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(continued)
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 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
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 and
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 321.
(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
112
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 an order under this section
applies, the Administration 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 smelter to which the order is issued demonstrates
that prompt termination of such order would result in undue
hardship, the termination shall become effective at the earliest
practicable date on which such undue hardship would not result,
but in no event later than the date required under subsection
(c).
(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 action.
[42 U.S.C. 7419]
NONCOMPLIANCE PENALTY
Sec. 120. (a)(1)(A) Not later than 6 months after the date of
enactment of this section, and after notice and opportunity for a
public hearing, the Administrator shall promulgate regulations
requiring the assessment and collection of a noncompliance
penalty against persons referred to in paragraph (2)(A).
(B)(i) Each State may develop and submit to the Administrator a
plan for carrying out this section in such State. If the Adminis-
trator finds that the State plan meets the requirements of this
section, he may delegate to such State any authority he has to
carry out this action.
(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 non-ferrous smelter which has received a
primary nonferrous smelter order under section
119) which is not in compliance
with any emission limitation, emission standard or compli-
ance schedule under any applicable implementation plan
(whether or not such source is subject to a Federal or State
consent decree), or
113
(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, 167, 303, or 112 of this Act, or
(iii) a stationary source which is not in compliance with
any requirement of title IV, V, or VI of this Act, or
(iv) any source referred to in clause (i), (ii), or (iii)
(for which an extension, order, or suspension referred to in
subparagraph (B), or Federal or State consent decree is in
effect), or a primary nonferrous smelter which has received
a primary nonferrous smelter order under section 119 which
is not in compliance with any interim emission control
requirement or schedule of compliance under such extension,
order, suspension, or consent decree.
For purposes of subsection (d)(2), 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)
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 petro-
leum products or natural gas, or both, as the permanent pri-
mary energy source to the burning of coal pursuant to an
order under section 113(d)(5) or section 119 (as in effect
before the date of the enactment of the Clean Air Act
Amendments of 1977);
(ii) in the case of a coal-burning source granted an ex-
tension under the second sentence of section 119(c)(1) (as
in effect before the date of the enactment of the Clean Air
Act Amendments of 1977), 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 any leg-
islation which amends or supersedes such provisions;
(iii) the use of innovative technology sanctioned by an
enforcement order under section 113(d)(4);
(iv) an inability to comply with any such requirement, for
which inability the source has received an order under sec-
tion 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 emergen-
cy suspension is authorized under section 110 (f) or (g).
114
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 (a)(1)(B)(i), 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 (deter-
mined 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
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;
115
(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 require-
ments 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 (4), if
the Administrator finds after notice and opportunity for a
hearing on the record that the penalty or schedule does not
meet the requirements of this section; and
(9) require a final adjustment of the penalty within 180
days after such source comes into compliance in accordance
with subsection (d)(4).
In any case in which the State establishes a noncompliance
penalty under this section, the State shall provide notice
thereof to the Administrator. A noncompliance penalty established
by a State under this section shall apply unless the
Administrator, within ninety days after the date of receipt of
notice of the State penalty assessment under this section,
objects in writing to the amount of the penalty as less than
would be required to comply with guidelines established by the
Administrator. If the Administrator objects, he shall immediately
establish a substitute noncompliance penalty applicable to such
source.
(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 sche-
dule 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
fi-nancial 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.
(d)(1) All penalties assessed by the Administrator under this
section shall be paid to the United States Treasury. All
116
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 economic value which a delay in compli-
ance beyond July 1, 1979, may have for the owner of such
source, including the quarterly equivalent of the capital
costs of compliance and debt service over a normal amortiza-
tion period, not to exceed ten years, operation and mainte-
nance costs foregone as a result of noncompliance, and any
additional economic value which such a delay 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 shall 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) shall review
117
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
-
(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 Secre-
tary 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 provisions 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.
[42 U.S.C. 7420]
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 require-
ments), or
118
(B) in part C (pertaining to prevention of signifi-
cant deterioration),
and in carrying out the requirements of section 113(d) (relating
to certain enforcement orders), the State shall provide a satis-
factory process of consultation with general purpose local
govern-ments, designated organizations of elected officials of
local gov-ernments and any Federal land manager having authority
over Fed-eral 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 Air Act
Amendments of 1977 as part of such plan. Such process shall be in
accordance with regu-lations promulgated by the Administrator to
assure adequate con-sultation. The Administrator shall update as
necessary the origi-nal regulations required and promulgated
under this section (as in effect immediately before the date of
the enactment of the Clean Air Act Amendments of 1990) to ensure
adequate consultation. Only a general purpose unit of local
government, regional agency, or council of governments adversely
affected by action of the Admin-istrator approving any portion of
a plan referred to in this sub-section may petition for judicial
review of such action on the basis of a violation of the
requirements of this section.
[42 U.S.C. 7421]
LISTING OF CERTAIN UNREGULATED POLLUTANTS
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 mater-ial, special nuclear material, and byproduct
material), 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 determina-
tion include such sub-stance in the list published under section
108(a)(1) or 112(b)(1)(A) (in the case of a substance which, in
the judgment of the Ad-ministrator, 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 pub-lished under section
111(b)(1)(A), or take any combination of such actions.
