Clean Air Act

1 C O N T E N T S 1 Page Clean Air Act ............................................................................... 1 Title I—Air Pollution Prevention and Control .................. 7 Part A—Air Quality and Emission Limitations ......... 7 [Part B—Ozone Protection—Repealed] Part C—Prevention of Significant Deterioration of Air Quality ................................................................. 138 Part D—Plan Requirements for Nonattainment Areas .......................................................................... 156 Title II—Emission Standards for Moving Sources ............ 219 Part A—Motor Vehicle Emission and Fuel Stand ards ............................................................................. 220 Part B—Aircraft Emission Standards ......................... 280 Part C—Clean Fuel Vehicles ....................................... 281 Title III—General ................................................................ 300 Title IV—Noise Pollution .................................................... 330 Title IV—Acid Deposition Control ...................................... 331 Title V—Permits .................................................................. 383 Title VI—Stratospheric Ozone Protection .......................... 397 Clean Air Act Amendments of 1977 (Public Law 95–95) ......... 425 Selected Provisions of the Energy Security Act (Public Law 96–294) ..................................................................................... 435 Clean Air Act Amendments of 1990 (Public Law 101–549) ..... 441 Section 348 of the National Highway System Designation Act of 1995 (Public Law 104–59) ............................................ 461 1 The companion volume to this publication (volume 2) contains the Solid Waste Disposal Act, the Mercury-Containing and Rechargeable Battery Management Act, the Pollution Preven tion Act of 1990, the Toxic Substances Control Act, section 1018 of the Residential Lead Based Paint Hazard Reduction Act of 1992, certain provisions of law related to asbestos, the Noise Control Act of 1972, the Safe Drinking Water Act, the Safe Drinking Water Act Amendments of 1996, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund), and the Superfund Amendments and Reauthorization Act of 1986 (SARA). Q:\COMP\ENVIR1\ENVIR1.TOC February 24, 2004 1 THE CLEAN AIR ACT [As Amended Through P.L. 108–201, February 24, 2004] Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 3 TABLE OF CONTENTS FOR THE CLEAN AIR ACT 1 TITLE I—AIR POLLUTION PREVENTION AND CONTROL PART A—AIR QUALITY AND EMISSION LIMITATIONS Sec. 101. Findings and purposes. Sec. 102. Cooperative activities and uniform laws. Sec. 103. Research, investigation, training, and other activities. Sec. 104. Research relating to fuels and vehicles. Sec. 105. Grants for support of air pollution planning and control programs. Sec. 106. Interstate air quality agencies or commissions. Sec. 107. Air quality control regions. Sec. 108. Air quality criteria and control techniques. Sec. 109. National ambient air quality standards. Sec. 110. Implementation plans. Sec. 111. Standards of performance for new stationary sources. Sec. 112. Hazardous air pollutants. Sec. 113. Federal Enforcement. Sec. 114. Inspections, monitoring, and entry. Sec. 115. International air pollution. Sec. 116. Retention of state authority. Sec. 117. President’s air quality advisory board and advisory committees. Sec. 118. Control of pollution from federal facilities. Sec. 119. Primary nonferrous smelter orders. Sec. 120. Noncompliance penalty. Sec. 121. Consultation. Sec. 122. Listing of certain unregulated pollutants. Sec. 123. Stack heights. Sec. 124. Assurance of adequacy of state plans. Sec. 125. Measures to prevent economic disruption or unemployment. Sec. 126. Interstate pollution abatement. Sec. 127. Public notification. Sec. 128. State boards. Sec. 129. Solid waste combustion. Sec. 130. Emission factors. Sec. 131. Land use authority. PART B—OZONE PROTECTION [Secs. 150 through 159 Repealed] PART C—PREVENTION OF SIGNIFICANT DETERIORATION OF AIR QUALITY SUBPART 1 Sec. 160. Purposes. Sec. 161. Plan requirements. Sec. 162. Initial classifications. Sec. 163. Increments and ceilings. Sec. 164. Area redesignation. Sec. 165. Preconstruction requirements. Sec. 166. Other pollutants. Sec. 167. Enforcement. Sec. 168. Period before plan approval. Sec. 169. Definitions. 1 This table of contents is not part of the Clean Air Act but is included herein for the conven ience of the users of this publication. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 4CLEAN AIR ACT SUBPART 2 Sec. 169A. Visibility protection for Federal class I areas. Sec. 169B. Visibility. PART D—PLAN REQUIREMENTS FOR NONATTAINMENT AREAS SUBPART 1—NONATTAINMENT AREAS IN GENERAL Sec. 171. Definitions. Sec. 172. Nonattainment plan provisions in general. Sec. 173. Permit requirements. Sec. 174. Planning procedures. Sec. 175. Environmental Protection Agency grants. Sec. 175A. Maintenance plans. Sec. 176. Limitation on certain Federal assistance. Sec. 176A. Interstate transport commissions. Sec. 177. New motor vehicle emission standards in nonattainment areas. Sec. 178. Guidance documents. Sec. 179. Sanctions and consequences of failure to attain. Sec. 179B. International border areas. SUBPART 2—ADDITIONAL PROVISIONS FOR OZONE NONATTAINMENT AREAS Sec. 181. Classifications and attainment dates. Sec. 182. Plan submissions and requirements. Sec. 183. Federal ozone measures. Sec. 184. Control of interstate ozone air pollution. Sec. 185. Enforcement for Severe and Extreme ozone nonattainment areas for fail ure to attain. Sec. 185A. Transitional areas. Sec. 185B. NOx and VOC study. SUBPART 3—ADDITIONAL PROVISIONS FOR CARBON MONOXIDE NONATTAINMENT AREAS Sec. 186. Classifications and attainment dates. Sec. 187. Plan submissions and requirements. SUBPART 4—ADDITIONAL PROVISIONS FOR PARTICULATE MATTER NONATTAINMENT AREAS Sec. 188. Classifications and attainment dates. Sec. 189. Plan provisions and schedules for plan submissions. Sec. 190. Issuance of RACM and BACM guidance. SUBPART 5—ADDITIONAL PROVISIONS FOR AREAS DESIGNATED NONATTAINMENT FOR SULFUR OXIDES, NITROGEN DIOXIDE, OR LEAD Sec. 191. Plan submission deadlines. Sec. 192. Attainment dates. SUBPART 6—SAVINGS PROVISIONS Sec. 193. General savings clause. TITLE II—EMISSION STANDARDS FOR MOVING SOURCES Sec. 201. Short title. PART A—MOTOR VEHICLE EMISSION AND FUEL STANDARDS Sec. 202. Establishment of standards. Sec. 203. Prohibited acts. Sec. 204. Injunction proceedings. Sec. 205. Civil penalties. Sec. 206. Motor vehicle and motor vehicle engine compliance testing and certifi cation. Sec. 207. Compliance by vehicles and engines in actual use. Sec. 208. Information collection. Sec. 209. State standards. Sec. 210. State grants. Sec. 211. Regulation of fuels. [Sec. 212. Repealed] Sec. 213. Fuel economy improvement from new motor vehicles. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 5 CLEAN AIR ACT Sec. 214. Study of particulate emissions from motor vehicles. Sec. 215. High altitude performance adjustments. Sec. 216. Definitions for part A. Sec. 217. Motor vehicle compliance program fees. Sec. 218. Prohibition on production of engines requiring leaded gasoline. Sec. 219. Urban bus standards. PART B—AIRCRAFT EMISSION STANDARDS Sec. 231. Establishment of standards. Sec. 232. Enforcement of standards. Sec. 233. State standards and controls. Sec. 234. Definitions. PART C—CLEAN FUEL VEHICLES Sec. 241. Definitions. Sec. 242. Requirements applicable to clean fuel vehicles. Sec. 243. Standards for light-duty clean fuel vehicles. Sec. 244. Administration and enforcement as per California standards. Sec. 245. Standards for heavy-duty clean-fuel vehicles (gvwr above 8,500 up to 26,000 lbs). Sec. 246. Centrally fueled fleets. Sec. 247. Vehicle conversions. Sec. 248. Federal agency fleets. Sec. 249. California pilot test program. Sec. 250. General provisions. TITLE III—GENERAL Sec. 301. Administration. Sec. 302. Definitions. Sec. 303. Emergency powers. Sec. 304. Citizen suits. Sec. 305. Representation in litigation. Sec. 306. Federal procurement. Sec. 307. General provisions relating to administrative proceedings and judicial re view. Sec. 308. Mandatory licensing. Sec. 309. Policy review. Sec. 310. Other authority not affected. Sec. 311. Records and audit. Sec. 312. Economic impact analyses. [Sec. 313. Repealed] Sec. 314. Labor standards. Sec. 315. Separability. Sec. 316. Sewage treatment grants. Sec. 317. Short title. Sec. 317.1 Economic impact assessment. [Sec. 318. Repealed] Sec. 319. Air quality monitoring. Sec. 320. Standardized air quality modeling. Sec. 321. Employment effects. Sec. 322. Employee protection. Sec. 323. Cost of emission control for certain vapor recovery to be borne by owner of retail outlet. Sec. 324. Vapor recovery for small business marketers of petroleum products. Sec. 325. Exemptions for certain territories. Sec. 326. Construction of certain clauses. Sec. 327. Authorization of appropriations. Sec. 328. Air pollution from outer continental shelf activities. 1 There are two sections numbered 317. This section should be numbered 318. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 6CLEAN AIR ACT TITLE IV—NOISE POLLUTION TITLE IV—ACID DEPOSITION CONTROL 1 Sec. 401. Findings and purpose. Sec. 402. Definitions. Sec. 403. Sulfur dioxide allowance program for existing and new units. Sec. 404. Phase I sulfur dioxide requirements. Sec. 405. Phase II sulfur dioxide requirements. Sec. 406. Allowances for States with emissions rates at or below 0.80 lbs/mmBtu. Sec. 407. Nitrogen oxides emission reduction program. Sec. 408. Permits and compliance plans. Sec. 409. Repowered sources. Sec. 410. Election for additional sources. Sec. 411. Excess emissions penalty. Sec. 412. Monitoring, reporting, and recordkeeping requirements. Sec. 413. General compliance with other provisions. Sec. 414. Enforcement. Sec. 415. Clean coal technology regulatory incentives. Sec. 416. Contingency guarantee; auctions, reserve. TITLE V—PERMITS Sec. 501. Definitions. Sec. 502. Permit programs. Sec. 503. Permit applications. Sec. 504. Permit requirements and conditions. Sec. 505. Notification to Administrator and contiguous States. Sec. 506. Other authorities. Sec. 507. Small business stationary source technical and environmental compliance assistance program. TITLE VI—STRATOSPHERIC OZONE PROTECTION Sec. 601. Definitions. Sec. 602. Listing of class I and class II substances. Sec. 603. Monitoring and reporting requirements. Sec. 604. Phase-out of production and consumption of class I substances. Sec. 605. Phase-out of production and consumption of class II substances. Sec. 606. Accelerated schedule. Sec. 607. Exchange authority. Sec. 608. National recycling and emission reduction program. Sec. 609. Servicing of motor vehicle air conditioners. Sec. 610. Nonessential products containing chlorofluorocarbons. Sec. 611. Labeling. Sec. 612. Safe alternatives policy. Sec. 613. Federal procurement. Sec. 614. Relationship to other laws. Sec. 615. Authority of Administrator. Sec. 616. Transfers among Parties to Montreal Protocol. Sec. 617. International cooperation. Sec. 618. Miscellaneous provisions. 1 Title IV, relating to acid deposition control, was added by section 401 of Public Law 101– 549 (104 Stat. 2584) without repealing the existing title IV, relating to noise pollution. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 7 1 The Clean Air Act (42 U.S.C. 7401–7626) consists of Public Law 159 (July 14, 1955; 69 Stat. 322) and the amendments made by subsequent enactments. THE CLEAN AIR ACT 1 TITLE I—AIR POLLUTION PREVENTION AND CONTROL PART A—AIR QUALITY AND EMISSION LIMITATIONS FINDINGS AND PURPOSES SEC. 101. (a) The Congress finds— (1) that the predominant part of the Nation’s population is located in its rapidly expanding metropolitan and other urban areas, which generally cross the boundary lines of local juris dictions and often extend into two or more States; (2) that the growth in the amount and complexity of air pollution brought about by urbanization, industrial develop ment, and the increasing use of motor vehicles, has resulted in mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and the deterioration of property, and hazards to air and ground trans portation; (3) that air pollution prevention (that is, the reduction or elimination, through any measures, of the amount of pollutants produced or created at the source) and air pollution control at its source is the primary responsibility of States and local gov ernments; and (4) that Federal financial assistance and leadership is es sential for the development of cooperative Federal, State, re gional, and local programs to prevent and control air pollution. (b) The purposes of this title are— (1) to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population; (2) to initiate and accelerate a national research and devel opment program to achieve the prevention and control of air pollution; (3) to provide technical and financial assistance to State and local governments in connection with the development and execution of their air pollution prevention and control pro grams; and (4) to encourage and assist the development and operation of regional air pollution prevention and control programs. (c) POLLUTION PREVENTION.—A primary goal of this Act is to encourage or otherwise promote reasonable Federal, State, and local governmental actions, consistent with the provisions of this Act, for pollution prevention. [42 U.S.C. 7401] Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 8Sec. 102 CLEAN AIR ACT COOPERATIVE ACTIVITIES AND UNIFORM LAWS SEC. 102. (a) The Administrator shall encourage cooperative activities by the States and local governments for the prevention and control of air pollution; encourage the enactment of improved and, so far as practicable in the light of varying conditions and needs, uniform State and local laws relating to the prevention and control of air pollution; and encourage the making of agreements and compacts between States for the prevention and control of air pollution. (b) The Administrator shall cooperate with and encourage coop erative activities by all Federal departments and agencies having functions relating to the prevention and control of air pollution, so as to assure the utilization in the Federal air pollution control pro gram of all appropriate and available facilities and resources with in the Federal Government. (c) The consent of the Congress is hereby given to two or more States to negotiate and enter into agreements or compacts, not in conflict with any law or treaty of the United States, for (1) coopera tive effort and mutual assistance for the prevention and control of air pollution and the enforcement of their respective laws relating thereto, and (2) the establishment of such agencies, joint or other wise, as they may deem desirable for making effective such agree ments or compacts. No such agreement or compact shall be binding or obligatory upon any State a party thereto unless and until it has been approved by Congress. It is the intent of Congress that no agreement or compact entered into between States after the date of enactment of the Air Quality Act of 1967, which relates to the control and abatement of air pollution in an air quality control re gion, shall provide for participation by a State which is not in cluded (in whole or in part) in such air quality control region. [42 U.S.C. 7402] RESEARCH, INVESTIGATION, TRAINING, AND OTHER ACTIVITIES SEC. 103. (a) The Administrator shall establish a national re search and development program for the prevention and control of air pollution and as part of such program shall— (1) conduct, and promote the coordination and acceleration of, research, investigations, experiments, demonstrations, sur veys, and studies relating to the causes, effects (including health and welfare effects), extent, prevention, and control of air pollution; (2) encourage, cooperate with, and render technical serv ices and provide financial assistance to air pollution control agencies and other appropriate public or private agencies, in stitutions, and organizations, and individuals in the conduct of such activities; (3) conduct investigations and research and make surveys concerning any specific problem of air pollution in cooperation with any air pollution control agency with a view to recom mending a solution of such problem, if he is requested to do so by such agency or if, in his judgment, such problem may affect any community or communities in a State other than that in Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 9 Sec. 103CLEAN AIR ACT 1 Section 901(a)(2)(C) of Public Law 101–549 (104 Stat. 2700) added a new paragraph (8) at the end of section 103(b). Paragraph (8) probably was intended to have been added after para graph (7), as it is shown here. which the source of the matter causing or contributing to the pollution is located; (4) establish technical advisory committees composed of recognized experts in various aspects of air pollution to assist in the examination and evaluation of research progress and proposals and to avoid duplication of research; and (5) conduct and promote coordination and acceleration of training for individuals relating to the causes, effects, extent, prevention, and control of air pollution. (b) In carrying out the provisions of the preceding subsection the Administrator is authorized to— (1) collect and make available, through publications and other appropriate means, the results of and other information, including appropriate recommendations by him in connection therewith, pertaining to such research and other activities; (2) cooperate with other Federal departments and agen cies, with air pollution control agencies, with other public and private agencies, institutions, and organizations, and with any industries involved, in the preparation and conduct of such re search and other activities; (3) make grants to air pollution control agencies, to other public or nonprofit private agencies, institutions, and organiza tions, and to individuals, for purposes stated in subsection (a)(1) of this section; (4) contract with public or private agencies, institutions, and organizations, and with individuals, without regard to sec tions 3648 and 3709 of the Revised Statutes (31 U.S.C. 529; 41 U.S.C. 5); (5) establish and maintain research fellowships, in the En vironmental Protection Agency and at public or nonprofit pri vate educational institutions or research organizations; (6) collect and disseminate, in cooperation with other Fed eral departments and agencies, and with other public or pri vate agencies, institutions, and organizations having related responsibilities, basic data on chemical, physical, and biological effects of varying air quality and other information pertaining to air pollution and the prevention and control thereof; (7) develop effective and practical processes, methods, and prototype devices for the prevention or control of air pollution; and (8) 1 construct facilities, provide equipment, and employ staff as necessary to carry out this Act. In carrying out the provisions of subsection (a), the Administrator shall provide training for, and make training grants to, personnel of air pollution control agencies and other persons with suitable qualifications and make grants to such agencies, to other public or nonprofit private agencies, institutions, and organizations for the purposes stated in subsection (a)(5). Reasonable fees may be charged for such training provided to persons other than personnel of air pollution control agencies but such training shall be provided to such personnel of air pollution control agencies without charge. