Loading (50 kb)...'
(continued)
prohibition of any rule, plan, order, waiver, or permit
promulgated, issued, or approved under those provisions or
titles, or for the payment of any fee owed to the United
States under this Act (other than title II), the Adminis-
trator may -
(A) issue an administrative penalty order in accor-
dance with subsection (d),
(B) issue an order requiring such person to comply
with such requirement or prohibition,
(C) bring a civil action in accordance with
subsection (b) or section 305, or
(D) request the Attorney General to commence a
criminal action in accordance with subsection (c).
(4) Requirements for orders.- An order issued under this
sub-section (other than an order relating to a violation of
section 112) shall not take effect until the person to whom it
is issued has had an opportunity to confer with the Administra-
tor concerning the alleged violation. A copy of any order
issued under this subsection shall be sent to the State air
pollution control agency of any State in which the violation
occurs. Any order issued under this subsection shall state with
reasonable specificity the nature of the violation and specify
a time for compliance which the Administrator determines is
reasonable, taking into account the seriousness of the
violation and any good faith efforts to comply with applicable
requirements. In any case in which an order under this
subsection (or notice to a violator under paragraph (1)) is
issued to a corporation, a copy of such order (or notice) shall
be issued to appropriate
corporate officers. An order issued under this subsection shall
require the person to whom it was issued to comply with the
requirement as expeditiously as practicable, but in no event
longer than one year after the date the order was issued, and
shall be nonrenewable. No order issued under this subsection
shall prevent the State or the Administrator from assessing any
97
penalties nor otherwise affect or limit the State's or the
United States authority to enforce under other provisions of
this Act, nor affect any person's obligations to comply with
any section of this Act or with a term or condition of any
permit or applicable implementation plan promulgated or
approved under this Act.
(5) Failure to comply with new source requirements.-
Whenever, on the basis of any available information, the
Administrator finds that a State is not acting in compliance
with any requirement or prohibition of the Act relating to the
construction of new sources or the modification of existing
sources, the Administrator may -
(A) issue an order prohibiting the construction or
modification of any major stationary source in any area to
which such requirement applies;
(B) issue an administrative penalty order in accordance
with subsection (d), or
(C) bring a civil action under subsection (b).
Nothing in this subsection shall preclude the United States from
commencing a criminal action under section 113(c) at any time for
any such violation.
(b) Civil Judicial Enforcement.- The Administrator shall, as
appropriate, in the case of any person that is the owner or
operator of an affected source, a major emitting facility, or a
major stationary source, and may, in the case of any other
person, commence a civil action for a permanent or temporary
injunction, or to assess and recover a civil penalty of not more
than $25,000 per day for each violation, or both, in any of the
following instances:
(1) Whenever such person has violated, or is in violation
of, any requirement or prohibition of an applicable
implementation plan or permit. Such an action shall be
commenced (A) during any period of federally assumed
enforcement, or (B) more than 30 days following the date of
the Administrator's notification under subsection (a)(1)
that such person has violated, or is in violation of, such
requirement or prohibition.
(2) Whenever such person has violated, or is in violation
of, any other requirement or prohibition of this title,
section 303 of title III, title IV, title V, or title VI,
including, but not limited to, a requirement or prohibition
of any rule, order, waiver or permit promulgated, issued, or
approved under this Act, or for the payment of any fee owed
the United States under this Act (other than title II).
(3) Whenever such person attempts to construct or modify a
major stationary source in any area with respect to which a
finding under subsection (a)(5) has been made.
Any action under this subsection may be brought in the district
court of the United States for the district in which the
violation
is alleged to have occurred, or is occurring, or in which the
defendant resides, or where the defendant's principal place of
business is located, and such court shall have jurisdiction to
restrain such violation, to require compliance, to assess such
civil penalty, to collect any fees owed the United States under
98
this Act (other than title II) and any noncompliance assessment
and nonpayment penalty owed under section 120, and to award any
other appropriate relief. Notice of the commencement of such
action shall be given to the appropriate State air pollution
control agency. In the case of any action brought by the Adminis-
trator under this subsection, the court may award costs of
litigation (including reasonable attorney and expert witness
fees) to the party or parties against whom such action was
brought if the court finds that such action was unreasonable.
