Loading (50 kb)...'

(continued)
lands in the United States, the Secretary of the department with
authority over such lands.
(j) Except as otherwise expressly provided, the terms "major
stationary source" and "major emitting facility" mean any
stationary facility or source of air pollutants which directly
emits, or has the potential to emit, one hundred tons per year or
more of any air pollutant (including any major emitting facility
or source of fugitive emissions of any such pollutant, as
determined by rule by the Administrator).
(k) The terms "emission limitation" and "emission standard"
mean a requirement established by the State or the Administrator
which limits the quantity, rate, or concentration of emissions of
air pollutants on a continuous basis, including any requirement
relating to the operation or maintenance of a source to assure
continuous emission reduction, and any design, equipment, work
practice or operational standard promulgated under this Act..
(l) The term "standard of performance" means a requirement of
continuous emission reduction, including any requirement relating
to the operation or maintenance of a source to assure continuous
emission reduction.
(m) The term "means of emission limitation" means a system of
continuous emission reduction (including the use of specific
technology or fuels with specified pollution characteristics).
(n) The term "primary standard attainment date" means the date
specified in the applicable implementation plan for the
attainment of a national primary ambient air quality standard for
any air pollutant.
(o) The term "delayed compliance order" means an order issued
by the State or by the Administrator to an existing stationary
source, postponing the date required under an applicable
implementation plan for compliance by such source with any
requirement of such plan.
(p) The term "schedule and timetable of compliance" means a
schedule of required measures including an enforceable sequence
of actions or operations leading to compliance with an emission
limitation, other limitation, prohibition, or standard.
(q) For purposes of this Act, the term "applicable implementa-
tion plan" means the portion (or portions) of the implementation
plan, or most recent revision thereof, which has been approved
under section 110, or promulgated under section 110(c), or
promulgated or approved pursuant to regulations promulgated under
section 301(d) and which implements the relevant requirements of
this Act.
(r) Indian Tribe.- The term "Indian tribe" means any Indian
tribe, band, nation, or other organized group or community,
including any Alaska Native village, which is Federally
recognized as eligible for the special programs and services
provided by the United States to Indians because of their status
as Indians.
(s) VOC.- The term "VOC" means volatile organic compound, as
defined by the Administrator.
(t) PM-10.- The term "PM-10" means particulate matter with an
aerodynamic diameter less than or equal to a nominal ten microme-
ters, as measured by such method as the Administrator may
determine.

295





(u) NAAQS and CTG.- The term "NAAQS" means national ambient air
quality standard. The term "CTG" means a Control Technique
Guideline published by the Administrator under section 108.
(v) NOx.- The term "NOx " means oxides of nitrogen.
(w) CO.- The term "CO" means carbon monoxide.
(x) Small Source.- The term "small source" means a source that
emits less than 100 tons of regulated pollutants per year, or any
class of persons that the Administrator determines, through
regulation, generally lack technical ability or knowledge
regarding control of air pollution.
(y) Federal Implementation Plan.- The term "Federal implementa-
tion plan" means a plan (or portion thereof) promulgated by the
Administrator to fill all or a portion of a gap or otherwise
correct all or a portion of an inadequacy in a State implementa-
tion plan, and which includes enforceable emission limitations or
other control measures, means or techniques (including economic
incentives, such as marketable permits or auctions of emissions
allowances), and provides for attainment of the relevant national
ambient air quality standard.
(z) Stationary Source.- The term "stationary source" means
generally any source of an air pollutant except those emissions
resulting directly from an internal combustion engine for trans-
portation purposes or from a nonroad engine or nonroad vehicle as
defined in section 216.

[42 U.S.C. 7602]

EMERGENCY POWERS

Sec. 303. Notwithstanding any other provisions of this Act, the
Administrator upon receipt of evidence that a pollution source or
combination of sources (including moving sources) is presenting
an imminent and substantial endangerment to public health or
welfare, or the environment, may bring suit on behalf of the
United States in the appropriate United States district court to
immediately restrain any person causing or contributing to the
alleged pollution to stop the emission of air pollutants causing
or contributing to such pollution or to take such other action as
may be necessary. If it is not practicable to assure prompt
protection of public health or welfare or the environment by
commencement of such a civil action, the Administrator may issue
such orders as may be necessary to protect public health or
welfare or the environment. Prior to taking any action under this
section, the Administrator shall consult with appropriate State
and local authorities and attempt to confirm the accuracy of the
information on which the action proposed to be taken is based.
Any order issued by the Administrator under this section shall be
effective upon issuance and shall remain in effect for a period
of not more than 60 days, unless the Administrator brings an
action pursuant to the first sentence of this section before the
expiration of that period. Whenever the Administrator brings such
an action within the 60-day period, such order shall remain in
effect for an additional 14 days or for such longer period as may
be authorized by the court in which such action is brought.