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 10Sec. 103 CLEAN AIR ACT (c) AIR POLLUTANT MONITORING, ANALYSIS, MODELING, AND IN VENTORY RESEARCH.—In carrying out subsection (a), the Adminis trator shall conduct a program of research, testing, and develop ment of methods for sampling, measurement, monitoring, analysis, and modeling of air pollutants. Such program shall include the fol lowing elements: (1) Consideration of individual, as well as complex mix tures of, air pollutants and their chemical transformations in the atmosphere. (2) Establishment of a national network to monitor, collect, and compile data with quantification of certainty in the status and trends of air emissions, deposition, air quality, surface water quality, forest condition, and visibility impairment, and to ensure the comparability of air quality data collected in dif ferent States and obtained from different nations. (3) Development of improved methods and technologies for sampling, measurement, monitoring, analysis, and modeling to increase understanding of the sources of ozone percursors, ozone formation, ozone transport, regional influences on urban ozone, regional ozone trends, and interactions of ozone with other pollutants. Emphasis shall be placed on those techniques which— (A) improve the ability to inventory emissions of vola tile organic compounds and nitrogen oxides that contribute to urban air pollution, including anthropogenic and nat ural sources; (B) improve the understanding of the mechanism through which anthropogenic and biogenic volatile organic compounds react to form ozone and other oxidants; and (C) improve the ability to identify and evaluate region specific prevention and control options for ozone pollution. (4) Submission of periodic reports to the Congress, not less than once every 5 years, which evaluate and assess the effec tiveness of air pollution control regulations and programs using monitoring and modeling data obtained pursuant to this subsection. (d) ENVIRONMENTAL HEALTH EFFECTS RESEARCH.—(1) The Ad ministrator, in consultation with the Secretary of Health and Human Services, shall conduct a research program on the short term and long-term effects of air pollutants, including wood smoke, on human health. In conducting such research program the Administrator— (A) shall conduct studies, including epidemiological, clin ical, and laboratory and field studies, as necessary to identify and evaluate exposure to and effects of air pollutants on human health; (B) may utilize, on a reimbursable basis, the facilities of existing Federal scientific laboratories and research centers; and (C) shall consult with other Federal agencies to ensure that similar research being conducted in other agencies is co ordinated to avoid duplication. (2) In conducting the research program under this subsection, the Administrator shall develop methods and techniques necessary Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 11 Sec. 103CLEAN AIR ACT to identify and assess the risks to human health from both routine and accidental exposures to individual air pollutants and combina tions thereof. Such research program shall include the following elements: (A) The creation of an Interagency Task Force to coordi nate such program. The Task Force shall include representa tives of the National Institute for Environmental Health Sciences, the Environmental Protection Agency, the Agency for Toxic Substances and Disease Registry, the National Toxi cology Program, the National Institute of Standards and Tech nology, the National Science Foundation, the Surgeon General, and the Department of Energy. This Interagency Task Force shall be chaired by a representative of the Environmental Pro tection Agency and shall convene its first meeting within 60 days after the date of enactment of this subparagraph. (B) An evaluation, within 12 months after the date of en actment of this paragraph, of each of the hazardous air pollut ants listed under section 112(b) of this Act, to decide, on the basis of available information, their relative priority for prepa ration of environmental health assessments pursuant to sub paragraph (C). The evaluation shall be based on reasonably an ticipated toxicity to humans and exposure factors such as fre quency of occurrence as an air pollutant and volume of emis sions in populated areas. Such evaluation shall be reviewed by the Interagency Task Force established pursuant to subpara graph (A). (C) Preparation of environmental health assessments for each of the hazardous air pollutants referred to in subpara graph (B), beginning 6 months after the first meeting of the Interagency Task Force and to be completed within 96 months thereafter. No fewer than 24 assessments shall be completed and published annually. The assessments shall be prepared in accordance with guidelines developed by the Administrator in consultation with the Interagency Task Force and the Science Advisory Board of the Environmental Protection Agency. Each such assessment shall include— (i) an examination, summary, and evaluation of avail able toxicological and epidemiological information for the pollutant to ascertain the levels of human exposure which pose a significant threat to human health and the associ ated acute, subacute, and chronic adverse health effects; (ii) a determination of gaps in available information related to human health effects and exposure levels; and (iii) where appropriate, an identification of additional activities, including toxicological and inhalation testing, needed to identify the types or levels of exposure which may present significant risk of adverse health effects in humans. (e) ECOSYSTEM RESEARCH.—In carrying out subsection (a), the Administrator, in cooperation, where appropriate, with the Under Secretary of Commerce for Oceans and Atmosphere, the Director of the Fish and Wildlife Service, and the Secretary of Agriculture, shall conduct a research program to improve understanding of the short-term and long-term causes, effects, and trends of ecosystems Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 12Sec. 103 CLEAN AIR ACT damage from air pollutants on ecosystems. Such program shall in clude the following elements: (1) Identification of regionally representative and critical ecosystems for research. (2) Evaluation of risks to ecosystems exposed to air pollut ants, including characterization of the causes and effects of chronic and episodic exposures to air pollutants and determina tion of the reversibility of those effects. (3) Development of improved atmospheric dispersion mod els and monitoring systems and networks for evaluating and quantifying exposure to and effects of multiple environmental stresses associated with air pollution. (4) Evaluation of the effects of air pollution on water qual ity, including assessments of the short-term and long-term eco logical effects of acid deposition and other atmospherically de rived pollutants on surface water (including wetlands and estu aries) and groundwater. (5) Evaluation of the effects of air pollution on forests, ma terials, crops, biological diversity, soils, and other terrestrial and aquatic systems exposed to air pollutants. (6) Estimation of the associated economic costs of ecologi cal damage which have occurred as a result of exposure to air pollutants. Consistent with the purpose of this program, the Administrator may use the estuarine research reserves established pursuant to section 315 of the Coastal Zone Management Act of 1972 (16 U.S.C. 1461) to carry out this research. (f) LIQUEFIED GASEOUS FUELS SPILL TEST FACILITY.—(1) The Administrator, in consultation with the Secretary of Energy and the Federal Coordinating Council for Science, Engineering, and Technology, shall oversee an experimental and analytical research effort, with the experimental research to be carried out at the Liq uefied Gaseous Fuels Spill Test Facility. In consultation with the Secretary of Energy, the Administrator shall develop a list of chemicals and a schedule for field testing at the Facility. Analysis of a minimum of 10 chemicals per year shall be carried out, with the selection of a minimum of 2 chemicals for field testing each year. Highest priority shall be given to those chemicals that would present the greatest potential risk to human health as a result of an accidental release— (A) from a fixed site; or (B) related to the transport of such chemicals. (2) The purpose of such research shall be to— (A) develop improved predictive models for atmospheric dispersion which at a minimum— (i) describe dense gas releases in complex terrain in cluding man-made structures or obstacles with variable winds; (ii) improve understanding of the effects of turbulence on dispersion patterns; and (iii) consider realistic behavior of aerosols by including physicochemical reactions with water vapor, ground depo sition, and removal by water spray; Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 13 Sec. 103CLEAN AIR ACT (B) evaluate existing and future atmospheric dispersion models by— (i) the development of a rigorous, standardized meth odology for dense gas models; and (ii) the application of such methodology to current dense gas dispersion models using data generated from field experiments; and (C) evaluate the effectiveness of hazard mitigation and emergency response technology for fixed site and transpor tation related accidental releases of toxic chemicals. Models pertaining to accidental release shall be evaluated and im proved periodically for their utility in planning and implementing evacuation procedures and other mitigative strategies designed to minimize human exposure to hazardous air pollutants released ac cidentally. (3) The Secretary of Energy shall make available to interested persons (including other Federal agencies and businesses) the use of the Liquefied Gaseous Fuels Spill Test Facility to conduct re search and other activities in connection with the activities de scribed in this subsection. (g) POLLUTION PREVENTION AND EMISSIONS CONTROL.—In car rying out subsection (a), the Administrator shall conduct a basic engineering research and technology program to develop, evaluate, and demonstrate nonregulatory strategies and technologies for air pollution prevention. Such strategies and technologies shall be de veloped with priority on those pollutants which pose a significant risk to human health and the environment, and with opportunities for participation by industry, public interest groups, scientists, and other interested persons in the development of such strategies and technologies. Such program shall include the following elements: (1) Improvements in nonregulatory strategies and tech nologies for preventing or reducing multiple air pollutants, in cluding sulfur oxides, nitrogen oxides, heavy metals, PM–10 (particulate matter), carbon monoxide, and carbon dioxide, from stationary sources, including fossil fuel power plants. Such strategies and technologies shall include improvements in the relative cost effectiveness and long-range implications of various air pollutant reduction and nonregulatory control strat egies such as energy conservation, including end-use efficiency, and fuel-switching to cleaner fuels. Such strategies and tech nologies shall be considered for existing and new facilities. (2) Improvements in nonregulatory strategies and tech nologies for reducing air emissions from area sources. (3) Improvements in nonregulatory strategies and tech nologies for preventing, detecting, and correcting accidental re leases of hazardous air pollutants. (4) Improvements in nonregulatory strategies and tech nologies that dispose of tires in ways that avoid adverse air quality impacts. Nothing in this subsection shall be construed to authorize the im position on any person of air pollution control requirements. The Administrator shall consult with other appropriate Federal agen cies to ensure coordination and to avoid duplication of activities au thorized under this subsection. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 14Sec. 103 CLEAN AIR ACT (h) NIEHS STUDIES.—(1) The Director of the National Institute of Environmental Health Sciences may conduct a program of basic research to identify, characterize, and quantify risks to human health from air pollutants. Such research shall be conducted pri marily through a combination of university and medical school based grants, as well as through intramural studies and contracts. (2) The Director of the National Institute of Environmental Health Sciences shall conduct a program for the education and training of physicians in environmental health. (3) The Director shall assure that such programs shall not con flict with research undertaken by the Administrator. (4) There are authorized to be appropriated to the National In stitute of Environmental Health Sciences such sums as may be nec essary to carry out the purposes of this subsection. (i) COORDINATION OF RESEARCH.—The Administrator shall de velop and implement a plan for identifying areas in which activities authorized under this section can be carried out in conjunction with other Federal ecological and air pollution research efforts. The plan, which shall be submitted to Congress within 6 months after the date of enactment of this subsection, shall include— (1) an assessment of ambient monitoring stations and net works to determine cost effective ways to expand monitoring capabilities in both urban and rural environments; (2) a consideration of the extent of the feasibility and sci entific value of conducting the research program under sub section (e) to include consideration of the effects of atmospheric processes and air pollution effects; and (3) a methodology for evaluating and ranking pollution prevention technologies, such as those developed under sub section (g), in terms of their ability to reduce cost effectively the emissions of air pollutants and other airborne chemicals of concern. Not later than 2 years after the date of enactment of this sub section, and every 4 years thereafter, the Administrator shall re port to Congress on the progress made in implementing the plan developed under this subsection, and shall include in such report any revisions of the plan. (j) CONTINUATION OF THE NATIONAL ACID PRECIPITATION AS SESSMENT PROGRAM.