(c) Criminal Penalties.- (1) Any person who knowingly violates
any requirement or prohibition of an applicable implementation
plan (during any period of federally assumed enforcement or more
than 30 days after having been notified under subsection (a)(1)
by the Administrator that such person is violating such
requirement or prohibition), any order under subsection (a) of
this section, requirement or prohibition of section 111(e) of
this title (relating to new source performance standards),
section 112 of this title, section 114 of this title (relating to
inspections, etc.), section 129 of this title (relating to solid
waste combustion), section 165(a) of this title (relating to
preconstruction requirements), an order under section 167 of this
title (relating to preconstruction requirements), an order under
section 303 of title III (relating to emergency orders), section
502(a) or 503(c) of title V (relating to permits), or any
requirement or prohibition of title IV (relating to acid
deposition control), or title VI (relating to stratospheric ozone
control), including a requirement of any rule, order, waiver, or
permit promulgated or approved under such sections or titles, and
including any requirement for the payment of any fee owed the
United States under this Act (other than title II) shall, upon
conviction, be punished by a fine pursuant to title 18 of the
United States Code, or by imprisonment for not to exceed 5 years,
or both. If a conviction of any person under this paragraph is
for a violation committed after a first conviction of such person
under this paragraph, the maximum punishment shall be doubled
with respect to both the fine and imprisonment.
(2) Any person who knowingly -
(A) makes any false material statement, representation, or
certification in, or omits material information from, or
knowingly alters, conceals, or fails to file or maintain any
notice, application, record, report, plan, or other document
required pursuant to this Act to be either filed or main-
tained (whether with respect to the requirements imposed by
the Administrator or by a State);
(B) fails to notify or report as required under this Act;
or
(C) falsifies, tampers with, renders inaccurate, or fails
to install any monitoring device or method required to be
maintained or followed under this Act shall, upon
conviction,
be punished by a fine pursuant to title 18 of the United
States Code, or by imprisonment for not more than 2 years,
or both. If a conviction of any person un-der this paragraph
is for a violation committed after a first conviction of
such person under this paragraph, the maximum punishment
99
shall be doubled with respect to both the fine and
imprisonment.
(3) Any person who knowingly fails to pay any fee owed the
United States under this title, title III, IV, V, or VI
shall, upon conviction, be punished by a fine pursuant to
title 18 of the United States Code, or by imprisonment for
not more than 1 year, or both. If a conviction of any person
under this paragraph is for a violation committed after a
first conviction of such person under this paragraph, the
maximum punishment shall be doubled with respect to both the
fine and imprisonment.
(4) Any person who negligently releases into the ambient
air any hazardous air pollutant listed pursuant to section
112 of this Act or any extremely hazardous substance listed
pursuant to section 302(a)(2) of the Superfund Amendments
and Reauthorization Act of 1986 (42 U.S.C. 11002(a)(2)) that
is not listed in section 112 of this Act, and who at the
time negligently places another person in imminent danger of
death or serious bodily injury shall, upon conviction, be
punished by a fine under title 18 of the United States Code,
or by imprisonment for not more than 1 year, or both. If a
conviction of any person under this paragraph is for a
violation committed after a first conviction of such person
under this paragraph, the maximum punishment shall be
doubled with respect to both the fine and imprisonment.
(5)(A) Any person who knowingly releases into the ambient
air any hazardous air pollutant listed pursuant to section
112 of this Act or any extremely hazardous substance listed
pursuant to section 302(a)(2) of the Superfund Amendments
and Reauthorization Act of 1986 (42 U.S.C. 11002(a)(2)) that
is not listed in section 112 of this Act, and who knows at
the time that he thereby places another person in imminent
danger of death or serious bodily injury shall, upon convic-
tion, be punished by a fine under title 18 of the United
States Code, or by imprisonment of not more than 15 years,
or both. Any person committing such violation which is an
organization shall, upon conviction under this paragraph, be
subject to a fine of not more than $1,000,000 for each
violation. If a conviction of any person under this
paragraph is for a viola-tion committed after a first
conviction of such person under this paragraph, the maximum
punishment shall be doubled with respect to both the fine
and imprisonment. For any air pollu-tant for which the
Administrator has set an emissions standard or for any
source for which a permit has been issued under title V, a
release of such pollutant in accordance with that standard
or permit shall not constitute a violation of this paragraph
or paragraph (4).
