by the Administrator under this Act after the enactment of the Clean Air Act Amendments of 1977 which is more stringent than the emission limitation or requirement for the source in effect prior to such approval or promulgation, if any, or where there was no emission limitation or requirement approved or promulgated before enactment of the Clean Air Act Amendments of 1977, the date for imposition of the non-compliance penalty under this section, shall be either July 1, 1979, or the date on which the source is required to be in full compliance with such emission limitation or requirement, whichever is later, but in no event later than three years after the approval or promulgation of such emission limitation or requirement.".

91 STAT. 719

Quarterly nonpayment P«o*l*y-

Post, pp. 772, ^^^' '^'^'^•

CONSULTATION

SEC. 119. Part A of title I of the Clean Air Act is amended by adding the following new section at the end thereof: ((CONSULTATION "SEC. 121. In carrying out the requirements of this Act requiring applicable implementation plans to contain— "(1) any transportation controls, air quality maintenance plan requirements or preconstruction review of direct sources of air pollution, or " (2) any measure referred to— "(A) in part D (pertaining to nonattainment requirements), or "(B) in part C (pertaining to prevention of significant deterioration), and in carrying out the requirements of section 113(d) (relating to certain enforcement orders), the State shall provide a satisfactory process

29-194 0

^2 USC 7421.

Post, ^.146. Post, p. 731. ^"-te, p- 705.

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Page:United States Statutes at Large Volume 91.djvu/754

 91 STAT. 720

Regulations; notice and hearing.

Petition for judicial review.

PUBLIC LAW 9 5 - 9 5 — A U G. 7, 1977 of consultation with general purpose local governments, designated organizations of elected officials of local governments and any Federal land manager having authority over Federal land to which the State plan applies, effective with respect to any such requirement which is adopted more than one year after the date of enactment of the Clean A i r Act Amendments of 1977 as part of such plan. Such process shall be in accordance with regulations promulgated by the Administrator to assure adequate consultation. Such regulations shall be promulgated after notice and opportunity for public hearing and not later than 6 months after the date of enactment of the Clean A i r Act Amendments of 1977. Only a general purpose unit of local government, regional agency, or council of governments adversely affected by action of the Administrator approving any portion of a plan referred to in this subsection may petition for judicial review of such action on the basis of a violation of the requirements of this section.". UNREGULATED POLLUTANTS

SEC. 120. (a) Part A of title I of the Clean A i r Act is amended by adding at the end thereof the following new section: LISTING OF CERTAIN UNREGULATED POLLUTANTS

Review; notice and hearing. 42 USC 7422.

" SEC. 122. (a) Not later than one year after date of enactment of this section (two years for radioactive pollutants) and after notice and opportunity for public hearing, the Administrator shall review all available relevant information and determine whether or not emissions of radioactive pollutants (including source material, special nuclear material, and byproduct m a t e r i a l), cadmium, arsenic and polycyclic organic matter into the ambient air will cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health. If the Administrator makes an affirmative determination with respect to any such substance, he shall simultaneously with such determination include such substance in the list published under section 108(a)(1) or 112(b)(1)(A) (in the case of Post, p. 790. 42 USC 7412. a substance which, in the judgment of the Administrator, causes, or contributes to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness), or shall include each category of stationary sources emitting such substance in significant amounts in the list published under section 111(b)(1)(A), or take any comPost, p. 791. bination of such actions. Revision " (b) Nothing in subsection (a) shall be construed to affect the authority. authority of the Administrator to revise any list referred to in subsection (a) with respect to any substance (whether or not enumerated in subsection (a)). Consultation with " ( c W l) Before listing any source material, special nuclear, or NRC. byproduct material (or component or derivative thereof) as provided in subsection (a), the Administrator shall consult with the Nuclear Kegulatory Commission. Interagency " (2) Not later than six months after listing any such material (or agreement. component or derivative thereof) the Administrator and the Nuclear Eegulatory Commission shall enter into an interagency agreement with respect to those sources or facilities which are under the jurisdiction of the Commission. This agreement shall, to the maximum extent practicable consistent with this Act, minimize duplication of effort

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Page:United States Statutes at Large Volume 91.djvu/755