— (1) The acid precipitation research program set forth in the Acid Precipitation Act of 1980 shall be continued with modi fications pursuant to this subsection. (2) The Acid Precipitation Task Force shall consist of the Administrator of the Environmental Protection Agency, the Secretary of Energy, the Secretary of the Interior, the Sec retary of Agriculture, the Administrator of the National Oce anic and Atmospheric Administration, the Administrator of the National Aeronautics and Space Administration, and such ad ditional members as the President may select. The President shall appoint a chairman for the Task Force from among its members within 30 days after the date of enactment of this subsection. (3) The responsibilities of the Task Force shall include the following: Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 15 Sec. 103CLEAN AIR ACT 1 Probably should be ‘‘precursors’’. (A) Review of the status of research activities con ducted to date under the comprehensive research plan de veloped pursuant to the Acid Precipitation Act of 1980, and development of a revised plan that identifies signifi cant research gaps and establishes a coordinated program to address current and future research priorities. A draft of the revised plan shall be submitted by the Task Force to Congress within 6 months after the date of enactment of this subsection. The plan shall be available for public comment during the 60 day period after its submission, and a final plan shall be submitted by the President to the Congress within 45 days after the close of the comment pe riod. (B) Coordination with participating Federal agencies, augmenting the agencies’ research and monitoring efforts and sponsoring additional research in the scientific com munity as necessary to ensure the availability and quality of data and methodologies needed to evaluate the status and effectiveness of the acid deposition control program. Such research and monitoring efforts shall include, but not be limited to— (i) continuous monitoring of emissions of precur sors of acid deposition; (ii) maintenance, upgrading, and application of models, such as the Regional Acid Deposition Model, that describe the interactions of emissions with the at mosphere, and models that describe the response of ecosystems to acid deposition; and (iii) analysis of the costs, benefits, and effective ness of the acid deposition control program. (C) Publication and maintenance of a National Acid Lakes Registry that tracks the condition and change over time of a statistically representative sample of lakes in re gions that are known to be sensitive to surface water acidi fication. (D) Submission every two years of a unified budget recommendation to the President for activities of the Fed eral Government in connection with the research program described in this subsection. (E) Beginning in 1992 and biennially thereafter, sub mission of a report to Congress describing the results of its investigations and analyses. The reporting of technical in formation about acid deposition shall be provided in a for mat that facilitates communication with policymakers and the public. The report shall include— (i) actual and projected emissions and acid deposi tion trends; (ii) average ambient concentrations of acid deposi tion percursors 1 and their transformation products; (iii) the status of ecosystems (including forests and surface waters), materials, and visibility affected by acid deposition; Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 16Sec. 104 CLEAN AIR ACT (iv) the causes and effects of such deposition, in cluding changes in surface water quality and forest and soil conditions; (v) the occurrence and effects of episodic acidifica tion, particularly with respect to high elevation water sheds; and (vi) the confidence level associated with each con clusion to aid policymakers in use of the information. (F) Beginning in 1996, and every 4 years thereafter, the report under subparagraph (E) shall include— (i) the reduction in deposition rates that must be achieved in order to prevent adverse ecological effects; and (ii) the costs and benefits of the acid deposition control program created by title IV of this Act. (k) AIR POLLUTION CONFERENCES.—If, in the judgment of the Administrator, an air pollution problem of substantial significance may result from discharge or discharges into the atmosphere, the Administrator may call a conference concerning this potential air pollution problem to be held in or near one or more of the places where such discharge or discharges are occurring or will occur. All interested persons shall be given an opportunity to be heard at such conference, either orally or in writing, and shall be permitted to appear in person or by representative in accordance with proce dures prescribed by the Administrator. If the Administrator finds, on the basis of the evidence presented at such conference, that the discharge or discharges if permitted to take place or continue are likely to cause or contribute to air pollution subject to abatement under part A of title I, the Administrator shall send such findings, together with recommendations concerning the measures which the Administrator finds reasonable and suitable to prevent such pollu tion, to the person or persons whose actions will result in the dis charge or discharges involved; to air pollution agencies of the State or States and of the municipality or municipalities where such dis charge or discharges will originate; and to the interstate air pollu tion control agency, if any, in the jurisdictional area of which any such municipality is located. Such findings and recommendations shall be advisory only, but shall be admitted together with the record of the conference, as part of the proceedings under sub sections (b), (c), (d), (e), and (f) of section 108. [42 U.S.C. 7403] RESEARCH RELATING TO FUELS AND VEHICLES SEC. 104. (a) The Administrator shall give special emphasis to research and development into new and improved methods, having industrywide application, for the prevention and control of air pol lution resulting from the combustion of fuels. In furtherance of such research and development he shall— (1) conduct and accelerate research programs directed to ward development of improved, cost-effective techniques for— (A) control of combustion byproducts of fuels, (B) removal of potential air pollutants from fuels prior to combustion, Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 17 Sec. 104CLEAN AIR ACT (C) control of emissions from the evaporation of fuels, (D) improving the efficiency of fuels combustion so as to decrease atmospheric emissions, and (E) producing synthetic or new fuels which, when used, result in decreased atmospheric emissions. (2) provide for Federal grants to public or nonprofit agen cies, institutions, and organizations and to individuals, and contracts with public or private agencies, institutions or per sons, for payment of (A) part of the cost of acquiring, con structing, or otherwise securing for research and development purposes, new or improved devices or methods having indus trywide application of preventing or controlling discharges into the air of various types of pollutants; (B) part of the cost of programs to develop low emission alternatives to the present internal combustion engine; (C) the cost to purchase vehicles and vehicle engines, or portions thereof, for research, develop ment, and testing purposes; and (D) carrying out the other pro visions of this section, without regard to sections 3648 and 3709 of the Revised Statutes (31 U.S.C. 529; 41 U.S.C. 5): Pro vided, That research or demonstration contracts awarded pur suant to this subsection or demonstration contracts awarded pursuant to this subsection (including contracts for construc tion) may be made in accordance with, and subject to the limi tations provided with respect to research contracts of the mili tary departments in, section 2353 of title 10, United States Code, except that the determination, approval, and certification required thereby shall be made by the Administrator: Provided further, That no grant may be made under this paragraph in excess of $1,500,000; (3) determine, by laboratory and pilot plant testing, the re sults of air pollution research and studies in order to develop new or improved processes and plant designs to the point where they can be demonstrated on a large and practical scale; (4) construct, operate, and maintain, or assist in meeting the cost of the construction, operation, and maintenance of new or improved demonstration plants or processes which have promise of accomplishing the purposes of this Act; (5) study new or improved methods for the recovery and marketing of commercially valuable byproducts resulting from the removal of pollutants. (b) In carrying out the provisions of this section, the Adminis trator may— (1) conduct and accelerate research and development of cost-effective instrumentation techniques to facilitate deter mination of quantity and quality of air pollutant emissions, in cluding, but not limited to, automotive emissions; (2) utilize, on a reimbursable basis, the facilities of existing Federal scientific laboratories; (3) establish and operate necessary facilities and test sites at which to carry on the research, testing, development, and programing necessary to effectuate the purposes of this section; (4) acquire secret processes, technical data, inventions, patent applications, patents, licenses, and an interest in lands, Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 18Sec. 105 CLEAN AIR ACT plants, and facilities, and other property or rights by purchase, license, lease, or donation; and (5) cause on-site inspections to be made of promising do mestic and foreign projects, and cooperate and participate in their development in instances in which the purposes of the Act will be served thereby. (c) CLEAN ALTERNATIVE FUELS.—The Administrator shall con duct a research program to identify, characterize, and predict air emissions related to the production, distribution, storage, and use of clean alternative fuels to determine the risks and benefits to human health and the environment relative to those from using conventional gasoline and diesel fuels. The Administrator shall con sult with other Federal agencies to ensure coordination and to avoid duplication of activities authorized under this subsection. [42 U.S.C. 7404] GRANTS FOR SUPPORT OF AIR POLLUTION PLANNING AND CONTROL PROGRAMS SEC. 105. (a)(1)(A) The Administrator may make grants to air pollution control agencies, within the meaning of paragraph (1), (2), (3), (4), or (5) of section 302, in an amount up to three-fifths of the cost of implementing programs for the prevention and control of air pollution or implementation of national primary and secondary am bient air quality standards. For the purpose of this section, ‘‘imple menting’’ means any activity related to the planning, developing, establishing, carrying-out, improving, or maintaining of such pro grams. (B) Subject to subsections (b) and (c) of this section, an air pol lution control agency which receives a grant under subparagraph (A) and which contributes less than the required two-fifths min imum shall have 3 years following the date of the enactment of the Clean Air Act Amendments of 1990 in which to contribute such amount. If such an agency fails to meet and maintain this required level, the Administrator shall reduce the amount of the Federal contribution accordingly. (C) With respect to any air quality control region or portion thereof for which there is an applicable implementation plan under section 110, grants under subparagraph (A) may be made only to air pollution control agencies which have substantial responsibil ities for carrying out such applicable implementation plan. (2) Before approving any grant under this subsection to any air pollution control agency within the meaning of sections 302(b)(2) and 302(b)(4) the Administrator shall receive assurances that such agency provides for adequate representation of appropriate State, interstate, local, and (when appropriate) international, interests in the air quality control region. (3) Before approving any planning grant under this subsection to any air pollution control agency within the meaning of sections 302(b)(2) and 302(b)(4), the Administrator shall receive assurances that such agency has the capability of developing a comprehensive air quality plan for the air quality control region, which plan shall include (when appropriate) a recommended system of alerts to avert and reduce the risk of situations in which there may be im Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 19 Sec. 105CLEAN AIR ACT 1 Probably should be paragraph (1). minent and serious danger to the public health or welfare from air pollutants and the various aspects relevant to the establishment of air quality standards for such air quality control region, including the concentration of industries, other commercial establishments, population and naturally occurring factors which shall affect such standards. (b)(1) From the sums available for the purposes of subsection (a) of this section for any fiscal year, the Administrator shall from time to time make grants to air pollution control agencies upon such terms and conditions as the Administrator may find necessary to carry out the purpose of this section. In establishing regulations for the granting of such funds the Administrator shall, so far as practicable, give due consideration to (A) the population, (B) the ex tent of the actual or potential air pollution problem, and (C) the fi nancial need of the respective agencies. (2) Not more than 10 per centum of the total of funds appro priated or allocated for the purposes of subsection (a) of this section shall be granted for air pollution control programs in any one State. In the case of a grant for a program in an area crossing State boundaries, the Administrator shall determine the portion of such grant that is chargeable to the percentage limitation under this subsection for each State into which such area extends. Sub ject to the provisions of paragraph (1) of this subsection, no State shall have made available to it for application less than one-half of 1 per centum of the annual appropriation for grants under this section for grants to agencies within such State. (c) MAINTENANCE OF EFFORT.—(1) No agency shall receive any grant under this section during any fiscal year when its expendi tures of non-Federal funds for recurrent expenditures for air pollu tion control programs will be less than its expenditures were for such programs during the preceding fiscal year. In order for the Administrator to award grants under this section in a timely man ner each fiscal year, the Administrator shall compare an agency’s prospective expenditure level to that of its second preceding fiscal year. The Administrator shall revise the current regulations which define applicable nonrecurrent and recurrent expenditures, and in so doing, give due consideration to exempting an agency from the limitations of this paragraph and subsection (a) due to periodic in creases experienced by that agency from time to time in its annual expenditures for purposes acceptable to the Administrator for that fiscal year. (2) The Administrator may still award a grant to an agency not meeting the requirements of paragraph (l) 1 of this subsection if the Administrator, after notice and opportunity for public hearing, de termines that a reduction in expenditures is attributable to a non selective reduction in the expenditures in the programs of all Exec utive branch agencies of the applicable unit of Government. No agency shall receive any grant under this section with respect to the maintenance of a program for the prevention and control of air pollution unless the Administrator is satisfied that such a grant will be so used to supplement and, to the extent practicable, in crease the level of State, local, or other non-Federal funds. No Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 20Sec. 106 CLEAN AIR ACT 1 Section 102(f)(2) of Public Law 101–549 inserted ‘‘any commission established under section 176A (relating to control of interstate air pollution) or section 184 (relating to control of ozone pollution)’’ after ‘‘program costs of’’ in section 106. The amendment was probably intended to insert this language only in the first place these words appear. grants shall be made under this section until the Administrator has consulted with the appropriate official as designated by the Governor or Governors of the State or States affected. (d) The Administrator, with the concurrence of any recipient of a grant under this section may reduce the payments to such recipi ent by the amount of the pay, allowances, traveling expenses, and any other costs in connection with the detail of any officer or em ployee to the recipient under section 301 of the Act, when such de tail is for the convenience of, and at the request of, such recipient and for the purpose of carrying out the provisions of this Act. The amount by which such payments have been reduced shall be avail able for payment of such costs by the Administrator, but shall, for the purpose of determining the amount of any grant to a recipient under subsection (a) of this section, be deemed to have been paid to such agency. (e) No application by a State for a grant under this section may be disapproved by the Administrator without prior notice and op portunity for a public hearing in the affected State, and no commit ment or obligation of any funds under any such grant may be re voked or reduced without prior notice and opportunity for a public hearing in the affected State (or in one of the affected States if more than one State is affected). [42 U.S.C. 7405] INTERSTATE AIR QUALITY AGENCIES OR COMMISSIONS SEC. 106. For the purpose of developing implementation plans for any interstate air quality control region designated pursuant to section 107 or of implementing section 176A (relating to control of interstate air pollution) or section 184 (relating to control of inter state ozone pollution), the Administrator is authorized to pay, for two years, up to 100 per centum of the air quality planning pro gram costs of any commission established under section 176A (re lating to control of interstate air pollution) or section 184 (relating to control of interstate ozone pollution) or any agency designated by the Governors of the affected States, which agency shall be ca pable of recommending to the Governors plans for implementation of national primary and secondary ambient air quality standards and shall include representation from the States and appropriate political subdivisions within the air quality control region. After the initial two-year period the Administrator is authorized to make grants to such agency or such commission in an amount up to three-fifths of the air quality implementation program costs of 1 such agency or commission. [42 U.S.C. 7406] AIR QUALITY CONTROL REGIONS SEC. 107. (a) Each State shall have the primary responsibility for assuring air quality within the entire geographic area com prising such State by submitting an implementation plan for such Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 21 Sec. 107CLEAN AIR ACT State which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region in such State. (b) For purposes of developing and carrying out implementa tion plans under section 110— (1) an air quality control region designated under this sec tion before the date of enactment of the Clean Air Amend ments of 1970, or a region designated after such date under subsection (c), shall be an air quality control region; and (2) the portion of such State which is not part of any such designated region shall be an air quality control region, but such portion may be subdivided by the State into two or more air quality control regions with the approval of the Adminis trator. (c) The Administrator shall, within 90 days after the date of enactment of the Clean Air Amendments of 1970, after consultation with appropriate State and local authorities, designate as an air quality control region any interstate area or major intrastate area which he deems necessary or appropriate for the attainment and maintenance of ambient air quality standards. The Administrator shall immediately notify the Governors of the affected States of any designation made under this subsection. (d) DESIGNATIONS.