(B) In determining whether a defendant who is an
individual knew that the violation placed another person in
imminent danger of death or serious bodily injury -
(i) the defendant is responsible only for actual
awareness or actual belief possessed; and
(ii) knowledge possessed by a person other than the
defendant, but not by the defendant, may not be attrib-
uted to the defendant;
100
except that in proving a defendant's possession of actual
knowledge, circumstantial evidence may be used, including
evidence that the defendant took affirmative steps to be
shielded from relevant information.
(C) It is an affirmative defense to a prosecution that the
conduct charged was freely consented to by the person
endangered and that the danger and conduct charged were
reasonably foreseeable hazards of -
(i) an occupation, a business, or a profession; or
(ii) medical treatment or medical or scientific experi-
mentation conducted by professionally approved methods and
such other person had been made aware of the risks
involved prior to giving consent.
The defendant may establish an affirmative defense under this
subparagraph by a preponderance of the evidence.
(D) All general defenses, affirmative defenses, and bars to
prosecution that may apply with respect to other Federal
criminal offenses may apply under subparagraph (A) of this
paragraph and shall be determined by the courts of the United
States according to the principles of common law as they may be
interpreted in the light of reason and experience. Concepts of
justification and excuse applicable under this section may be
developed in the light of reason and experience.
(E) The term "organization" means a legal entity, other than
a government, established or organized for any purpose, and
such term includes a corporation, company, association, firm,
partnership, joint stock company, foundation, institution,
trust, society, union, or any other association of persons.
(F) The term "serious bodily injury" means bodily injury
which involves a substantial risk of death, unconsciousness,
extreme physical pain, protracted and obvious disfigurement or
protracted loss or impairment of the function of a bodily
member, organ, or mental faculty.
(6) For the purpose of this subsection, the term "person"
includes, in addition to the entities referred to in section
302(e), any responsible corporate officer.
(d) Administrative Assessment of Civil Penalties.- (1) The
Administrator may issue an administrative order against any
person assessing a civil administrative penalty of up to
$25,000, per day of violation, whenever, on the basis of any
available information, the Administrator finds that such person
-
(A) has violated or is violating any requirement or
prohibition of an applicable implementation plan (such
order shall be issued (i) during any period of federally
assumed enforcement, or (ii) more than thirty days follow-
ing the date of the Administrator's notification under
subsection (a)(1) of this section of a finding that such
person has violated or is violating such requirement or
prohibition); or
(B) has violated or is violating any other requirement
or prohibition of title I, III, IV, V, or VI, including,
but not limited to, a requirement or prohibition of any
rule, order, waiver, permit, or plan promulgated, issued,
or approved under this Act, or for the payment of any fee
101
owed the United States under this Act (other than title
II); or
(C) attempts to construct or modify a major stationary
source in any area with respect to which a finding under
subsection (a)(5) of this section has been made.
The Administrator's authority under this paragraph shall be
limited to matters where the total penalty sought does not exceed
$200,000 and the first alleged date of violation occurred no more
than 12 months prior to the initiation of the administrative
action, except where the Administrator and the Attorney General
jointly determine that a matter involving a larger penalty amount
or longer period of violation is appropriate for administrative
penalty action. Any such determination by the Administrator and
the Attorney General shall not be subject to judicial review.
(2)(A) An administrative penalty assessed under paragraph (1)
shall be assessed by the Administrator by an order made after
opportunity for a hearing on the record in accordance with
sections 554 and 556 of title 5 of the United States Code. The
Administrator shall issue reasonable rules for discovery and
other procedures for hearings under this paragraph. Before
issuing such an order, the Administrator shall give written
notice to the person to be assessed an administrative penalty of
the Administrator's proposal to issue such order and provide such
person an opportunity to request such a hearing on the order,
within 30 days of the date the notice is received by such person.