296


[42 U.S.C. 7603]

CITIZEN SUITS

Sec. 304. (a) Except as provided in subsection (b), any person
may commence a civil action on his own behalf-
(1) against any person (including (i) the United States, and
(ii) any other governmental instrumentality or agency to the
extent permitted by the Eleventh Amendment to the Constitution)
who is alleged to have violated (if there is evidence that the
alleged violation has been repeated) or to be in violation of
(A) an emission standard or limitation under this Act or (B) an
order issued by the Administrator or a State with respect to
such a standard or limitation,
(2) against the Administrator where there is alleged a
failure of the Administrator to perform any act or duty under
this Act which is not discretionary with the Administrator, or
(3) against any person who proposes to construct or con-
structs any new or modified major emitting facility without a
permit required under part C of title I (relating to signifi-
cant deterioration of air quality) or part D of title I
(relating to nonattainment) or who is alleged to be in
violation of any condition of such permit.
The district courts shall have jurisdiction, without regard to
the amount in controversy or the citizenship of the parties, to
enforce such an emission standard or limitation, or such an
order, or to order the Administrator to perform such act or duty,
as the case may be, and to apply any appropriate civil penalties
(except for actions under paragraph (2)). The district courts of
the United States shall have jurisdiction to compel (consistent
with paragraph (2) of this subsection) agency action unreasonably
delayed, except that an action to compel agency action referred
to in section 307(b) which is unreasonably delayed may only be
filed in a United States District Court within the circuit in
which such action would be reviewable under section 307(b). In
any such action for unreasonble delay, notice to the entities
referred to in subsection (b)(1)(A) shall be provided 180 days
before commencing such action.
(b) No action may be commenced-
(1) under subsection (a)(1)-
(A) prior to 60 days after the plaintiff has given
notice of the violation (i) to the Administrator, (ii)
to the State in which the violation occurs, and (iii)
to any alleged violator of the standard, limitation, or
order, or
(B) if the Administrator or State has commenced and
is diligently prosecuting a civil action in a court of
the United States or a State to require compliance with
the standard, limitation, or order, but in any such
action in a court of the United States any person may
intervene as a matter of right.
(2) under subsection (a)(2) prior to 60 days after the
plaintiff has given notice of such action to the Administra-
tor,
except that such action may be brought immediately after such
notification in the case of an action under this section respect-
ing a violation of section 112(i)(3)(A) or (f)(4) or an order
issued by the Administrator pursuant to section 113(a). Notice

297


under this subsection shall be given in such manner as the
Administrator shall prescribe by regulation.
(c)(1) Any action respecting a violation by a stationary source
of an emission standard or limitation or an order respecting such
standard or limitation may be brought only in the judicial
district in which such source is located.
(2) In any action under this section, the Administrator, if not
a party, may intervene as a matter of right at any time in the
proceeding. A judgment in an action under this section to
which the United States is not a party shall not, however, have
any binding effect upon the United States.
(3) Whenever any action is brought under this section the
plaintiff shall serve a copy of the complaint on the Attorney
General of the United States and on the Administrator. No consent
judgment shall be entered in an action brought under this section
in which the United States is not a party prior to 45 days
following the receipt of a copy of the proposed consent judgment
by the Attorney General and the Administrator during which time
the Government may submit its comments on the proposed consent
judgment to the court and parties or may intervene as a matter of
right.
(d) The court, in issuing any final order in any action brought
pursuant to subsection (a) of this section, may award costs of
litigation (including reasonable attorney and expert witness
fees) to any party, whenever the court determines such award is
appropriate. The court may, if a temporary restraining order or
preliminary injunction is sought, require the filing of a bond or
equivalent security in accordance with the Federal Rules of Civil
Procedure.
(e) Nothing in this section shall restrict any right which any
person (or class of persons) may have under any statute or common
law to seek enforcement of any emission standard or limitation or
to seek any other relief (including relief against the
Administrator or a State agency). Nothing in this section or in
any other law of the United States shall be construed to
prohibit, exclude, or restrict any State, local, or interstate
authority from-
(1) bringing any enforcement action or obtaining any
judicial remedy or sanction in any State or local court, or
(2) bringing any administrative enforcement action or
obtaining any administrative remedy or sanction in any State or
local administrative agency, department or instrumentality,
against the United States, any department, agency, or instrumen-
tality thereof, or any officer, agent, or employee thereof under
State or local law respecting control and abatement of air
pollution. For provisions requiring compliance by the United
States, departments, agencies, instrumentalities, officers,
agents, and employees in the same manner as nongovernmental
entities, see section 118.
(f) For purposes of this section, the term "emission standard
or limitation under this Act" means-
(1) a schedule or timetable of compliance, emission limita-
tion, standard of performance or emission standard,
(2) a control or prohibition respecting a motor vehicle fuel
or fuel additive, which is in effect under this Act (including
a requirement applicable by reason of section 118) or under an
applicable implementation plan, or