— (1) DESIGNATIONS GENERALLY.— (A) SUBMISSION BY GOVERNORS OF INITIAL DESIGNA TIONS FOLLOWING PROMULGATION OF NEW OR REVISED STANDARDS.—By such date as the Administrator may rea sonably require, but not later than 1 year after promulga tion of a new or revised national ambient air quality standard for any pollutant under section 109, the Governor of each State shall (and at any other time the Governor of a State deems appropriate the Governor may) submit to the Administrator a list of all areas (or portions thereof) in the State, designating as— (i) nonattainment, any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or sec ondary ambient air quality standard for the pollutant, (ii) attainment, any area (other than an area iden tified in clause (i)) that meets the national primary or secondary ambient air quality standard for the pollut ant, or (iii) unclassifiable, any area that cannot be classi fied on the basis of available information as meeting or not meeting the national primary or secondary am bient air quality standard for the pollutant. The Administrator may not require the Governor to sub mit the required list sooner than 120 days after promul gating a new or revised national ambient air quality standard. (B) PROMULGATION BY EPA OF DESIGNATIONS.—(i) Upon promulgation or revision of a national ambient air quality standard, the Administrator shall promulgate the designa tions of all areas (or portions thereof) submitted under Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 22Sec. 107 CLEAN AIR ACT subparagraph (A) as expeditiously as practicable, but in no case later than 2 years from the date of promulgation of the new or revised national ambient air quality standard. Such period may be extended for up to one year in the event the Administrator has insufficient information to promulgate the designations. (ii) In making the promulgations required under clause (i), the Administrator may make such modifications as the Administrator deems necessary to the designations of the areas (or portions thereof) submitted under subpara graph (A) (including to the boundaries of such areas or portions thereof). Whenever the Administrator intends to make a modification, the Administrator shall notify the State and provide such State with an opportunity to dem onstrate why any proposed modification is inappropriate. The Administrator shall give such notification no later than 120 days before the date the Administrator promul gates the designation, including any modification thereto. If the Governor fails to submit the list in whole or in part, as required under subparagraph (A), the Administrator shall promulgate the designation that the Administrator deems appropriate for any area (or portion thereof) not designated by the State. (iii) If the Governor of any State, on the Governor’s own motion, under subparagraph (A), submits a list of areas (or portions thereof) in the State designated as non attainment, attainment, or unclassifiable, the Adminis trator shall act on such designations in accordance with the procedures under paragraph (3) (relating to redesigna tion). (iv) A designation for an area (or portion thereof) made pursuant to this subsection shall remain in effect until the area (or portion thereof) is redesignated pursuant to paragraph (3) or (4). (C) DESIGNATIONS BY OPERATION OF LAW.—(i) Any area designated with respect to any air pollutant under the pro visions of paragraph (1) (A), (B), or (C) of this subsection (as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990) is designated, by operation of law, as a nonattainment area for such pol lutant within the meaning of subparagraph (A)(i). (ii) Any area designated with respect to any air pollut ant under the provisions of paragraph (1)(E) (as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990) is designated by operation of law, as an attainment area for such pollutant within the meaning of subparagraph (A)(ii). (iii) Any area designated with respect to any air pol lutant under the provisions of paragraph (1)(D) (as in ef fect immediately before the date of the enactment of the Clean Air Act Amendments of 1990) is designated, by oper ation of law, as an unclassifiable area for such pollutant within the meaning of subparagraph (A)(iii). Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 23 Sec. 107CLEAN AIR ACT (2) PUBLICATION OF DESIGNATIONS AND REDESIGNATIONS.— (A) The Administrator shall publish a notice in the Federal Register promulgating any designation under paragraph (1) or (5), or announcing any designation under paragraph (4), or pro mulgating any redesignation under paragraph (3). (B) Promulgation or announcement of a designation under paragraph (1), (4) or (5) shall not be subject to the provisions of sections 553 through 557 of title 5 of the United States Code (relating to notice and comment), except nothing herein shall be construed as precluding such public notice and comment whenever possible. (3) REDESIGNATION.—(A) Subject to the requirements of subparagraph (E), and on the basis of air quality data, plan ning and control considerations, or any other air quality-re lated considerations the Administrator deems appropriate, the Administrator may at any time notify the Governor of any State that available information indicates that the designation of any area or portion of an area within the State or interstate area should be revised. In issuing such notification, which shall be public, to the Governor, the Administrator shall provide such information as the Administrator may have available ex plaining the basis for the notice. (B) No later than 120 days after receiving a notification under subparagraph (A), the Governor shall submit to the Ad ministrator such redesignation, if any, of the appropriate area (or areas) or portion thereof within the State or interstate area, as the Governor considers appropriate. (C) No later than 120 days after the date described in sub paragraph (B) (or paragraph (1)(B)(iii)), the Administrator shall promulgate the redesignation, if any, of the area or por tion thereof, submitted by the Governor in accordance with subparagraph (B), making such modifications as the Adminis trator may deem necessary, in the same manner and under the same procedure as is applicable under clause (ii) of paragraph (1)(B), except that the phrase ‘‘60 days’’ shall be substituted for the phrase ‘‘120 days’’ in that clause. If the Governor does not submit, in accordance with subparagraph (B), a redesignation for an area (or portion thereof) identified by the Administrator under subparagraph (A), the Administrator shall promulgate such redesignation, if any, that the Administrator deems ap propriate. (D) The Governor of any State may, on the Governor’s own motion, submit to the Administrator a revised designation of any area or portion thereof within the State. Within 18 months of receipt of a complete State redesignation submittal, the Ad ministrator shall approve or deny such redesignation. The sub mission of a redesignation by a Governor shall not affect the effectiveness or enforceability of the applicable implementation plan for the State. (E) The Administrator may not promulgate a redesignation of a nonattainment area (or portion thereof) to attainment unless— (i) the Administrator determines that the area has at tained the national ambient air quality standard; Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 24Sec. 107 CLEAN AIR ACT (ii) the Administrator has fully approved the applica ble implementation plan for the area under section 110(k); (iii) the Administrator determines that the improve ment in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (iv) the Administrator has fully approved a mainte nance plan for the area as meeting the requirements of section 175A; and (v) the State containing such area has met all require ments applicable to the area under section 110 and part D. (F) The Administrator shall not promulgate any redesigna tion of any area (or portion thereof) from nonattainment to unclassifiable. (4) NONATTAINMENT DESIGNATIONS FOR OZONE, CARBON MONOXIDE AND PARTICULATE MATTER (PM–10).— (A) OZONE AND CARBON MONOXIDE.—(i) Within 120 days after the date of the enactment of the Clean Air Act Amendments of 1990, each Governor of each State shall submit to the Administrator a list that designates, affirms or reaffirms the designation of, or redesignates (as the case may be), all areas (or portions thereof) of the Governor’s State as attainment, nonattainment, or unclassifiable with respect to the national ambient air quality standards for ozone and carbon monoxide. (ii) No later than 120 days after the date the Governor is required to submit the list of areas (or portions thereof) required under clause (i) of this subparagraph, the Admin istrator shall promulgate such designations, making such modifications as the Administrator may deem necessary, in the same manner, and under the same procedure, as is applicable under clause (ii) of paragraph (1)(B), except that the phrase ‘‘60 days’’ shall be substituted for the phrase ‘‘120 days’’ in that clause. If the Governor does not submit, in accordance with clause (i) of this subparagraph, a des ignation for an area (or portion thereof), the Administrator shall promulgate the designation that the Administrator deems appropriate. (iii) No nonattainment area may be redesignated as an attainment area under this subparagraph. (iv) Notwithstanding paragraph (1)(C)(ii) of this sub section, if an ozone or carbon monoxide nonattainment area located within a metropolitan statistical area or con solidated metropolitan statistical area (as established by the Bureau of the Census) is classified under part D of this title as a Serious, Severe, or Extreme Area, the boundaries of such area are hereby revised (on the date 45 days after such classification) by operation of law to include the en tire metropolitan statistical area or consolidated metropoli tan statistical area, as the case may be, unless within such 45-day period the Governor (in consultation with State and local air pollution control agencies) notifies the Adminis Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 25 Sec. 107CLEAN AIR ACT trator that additional time is necessary to evaluate the ap plication of clause (v). Whenever a Governor has submitted such a notice to the Administrator, such boundary revision shall occur on the later of the date 8 months after such classification or 14 months after the date of the enactment of the Clean Air Act Amendments of 1990 unless the Gov ernor makes the finding referred to in clause (v), and the Administrator concurs in such finding, within such period. Except as otherwise provided in this paragraph, a bound ary revision under this clause or clause (v) shall apply for purposes of any State implementation plan revision re quired to be submitted after the date of the enactment of the Clean Air Act Amendments of 1990. (v) Whenever the Governor of a State has submitted a notice under clause (iv), the Governor, in consultation with State and local air pollution control agencies, shall undertake a study to evaluate whether the entire metro politan statistical area or consolidated metropolitan statis tical area should be included within the nonattainment area. Whenever a Governor finds and demonstrates to the satisfaction of the Administrator, and the Administrator concurs in such finding, that with respect to a portion of a metropolitan statistical area or consolidated metropoli tan statistical area, sources in the portion do not con tribute significantly to violation of the national ambient air quality standard, the Administrator shall approve the Governor’s request to exclude such portion from the non attainment area. In making such finding, the Governor and the Administrator shall consider factors such as popu lation density, traffic congestion, commercial development, industrial development, meteorological conditions, and pol lution transport. (B) PM–10 DESIGNATIONS.—By operation of law, until redesignation by the Administrator pursuant to paragraph (3)— (i) each area identified in 52 Federal Register 29383 (Aug. 7, 1987) as a Group I area (except to the extent that such identification was modified by the Administrator before the date of the enactment of the Clean Air Act Amendments of 1990) is designated non attainment for PM–10; (ii) any area containing a site for which air quality monitoring data show a violation of the national ambi ent air quality standard for PM–10 before January 1, 1989 (as determined under part 50, appendix K of title 40 of the Code of Federal Regulations) is hereby des ignated nonattainment for PM–10; and (iii) each area not described in clause (i) or (ii) is hereby designated unclassifiable for PM–10. Any designation for particulate matter (measured in terms of total suspended particulates) that the Administrator promulgated pursuant to this subsection (as in effect im mediately before the date of the enactment of the Clean Air Act Amendments of 1990) shall remain in effect for Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 26Sec. 107 CLEAN AIR ACT purposes of implementing the maximum allowable in creases in concentrations of particulate matter (measured in terms of total suspended particulates) pursuant to sec tion 163(b), until the Administrator determines that such designation is no longer necessary for that purpose. (5) DESIGNATIONS FOR LEAD.—The Administrator may, in the Administrator’s discretion at any time the Administrator deems appropriate, require a State to designate areas (or por tions thereof) with respect to the national ambient air quality standard for lead in effect as of the date of the enactment of the Clean Air Act Amendments of 1990, in accordance with the procedures under subparagraphs (A) and (B) of paragraph (1), except that in applying subparagraph (B)(i) of paragraph (1) the phrase ‘‘2 years from the date of promulgation of the new or revised national ambient air quality standard’’ shall be re placed by the phrase ‘‘1 year from the date the Administrator notifies the State of the requirement to designate areas with respect to the standard for lead’’. (6) DESIGNATIONS.— (A) SUBMISSION.—Notwithstanding any other provision of law, not later than February 15, 2004, the Governor of each State shall submit designations referred to in para graph (1) for the July 1997 PM2.5 national ambient air quality standards for each area within the State, based on air quality monitoring data collected in accordance with any applicable Federal reference methods for the relevant areas. (B) PROMULGATION.—Notwithstanding any other pro vision of law, not later than December 31, 2004, the Ad ministrator shall, consistent with paragraph (1), promul gate the designations referred to in subparagraph (A) for each area of each State for the July 1997 PM2.5 national ambient air quality standards. (7) IMPLEMENTATION PLAN FOR REGIONAL HAZE.— (A) IN GENERAL.—Notwithstanding any other provision of law, not later than 3 years after the date on which the Administrator promulgates the designations referred to in paragraph (6)(B) for a State, the State shall submit, for the entire State, the State implementation plan revisions to meet the requirements promulgated by the Adminis trator under section 169B(e)(1) (referred to in this para graph as ‘‘regional haze requirements’’). (B) NO PRECLUSION OF OTHER PROVISIONS.