(B) The Administrator may compromise, modify, or remit, with or
without conditions, any administrative penalty which may be
imposed under this subsection.
(3) The Administrator may implement, after consultation with
the Attorney General and the States, a field citation program
through regulations establishing appropriate minor violations for
which field citations assessing civil penalties not to exceed
$5,000 per day of violation may be issued by officers or
employees designated by the Administrator. Any person to whom a
field citation is assessed may, within a reasonable time as
prescribed by the Administrator through regulation, elect to pay
the penalty assessment or to request a hearing on the field
citation. If a request for a hearing is not made within the time
specified in the regulation, the penalty assessment in the field
citation shall be final. Such hearing shall not be subject to
section 554 or 556 of title 5 of the United States Code, but
shall provide a reasonable opportunity to be heard and to present
evidence. Payment of a civil penalty required by a field citation
shall not be a defense to further enforcement by the United
States or a State to correct a violation, or to assess the
statutory maximum penalty pursuant to other authorities in the
Act, if the violation continues.
(4) Any person against whom a civil penalty is assessed under
paragraph (3) of this subsection or to whom an administrative
pen-alty order is issued under paragraph (1) of this subsection
may seek review of such assessment in the United States District
Court for the District of Columbia or for the district in which
the
violation is alleged to have occurred, in which such person
resides, or where such person's principal place of business is
102
located, by filing in such court within 30 days following the
date the administrative penalty order becomes final under
paragraph (2), the assessment becomes final under paragraph (3),
or a final decision following a hearing under paragraph (3) is
rendered, and by simultaneously sending a copy of the filing by
certified mail to the Administrator and the Attorney General.
Within 30 days thereafter, the Administrator shall file in such
court a certified copy, or certified index, as appropriate, of
the record on which the administrative penalty order or
assessment was issued. Such court shall not set aside or remand
such order or assessment unless there is not substantial evidence
in the record, taken as a whole, to support the finding of a
violation or unless the order or penalty assessment constitutes
an abuse of discretion. Such order or penalty assessment shall
not be subject to review by any court except as provided in this
paragraph. In any such proceedings, the United States may seek to
recover civil penalties ordered or assessed under this section.
(5) If any person fails to pay an assessment of a civil penalty
or fails to comply with an administrative penalty order -
(A) after the order or assessment has become final, or
(B) after a court in an action brought under paragraph (4)
has entered a final judgment in favor of the Administrator,
the Administrator shall request the Attorney General to bring a
civil action in an appropriate district court to enforce the
order or to recover the amount ordered or assessed (plus interest
at rates established pursuant to section 6621(a)(2) of the
Internal Revenue Code of 1986 from the date of the final order or
decision or the date of the final judgment, as the case may be).
In such an action, the validity, amount, and appropriateness of
such order or assessment shall not be subject to review. Any
person who fails to pay on a timely basis a civil penalty ordered
or assessed under this section shall be required to pay, in
addition to such penalty and interest, the United States
enforcement expenses, including but not limited to attorneys fees
and costs incurred by the United States for collection
proceedings and a quarterly nonpayment penalty for each quarter
during which such failure to pay persists. Such nonpayment
penalty shall be 10 percent of the aggregate amount of such
person's outstanding penalties and nonpayment penalties accrued
as of the beginning of such quarter.
(e) Penalty Assessment Criteria.- (1) In determining the amount
of any penalty to be assessed under this section or section 304-
(a), the Administrator or the court, as appropriate, shall take
into consideration (in addition to such other factors as justice
may require) the size of the business, the economic impact of the
penalty on the business, the violator's full compliance history
and good faith efforts to comply, the duration of the violation
as established by any credible evidence (including evidence other
than the applicable test method), payment by the violator of pen-
alties previously assessed for the same violation, the economic
benefit of noncompliance, and the seriousness of the violation.