 PUBLIC LAW 95-95—AUG. 7, 1977 and conserve administrative resources in the establishment, implementation, and enforcement of emission limitations, standards of performance, and other requirements and authorities (substantive and procedural) under this Act respecting the emission of such material (or component or derivative thereof) from such sources or facilities. "(3) In case of any standard or emission limitation promulgated by the Administrator, under this Act or by any State (or the Administrator) under any applicable implementation plan under this Act, if the Nuclear Regulatory Commission determines, after notice and opportunity for public hearing that the application of such standard or limitation to a source or facility within the jurisdiction of the Commission would endanger public health or safety, such standard or limitation shall not apply to such facilities or sources unless the President determines otherwise within ninety days from the date of such finding.". (b) The Administrator of the Environmental Protection Agency shall conduct a study, in conjunction with other appropriate agencies, concerning the effect on the public health and welfare of sulfates, radioactive pollutants, cadmium, arsenic, and polycyclic organic matter which are present or may reasonably be anticipated to occur in the ambient air. Such study shall include a thorough investigation of how sulfates are formed and how to protect public health and welfare from the injurious effects, if any, of sulfates, cadmium, arsenic, and polycyclic organic matter.

91 STAT. 721

Notice and hearing.

Study by EPA. 42 USC 7422 note.

STACK H E I G H T S

SEC. 121. Part A of title I of the Clean Air Act is amended by adding the following new section at the end thereof: a STACK H E I G H T S

"SEC. 123. (a) The degree of emission limitation required for control 42 USC 7423. of any air pollutant under an applicable implementation plan under this title shall not be affected in any manner by— "(1) so much of the stack height of any source as exceeds good engineering practice (as determined under regulations promulgated by the Administrator), or "(2) any other dispersion technique. The preceding sentence shall not apply with respect to stack heights in existence before the date of enactment of the Clean Air Amendments of 1970 or dispersion techniques implemented before such date. In 42 USC 7401 establishing an emission limitation for coal-fired steam electric gener- note. ating units which are subject to the provisions of section 118 and Ante, p. 711. which commenced operation before July 1, 1957, the effect of the entire stack height of stacks for which a construction contract was awarded before February 8, 1974, may be taken into account. "(b) For the purpose of this section, the term 'dispersion technique' "Dispersion includes any intermittent or supplemental control of air pollutants technique." varying with atmospheric conditions. "(c) Not later than six months after the date of enactment of this Regulations. section, the Administrator, shall after notice and opportunity for Notice and public hearing, promulgate regulations to carry out this section. For hearing. purposes of this section, good engineering practice means, with respect Good engineering to stack heights, the height necessary to insure that emissions from the practice. stack do not result in excessive concentrations of any air pollutant in the immediate vicinity of the source as a result of atmospheric downwash, eddies and wakes which may be created by the source itself,

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91 STAT. 722

nearby structures or nearby terrain obstacles (as determined by the Administrator). For purposes of this section such height shall not exceed two and a half times the height of such source unless the owner or operator of the source demonstrates, after notice and opportunity for public hearing, to the satisfaction of the Administrator, that a greater height is necessary as provided under the preceding sentence. In no event may the Administrator prohibit any increase in any stack height or restrict in any manner the stack height of any source.". ASSURANCE OF PLAN

ADEQUACY

SEC. 122. Part A of title I of the Clean Air Act is amended by adding the following new sections at the end thereof: ASSURANCE OF ADEQUACY OF STATE PLANS Review.

42 USC 7424.

Plan revision.

"SEC. 124. (a) As expeditiously as practicable but not later than one year after date of enactment of this section, each State shall review the provisions of its implementation plan which relate to major fuel burning sources and shall determine— "(1) the extent to which compliance with requirements of such plan is dependent upon the use by major fuel burning stationary sources of petroleum products or natural gas, "(2) the extent to which such plan may reasonably be anticipated to be inadequate to meet the requirements of this Act in such State on a reliable and long-term basis by reason of its dependence upon the use of such fuels, and "(3) the extent to which compliance with the requirements of such plan is dependent upon use of coal or coal derivatives which is not locally or regionally available. Each State shall submit the results of its review and its determination under this paragraph to the Administrator promptly upon completion thereof. "(b)(1) Not later than eighteen months after the date of enactment of this section, the Administrator shall review the submissions of the States under subsection (a) and shall require each State to revise its plan if, in the judgment of the Administrator, such plan revision is necessary to assure that such plan will be adequate to assure compliance with the requirements of this Act in such State on a reliable and long-term basis, taking into account the actual or potential prohibitions on use of petroleum products or natural gas, or both, under any other authority of law. "(2) Before requiring a plan revision under this subsection, with respect to any State the Administrator shall take into account the report of the review conducted by such State under paragraph (1) and shall consult with the Governor of the State respecting such required revision. ((MEASURES

Notice and hearing.