—Nothing in this paragraph precludes the implementation of the agree ments and recommendations stemming from the Grand Canyon Visibility Transport Commission Report dated June 1996, including the submission of State implementa tion plan revisions by the States of Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Utah, or Wyoming by December 31, 2003, for implementation of re gional haze requirements applicable to those States. (e)(1) Except as otherwise provided in paragraph (2), the Gov ernor of each State is authorized, with the approval of the Adminis trator, to redesignate from time to time the air quality control re Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 27 Sec. 108CLEAN AIR ACT gions within such State for purposes of efficient and effective air quality management. Upon such redesignation, the list under sub section (d) shall be modified accordingly. (2) In the case of an air quality control region in a State, or part of such region, which the Administrator finds may signifi cantly affect air pollution concentrations in another State, the Gov ernor of the State in which such region, or part of a region, is lo cated may redesignate from time to time the boundaries of so much of such air quality control region as is located within such State only with the approval of the Administrator and with the consent of all Governors of all States which the Administrator determines may be significantly affected. (3) No compliance date extension granted under section 113(d)(5) (relating to coal conversion) shall cease to be effective by reason of the regional limitation provided in section 113(d)(5) if the violation of such limitation is due solely to a redesignation of a re gion under this subsection. [42 U.S.C. 7407] AIR QUALITY CRITERIA AND CONTROL TECHNIQUES SEC. 108. (a)(1) For the purpose of establishing national pri mary and secondary ambient air quality standards, the Adminis trator shall within 30 days after the date of enactment of the Clean Air Amendments of 1970 publish, and shall from time to time thereafter revise, a list which includes each air pollutant— (A) emissions of which, in his judgment, cause or con tribute to air pollution which may reasonably be anticipated to endanger public health or welfare; (B) the presence of which in the ambient air results from numerous or diverse mobile or stationary sources; and (C) for which air quality criteria had not been issued be fore the date of enactment of the Clean Air Amendments of 1970, but for which he plans to issue air quality criteria under this section. (2) The Administrator shall issue air quality criteria for an air pollutant within 12 months after he has included such pollutant in a list under paragraph (1). Air quality criteria for an air pollutant shall accurately reflect the latest scientific knowledge useful in in dicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air, in varying quantities. The criteria for an air pollutant, to the extent practicable, shall include information on— (A) those variable factors (including atmospheric condi tions) which of themselves or in combination with other factors may alter the effects on public health or welfare of such air pollutant; (B) the types of air pollutants which, when present in the atmosphere, may interact with such pollutant to produce an adverse effect on public health or welfare; and (C) any known or anticipated adverse effects on welfare. (b)(1) Simultaneously with the issuance of criteria under sub section (a), the Administrator shall, after consultation with appro Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 28Sec. 108 CLEAN AIR ACT 1 So in original. Probably should be ‘‘1990’’. priate advisory committees and Federal departments and agencies, issue to the States and appropriate air pollution control agencies information on air pollution control techniques, which information shall include data relating to the cost of installation and operation, energy requirements, emission reduction benefits, and environ mental impact of the emission control technology. Such information shall include such data as are available on available technology and alternative methods of prevention and control of air pollution. Such information shall also include data on alternative fuels, proc esses, and operating methods which will result in elimination or significant reduction of emissions. (2) In order to assist in the development of information on pol lution control techniques, the Administrator may establish a stand ing consulting committee for each air pollutant included in a list published pursuant to subsection (a)(1), which shall be comprised of technically qualified individuals representative of State and local governments, industry, and the economic community. Each such committee shall submit, as appropriate, to the Administrator infor mation related to that required by paragraph (1). (c) The Administrator shall from time to time review, and, as appropriate, modify, and reissue any criteria or information on con trol techniques issued pursuant to this section. Not later than six months after the date of the enactment of the Clean Air Act Amendments of 1977, the Administrator shall revise and reissue criteria relating to concentrations of NO2 over such period (not more than three hours) as he deems appropriate. Such criteria shall include a discussion of nitric and nitrous acids, nitrites, ni trates, nitrosamines, and other carcinogenic and potentially car cinogenic derivatives of oxides of nitrogen. (d) The issuance of air quality criteria and information on air pollution control techniques shall be announced in the Federal Reg ister and copies shall be made available to the general public. (e) The Administrator shall, after consultation with the Sec retary of Transportation, and after providing public notice and op portunity for comment, and with State and local officials, within nine months after enactment of the Clean Air Act Amendments of 1989 1 and periodically thereafter as necessary to maintain a con tinuous transportation-air quality planning process, update the June 1978 Transportation-Air Quality Planning Guidelines and publish guidance on the development and implementation of trans portation and other measures necessary to demonstrate and main tain attainment of national ambient air quality standards. Such guidelines shall include information on— (1) methods to identify and evaluate alternative planning and control activities; (2) methods of reviewing plans on a regular basis as condi tions change or new information is presented; (3) identification of funds and other resources necessary to implement the plan, including interagency agreements on pro viding such funds and resources; (4) methods to assure participation by the public in all phases of the planning process; and Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 29 Sec. 108CLEAN AIR ACT (5) such other methods as the Administrator determines necessary to carry out a continuous planning process. (f)(1) The Administrator shall publish and make available to appropriate Federal, State, and local environmental and transpor tation agencies not later than one year after enactment of the Clean Air Act Amendments of 1990, and from time to time thereafter— (A) information prepared, as appropriate, in consultation with the Secretary of Transportation, and after providing pub lic notice and opportunity for comment, regarding the formula tion and emission reduction potential of transportation control measures related to criteria pollutants and their precursors, in cluding, but not limited to— (i) programs for improved public transit; (ii) restriction of certain roads or lanes to, or construc tion of such roads or lanes for use by, passenger buses or high occupancy vehicles; (iii) employer-based transportation management plans, including incentives; (iv) trip-reduction ordinances; (v) traffic flow improvement programs that achieve emission reductions; (vi) fringe and transportation corridor parking facili ties serving multiple occupancy vehicle programs or transit service; (vii) programs to limit or restrict vehicle use in down town areas or other areas of emission concentration par ticularly during periods of peak use; (viii) programs for the provision of all forms of high occupancy, shared-ride services; (ix) programs to limit portions of road surfaces or cer tain sections of the metropolitan area to the use of non-mo torized vehicles or pedestrian use, both as to time and place; (x) programs for secure bicycle storage facilities and other facilities, including bicycle lanes, for the convenience and protection of bicyclists, in both public and private areas; (xi) programs to control extended idling of vehicles; (xii) programs to reduce motor vehicle emissions, con sistent with title II, which are caused by extreme cold start conditions; (xiii) employer-sponsored programs to permit flexible work schedules; (xiv) programs and ordinances to facilitate non-auto mobile travel, provision and utilization of mass transit, and to generally reduce the need for single-occupant vehi cle travel, as part of transportation planning and develop ment efforts of a locality, including programs and ordi nances applicable to new shopping centers, special events, and other centers of vehicle activity; (xv) programs for new construction and major recon structions of paths, tracks or areas solely for the use by pe destrian or other non-motorized means of transportation Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 30Sec. 108 CLEAN AIR ACT when economically feasible and in the public interest. For purposes of this clause, the Administrator shall also con sult with the Secretary of the Interior; and (xvi) program to encourage the voluntary removal from use and the marketplace of pre-1980 model year light duty vehicles and pre-1980 model light duty trucks. (B) information on additional methods or strategies that will contribute to the reduction of mobile source related pollut ants during periods in which any primary ambient air quality standard will be exceeded and during episodes for which an air pollution alert, warning, or emergency has been declared; (C) information on other measures which may be employed to reduce the impact on public health or protect the health of sensitive or susceptible individuals or groups; and (D) information on the extent to which any process, proce dure, or method to reduce or control such air pollutant may cause an increase in the emissions or formation of any other pollutant. (2) In publishing such information the Administrator shall also include an assessment of— (A) the relative effectiveness of such processes, procedures, and methods; (B) the potential effect of such processes, procedures, and methods on transportation system and the provision of trans portation services; and (C) the environmental, energy, and economic impact of such processes, procedures, and methods. (3) The Secretary of Transportation and the Administrator shall submit to Congress by January 1, 1993, and every 3 years thereafter a report that— (A) reviews and analyzes existing State and local air qual ity-related transportation programs, including specifically any analyses of whether adequate funding is available to complete transportation projects identified in State implementation plans in the time required by applicable State implementation plans and any Federal efforts to promote those programs; (B) evaluates the extent to which the Department of Transportation’s existing air quality-related transportation pro grams and such Department’s proposed budget will achieve the goals of and compliance with this Act; and (C) recommends what, if any, changes to such existing pro grams and proposed budget as well as any statutory authority relating to air quality-related transportation programs that would improve the achievement of the goals of and compliance with the Clean Air Act. (4) In each report to Congress after the first report required under paragraph (3), the Secretary of Transportation shall include a description of the actions taken to implement the changes rec ommended in the preceding report. (g) ASSESSMENT OF RISKS TO ECOSYSTEMS.—The Administrator may assess the risks to ecosystems from exposure to criteria air pollutants (as identified by the Administrator in the Administra tor’s sole discretion). Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 31 Sec. 109CLEAN AIR ACT (h) RACT/BACT/LAER CLEARINGHOUSE.—The Administrator shall make information regarding emission control technology available to the States and to the general public through a central database. Such information shall include all control technology in formation received pursuant to State plan provisions requiring per mits for sources, including operating permits for existing sources. [42 U.S.C. 7408] NATIONAL AMBIENT AIR QUALITY STANDARDS SEC. 109. (a)(1) The Administrator— (A) within 30 days after the date of enactment of the Clean Air Amendments of 1970, shall publish proposed regulations prescribing a national primary ambient air quality standard and a national secondary ambient air quality standard for each air pollutant for which air quality criteria have been issued prior to such date of enactment; and (B) after a reasonable time for interested persons to sub mit written comments thereon (but no later than 90 days after the initial publication of such proposed standards) shall by reg ulation promulgate such proposed national primary and sec ondary ambient air quality standards with such modifications as he deems appropriate. (2) With respect to any air pollutant for which air quality cri teria are issued after the date of enactment of the Clean Air Amendments of 1970, the Administrator shall publish, simulta neously with the issuance of such criteria and information, pro posed national primary and secondary ambient air quality stand ards for any such pollutant. The procedure provided for in para graph (1)(B) of this subsection shall apply to the promulgation of such standards. (b)(1) National primary ambient air quality standards, pre scribed, under subsection (a) shall be ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health. Such primary standards may be revised in the same manner as promul gated. (2) Any national secondary ambient air quality standard pre scribed, under subsection (a) shall specify a level of air quality the attainment and maintenance of which in the judgment of the Ad ministrator, based on such criteria, is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air. Such secondary standards may be revised in the same manner as pro mulgated. (c) The Administrator shall, not later than one year after the date of the enactment of the Clean Air Act Amendments of 1977, promulgate a national primary ambient air quality standard for NO2 concentrations over a period of not more than 3 hours unless, based on the criteria issued under section 108(c), he finds that there is no significant evidence that such a standard for such a pe riod is requisite to protect public health. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 32Sec. 110 CLEAN AIR ACT (d)(1) Not later than December 31, 1980, and at five-year inter vals thereafter, the Administrator shall complete a thorough review of the criteria published under section 108 and the national ambi ent air quality standards promulgated under this section and shall make such revisions in such criteria and standards and promulgate such new standards as may be appropriate in accordance with sec tion 108 and subsection (b) of this section. The Administrator may review and revise criteria or promulgate new standards earlier or more frequently than required under this paragraph. (2)(A) The Administrator shall appoint an independent sci entific review committee composed of seven members including at least one member of the National Academy of Sciences, one physician, and one person representing State air pollution con trol agencies. (B) Not later than January 1, 1980, and at five-year intervals thereafter, the committee referred to in subparagraph (A) shall complete a review of the criteria published under section 108 and the national primary and secondary ambient air quality standards promulgated under this section and shall recommend to the Admin istrator any new national ambient air quality standards and revi sions of existing criteria and standards as may be appropriate under section 108 and subsection (b) of this section. (C) Such committee shall also (i) advise the Administrator of areas in which additional knowledge is required to appraise the adequacy and basis of existing, new, or revised national ambient air quality standards, (ii) describe the research efforts necessary to provide the required information, (iii) advise the Administrator on the relative contribution to air pollution concentrations of natural as well as anthropogenic activity, and (iv) advise the Administrator of any adverse public health, welfare, social, economic, or energy ef fects which may result from various strategies for attainment and maintenance of such national ambient air quality standards. [42 U.S.C. 7409] IMPLEMENTATION PLANS SEC. 110. (a)(1) Each State shall, after reasonable notice and public hearings, adopt and submit to the Administrator, within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof) under section 109 for any air pol lutant, a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality con trol region (or portion thereof) within such State. In addition, such State shall adopt and submit to the Administrator (either as a part of a plan submitted under the preceding sentence or separately) within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national ambient air quality secondary standard (or revision thereof), a plan which provides for