The court shall not assess penalties for noncompliance with
admin-istrative subpoenas under section 307(a), or actions under
section
103
114 of this Act, where the violator had sufficient cause to
violate or fail or refuse to comply with such subpoena or action.
(2) A penalty may be assessed for each day of violation. For
purposes of determining the number of days of violation for which
a penalty may be assessed under subsection (b) or (d)(1) of this
section, or section 304(a), or an assessment may be made under
section 120, where the Administrator or an air pollution control
agency has notified the source of the violation, and the
plaintiff makes a prima facie showing that the conduct or events
giving rise to the violation are likely to have continued or
recurred past the date of notice, the days of violation shall be
presumed to include the date of such notice and each and every
day thereafter until the violator establishes that continuous
compliance has been achieved, except to the extent that the
violator can prove by a preponderance of the evidence that there
were intervening days during which no violation occurred or that
the violation was not continuing in nature.
(f) Awards.- The Administrator may pay an award, not to exceed
$10,000, to any person who furnishes information or services
which lead to a criminal conviction or a judicial or
administrative ci-vil penalty for any violation of this title or
title III, IV, V, or VI of this Act enforced under this section.
Such payment is subject to available appropriations for such
purposes as provided in annual appropriation Acts. Any officer,
or employee of the Uni-ted States or any State or local
government who furnishes informa-tion or renders service in the
performance of an official duty is ineligible for payment under
this subsection. The Administrator may, by regulation, prescribe
additional criteria for eligibility for such an award.
(g) Settlements; Public Participation.- At least 30 days before
a consent order or settlement agreement of any kind under this
Act to which the United States is a party (other than enforcement
ac-tions under section 113, 120, or title II, whether or not
involv-ing civil or criminal penalties, or judgments subject to
Department of Justice policy on public participation) is final or
filed with a court, the Administrator shall provide a reasonable
oppor-tunity by notice in the Federal Register to persons who are
not named as parties or intervenors to the action or matter to
comment in writing. The Administrator or the Attorney General, as
appro-priate, shall promptly consider any such written comments
and may withdraw or withhold his consent to the proposed order or
agree-ment if the comments disclose facts or considerations which
indi-cate that such consent is inappropriate, improper,
inadequate, or inconsistent with the requirements of this Act.
Nothing in this subsection shall apply to civil or criminal
penalties under this Act.
(h) Operator.- For purposes of the provisions of this section
and section 120, the term "operator", as used in such provisions,
shall include any person who is senior management personnel or a
corporate officer. Except in the case of knowing and willful vio-
lations, such term shall not include any person who is a station-
ary engineer or technician responsible for the operation, mainte-
nance, repair, or monitoring of equipment and facilities and who
often has supervisory and training duties but who is not senior
management personnel or a corporate officer. Except in the case
104
of knowing and willful violations, for purposes of subsection
(c)(4)
of this section, the term "a person" shall not include an
employee who is carrying out his normal activities and who is not
a part of senior management personnel or a corporate officer.
Except in the case of knowing and willful violations, for
purposes of paragraphs (1), (2), (3), and (5) of subsection (c)
of this section the term "a person" shall not include an employee
who is carrying out his normal activities and who is acting under
orders from the employer.