298


(3) any condition or requirement of a permit under part C of
title I (relating to significant deterioration of air quality)
or part D of title I (relating to nonattainment), section 119
(relating to primary nonferrous smelter orders), any condition
or requirement under an applicable implementation plan relating
to transportation control measures, air quality maintenance
plans, vehicle inspection and maintenance programs or vapor
recovery requirements, section 211 (e) and (f) (relating to
fuels and fuel additives), section 169A (relating to visibility
protection), any condition or requirement under title VI
(relating to ozone protection), or any requirement under
section 111 or 112 (without regard to whether such requirement
is expressed as an emission standard or otherwise); or
(4) any other standard, limitation, or schedule established
under any permit issued pursuant to title V or under any
applicable State implementation plan approved by the Adminis-
trator, any permit term or condition, and any requirement to
obtain a permit as a condition of operations.
which is in effect under this Act (including a requirement
applicable by reason of section 118) or under an applicable
implementation plan.
(g) Penalty Fund.- (1) Penalties received under subsection (a)
shall be deposited in a special fund in the United States
Treasury for licensing and other services. Amounts in such fund
are authorized to be appropriated and shall remain available
until expended, for use by the Administrator to finance air
compliance and enforcement activities. The Administrator shall
annually report to the Congress about the sums deposited into the
fund, the sources thereof, and the actual and proposed uses
thereof.
(2) Notwithstanding paragraph (1) the court in any action under
this subsection to apply civil penalties shall have discretion to
order that such civil penalties, in lieu of being deposited in
the fund referred to in paragraph (1), be used in beneficial
mitigation projects which are consistent with this Act and
enhance the public health or the environment. The court shall
obtain the view of the Administrator in exercising such
discretion and selecting any such projects. The amount of any
such payment in any such action shall not exceed $100,000.
[42 U.S.C. 7604]
REPRESENTATION IN LITIGATION

Sec. 305. (a) The Administrator shall request the Attorney
General to appear and represent him in any civil action
instituted under this Act to which the Administrator is a party.
Unless the Attorney General notifies the Administrator that he
will appear in such action, within a reasonable time, attorneys
appointed by the Administrator shall appear and represent him.
(b) In the event the Attorney General agrees to appear and
represent the Administrator in any such action, such representa-
tion shall be conducted in accordance with, and shall include
participation by, attorneys appointed by the Administrator to the
extent authorized by, the memorandum of understanding between the
Department of Justice and the Environmental Protection Agency,
dated June 13, 1977, respecting representation of the agency by
the department in civil litigation.
[42 U.S.C. 7605]
FEDERAL PROCUREMENT

299





Sec. 306. (a) No Federal agency may enter into any contract
with any person who is convicted of any offense under section 113
(c) for the procurement of goods, materials, and services to
perform such contract at any facility at which the violation
which gave rise to such conviction occurred if such facility is
owned, leased, or supervised by such person. The prohibition in
the preceding sentence shall continue until the Administrator
certifies that the condition giving rise to such a conviction has
been corrected. For convictions arising under section 113(c)(2),
the condition giving rise to the conviction also shall be
considered to include any substantive violation of this Act
associated with the violation of 113(c)(2). The Administrator may
extend this prohibition to other facilities owned or operated by
the convicted person
(b) The Administrator shall establish procedures to provide all
Federal agencies with the notification necessary for the purposes
of subsection (a).
(c) In order to implement the purposes and policy of this Act
to protect and enhance the quality of the Nation's air, the
President shall, not more than 180 days after enactment of the
Clean Air Amendments of 1970 cause to be issued an order (1)
requiring each Federal agency authorized to enter into contracts
and each Federal agency which is empowered to extend Federal
assistance by way of grant, loan, or contract to effectuate the
purpose and policy of this Act in such contracting or assistance
activities, and (2) setting forth procedures, sanctions,
penalties, and such other provisions, as the President determines
necessary to carry out such requirement.
(d) The President may exempt any contract, loan, or grant from
all or part of the provisions of this section where he determines
such exemption is necessary in the paramount interest of the
United States and he shall notify the Congress of such exemption.
(e) The President shall annually report to the Congress on
measures taken toward implementing the purpose and intent of this
section, including but not limited to the progress and problems
associated with implementation of this section.
[42 U.S.C. 7606]
GENERAL PROVISIONS RELATING TO ADMINISTRATIVE
PROCEEDINGS AND JUDICIAL REVIEW
Sec. 307. (a) In connection with any determination under
section 110(f), or for purposes of obtaining information under
section 202(b)(4) or 211(c)(3),, any investigation, monitoring,
reporting requirement, entry, compliance inspection, or adminis-
trative enforcement proceeding under the Act (including but not
limited to section 113, section 114, section 120, section 129,
section 167, section 205, section 206, section 208, section 303,
or section
306), the Administrator may issue subpoenas for the attendance
and testimony of witnesses and the production of relevant papers,
books, and documents, and he may administer oaths. Except for
emission data, upon a showing satisfactory to the Administrator
by such owner or operator that such papers, books, documents, or
information or particular part thereof, if made public, would
divulge trade secrets or secret processes of such owner or
operator, the Administrator shall consider such record, report,