implementation, maintenance, and enforcement of such secondary standard in each air quality control region (or portion thereof) within such State. Unless a separate public hearing is provided, each State shall consider its plan implementing such secondary Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 33 Sec. 110CLEAN AIR ACT standard at the hearing required by the first sentence of this para graph. (2) Each implementation plan submitted by a State under this Act shall be adopted by the State after reasonable notice and public hearing. Each such plan shall— (A) include enforceable emission limitations and other con trol measures, means, or techniques (including economic incen tives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for com pliance, as may be necessary or appropriate to meet the appli cable requirements of this Act; (B) provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to— (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Ad ministrator; (C) include a program to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that na tional ambient air quality standards are achieved, including a permit program as required in parts C and D; (D) contain adequate provisions— (i) prohibiting, consistent with the provisions of this title, any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will— (I) contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary am bient air quality standard, or (II) interfere with measures required to be in cluded in the applicable implementation plan for any other State under part C to prevent significant dete rioration of air quality or to protect visibility, (ii) insuring compliance with the applicable require ments of sections 126 and 115 (relating to interstate and international pollution abatement); (E) provide (i) necessary assurances that the State (or, ex cept where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by the State or general purpose local governments for such purpose) will have adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of Federal or State law from carrying out such imple mentation plan or portion thereof), (ii) requirements that the State comply with the requirements respecting State boards under section 128, and (iii) necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provi sion, the State has responsibility for ensuring adequate imple mentation of such plan provision; Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 34Sec. 110 CLEAN AIR ACT (F) require, as may be prescribed by the Administrator— (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to mon itor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and (iii) correlation of such reports by the State agency with any emission limitations or standards established pursuant to this Act, which reports shall be available at reasonable times for public inspection; (G) provide for authority comparable to that in section 303 and adequate contingency plans to implement such authority; (H) provide for revision of such plan— (i) from time to time as may be necessary to take ac count of revisions of such national primary or secondary ambient air quality standard or the availability of im proved or more expeditious methods of attaining such standard, and (ii) except as provided in paragraph (3)(C), whenever the Administrator finds on the basis of information avail able to the Administrator that the plan is substantially in adequate to attain the national ambient air quality stand ard which it implements or to otherwise comply with any additional requirements established under this Act; (I) in the case of a plan or plan revision for an area des ignated as a nonattainment area, meet the applicable require ments of part D (relating to nonattainment areas); (J) meet the applicable requirements of section 121 (relat ing to consultation), section 127 (relating to public notification), and part C (relating to prevention of significant deterioration of air quality and visibility protection); (K) provide for— (i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a national ambient air quality standard, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator; (L) require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this Act, a fee sufficient to cover— (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforce ment action), until such fee requirement is superseded with respect to such sources by the Administrator’s approval of a fee program under title V; and Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 35 Sec. 110CLEAN AIR ACT 1 Subparagraph (A) was repealed by section 101(d)(1) of Public Law 101–549 (104 Stat. 2409). 2 Section 113(d) was amended by section 701 of Public Law 101–549 (104 Stat. 2672) without conforming this reference. 1 Paragraph (4) was repealed by section 101(d)(2) of Public Law 101–549 (104 Stat. 2409). (M) provide for consultation and participation by local po litical subdivisions affected by the plan. (3) [(A)] 1 (B) As soon as practicable, the Administrator shall, consistent with the purposes of this Act and the Energy Supply and Environ mental Coordination Act of 1974, review each State’s applicable im plementation plans and report to the State on whether such plans can be revised in relation to fuel burning stationary sources (or persons supplying fuel to such sources) without interfering with the attainment and maintenance of any national ambient air quality standard within the period permitted in this section. If the Admin istrator determines that any such plan can be revised, he shall no tify the State that a plan revision may be submitted by the State. Any plan revision which is submitted by the State shall, after pub lic notice and opportunity for public hearing, be approved by the Administrator if the revision relates only to fuel burning stationary sources (or persons supplying fuel to such sources), and the plan as revised complies with paragraph (2) of this subsection. The Ad ministrator shall approve or disapprove any revision no later than three months after its submission. (C) Neither the State, in the case of a plan (or portion thereof) approved under this subsection, nor the Administrator, in the case of a plan (or portion thereof) promulgated under subsection (c), shall be required to revise an applicable implementation plan be cause one or more exemptions under section 118 (relating to Fed eral facilities), enforcement orders under section 113(d), 2 suspen sions under section 110 (f) or (g) (relating to temporary energy or economic authority), orders under section 119 (relating to primary nonferrous smelters), or extensions of compliance in decrees en tered under section 113(e) (relating to iron- and steel-producing op erations) have been granted, if such plan would have met the re quirements of this section if no such exemptions, orders, or exten sions had been granted. [(4)] 1 (5)(A)(i) Any State may include in a State implementation plan, but the Administrator may not require as a condition of ap proval of such plan under this section, any indirect source review program. The Administrator may approve and enforce, as part of an applicable implementation plan, an indirect source review pro gram which the State chooses to adopt and submit as part of its plan. (ii) Except as provided in subparagraph (B), no plan promul gated by the Administrator shall include any indirect source review program for any air quality control region, or portion thereof. (iii) Any State may revise an applicable implementation plan approved under section 110(a) to suspend or revoke any such pro gram included in such plan, provided that such plan meets the re quirements of this section. (B) The Administrator shall have the authority to promulgate, implement and enforce regulations under section 110(c) respecting Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 36Sec. 110 CLEAN AIR ACT 1 See footnote 2 on page 34. indirect source review programs which apply only to federally as sisted highways, airports, and other major federally assisted indi rect sources and federally owned or operated indirect sources. (C) For purposes of this paragraph, the term ‘‘indirect source’’ means a facility, building, structure, installation, real property, road, or highway which attracts, or may attract, mobile sources of pollution. Such term includes parking lots, parking garages, and other facilities subject to any measure for management of parking supply (within the meaning of section 110(c)(2)(D)(ii)), including regulation of existing off-street parking but such term does not in clude new or existing on-street parking. Direct emissions sources or facilities at, within, or associated with, any indirect source shall not be deemed indirect sources for the purpose of this paragraph. (D) For purposes of this paragraph the term ‘‘indirect source review program’’ means the facility-by-facility review of indirect sources of air pollution, including such measures as are necessary to assure, or assist in assuring, that a new or modified indirect source will not attract mobile sources of air pollution, the emissions from which would cause or contribute to air pollution concentrations— (i) exceeding any national primary ambient air quality standard for a mobile source-related air pollutant after the pri mary standard attainment date, or (ii) preventing maintenance of any such standard after such date. (E) For purposes of this paragraph and paragraph (2)(B), the term ‘‘transportation control measure’’ does not include any meas ure which is an ‘‘indirect source review program’’. (6) No State plan shall be treated as meeting the requirements of this section unless such plan provides that in the case of any source which uses a supplemental, or intermittent control system for purposes of meeting the requirements of an order under section 113(d) 1 or section 119 (relating to primary nonferrous smelter or ders), the owner or operator of such source may not temporarily re duce the pay of any employee by reason of the use of such supple mental or intermittent or other dispersion dependent control sys tem. (b) The Administrator may, wherever he determines necessary, extend the period for submission of any plan or portion thereof which implements a national secondary ambient air-quality stand ard for a period not to exceed eighteen months from the date other wise required for submission of such plan. (c)(1) The Administrator shall promulgate a Federal implemen tation plan at any time within 2 years after the Administrator— (A) finds that a State has failed to make a required sub mission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under section 110(k)(1)(A), or (B) disapproves a State implementation plan submission in whole or in part, Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 37 Sec. 110CLEAN AIR ACT 2 Subparagraph (A) was repealed by section 101(d)(3) of Public Law 101–549 (104 Stat. 2409). 3 Subparagraph (C) was repealed by section 101(d)(3) of Public Law 101–549, (104 Stat. 2409). 1 Paragraph (4) was repealed by section 101(d)(3) of Public Law 101–549 (104 Stat. 2409). unless the State corrects the deficiency, and the Administrator ap proves the plan or plan revision, before the Administrator promul gates such Federal implementation plan. (2) [(A)] 2 (B) No parking surcharge regulation may be required by the Administrator under paragraph (1) of this subsection as a part of an applicable implementation plan. All parking surcharge regula tions previously required by the Administrator shall be void upon the date of enactment of this subparagraph. This subparagraph shall not prevent the Administrator from approving parking sur charges if they are adopted and submitted by a State as part of an applicable implementation plan. The Administrator may not condi tion approval of any implementation plan submitted by a State on such plan’s including a parking surcharge regulation. [(C)] 3 (D) For purposes of this paragraph— (i) The term ‘‘parking surcharge regulation’’ means a regu lation imposing or requiring the imposition of any tax, sur charge, fee, or other charge on parking spaces, or any other area used for the temporary storage of motor vehicles. (ii) The term ‘‘management of parking supply’’ shall in clude any requirement providing that any new facility con taining a given number of parking spaces shall receive a per mit or other prior approval, issuance of which is to be condi tioned on air quality considerations. (iii) The term ‘‘preferential bus/carpool lane’’ shall include any requirement for the setting aside of one or more lanes of a street or highway on a permanent or temporary basis for the exclusive use of buses or carpools, or both. (E) No standard, plan, or requirement, relating to management of parking supply or preferential bus/carpool lanes shall be promul gated after the date of enactment of this paragraph by the Admin istrator pursuant to this section, unless such promulgation has been subjected to at least one public hearing which has been held in the area affected and for which reasonable notice has been given in such area. If substantial changes are made following public hearings, one or more additional hearings shall be held in such area after such notice. (3) Upon application of the chief executive officer of any gen eral purpose unit of local government, if the Administrator deter mines that such unit has adequate authority under State or local law, the Administrator may delegate to such unit the authority to implement and enforce within the jurisdiction of such unit any part of a plan promulgated under this subsection. Nothing in this para graph shall prevent the Administrator from implementing or en forcing any applicable provision of a plan promulgated under this subsection. (5) 1(A) Any measure in an applicable implementation plan which requires a toll or other charge for the use of a bridge located entirely within one city shall be eliminated from such plan by the Administrator upon application by the Governor of the State, which Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 38Sec. 110 CLEAN AIR ACT application shall include a certification by the Governor that he will revise such plan in accordance with subparagraph (B). (B) In the case of any applicable implementation plan with re spect to which a measure has been eliminated under subparagraph (A), such plan shall, not later than one year after the date of the enactment of this subparagraph, be revised to include comprehen sive measures to: (i) establish, expand, or improve public transportation measures to meet basic transportation needs, as expeditiously as is practicable; and (ii) implement transportation control measures necessary to attain and maintain national ambient air quality standards, and such revised plan shall, for the purpose of implementing such comprehensive public transportation measures, include require ments to use (insofar as is necessary) Federal grants, State or local funds, or any combination of such grants and funds as may be con sistent with the terms of the legislation providing such grants and funds. Such measures shall, as a substitute for the tolls or charges eliminated under subparagraph (A), provide for emissions reduc tions equivalent to the reductions which may reasonably be ex pected to be achieved through the use of the tolls or charges elimi nated. (C) Any revision of any implementation plan for purposes of meeting the requirements of subparagraph (B) shall be submitted in coordination with any plan revision required under part D. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 39 Sec. 110CLEAN AIR ACT 1 Subsections (d) and (e) were repealed by section 101(d) of Public Law 101–549 (104 Stat. 2409). Subsection (d) is still referred to in section 404(b) of Public Law 95–620 (42 U.S.C. 8374(d)). 