[42 U.S.C. 7413]
INSPECTIONS, MONITORING, AND ENTRY
Sec. 114. (a) For the purpose (i) of developing or assisting in
the development of any implementation plan under section 110 or
111(d), any standard of performance under section 111, any emis-
sion standard under section 112, [, or any regulation of solid
waste combustion under section 129,] [or any regulation under
sec-tion 129 (relating to solid waste combustion),]1 (ii) of
determining whether any person is in violation of any such
standard or any requirement of such a plan, or (iii) carrying out
any provision of this Act (except a provision of title II with
respect to a manu-facturer of new motor vehicles or new motor
vehicle engines) -
(1) the Administrator may require any person who owns or
operates any emission source, who manufactures emission control
equipment or process equipment, who the Administrator believes
may have information necessary for the purposes set forth in
this subsection, or who is subject to any requirement of this
Act (other than a manufacturer subject to the provisions of
section 206(c) or 208 with respect to a provision of title II)
on a one-time, periodic or continuous basis to -
(A) establish and maintain such records;
(B) make such reports;
(C) install, use, and maintain such monitoring equipment,
and use such audit procedures, or methods;
(D) sample such emissions (in accordance with such proce-
dures or methods, at such locations, at such intervals,
during such periods and in such manner as the Administrator
shall prescribe);
(E) keep records on control equipment parameters, produc-
tion variables or other indirect data when direct monitoring
of emissions is impractical;
(F) submit compliance certifications in accordance with
section 114(a)(3); and
(G) provide such other information as the Administrator
may reasonably require; and
(2) the Administrator or his authorized representative, upon
presentation of his credentials -
(A) shall have a right of entry to, upon, or through any
premises of such person or in which any records required to
be maintained under paragraph (1) of this section are
located, and
(B) may at reasonable times have access to and copy any
records, inspect any monitoring equipment and method
105
required under paragraph (1), and sample any emissions which
such person is required to sample under paragraph (1).
(3) 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, require enhanced monitoring
and submission of compliance certifications. Compliance
certifications shall include (A) identification of the applica-
ble requirement that is the basis of the certification, (B) the
method used for determining the compliance status of the
source, (C) the compliance status, (D) whether compliance is
continuous or intermittent, (E) such other facts as the
Administrator may require. Compliance certifications and
monitoring data shall be subject to subsection (c) of this
section. Submission of a compliance certification shall in no
way limit the Administrator's authorities to investigate or
otherwise implement this Act. The Administrator shall promul-
gate rules to provide guidance and to implement this paragraph
within 2 years after the enactment of the Clean Air Act
Amendments of 1990.
(b)(1) Each State may develop and submit to the Administrator a
procedure for carrying out this section in such State. If the Ad-
ministrator finds the State procedure is adequate, he may
delegate to such State any authority he has to carry out this
section.
(2) Nothing in this subsection shall prohibit the Administrator
from carrying out this section in a State.
(c) Any records, reports, or information obtained under
subsection (a) shall be available to the public, except that upon
a showing satisfactory to the Administrator by any person that
records, reports, or information, or particular part thereof
(other than emission data), to which the Administrator has access
under this section if made public, would divulge methods or
processes entitled to protection as trade secrets of such person,
the Administrator shall consider such record, report, or informa-
tion or particular portion thereof confidential in accordance
with the purposes of section 1905 of title 18 of the United
States Code, except that such record, report, or information may
be disclosed to other officers, employees, or authorized
representatives of the United States concerned with carrying out
this Act or when relevant in any proceeding under this Act.
(d)(1) In the case of any emission standard or limitation or
other requirement which is adopted by a State, as part of an ap-
plicable 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 stan-
dard, limitation, or other requirement, the Administrator (or his
representatives) shall provide the State air pollution control
ag-ency with reasonable prior notice of such action, indicating
the purpose of such action. No State agency which receives notice
un-der 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
106
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.
[42 U.S.C. 7414]
INTERNATIONAL AIR POLLUTION
Sec. 115. (a) Whenever the Administrator, upon receipt of re-
ports, 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 estab-
lished under section 109 of this Act unless the Administrator,
after consultation with all agencies which were party to the
conference, rescinds any such recommendation on grounds of
obsolescence.
[42 U.S.C. 7415]
Sec. 116. Except as otherwise provided in sections 119 (c),
(e), and (f)(as in effect before the date of the enactment of the
Clean Air Act Amendments of 1977), 209, 211(c)(4), and 233
(preempting certain State regulation of moving sources) nothing
107
in this Act shall preclude or deny the right of any State or
political subdivision thereof to adopt or enforce (1) any
standard or limitation respecting emissions of air pollutants or
(2) any requirement respecting control or abatement of air
pollution; except that if an emission standard or limitation is
in effect under an applicable implementation plan or under
section 111 or 112, such State or political subdivision may not
adopt or enforce any emission standard or limitation which is
less stringent than the standard or limitation under such plan or
section.