300


or information or particular portion thereof confidential in
accordance with the purposes of section 1905 of title 18 of the
United States Code, except that such paper, book, document, or
information may be discussed to other officers, employees, or
authorized representatives of the United States concerned with
carrying out this Act, to persons carrying out the National
Academy of Sciences' study and investigation provided for in
section 202(c), or when relevant in any proceeding under this
Act. Witnesses summoned shall be paid the same fees and mileage
that are paid witnesses in the courts of the United States. In
cases of contumacy or refusal to obey a subpena served upon any
person under this subparagraph, the district court of the United
States for any district in which such person is found or resides
or transacts business, upon application by the United States and
after notice to such person, shall have jurisdiction to issue an
order requiring such person to appear and give testimony before
the Administrator to appear and produce papers, books, and
documents before the Administrator, or both, and any failure to
obey such order of the court may be punished by such court as a
contempt thereof.
(b)(1) A petition for review of action of the Administrator in
promulgating any national primary or secondary ambient air
quality standard, any emission standard or requirement under
section 112, any standard of performance or requirement under
section 111,, any standard under section 202 (other than a
standard required to be prescribed under section 202(b)(1)), any
determination under section 202(b)(5), any control or prohibition
under section 211, any standard under section 231, any rule
issued under section 113, 119, or under section 120, or any other
nationally applicable regulations promulgated, or final action
taken, by the Administrator under this Act may be filed only in
the United States Court of Appeals for the District of Columbia.
A petition for review of the Administrator's action in approving
or promulgating any implementation plan under section 110 or
section 111(d), any order under section 111(j), under section
112,, under section 119, or under section 120, or his action
under section 119(c)(2) (A), (B), or (C) (as in effect before the
date of enactment of the Clean Air Act Amendments of 1977) or
under regulations thereunder, or revising regulations for
enhanced monitoring and compliance certification programs under
section 114(a)(3) of this Act, or any other final action of the
Administrator under this Act (including any denial or disapproval
by the Administrator under title I) which is local or regionally
applicable may be filed only in the United States Court of
Appeals for the appropriate circuit.
Notwithstanding the preceding sentence a petition for review of
any action referred to in such sentence may be filed only in the
United States Court of Appeals for the District of Columbia if
such action is based on a determination of nationwide scope or
effect and if in taking such action the Administrator finds and
publishes that such action is based on such a determination. Any
petition for review under this subsection shall be filed within
sixty days from the date notice of such promulgation, approval,
or action appears in the Federal Register, except that if such
petition is based solely on grounds arising after such sixtieth
day, then any petition for review under this subsection shall be
filed within sixty days after such grounds arise. The filing of a
petition for reconsideration by the Administrator of any