2 Section 412 of Public Law 101–549 (104 Stat. 2634) amended section 110(f)(1) by inserting ‘‘or of any requirement under section 411 (concerning excess emissions penalties or offsets) of title IV of the Act’’ after ‘‘implmentation plan’’ without further specification. The words ‘‘imple mentation plan’’ appears in two places in section 110(f)(1). [(d)] 1 [(e)] 1 (f)(1) Upon application by the owner or operator of a fuel burn ing stationary source, and after notice and opportunity for public hearing, the Governor of the State in which such source is located may petition the President to determine that a national or regional energy emergency exists of such severity that— (A) a temporary suspension of any part of the applicable implementation plan 2 or any requirement under section 411 (concerning excess emissions penalties or offsets) of title IV of the Act may be necessary, and (B) other means of responding to the energy emergency may be inadequate. Such determination shall not be delegable by the President to any other person. If the President determines that a national or re gional energy emergency of such severity exists, a temporary emer gency suspension of any part of an applicable implementation plan 2 or any requirement under section 411 (concerning excess emissions penalties or offsets) of title IV of the Act adopted by the State may be issued by the Governor of any State covered by the President’s determination under the condition specified in para graph (2) and may take effect immediately. (2) A temporary emergency suspension under this subsection shall be issued to a source only if the Governor of such State finds that— (A) there exists in the vicinity of such source a temporary energy emergency involving high levels of unemployment or loss of necessary energy supplies for residential dwellings; and (B) such unemployment or loss can be totally or partially alleviated by such emergency suspension. Not more than one such suspension may be issued for any source on the basis of the same set of circumstances or on the basis of the same emergency. (3) A temporary emergency suspension issued by a Governor under this subsection shall remain in effect for a maximum of four months or such lesser period as may be specified in a disapproval order of the Administrator, if any. The Administrator may dis approve such suspension if he determines that it does not meet the requirements of paragraph (2). (4) This subsection shall not apply in the case of a plan provi sion or requirement promulgated by the Administrator under sub section (c) of this section, but in any such case the President may grant a temporary emergency suspension for a four month period of any such provision or requirement if he makes the determina tions and findings specified in paragraphs (1) and (2). (5) The Governor may include in any temporary emergency suspension issued under this subsection a provision delaying for a period identical to the period of such suspension any compliance Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 40Sec. 110 CLEAN AIR ACT 1 See footnote 2 on page 34. schedule (or increment of progress) to which such source is subject under section 119, as in effect before the date of the enactment of this paragraph or section 113(d) 1 of this Act, upon a finding that such source is unable to comply with such schedule (or increment) solely because of the conditions on the basis of which a suspension was issued under this subsection. (g)(1) In the case of any State which has adopted and sub mitted to the Administrator a proposed plan revision which the State determines— (A) meets the requirements of this section, and (B) is necessary (i) to prevent the closing for one year or more of any source of air pollution, and (ii) to prevent substan tial increases in unemployment which would result from such closing, and which the Administrator has not approved or disapproved under this section within 12 months of submission of the proposed plan revision, the Governor may issue a temporary emergency suspen sion of the part of the applicable implementation plan for such State which is proposed to be revised with respect to such source. The determination under subparagraph (B) may not be made with respect to a source which would close without regard whether or not the proposed plan revision is approved. (2) A temporary emergency suspension issued by a Governor under this subsection shall remain in effect for a maximum of four months or such lesser period as may be specified in a disapproval order of the Administrator. The Administrator may disapprove such suspension if he determines that it does not meet the require ments of this subsection. (3) The Governor may include in any temporary emergency suspension issued under this subsection a provision delaying for a period identical to the period of such suspension any compliance schedule (or increment of progress) to which such source is subject under section 119 as in effect before the date of the enactment of this paragraph, or under section 113(d) 1 upon a finding that such source is unable to comply with such schedule (or increment) solely because of the conditions on the basis of which a suspension was issued under this subsection. (h)(1) Not later than 5 years after the date of enactment of the Clean Air Act Amendments of 1990, and every three years there after, the Administrator shall assemble and publish a comprehen sive document for each State setting forth all requirements of the applicable implementation plan for such State and shall publish notice in the Federal Register of the availability of such documents. (2) The Administrator may promulgate such regulations as may be reasonably necessary to carry out the purpose of this sub section. (i) Except for a primary nonferrous smelter order under section 119, a suspension under section 110 (f) or (g) (relating to emer gency suspensions), an exemption under section 118 (relating to certain Federal facilities), an order under section 113(d) 1 (relating to compliance orders), a plan promulgation under section 110(c), or a plan revision under section 110(a)(3), no order, suspension, plan Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 41 Sec. 110CLEAN AIR ACT revision, or other action modifying any requirement of an applica ble implementation plan may be taken with respect to any sta tionary source by the State or by the Administrator. (j) As a condition for issuance of any permit required under this title, the owner or operator of each new or modified stationary source which is required to obtain such a permit must show to the satisfaction of the permitting authority that the technological sys tem of continuous emission reduction which is to be used will en able such source to comply with the standards of performance which are to apply to such source and that the construction or modification and operation of such source will be in compliance with all other requirements of this Act. (k) ENVIRONMENTAL PROTECTION AGENCY ACTION ON PLAN SUBMISSIONS.— (1) COMPLETENESS OF PLAN SUBMISSIONS.— (A) COMPLETENESS CRITERIA.—Within 9 months after the date of the enactment of the Clean Air Act Amend ments of 1990, the Administrator shall promulgate min imum criteria that any plan submission must meet before the Administrator is required to act on such submission under this subsection. The criteria shall be limited to the information necessary to enable the Administrator to de termine whether the plan submission complies with the provisions of this Act. (B) COMPLETENESS FINDING.—Within 60 days of the Administrator’s receipt of a plan or plan revision, but no later than 6 months after the date, if any, by which a State is required to submit the plan or revision, the Ad ministrator shall determine whether the minimum criteria established pursuant to subparagraph (A) have been met. Any plan or plan revision that a State submits to the Ad ministrator, and that has not been determined by the Ad ministrator (by the date 6 months after receipt of the sub mission) to have failed to meet the minimum criteria es tablished pursuant to subparagraph (A), shall on that date be deemed by operation of law to meet such minimum cri teria. (C) EFFECT OF FINDING OF INCOMPLETENESS.—Where the Administrator determines that a plan submission (or part thereof) does not meet the minimum criteria estab lished pursuant to subparagraph (A), the State shall be treated as not having made the submission (or, in the Ad ministrator’s discretion, part thereof). (2) DEADLINE FOR ACTION.—Within 12 months of a deter mination by the Administrator (or a determination deemed by operation of law) under paragraph (1) that a State has sub mitted a plan or plan revision (or, in the Administrator’s dis cretion, part thereof) that meets the minimum criteria estab lished pursuant to paragraph (1), if applicable (or, if those cri teria are not applicable, within 12 months of submission of the plan or revision), the Administrator shall act on the submis sion in accordance with paragraph (3). (3) FULL AND PARTIAL APPROVAL AND DISAPPROVAL.—In the case of any submittal on which the Administrator is required Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 42Sec. 110 CLEAN AIR ACT to act under paragraph (2), the Administrator shall approve such submittal as a whole if it meets all of the applicable re quirements of this Act. If a portion of the plan revision meets all the applicable requirements of this Act, the Administrator may approve the plan revision in part and disapprove the plan revision in part. The plan revision shall not be treated as meet ing the requirements of this Act until the Administrator ap proves the entire plan revision as complying with the applica ble requirements of this Act. (4) CONDITIONAL APPROVAL.—The Administrator may ap prove a plan revision based on a commitment of the State to adopt specific enforceable measures by a date certain, but not later than 1 year after the date of approval of the plan revi sion. Any such conditional approval shall be treated as a dis approval if the State fails to comply with such commitment. (5) CALLS FOR PLAN REVISIONS.—Whenever the Adminis trator finds that the applicable implementation plan for any area is substantially inadequate to attain or maintain the rel evant national ambient air quality standard, to mitigate ade quately the interstate pollutant transport described in section 176A or section 184, or to otherwise comply with any require ment of this Act, the Administrator shall require the State to revise the plan as necessary to correct such inadequacies. The Administrator shall notify the State of the inadequacies, and may establish reasonable deadlines (not to exceed 18 months after the date of such notice) for the submission of such plan revisions. Such findings and notice shall be public. Any finding under this paragraph shall, to the extent the Administrator deems appropriate, subject the State to the requirements of this Act to which the State was subject when it developed and submitted the plan for which such finding was made, except that the Administrator may adjust any dates applicable under such requirements as appropriate (except that the Adminis trator may not adjust any attainment date prescribed under part D, unless such date has elapsed). (6) CORRECTIONS.—Whenever the Administrator deter mines that the Administrator’s action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassifica tion was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such ac tion as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public. (l) PLAN REVISIONS.—Each revision to an implementation plan submitted by a State under this Act shall be adopted by such State after reasonable notice and public hearing. The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of this Act. (m) SANCTIONS.—The Administrator may apply any of the sanctions listed in section 179(b) at any time (or at any time after) the Administrator makes a finding, disapproval, or determination Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 43 Sec. 110CLEAN AIR ACT under paragraphs (1) through (4), respectively, of section 179(a) in relation to any plan or plan item (as that term is defined by the Administrator) required under this Act, with respect to any portion of the State the Administrator determines reasonable and appro priate, for the purpose of ensuring that the requirements of this Act relating to such plan or plan item are met. The Administrator shall, by rule, establish criteria for exercising his authority under the previous sentence with respect to any deficiency referred to in section 179(a) to ensure that, during the 24-month period following the finding, disapproval, or determination referred to in section 179(a), such sanctions are not applied on a statewide basis where one or more political subdivisions covered by the applicable imple mentation plan are principally responsible for such deficiency. (n) SAVINGS CLAUSES.— (1) EXISTING PLAN PROVISIONS.—Any provision of any ap plicable implementation plan that was approved or promul gated by the Administrator pursuant to this section as in effect before the date of the enactment of the Clean Air Act Amend ments of 1990 shall remain in effect as part of such applicable implementation plan, except to the extent that a revision to such provision is approved or promulgated by the Adminis trator pursuant to this Act. (2) ATTAINMENT DATES.—For any area not designated non attainment, any plan or plan revision submitted or required to be submitted by a State— (A) in response to the promulgation or revision of a national primary ambient air quality standard in effect on the date of the enactment of the Clean Air Act Amend ments of 1990, or (B) in response to a finding of substantial inadequacy under subsection (a)(2) (as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990), shall provide for attainment of the national primary ambient air quality standards within 3 years of the date of the enact ment of the Clean Air Act Amendments of 1990 or within 5 years of issuance of such finding of substantial inadequacy, whichever is later. (3) RETENTION OF CONSTRUCTION MORATORIUM IN CERTAIN AREAS.—In the case of an area to which, immediately before the date of the enactment of the Clean Air Act Amendments of 1990, the prohibition on construction or modification of major stationary sources prescribed in subsection (a)(2)(I) (as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990) applied by virtue of a find ing of the Administrator that the State containing such area had not submitted an implementation plan meeting the re quirements of section 172(b)(6) (relating to establishment of a permit program) (as in effect immediately before the date of enactment of the Clean Air Act Amendments of 1990) or 172(a)(1) (to the extent such requirements relate to provision for attainment of the primary national ambient air quality standard for sulfur oxides by December 31, 1982) as in effect immediately before the date of the enactment of the Clean Air Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 44Sec. 111 CLEAN AIR ACT 1 So in original. Probably should be ‘‘paragraph’’. Act Amendments of 1990, no major stationary source of the rel evant air pollutant or pollutants shall be constructed or modi fied in such area until the Administrator finds that the plan for such area meets the applicable requirements of section 172(c)(5) (relating to permit programs) or subpart 5 of part D (relating to attainment of the primary national ambient air quality standard for sulfur dioxide), respectively. (o) INDIAN TRIBES.—If an Indian tribe submits an implementa tion plan to the Administrator pursuant to section 301(d), the plan shall be reviewed in accordance with the provisions for review set forth in this section for State plans, except as otherwise provided by regulation promulgated pursuant to section 301(d)(2). When such plan becomes effective in accordance with the regulations pro mulgated under section 301(d), the plan shall become applicable to all areas (except as expressly provided otherwise in the plan) lo cated within the exterior boundaries of the reservation, notwith standing the issuance of any patent and including rights-of-way running through the reservation. (p) REPORTS.—Any State shall submit, according to such sched ule as the Administrator may prescribe, such reports as the Admin istrator may require relating to emission reductions, vehicle miles traveled, congestion levels, and any other information the Adminis trator may deem necessary to assess the development effectiveness, need for revision, or implementation of any plan or plan revision required under this Act. [42 U.S.C. 7410] STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES SEC. 111. (a) For purposes of this section: (1) The term ‘‘standard of performance’’ means a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately dem onstrated. For the purpose of subparagraphs (A) (i) and (ii) and (B), a standard of performance shall reflect the degree of emission limitation and the percentage reduction achievable through ap plication of the best technological system of continuous emis sion reduction which (taking into consideration the cost of achieving such emission reduction, any nonair quality health and environmental impact and energy requirements) the Ad ministrator determines has been adequately demonstrated. For the purpose of subparagraph 1 (1)(A)(ii), any cleaning of the fuel or reduction in the pollution characteristics of the fuel after extraction and prior to combustion may be credited, as determined under regulations promulgated by the Adminis trator, to a source which burns such fuel. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 45 Sec. 111CLEAN AIR ACT 1 See footnote 2 on page 34. 2 For related provisions, see section 301 of the Powerplant and Industrial Fuel Use Act of 1978 (as amended by section 1021 of Public Law 97–35). (2) The term ‘‘new source’’ means any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regula tions) prescribing a standard of performance under this section which will be applicable to such source. (3) The term ‘‘stationary source’’ means any building, structure, facility, or installation which emits or may emit any air pollutant. Nothing in title II of this Act relating to nonroad engines shall be construed to apply to stationary internal com bustion engines. (4) The term ‘‘modification’’ means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollut ant not previously emitted. (5) The term ‘‘owner or operator’’ means any person who owns, leases, operates, controls, or supervises a stationary source. (6) The term ‘‘existing source’’ means any stationary source other than a new source. (7) The term ‘‘technological system of continuous emission reduction’’ means— (A) a technological process for production or operation by any source which is inherently low-polluting or nonpol luting, or (B) a technological system for continuous reduction of the pollution generated by a source before such pollution is emitted into the ambient air, including precombustion cleaning or treatment of fuels. (8) A conversion to coal (A) by reason of an order under section 2(a) of the Energy Supply and Environmental Coordi nation Act of 1974 or any amendment thereto, or any subse quent enactment which supersedes such Act, or (B) which qualifies under section 113(d)(5)(A)(ii) 1 of this Act, shall not be deemed to be a modification for purposes of paragraphs (2) and (4) of this subsection. 