[42 U.S.C. 7416]
PRESIDENT'S AIR QUALITY ADVISORY BOARD AND ADVISORY COMMITTEES
Sec. 117. (a) In order to obtain assistance in the development
and implementation of the purposes of this Act including air
quality criteria, recommended control techniques, standards,
research and development, and to encourage the continued efforts
on the part of industry to improve air quality and to develop
economically feasible methods for the control and abatement of
air pollution, the Administrator shall from time to time
establish advisory committees. Committee members shall include,
but not be limited to, persons who are knowledgeable concerning
air quality from the standpoint of health, welfare, economics, or
technology.
(b) The members of any other advisory committees appointed
pursuant to this Act who are not officers or employees of the
United States while attending conferences or meetings or while
otherwise serving at the request of the Administrator, shall be
entitled to receive compensation at a rate to be fixed by the
Administrator, but not exceeding $100 per diem, including travel
time, and while away from their homes or regular places of
business they may be allowed travel expenses, including per diem
in lieu of subsistence, as authorized by section 5703 of title 5
of the United States Code for persons in the Government service
employed intermittently.
(c) Prior to -
(1) issuing criteria for an air pollutant under section
108(a)(2),
(2) publishing any list under section 111(b)(1)(A) or
112(b)(1)(A),
(3) publishing any standard under section 111 or section
112, or
(4) publishing any regulation under section 202(a), the
Administrator shall, to the maximum extent practicable
within the time provided, consult with appropriate advisory
committees, independent experts, and Federal departments and
agencies.
[42 U.S.C. 7417]
CONTROL OF POLLUTION FROM FEDERAL FACILITIES
Sec. 118. (a) General Compliance.- Each department, agency, and
instrumentality of executive, legislative, and judicial branches
of the Federal Government (1) having jurisdiction over any
108
property or facility, or (2) engaged in any activity resulting,
or which may result, in the discharge of air pollutants, and each
officer, agent, or employee thereof, shall be subject to, and
comply with, all Federal, State, interstate, and local require-
ments, administrative authority, and process and sanctions
respecting the control and abatement of air pollution in the same
manner, and to the same extent as any nongovernmental entity. The
preceding sentence shall apply (A) to any requirement whether
substantive or procedural (including any recordkeeping or
reporting requirement, any requirement respecting permits and any
other requirement whatsoever), (B) to any requirement to pay a
fee or charge imposed by any State or local agency to defray the
costs of its air pollution regulatory program, (C) to the
exercise of any Federal, State, or local administrative
authority, and (D) to any process and sanction, whether enforced
in Federal, State, or local courts, or in any other manner. This
subsection shall apply notwithstanding any immunity of such
agencies, officers, agents, or employees under any law or rule of
law. No officer, agent, or employee of the United States shall be
personally liable for any civil penalty for which he is not
otherwise liable.
(b) The President, may exempt any emission source of any
department, agency, or instrumentality in the executive branch
from compliance with such a requirement if he determines it to be
in the paramount interest of the United States to do so, except
that no exemption may be granted from section 111, and an
exemption from section 112 may be granted only in accordance with
section 112(i)(4). No such exemption shall be granted due to lack
of appropriation unless the President shall have specifically
requested such appropriation as a part of the budgetary process
and the Congress shall have failed to make available such
requested appropriation. Any exemption shall be for a period not
in excess of one year, but additional exemptions may be granted
for periods of not to exceed one year upon the President's making
a new determination. In addition to any such exemption of a
particular emission source, the President may, if he determines
it to be in the paramount interest of the United States to do so,
issue regulations exempting from compliance with the requirements
of this section any weaponry, equipment, aircraft, vehicles, or
other classes or categories of property which are owned or
operated by the Armed Forces of the United States (including the
Coast Guard) or by the National Guard of any State and which are
uniquely military in nature. The President shall reconsider the
need for such regulations at three-year intervals. The President
shall report each January to the Congress all exemptions from the
requirements of this section granted during the preceding
calendar year, together with his reason for granting each such
exemption.