301


otherwise final rule or action shall not affect the finality of
such rule or action for purposes of judicial review nor extend
the time within which a petition for judicial review of such rule
or action under this section may be filed, and shall not postpone
the effectiveness of such rule or action.
(2) Action of the Administrator with respect to which review
could have been obtained under paragraph (1) shall not be subject
to judicial review in civil or criminal proceedings for enforce-
ment. Where a final decision by the Administrator defers perfor-
mance of any nondiscretionary statutory action to a later time,
any person may challenge the deferral pursuant to paragraph (1).
(c) In any judicial proceeding in which review is sought of a
determination under this Act required to be made on the record
after notice and opportunity for hearing, if any party applies to
the court for leave to adduce additional evidence, and shows to
the satisfaction of the court that such additional evidence is
material and that there were reasonable grounds for the failure
to adduce such evidence in the proceeding before the
Administrator, the court may order such additional evidence (and
evidence in rebuttal thereof) to be taken before the
Administrator, in such manner and upon such terms and conditions
as to the court may deem proper. The Administrator may modify his
findings as to the facts, or make new findings, by reason of the
additional evidence so taken and he shall file such modified or
new findings, and his recommendation, if any, for the
modification or setting aside of his original determination, with
the return of such additional evidence.
(d)(1) This subsection applies to-
(A) the promulgation or revision of any national ambient
air quality standard under section 109,
(B) the promulgation or revision of an implementation plan
by the Administrator under section 110(c),
(C) the promulgation or revision of any standard of
performance under section 111, or emission standard or
limitation under section 112(d), any standard under section
112(f), or any regulation under section 112(g)(1)(D) and
(F), or any regulation under section 112(m) or (n),
(D) the promulgation of any requirement for solid waste
combustion under section 129,
(E) the promulgation or revision of any regulation
pertaining to any fuel or fuel additive under section 211,
(F) the promulgation or revision of any aircraft emission
standard under section 231,
(G) the promulgation or revision of any regulation under
title IV (relating to control of acid deposition),
(H) promulgation or revision of regulations pertaining to
primary nonferrous smelter orders under section 119 (but not
including the granting or denying of any such order),
(I) promulgation or revision of regulations under title VI
(relating to stratosphere and ozone protection),
(J) promulgation or revision of regulations under subtitle
C of title I (relating to prevention of significant deterio-
ration of air quality and protection of visibility),
(K) promulgation or revision of regulations under section
202 and test procedures for new motor vehicles or engines
under section 206, and the revision of a standard under
section 202(a)(3),


302


(L) promulgation or revision of regulations for noncompli-
ance penalties under section 120,
(M) promulgation or revision of any regulations
promulgated under section 207 (relating to warranties and
compliance by vehicles in actual use),
(N) action of the Administrator under section 126
(relating to interstate pollution abatement),
(N) the promulgation or revision of any regulation
pertaining to consumer and commercial products under section
183(e),
(O) the promulgation or revision of any regulation
pertaining to field citations under section 113(d)(3),
(P) the promulgation or revision of any regulation
pertaining to urban buses or the clean-fuel vehicle,
clean-fuel fleet, and clean fuel programs under part C of
title II,
(Q) the promulgation or revision of any regulation
pertaining to nonroad engines or nonroad vehicles under
section 213,
(R) the promulgation or revision of any regulation
relating to motor vehicle compliance program fees under
section 217,
(S) the promulgation or revision of any regulation under
title IV (relating to acid deposition),
(T) the promulgation or revision of any regulation under
section 183(f) pertaining to marine vessels, and
(U) such other actions as the Administrator may determine.
The provisions of section 553 through 557 and section 706 of
title 5 of the United States Code shall not, except as expressly
provided in this subsection, apply to action to which this
subsection applies. This subsection shall not apply in the case
of any rule or circumstance referred to in subparagraphs (A) or
(B) of subsection 553(b) of title 5 of the United States Code.
(2) Not later than the date of proposal of any action to which
this subsection applies, the Administrator shall establish a
rulemaking docket for such action (hereinafter in this subsection
referred to as a "rule"). Whenever a rule applies only within a
particular State, a second (identical) docket shall be
established
in the appropriate regional office of the Environmental
Protection Agency.
(3) In the case of any rule to which this subsection applies,
notice of proposed rulemaking shall be published in the Federal
Register, as provided under section 553(b) of title 5, United
States Code, shall be accompanied by a statement of its basis and
purpose and shall specify the period available for public comment
(hereinafter referred to as the "comment period"). The notice of
proposed rulemaking shall also state the docket number, the
location or locations of the docket, and the times it will be
open to public inspection. The statement of basis and purpose
shall include a summary of-
(A) the factual data on which the proposed rule is based;
(B) the methodology used in obtaining the data and in
analyzing the data; and
(C) the major legal interpretations and policy consider-
ations underlying the proposed rule. The statement shall
also set forth or summarize and provide a reference to any
pertinent findings, recommendations, and comments by the