42 USC 7425.

TO PREVENT ECONOMIC DISRUPTION OR UNEMPLOYMENT

"SEC. 125. (a) After notice and opportunity for a public hearing— "(1) the Governor of any State in which a major fuel burning stationary source referred to in this subsection (or class or category thereof) is located, "(2^ the Administrator, or " (3) the President (or his designee), may determine that action under subsection (b) is necessary to prevent

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Page:United States Statutes at Large Volume 91.djvu/757

 PUBLIC LAW 95-95—AUG. 7, 1977 or minimize significant local or regional economic disruption or unemployment which would otherwise result from use by such source (or class or category) of— "(A) coal or coal derivatives other than locally or regionally available coal, "TB) petroleum products, "(C) natural gas, or "(D) any combination of fuels referred to in subparagraphs (A) through (C), to comply with the requirements of a State implementation plan, " (b) Upon a determination under subsection (a)— "(1) such Governor, with the written consent of the President or his designee, "(2) the President's designee with the written consent of such Governor, or "(3) the President may by rule or order prohibit any such major fuel burning stationary source (or class or category thereof) from using fuels other than locally or regionally available coal or coal derivatives to comply with implementation plan requirements. In taking any action under this subsection, the Governor, the President, or the President's designee as the case may be, shall take into account, the final cost to the consumer of such an action. "(c) The Governor, in the case of action under subsection (b)(1), or the Administrator, in the case of an action under subsection (b) (2) or (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) for supplies of regionally available coal or coal derivatives, "(2) enter into contracts to acquire any additional means of emission limitation which the Administrator or the State determines may be necessary to comply wath the requirements of this Act 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 Act. Requirements under this subsection shall be established simultaneously with, and as a condition of, any action under subsection (b). "(d) This section applies onl}^ to existing or new major fuel burning stationary Gources^— "(1) which have the design capacity to produce 250,000,000 Btu's per hour (or its equivalent), as determined by the Administrator, and "(2) which are not in compliance with the requirements of an applicable implementation plan or which are prohibited from burning oil or natural gas, or both, under any other authority of law. "(e) Except as may otherwise be provided by rule by the State or the Administrator for good cause, any action required to be taken by a major fuel burning stationary source under this section shall not be deemed to constitute a modification for purposes of section 111(a) (2) and (4) of this Act. "(f) For purposes of sections 113 and 120 a prohibition under subsection (b), and a corresponding rule or order under subsection (c), shall be treated as a requirement of section 113. For purposes of any

91 STAT. 723

Consumer costs, consideration.

Applicability

42 USC 7411. Ante, pp. 704, 705. Ante, p. 714.

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Page:United States Statutes at Large Volume 91.djvu/758

 91 STAT. 724 Ante, p. 694.

Ante, pp. 704, 705.

Authority delegation. "Locally or regionally available coal or coal derivatives."

PUBLIC LAW 95-95—AUG. 7, 1977 plan (or portion thereof) promulgated under section 110(c), any rule or order under subsection (c) corresponding to a prohibition under subsection (b), shall be treated as a part of such plan. For purposes of section 113, a prohibition under subsection (b), applicable to any source, and a corresponding rule or order under subsection (c), shall be treated as part of the applicable implementation plan for the State in which subject source is located. "(g) The President may delegate his authority under this section to an officer or employee of the United States designated by him on a case-by-case basis or in any other manner he deems suitable. "(h) For the purpose of this section the term 'locally or regionally available coal or coal derivatives' means coal or coal derivatives which is, or can in the judgment of the State or the Administrator feasibly be, mined or produced in the local or regional area (as determined by the Administrator) in which the major fuel burning stationary source is located.". INTERSTATE POLLUnON ABATEMENT

SEC. 123. Part A of title I of the Clean Air Act is amended by adding at the end thereof the following new section: "INTERSTATE POLLUTION ABATEMENT