(b) Nothing in subsection (a) shall be construed to affect the
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)).
(c)(1) Before listing any source material, special nuclear, or
byproduct material (or component or derivative thereof) as
provided in subsection (a), the Administrator shall consult with
the Nuclear Regulatory Commission.
119
(2) Not later than six months after listing any such material
(or component or derivative thereof) the Administrator and the
Nuclear Regulatory 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 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.
[42 U.S.C. 7422]
STACK HEIGHTS
Sec. 123. (a) The degree of emission limitation required for
control 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 establishing an emission limitation for
coal-fired steam electric generating units which are subject to
the provisions of section 118 and 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" includes any intermittent or supplemental control of
air pollutants varying with atmospheric conditions.
(c) Not later than six months after the date of enactment of
this section, the Administrator, shall after notice and
opportunity for public hearing, promulgate regulations to carry
out this section. For purposes of this section, good engineering
practice means, with respect to stack heights, the height
necessary to insure that emissions from the stack do not result
in excessive concentrations of any air pollutant in the immediate
vicinity of the source as a result of atmospheric downwash,
eddies and wakes which may be created by the source itself,
120
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 pub-lic hearing, to the satisfaction
of the Administrator, that a greater height is necessary as
provided under the preceding sen-tence. In no event may the
Administrator prohibit any increase in any stack height or
restrict in any manner the stack height of any source.
[42 U.S.C. 7423]
ASSURANCE OF ADEQUACY OF STATE PLANS
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 antici-
pated 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 Adminis-
trator, 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.
[42 U.S.C. 7424]
MEASURES 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
122
(3) the President (or his designee), may determine that
action under subsection (b) is necessary to prevent or minimize
significant local or regional economic disruption or unemploy-
ment which would otherwise result from use by such source (or
class or category) of -
(A) coal or coal derivatives other than locally or region-
ally available coal,
(B) 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 Presi-
dent 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 sta-
tionary source (or class or category thereof) from using fuels
other than locally or regionally available coal or coal deri-
vatives 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 other-
wise 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 de-
termines may be necessary to comply with 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 neces-
sary to assure compliance with the requirements of this Act.
Requirements under this subsection shall be established simulta-
neously with, and as a condition of, any action under subsection
(b).
(d) This section applies only to existing or new major fuel
burning stationary sources -
(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
123
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 purpo-ses of any 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 sub-section (b), applicable to any source, and
a corresponding rule or order under subsection (c), shall be
treated as part of the appli-cable 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
region-ally available coal or coal derivatives" means coal or
coal deri-vatives which is, or can in the judgment of the State
or the Ad-ministrator feasibly be, mined or produced in the local
or re-gional area (as determined by the Administrator) in which
the major fuel burning stationary source is located.
[42 U.S.C. 7425]
INTERSTATE POLLUTION ABATEMENT
Sec. 126. (a) Each applicable implementation plan shall -
(1) require each major proposed new (or modified) source -
(A) subject to part C (relating to significant deterio-
ration 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 major 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.
(b) Any State or political subdivision may petition the Ad-
ministrator for a finding that any major source or group of
stationary sources emits or would emit any air pollutant in
violation of the prohibition of section 110(a)(2)(D)(ii) or this
section. Within 60 days after receipt of any petition under this
subsection and after public hearing, the Administrator shall make
such a finding or deny the petition.
(c) Notwithstanding any permit which may have been granted by
the State in which the source is located (or intends to locate),
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it shall be a violation of [this section and] 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 [this section
and] the prohibition of section 110(a)(2)(D)(ii) or this
section, or
(2) for any major existing source to operate more than three
months after such finding has been made with respect to it.
The Administrator may permit the continued operation of a source
referred to in paragraph (2) beyond the expiration of such three-
month period if such source complies with such emission limita-
tions 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)(D)(ii) as expeditiously as practicable, but in no case
later than three years after the date of such finding. Nothing in
the preceding sentence shall be construed to preclude any such
source from being eligible for an enforcement order under section
113(d) after the expiration of such period during which the
Administrator has permitted continuous operation.
[42 U.S.C. 7426]
[PUBLIC NOTIFICATION]
Sec. 127. (a) Each State plan shall contain measures which will
be effective to notify the public during any calendar on a re-
gular 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
assist in carrying out the requirements of subsection (a).
[42 U.S.C. 7427]
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 mem-
bers 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 in-
terest for such boards or bodies or heads of executive agencies,
or any other entities which are more stringent than the require-
ments of paragraphs (1) and (2), and the Administrator shall
approve any such more stringent requirements submitted as part of
an implementation plan.
125
[42 U.S.C. 7428]
SEC. 129. SOLID WASTE COMBUSTION.
(a) New Source Performance Standards.-
(1) In general.- (A) The Administrator shall establish
performance standards and other requirements pursuant to
section 111 and this section for each category of solid
waste incineration units. Such standards shall include
emissions limitations and other requirements applicable to
new units and guidelines (under section 111(d) and this
section) and other requirements applicable to existing
units.