303


Scientific Review Committee established under section 109(d)
and the National Academy of Sciences, and, if the proposal
differs in any important respect from any of these
recommendations, an explanation of the reasons for such
differences. All data, information, and documents referred
to in this paragraph on which the proposed rule relies shall
be included in the docket on the date of publication of the
proposed rule.
(4)(A) The rulemaking docket required under paragraph (2)
shall be open for inspection by the public at reasonable
times specified in the notice of proposed rulemaking. Any
person may copy documents contained in the docket. The
Administrator shall provide copying facilities which may be
used at the expense of the person seeking copies, but the
Administrator may waive or reduce such expenses in such
instances as the public interest requires. Any person may
request copies by mail if the person pays the expenses,
including personnel costs to do the copying.
(B)(i) Promptly upon receipt by the agency, all written
comments and documentary information on the proposed rule
received from any person for inclusion in the docket during
the comment period shall be placed in the docket. The tran-
script of public hearings, if any, on the proposed rule
shall also be included in the docket promptly upon receipt
from the person who transcribed such hearings. All documents
which become available after the proposed rule has been
published and which the Administrator determines are of
central relevance to the rulemaking shall be placed in the
docket as soon as possible after their availability.
(ii) The drafts of proposed rules submitted by the
Administrator to the Office of Management and Budget for any
interagency review process prior to proposal of any such
rule, all documents accompanying such drafts, and all
written comments thereon by other agencies and all written
responses to such written comments by the Administrator
shall be placed in the docket no later than the date of
proposal of the rule. The drafts of the final rule submitted
for such review process prior to promulgation and all such
written comments thereon,
all documents accompanying such drafts, and written respons-
es thereto shall be placed in the docket no later than the
date of promulgation.
(5) In promulgating a rule to which this subsection applies (i)
the Administrator shall allow any person to submit written
comments, data, or documentary information; (ii) the Administra-
tor shall give interested persons an opportunity for the oral
presentation of data, views, or arguments, in addition to an
opportunity to make written submissions; (iii) a transcript shall
be kept of any oral presentation; and (iv) the Administrator
shall keep the record of such proceeding open for thirty days
after completion of the proceeding to provide an opportunity for
submission of rebuttal and supplementary information.
(6)(A) The promulgated rule shall be accompanied by (i) a
statement of basis and purpose like that referred to in paragraph
(3) with respect to a proposed rule and (ii) an explanation of
the reasons for any major changes in the promulgated rule from
the proposed rule.


304





(B) The promulgated rule shall also be accompanied by a
response to each of the significant comments, criticisms, and new
data submitted in written or oral presentations during the
comment period.
(C) The promulgated rule may not be based (in part or whole) on
any information or data which has not been placed in the docket
as of the date of such promulgation.
(7)(A) The record for judicial review shall consist exclusively
of the material referred to in paragraph (3), clause (i) of
paragraph (4)(B), and subparagraphs (A) and (B) of paragraph (6).
(B) Only an objection to a rule or procedure which was raised
with reasonable specificity during the period for public comment
(including any public hearing) may be raised during judicial
review. If the person raising an objection can demonstrate to the
Administrator that it was impracticable to raise such objection
within such time or if the grounds for such objection arose after
the period for public comment (but within the time specified for
judicial review) and if such objection is of central relevance to
the outcome of the rule, the Administrator shall convene a
proceeding for reconsideration of the rule and provide the same
procedural rights as would have been afforded had the information
been available at the time the rule was proposed. If the Adminis-
trator refuses to convene such a proceeding, such person may seek
review of such refusal in the United States court of appeals for
the appropriate circuit (as provided in subsection (b)). Such
reconsideration shall not postpone the effectiveness of the rule.
The effectiveness of the rule may be stayed during such reconsid-
eration, however, by the Administrator or the court for a period
not to exceed three months.
(8) The sole forum for challenging procedural determinations
made by the Administrator under this subsection shall be in the
United States court of appeals for the appropriate circuit (as
provided in subsection (b)) at the time of the substantive review
of the rule. No interlocutory appeals shall be permitted with
respect to such procedural determinations. In reviewing alleged
procedural errors, the court may invalidate the rule only if the
errors were so serious and related to matters of such central
relevance to the rule that there is a substantial likelihood that
the rule would have been significantly changed if such errors had
not been made.
(9) In the case of review of any action of the Administrator to
which this subsection applies, the court may reverse any such
action found to be-
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or
immunity;
(C) in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right; or
(D) without observance of procedure required by law, if
(i) such failure to observe such procedure is arbitrary or
capricious, (ii) the requirement of paragraph (7)(B) has
been met, and (iii) the condition of the last sentence of
paragraph (8) is met.