42 USC 7426.

"SEC. 126. (a) Each applicable implementation plan shall— "(1) require each major proposed new (or modified) source— Post, p. 731. " (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 in any air quality control region outside the State in which such source intends to locate (or make such modification), to provide written notice to all nearby States the air pollution levels of which may be affected by such source at least sixty days prior to the date on which commencement of construction is to be permitted by the State providing notice, and "(2) identify all ma] or existing stationary sources which may have the impact described in paragraph (1) with respect to new or modified sources and provide notice to all nearby States of the identity of such sources not later than three months after the ''"" date of enactment of the Clean Air Act Amendments of 1977. Petition. "(b) Any State or political subdivision may petition the Administrator for a finding that any major source emits or would emit any air Ante, p. 693. pollutant in violation of the prohibition of section 110(a)(2)(E)(i). Hearing. Within 60 days after receipt of any petition under this subsection and after public hearing, the Administrator shall make such a finding or deny the petition. "(c) Notwithstanding any permit which may have been granted by the State in which the source is located (or intends to locate), it shall be a violation of the applicable implementation plan in such State— "(1) for any major proposed new (or modified) source with respect to which a finding has been made under subsection (b) to be constructed or to operate in violation of the prohibition of section, 110(a)(2)(E)(i), or "(2) for any major existing source to operate more than three months after such finding has been made with respect to it.

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91 STAT. 725

The Administrator may permit the continued operation of a source referred to in paragraph (2) beyond the expiration of such threemonth period if such source complies with such emission limitations and compliance schedules (containing' increments of progress) as may be provided by the Administrator to bring about compliance with the requirements contained in section 110(a)(2)(E)(i) as expeditiously Ante, p. 693. 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 113(d) after the expiration of such period during which Ante, p. 705. the Administrator has permitted continuous operation.". PUBLIC NOTIFICATION

SEC. 124. Part A of title I of the Clean Air Act is amended by adding the following new section at the end thereof: "SEC. 127. (a) Each State plan shall contain measures which will be 42 USC 7427. effective to notify the public during any calendar on a regular basis of instances or areas in which any national primary ambient air quality standard is exceeded or was exceeded during any portion of the preceding calendar year to advise the public of the health hazards associated with such pollution, and to enhance public awareness of the measures which can be taken to prevent such standards from being exceeded and the ways in which the public can participate in regulatory and other efforts to improve air quality. Such measures may include the posting of warning signs on interstate highway access points to metropolitan areas or television, radio, or press notices or information. "(b) The Administrator is authorized to make grants to States to Grants, assist in carrying out the requirements of subsection (a).". STATE BOARDS

SEC. 125. Part A of title I of the Clean Air Act is amended by adding the following new section at the end thereof: STATE BOARDS

"SEC. 128. (a) Not later than the date one year after the date of the enactment of this section, each applicable implementation plan shall contain requirements that— " (1) any board or body which approves permits or enforcement orders under this Act shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders under this Act, and " (2) any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed. A State may adopt any requirements respecting conflicts of interest for such boards or bodies or heads of executive agencies, or any other entities which are more stringent than the requirements of paragraph (1) and (2), and the Administrator shall approve any such more stringent requirements submitted as part of an implementation plan.". OZONE PROTECTION

SEC. 126. Title I of the Clean Air Act is amended by adding at the end thereof the following new part:

Conflict of interest. 42 USC 7428.

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 91 STAT. 726

PUBLIC LAW 95-95—AUG. 7, 1977 "PART B—OZONE PROTECTION "PURPOSES

42 USC 7450.

"SEC. 150. The purposes of this part are (1) to provide for a better understanding of the effects of human actions on the stratosphere, especially the ozone in the stratosphere, (2) to provide for a better understanding of the effects of changes in the stratosphere, especially the ozone in the stratosphere on the public health and welfare, (3) to provide information on the progress of regulation of activities which may reasonably be anticipated to affect the ozone in the stratosphere in such a way as to cause or contribute to endangerment of the public health or welfare, and (4) to provide information on the need for additional legislation in this area, if any. u. I N D I N G S AND DEFINITIONS F