(B) Standards under section 111 and this section
applicable to solid waste incineration units with capacity
greater than 250 tons per day combusting municipal waste
shall be promul-gated not later than 12 months after the
date of enactment of the Clean Air Act Amendments of 1990.
Nothing in this subparagraph shall alter any schedule for
the promulgation of standards applicable to such units under
section 111 pursuant to any settlement and consent decree
entered by the Administrator before the date of enactment of
the Clean Air Act Amendments of 1990: Provided, That, such
standards are subsequently modified pursuant to the schedule
established in this subparagraph to include each of the
requirements of this section.
(C) Standards under section 111 and this section
applicable to solid waste incineration units with capacity
equal to or less than 250 tons per day combusting municipal
waste and units combusting hospital waste, medical waste and
infectious waste shall be promulgated not later than 24
months after the date of enactment of the Clean Air Act
Amendments of 1990.
(D) Standards under section 111 and this section
applicable to solid waste incineration units combusting
commercial or industrial waste shall be proposed not later
than 36 months after the date of enactment of the Clean Air
Act Amendments
of 1990 and promulgated not later than 48 months after such
date of enactment.
(E) Not later than 18 months after the date of enactment
of the Clean Air Act Amendments of 1990, the Administrator
shall publish a schedule for the promulgation of standards
under section 111 and this section applicable to other
categories of solid waste incineration units.
(2) Emissions standard.- Standards applicable to solid
waste incineration units promulgated under section 111 and
this section shall reflect the maximum degree of reduction
in emissions of air pollutants listed under section (a)(4)
that the Administrator, taking into consideration the cost
of achieving such emission reduction, and any non-air
quality health and environmental impacts and energy
requirements, determines is achievable for new or existing
units in each category. The Administrator may distinguish
among classes, types (including mass-burn, refuse-derived
fuel, modular and other types of units), and sizes of units
within a category in establishing such standards. The degree
of reduction in emissions that is deemed achievable for new
units in a category shall not be less stringent than the
emissions control that is achieved in practice by the best
126
controlled similar unit, as determined by the Administrator.
Emissions standards for existing units in a category may be
less stringent than standards for new units in the same
category but shall not be less stringent than the average
emissions limitation achieved by the best performing 12
percent of units in the category (excluding units which
first met lowest achievable emissions rates 18 months before
the date such standards are proposed or 30 months before the
date such standards are promulgated, whichever is later).
(3) Control methods and technologies.- Standards under
section 111 and this section applicable to solid waste
incineration units shall be based on methods and
technologies for removal or destruction of pollutants
before, during, or after combustion, and shall incorporate
for new units siting requirements that minimize, on a site
specific basis, to the maximum extent practicable, potential
risks to public health or the environment.
(4) Numerical emissions limitations.- The performance
standards promulgated under section 111 and this section and
applicable to solid waste incineration units shall specify
numerical emission limitations for the following substances
or mixtures: particulate matter (total and fine), opacity
(as appropriate), sulfur dioxide, hydrogen chloride, oxides
of nitrogen, carbon monoxide, lead, cadmium, mercury, and
dioxins and dibenzofurans. The Administrator may promulgate
numerical emissions limitations or provide for the
monitoring of post combustion concentrations of surrogate
substances, parameters or periods of residence time in
excess of stated temperatures with respect to pollutants
other than those listed in this paragraph.
(5) Review and revision.- Not later than 5 years following
the initial promulgation of any performance standards and
other requirements under this section and section 111
applicable to a category of solid waste incineration units,
and at 5 year intervals thereafter, the Administrator shall
review, and in accordance with this section and section 111,
revise such standards and requirements.
(b) Existing Units.-
(1) Guidelines.- Performance standards under this section
and section 111 for solid waste incineration units shall
include guidelines promulgated pursuant to section 111(d)
and this section applicable to existing units. Such
guidelines shall include, as provided in this section, each
of the elements required by subsection (a) (emissions
limitations, notwithstanding any restriction in section
111(d) regarding issuance of such limitations), subsection
(c) (monitoring), subsection (d) (operator training),
subsection (e) (permits), and subsection (h)(4) (residual
risk).
(2) State plans.- Not later than 1 year after the Adminis-
trator promulgates guidelines for a category of solid waste
incineration units, each State in which units in the
category are operating shall submit to the Administrator a
plan to implement and enforce the guidelines with respect to
such units. The State plan shall be at least as protective
as the guidelines promulgated by the Administrator and shall
provide that each unit subject to the guidelines shall be in
compliance with all requirements of this section not later
127
than 3 years after the State plan is approved by the
Administrator but not later than 5 years after the
guidelines were promulgated. The Administrator shall approve
or disapprove any State plan within 180 days of the
submission, and if a plan is disapproved, the Administrator
shall state the reasons for disapproval in writing. Any
State may modify and resubmit a plan which has been
disapproved by the Administrator.
(3) Federal plan.- The Administrator shall develop,
implement and enforce a plan for existing solid waste
incineration units within any category located in any State
which has not submitted an approvable plan under this
subsection with respect to units in such category within 2 (continued)