(c) Government Vehicles.- Each department, agency, and instru-
mentality of executive, legislative, and judicial branches of the
Federal Government shall comply with all applicable provisions of
a valid inspection and maintenance program established under the
provisions of subpart 2 of part D or subpart 3 of part D except
for such vehicles that are considered military tactical vehicles.
109
(d) Vehicles Operated on Federal Installations.- Each depart-
ment, agency, and instrumentality of executive, legislative, and
judicial branches of the Federal Government having jurisdiction
over any property or facility shall require all employees which
operate motor vehicles on the property or facility to furnish
proof of compliance with the applicable requirements of any
vehicle inspection and maintenance program established under the
provisions of subpart 2 of part D or subpart 3 of part D for the
State in which such property or facility is located (without re-
gard to whether such vehicles are registered in the State). The
installation shall use one of the following methods to establish
proof of compliance -
(1) presentation by the vehicle owner of a valid certifi-
cate of compliance from the vehicle inspection and mainte-
nance program;
(2) presentation by the vehicle owner of proof of vehicle
registration within the geographic area covered by the
vehicle inspection and maintenance program (except for any
program whose enforcement mechanism is not through the
denial of vehicle registration);
(3) another method approved by the vehicle inspection and
maintenance program administrator.
[42 U.S.C. 7418]
PRIMARY NONFERROUS SMELTER ORDERS
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 deter-
mine whether or not such order has been issued by the State in
ac-cordance with the requirements of this Act. If the Adminis-
trator determines that such order has not been issued in accor-
dance with such requirements, he shall conduct a hearing respect-
ing the rea-sonably available control technology for primary
nonferrous smelters.
(2)(A) An order issued under this section to a primary nonfer-
rous smelter shall be referred to as a "primary nonferrous
smelter order". No primary nonferrous smelter may receive both an
enforce-ment 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
non-ferrous smelter for a second order under this section, the
appli-cant 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
110
by the Administrator or the State in any case in which such State
or Administrator is acting on its own initiative. Such statement
(including such documents and information) shall be made
available to the public for a thirty-day period before such
hearing and shall be considered as part of such hearing. No
primary nonferrous smelter order may be granted unless the
applicant establishes that he meets the conditions required for
the issuance of such order (or the Administrator or State
establishes the meeting of such conditions when acting on their
own initiative).
(C) Any decision with respect to the issuance of a primary
nonferrous smelter order shall be accompanied by a concise
statement of the findings and of the basis of such findings.
(3) For the purposes of section 110, 304, and 307 of this Act,
any order issued by the State and in effect pursuant to this
subsection shall become part of the applicable implementation
plan.
(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 enact-
ment of this section;
(2) the requirement of the applicable implementation plan
with respect to which the order is issued is an emission
limitation or standard for sulfur oxides which is necessary
and intended to be itself sufficient to enable attainment
and maintenance of national primary and secondary ambient
air quality standards for sulfur oxides; and
(3) such smelter is unable to comply with such requirement
by the applicable date for compliance because no means of
emission limitation applicable to such smelter which will
enable it to achieve compliance with such requirement has
been adequately demonstrated to be reasonably available (as
determined by the Administrator, taking into account the
cost of compliance, nonair quality health and environmental
impact, and energy consideration).
(c)(1) A second order issued to a smelter under this section
shall set forth compliance schedules containing increments of
progress which require compliance with the requirement postponed
as expeditiously as practicable. The increments of progress shall
be limited to requiring compliance with subsection (d) 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 is
issued under this section shall be required to use such interim
measures for the period during which such order is in effect as
111
may be necessary in the judgment of the Administrator to assure
attainment and maintenance of the national primary and secondary
ambient air quality standards during such period, taking into
account the aggregate effect on air quality of such order
together with all variances, extensions, waivers, enforcement
orders, delayed compliance orders and primary nonferrous smelter
orders previously issued under this Act.
(B) Such interim requirements shall include -
(i) a requirement that the source to which the order
applies comply with such reporting requirements and (continued)