305





(10) Each statutory deadline for promulgation of rules to which
this subsection applies which requires promulgation less than six
months after date of proposal may be extended to not more than
six months after date of proposal by the Administrator upon a
determination that such extension is necessary to afford the
public, and the agency, adequate opportunity to carry out the
purposes of this subsection.
(11) The requirements of this subsection shall take effect with
respect to any rule the proposal of which occurs after ninety
days after the date of enactment of the Clean Air Act Amendments
of 1977.
(e) Nothing in this Act shall be construed to authorize
judicial review of regulation or orders of the Administrator
under this Act, except as provided in this section.
(f) In any judicial proceeding under this section, the court
may award costs of litigation (including reasonable attorney and
expert witness fees) whenever it determines that such award is
appropriate.
(g) In any action respecting the promulgation of regulations
under section 120 or the administration or enforcement of section
120 no court shall grant any stay, injunctive, or similar relief
before final judgment by such court in such action.
(h) Public Participation.- It is the intent of Congress that,
consistent with the policy of the Administrative Procedures Act,
the Administrator in promulgating any regulation under this Act,
including a regulation subject to a deadline, shall ensure a
reasonable period for public participation of at least 30 days,
except as otherwise expressly provided in section 107(d), 172(a),
181(a) and (b), and 186(a) and (b).

[42 U.S.C. 7607]

MANDATORY LICENSING

Sec. 308. Whenever the Attorney General determines upon
application of the Administrator-
(1) that-
(A) in the implementation of the requirements of
section 111, 112, or 202 of this Act, a right under any
United States letters patent, which is being used or
intended for public or commercial use and not otherwise
reasonably available, is necessary to enable any person
required to comply with such limitation to so comply,
and
(B) there are no reasonable alternative methods to
accomplish such purpose, and
(2) that the unavailability of such right may result in a
substantial lessening of competition or tendency to create a
monopoly in any line of commerce in any section of the
country,
the Attorney General may so certify to a district court of the
United States, which may issue an order requiring the person who
owns such patent to license it on such reasonable terms and
conditions as the court, after hearing, may determine. Such
certification may be made to the district court for the district

306





in which the person owning the patent resides, does business, or
is found.
[42 U.S.C. 7608]

POLICY REVIEW

Sec. 309. (a) The Administrator shall review and comment in
writing on the environmental impact of any matter relating to
duties and responsibilities granted pursuant to this Act or other
provisions of the authority of the Administrator, contained in
any (1) legislation proposed by any Federal department or agency,
(2) newly authorized Federal projects for construction and any
major Federal agency action (other than a project for
construction) to which section 102(2)(C) of Public Law 9109190
applies, and (3) proposed regulations published by any department
or agency of the Federal Government. Such written comment shall
be made public at the conclusion of any such review.
(b) In the event the Administrator determines that any such
legislation, action, or regulation is unsatisfactory from the
standpoint of public health or welfare or environmental quality,
he shall publish his determination and the matter shall be
referred to the Council on Environmental Quality.
[42 U.S.C. 7609]

OTHER AUTHORITY NOT AFFECTED

Sec. 310. (a) Except as provided in subsection (b) of this
section, this Act shall not be construed as superseding or
limiting the authorities and responsibilities, under any other
provision of law, of the Administrator or any other Federal
officer, department, or agency.
(b) No appropriation shall be authorized or made under section
301, 311, or 314 of the Public Health Service Act for any fiscal
year after the fiscal year ending June 30, 1964, for any purpose
for which appropriations may be made under authority of this Act.
[42 U.S.C. 7610]
RECORDS AND AUDIT

Sec. 311. (a) Each recipient of assistance under this Act shall
keep such records as the Administrator shall prescribe, including
records which fully disclose the amount and disposition by such
recipient of the proceeds of such assistance, the total cost of
the project or undertaking in connection with which such assis-
tance is given or used, and the amount of that portion of the
cost of the project or undertaking supplied by other sources, and
such other records as will facilitate an effective audit.
Sec. 311
(b) The Administrator and the Comptroller General of the United
States, or any of their duly authorized representatives, shall
have access for the purpose of audit and examinations to any
books, documents, papers, and records of the recipients that are
pertinent to the grants received under this Act.
[42 U.S.C. 7611]
SEC. 312. ECONOMIC IMPACT ANALYSES.