42 USC 7451.

"SEC. 151. (a) The Congress finds, on the basis of presently available information, that— "(1) halocarbon compounds introduced into the environment potentially threaten to reduce the concentration of ozone in the stratosphere; "(2) ozone reduction will lead to increased incidence of solar ultraviolet radiation at the surface of the Earth; "(3) increased incidence of solar ultraviolet radiation is likely to cause increased rates of disease in humans (including increased rates of skin cancer), threaten food crops, and otherwise damage the natural environment; "(4) other substances, practices, processes, and activities may affect the ozone in the stratosphere, and should be investigated to give early warning of any potential problem and to develop the basis for possible future regulatory action; and "(6) there is some authority under existing law, to regulate certain substances, practices, processes, and activities which may affect the ozone in the stratosphere. ((DEFINITIONS

42 USC 7452.

"SEC. 152. For the purposes of this subtitle— "(1) the term 'halocarbon' means the chemical compounds CFCI3 and CF2CI2 and such other halogenated compounds as the Administrator determines may reasonably be anticipated to contribute to reductions in the concentration of ozone in the stratosphere; " (2) the term 'stratosphere' means that part of the atmosphere above the tropopause. ii

42 USC 7453.

STUDIES BY ENVlRONMENTAIi PROTECTION AGENCY

153. (a) The Administrator shall conduct a study of the cumulative effect of all substances, practices, processes, and activities which may affect the stratosphere, especially ozone in the stratosphere. The study shall include an analysis of the independent effects on the stratosphere especially such ozone in the stratosphere of— " (1) the release into the ambient air of halocarbons, " (2) the release into the ambient air of other sources of chlorine, " (3) the uses of bromine compounds, and '^SEC.

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 PUBLIC LAW 95-95—AUG. 7, 1977 "(4) emissions of aircraft and aircraft propulsion systems employed by operational and experimental aircraft. The study shall also include such physical, chemical, atmospheric, biomedical, or other research and monitoring as may be necessary to ascertain (A) any direct or indirect effects upon the public health and welfare of changes in the stratosphere, especially ozone in the stratosphere, and (B) the probable causes of changes in the stratosphere, especially the ozone in the stratosphere. "(b) The Administraor shall undertake research on— "(1) methods to racover and recycle substances which directly or indirectly affect the stratosphere, especially ozone in the stratosphere, "(2) methods of preventing the escape of such substances, "(3) safe substitutes for such substances, and " (4) other methods to regulate substances, practices, processes, and activities which may reasonably be anticipated to affect the stratosphere, especially ozone in the stratosphere. "(c)(1) The studies and research conducted under this section may be undertaken with such cooperation and assistance from universities and private industry as may be available. Each department, agency, and instrumentality of the United States having the capability to do so is authorized and encouraged to provide assistance to the Administrator in carrying out the requirements of this section, including (notwithstanding any other provision of law) any services which such department, agency, or instrumentality may have the capability to render or obtain by contract with third parties. "(2) The Administrator shall encourage the cooperation and assistance of other nations in carrying out the studies and research under this section. The Administrator is authorized to cooperate with and support similar research efforts of other nations. "(d)(1) The Administrator shall undertake to contract with the National Academy of Sciences to study the state of knowledge and the adequacy of research efforts to understand (A) the effects of all substances, practices, processes, and activities which may affect the stratosphere, especially ozone in the stratosphere; (B) the health and welfare effects of modifications of the stratosphere, especially ozone in the stratosphere; and (C) methods of control of such substances, practices, processes, and activities including alternatives, costs, feasibility, and timing. The Academy shall make a report of its findings by January 1, 1978. "(2) The Administrator shall make available to the Academy such information in the Administrator's possession as is needed for the purposes of the study provided for in this subsection. "(e) The Secretary of Labor shall study and transmit a report to the Administrator and the Congress not later than six months after date of enactment, with respect to the losses and gains to industry and employment which could result from the elimination of the use of halocarbons in aerosol containers and for other purposes. Such report shall include recommended means of alleviating unemployment or other undesirable economic impact, if any, resulting therefrom. "(f)(1) The Administrator shall establish and act as Chairman of a Coordinating Committee for the purpose of insuring coordination of the efforts of other Federal agencies carrying out research and studies related to or supportive of the research provided for in subsections (a) and (b) and section 154. "(2) Members of the Coordinating Committee shall include the

91 STAT. 727

Report.

Report to Administrator and Congress.

Coordinating Committee. Establishment.

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