308





(a) The Administrator, in consultation with the Secretary of
Commerce, the Secretary of Labor, and the Council on Clean Air
Compliance Analysis (as established under subsection (f) of this
section), shall conduct a comprehensive analysis of the impact of
this Act on the public health, economy, and environment of the
United States. In performing such analysis, the Administrator
should consider the costs, benefits and other effects associated
with compliance with each standard issued for-
Sec. 212
(1) a criteria air pollutant subject to a standard issued
under section 109;
(2) a hazardous air pollutant listed under section 112,
including any technology-based standard and any risk-based
standard for such pollutant;
(3) emissions from mobile sources regulated under title II
of this Act;
(4) a limitation under this Act for emissions of sulfur
dioxide or nitrogen oxides;
(5) a limitation under title VI of this Act on the produc-
tion of any ozone-depleting substance; and
(6) any other section of this Act.
(b) In describing the benefits of a standard described in
subsection (a), the Administrator shall consider all of the
economic, public health, and environmental benefits of efforts to
comply with such standard. In any case where numerical values are
assigned to such benefits, a default assumption of zero value
shall not be assigned to such benefits unless supported by
specific data. The Administrator shall assess how benefits are
measured in order to assure that damage to human health and the
environment is more accurately measured and taken into account.
(c) In describing the costs of a standard described in subsec-
tion (a), the Administrator shall consider the effects of such
standard on employment, productivity, cost of living, economic
growth, and the overall economy of the United States.
(d) Not later than 12 months after the date of enactment of the
Clean Air Act Amendments of 1990, the Administrator, in consulta-
tion with the Secretary of Commerce, the Secretary of Labor, and
the Council on Clean Air Compliance Analysis, shall submit a
report to the Congress that summarizes the results of the
analysis described in subsection (a), which reports-
(1) all costs incurred previous to the date of enactment
of the Clean Air Act Amendments of 1990 in the effort to
comply with such standards; and
(2) all benefits that have accrued to the United States as
a result of such costs.
(e) Not later than 24 months after the date of enactment of the
Clean Air Act Amendments of 1990, and every 24 months thereafter,
the Administrator, in consultation with the Secretary of
Commerce, the Secretary of Labor, and the Council on Clean Air
Compliance Analysis, shall submit a report to the Congress that
updates the report issued pursuant to subsection (d), and which,
in addition, makes projections into the future regarding expected
costs, benefits, and other effects of compliance with standards
pursuant to this Act as listed in subsection (a).


309





(f) Not later than 6 months after the date of enactment of the
Clean Air Act Amendments of 1990, the Administrator, in consulta-
tion with the Secretary of Commerce and the Secretary of Labor,
shall appoint an Advisory Council on Clean Air Compliance
Analysis of not less than nine members (hereafter in this section
referred to as the "Council"). In appointing such members, the
Administrator shall appoint recognized experts in the fields of
the health and environmental effects of air pollution, economic
analysis, environmental sciences, and such other fields that the
Administrator determines to be appropriate.
(g) The Council shall-
(1) review the data to be used for any analysis
required under this section and make recommendations to
the Administrator on the use of such data;
(2) review the methodology used to analyze such data
and make recommendations to the Administrator on the use
of such methodology; and
(3) prior to the issuance of a report required under
subsection (d) or (e), review the findings of such report,
and make recommendations to the Administrator concerning
the validity and utility of such findings.
[42 U.S.C. 7612]
[Section 313 repealed by P.L. 10109549, section 803, 104 Stat.
2689.]

LABOR STANDARDS
Sec. 314. The Administrator shall take such action as may be
necessary to insure that all laborers and mechanics employed by
contractors or subcontractors on projects assisted under this Act
shall be paid wages at rates not less than those prevailing for
the same type of work on similar construction in the locality as
determined by the Secretary of Labor, in accordance with the Act
of March 3, 1931, as amended, known as the Davis-Bacon Act (46
Stat. 1494; 40 U.S.C. 276a- 276a095). The Secretary of Labor
shall have, with respect to the labor standards specified in this
subsection, the authority and functions set forth in Reorganiza-
tion Plan Numbered 14 of 1950 (15 F.R. 3176; 64 Stat. 1267) and
section 2 of the Act of June 13, 1934, as amended (48 Stat. 948;
40 U.S.C. 276c).
[42 U.S.C. 7614]
SEPARABILITY

Sec. 315. If any provision of this Act, or the application of
any provision of this Act to any person or circumstance, is held
invalid, the application of such provision to other persons or
circumstances, and the remainder of this Act, shall not be
affected thereby.
[42 U.S.C. 7615]
SEWAGE TREATMENT GRANTS

Sec. 316. (a) No grant which the Administrator is authorized to
make to any applicant for construction of sewage treatment works
in any area in any State may be withheld, conditioned, or
restricted by the Administrator on the basis of any requirement
of this Act except as provided in subsection (b). Sec. 316

310





(b) The Administrator may withhold, condition, or restrict the
making of any grant for construction referred to in subsection
(a) only if he determines that-
(1) such treatment works will not comply with applicable
standards under section 111 or 112, (continued)