2 (b)(1)(A) The Administrator shall, within 90 days after the date of enactment of the Clean Air Amendments of 1970, publish (and from time to time thereafter shall revise) a list of categories of sta tionary sources. He shall include a category of sources in such list if in his judgment it causes, or contributes significantly to, air pol lution which may reasonably be anticipated to endanger public health or welfare. (B) Within one year after the inclusion of a category of sta tionary sources in a list under subparagraph (A), the Administrator shall publish proposed regulations, establishing Federal standards of performance for new sources within such category. The Adminis trator shall afford interested persons an opportunity for written comment on such proposed regulations. After considering such com ments, he shall promulgate, within one year after such publication, such standards with such modifications as he deems appropriate. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 46Sec. 111 CLEAN AIR ACT The Administrator shall, at least every 8 years, review and, if ap propriate, revise such standards following the procedure required by this subsection for promulgation of such standards. Notwith standing the requirements of the previous sentence, the Adminis trator need not review any such standard if the Administrator de termines that such review is not appropriate in light of readily available information on the efficacy of such standard. Standards of performance or revisions thereof shall become effective upon pro mulgation. When implementation and enforcement of any require ment of this Act indicate that emission limitations and percent re ductions beyond those required by the standards promulgated under this section are achieved in practice, the Administrator shall, when revising standards promulgated under this section, consider the emission limitations and percent reductions achieved in prac tice. (2) The Administrator may distinguish among classes, types, and sizes within categories of new sources for the purpose of estab lishing such standards. (3) The Administrator shall, from time to time, issue informa tion on pollution control techniques for categories of new sources and air pollutants subject to the provisions of this section. (4) The provisions of this section shall apply to any new source owned or operated by the United States. (5) Except as otherwise authorized under subsection (h), noth ing in this section shall be construed to require, or to authorize the Administrator to require, any new or modified source to install and operate any particular technological system of continuous emission reduction to comply with any new source standard of performance. (6) The revised standards of performance required by enact ment of subsection (a)(1)(A) (i) and (ii) shall be promulgated not later than one year after enactment of this paragraph. Any new or modified fossil fuel fired stationary source which commences con struction prior to the date of publication of the proposed revised standards shall not be required to comply with such revised stand ards. (c)(1) Each State may develop and submit to the Administrator a procedure for implementing and enforcing standards of perform ance for new sources located in such State. If the Administrator finds the State procedure is adequate, he shall delegate to such State any authority he has under this Act to implement and en force such standards. (2) Nothing in this subsection shall prohibit the Administrator from enforcing any applicable standard of performance under this section. (d)(1) The Administrator shall prescribe regulations which shall establish a procedure similar to that provided by section 110 under which each State shall submit to the Administrator a plan which (A) establishes standards of performance for any existing source for any air pollutant (i) for which air quality criteria have not been issued or which is not included on a list published under section 108(a) øor emitted from a source category which is regu Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 47 Sec. 111CLEAN AIR ACT 1 The amendments shown in brackets, made by sections 108(g) and 302(a) of Public Law 101– 549, appear to be duplicative or conflicting; both, in different language, change the reference to section 112. lated under section 112¿ øor 112(b)¿ 1 but (ii) to which a standard of performance under this section would apply if such existing source were a new source, and (B) provides for the implementation and enforcement of such standards of performance. Regulations of the Administrator under this paragraph shall permit the State in applying a standard of performance to any particular source under a plan submitted under this paragraph to take into consideration, among other factors, the remaining useful life of the existing source to which such standard applies. (2) The Administrator shall have the same authority— (A) to prescribe a plan for a State in cases where the State fails to submit a satisfactory plan as he would have under sec tion 110(c) in the case of failure to submit an implementation plan, and (B) to enforce the provisions of such plan in cases where the State fails to enforce them as he would have under sections 113 and 114 with respect to an implementation plan. In pro mulgating a standard of performance under a plan prescribed under this paragraph, the Administrator shall take into consid eration, among other factors, remaining useful lives of the sources in the category of sources to which such standard ap plies. (e) After the effective date of standards of performance promul gated under this section, it shall be unlawful for any owner or oper ator of any new source to operate such source in violation of any standard of performance applicable to such source. (f)(1) For those categories of major stationary sources that the Administrator listed under subsection (b)(1)(A) before the date of the enactment of the Clean Air Act Amendments of 1990 and for which regulations had not been proposed by the Administrator by such date, the Administrator shall— (A) propose regulations establishing standards of perform ance for at least 25 percent of such categories of sources within 2 years after the date of the enactment of the Clean Air Act Amendments of 1990; (B) propose regulations establishing standards of perform ance for at least 50 percent of such categories of sources within 4 years after the date of the enactment of the Clean Air Act Amendments of 1990; and (C) propose regulations for the remaining categories of sources within 6 years after the date of the enactment of the Clean Air Act Amendments of 1990. (2) In determining priorities for promulgating standards for categories of major stationary sources for the purpose of paragraph (1), the Administrator shall consider— (A) the quantity of air pollutant emissions which each such category will emit, or will be designed to emit; (B) the extent to which each such pollutant may reason ably be anticipated to endanger public health or welfare; and Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 48Sec. 111 CLEAN AIR ACT (C) the mobility and competitive nature of each such cat egory of sources and the consequent need for nationally appli cable new source standards of performance. (3) Before promulgating any regulations under this subsection or listing any category of major stationary sources as required under this subsection, the Administrator shall consult with appro priate representatives of the Governors and of State air pollution control agencies. (g)(1) Upon application by the Governor of a State showing that the Administrator has failed to specify in regulations under subsection (f)(1) any category of major stationary sources required to be specified under such regulations, the Administrator shall re vise such regulations, to specify any such category. (2) Upon application of the Governor of a State, showing that any category of stationary sources which is not included in the list under subsection (b)(1)(A) contributes significantly to air pollution which may reasonably be anticipated to endanger public health or welfare (notwithstanding that such category is not a category of major stationary sources), the Administrator shall revise such regu lations to specify such category of stationary sources. (3) Upon application of the Governor of a State showing that the Administrator has failed to apply properly the criteria required to be considered under subsection (f)(2), the Administrator shall re vise the list under subsection (b)(1)(A) to apply properly such cri teria. (4) Upon application of the Governor of a State showing that— (A) a new, innovative, or improved technology or process which achieves greater continuous emission reduction has been adequately demonstrated for any category of stationary sources, and (B) as a result of such technology or process, the new source standard of performance in effect under this section for such category no longer reflects the greatest degree of emission limitation achievable through application of the best techno logical system of continuous emission reduction which (taking into consideration the cost of achieving such emission reduc tion, and any non-air quality health and environmental impact and energy requirements) has been adequately demonstrated, the Administrator shall revise such standard of performance for such category accordingly. (5) Unless later deadlines for action of the Administrator are otherwise prescribed under this section, the Administrator shall, not later than three months following the date of receipt of any ap plication by a Governor of a State, either— (A) find that such application does not contain the req uisite showing and deny such application, or (B) grant such application and take the action required under this subsection. (6) Before taking any action required by subsection (f) or by this subsection, the Administrator shall provide notice and oppor tunity for public hearing. (h)(1) For purposes of this section, if in the judgment of the Ad ministrator, it is not feasible to prescribe or enforce a standard of performance, he may instead promulgate a design, equipment, Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 49 Sec. 111CLEAN AIR ACT work practice, or operational standard, or combination thereof, which reflects the best technological system of continuous emission reduction which (taking into consideration the cost of achieving such emission reduction, and any non-air quality health and envi ronmental impact and energy requirements) the Administrator de termines has been adequately demonstrated. In the event the Ad ministrator promulgates a design or equipment standard under this subsection, he shall include as part of such standard such re quirements as will assure the proper operation and maintenance of any such element of design or equipment. (2) For the purpose of this subsection, the phrase ‘‘not feasible to prescribe or enforce a standard of performance’’ means any situ ation in which the Administrator determines that (A) a pollutant or pollutants cannot be emitted through a conveyance designed and constructed to emit or capture such pollutant, or that any require ment for, or use of, such a conveyance would be inconsistent with any Federal, State, or local law, or (B) the application of measure ment methodology to a particular class of sources is not practicable due to technological or economic limitations. (3) If after notice and opportunity for public hearing, any per son establishes to the satisfaction of the Administrator that an al ternative means of emission limitation will achieve a reduction in emissions of any air pollutant at least equivalent to the reduction in emissions of such air pollutant achieved under the requirements of paragraph (1), the Administrator shall permit the use of such al ternative by the source for purposes of compliance with this section with respect to such pollutant. (4) Any standard promulgated under paragraph (1) shall be promulgated in terms of standard of performance whenever it be comes feasible to promulgate and enforce such standard in such terms. (5) Any design, equipment, work practice, or operational stand ard, or any combination thereof, described in this subsection shall be treated as a standard of performance for purposes of the provi sions of this Act (other than the provisions of subsection (a) and this subsection). (i) Any regulations promulgated by the Administrator under this section applicable to grain elevators shall not apply to country elevators (as defined by the Administrator) which have a storage capacity of less than two million five hundred thousand bushels. (j)(1)(A) Any person proposing to own or operate a new source may request the Administrator for one or more waivers from the requirements of this section for such source or any portion thereof with respect to any air pollutant to encourage the use of an innova tive technological system or systems of continuous emission reduc tion. The Administrator may, with the consent of the Governor of the State in which the source is to be located, grant a waiver under this paragraph, if the Administrator determines after notice and opportunity for public hearing, that— (i) the proposed system or systems have not been ade quately demonstrated, (ii) the proposed system or systems will operate effectively and there is a substantial likelihood that such system or sys tems will achieve greater continuous emission reduction than Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 50Sec. 111 CLEAN AIR ACT that required to be achieved under the standards of perform ance which would otherwise apply, or achieve at least an equivalent reduction at lower cost in terms of energy, eco nomic, or nonair quality environmental impact. (iii) the owner or operator of the proposed source has dem onstrated to the satisfaction of the Administrator that the pro posed system will not cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation, func tion, or malfunction, and (iv) the granting of such waiver is consistent with the re quirements of subparagraph (C). In making any determination under clause (ii), the Administrator shall take into account any previous failure of such system or sys tems to operate effectively or to meet any requirement of the new source performance standards. In determining whether an unrea sonable risk exists under clause (iii), the Administrator shall con sider, among other factors, whether and to what extent the use of the proposed technological system will cause, increase, reduce, or eliminate emissions of any unregulated pollutants; available meth ods for reducing or eliminating any risk to public health, welfare, or safety which may be associated with the use of such system; and the availability of other technological systems which may be used to conform to standards under this section without causing or con tributing to such unreasonable risk. The Administrator may con duct such tests and may require the owner or operator of the pro posed source to conduct such tests and provide such information as is necessary to carry out clause (iii) of this subparagraph. Such re quirements shall include a requirement for prompt reporting of the emission of any unregulated pollutant from a system if such pollut ant was not emitted, or was emitted in significantly lesser amounts without use of such system. (B) A waiver under this paragraph shall be granted on such terms and conditions as the Administrator determines to be nec essary to assure— (i) emissions from the source will not prevent attainment and maintenance of any national ambient air quality stand ards, and (ii) proper functioning of the technological system or sys tems authorized. Any such term or condition shall be treated as a standard of per formance for the purposes of subsection (e) of this section and sec tion 113. (C) The number of waivers granted under this paragraph with respect to a proposed technological system of continuous emission reduction shall not exceed such number as the Administrator finds necessary to ascertain whether or not such system will achieve the conditions specified in clauses (ii) and (iii) of subparagraph (A). (D) A waiver under this paragraph shall extend to the sooner of— (i) the date determined by the Administrator, after con sultation with the owner or operator of the source, taking into consideration the design, installation, and capital cost of the technological system or systems being used, or Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 51 Sec. 112CLEAN AIR ACT (ii) the date on which the Administrator determines that such system has failed to— (I) achieve at least an equivalent continuous emission reduction to that required to be achieved under the stand ards of performance which would otherwise apply, or (II) comply with the condition specified in paragraph (1)(A)(iii), and that such failure cannot be corrected. (E) In carrying out subparagraph (D)(i), the Administrator shall not permit any waiver for a source or portion thereof to ex tend beyond the date— (i) seven years after the date on which any waiver is granted to such source or portion thereof, or (ii) four years after the date on which such source or por tion thereof commences operation, whichever is earlier. (F) No waiver under this subsection shall apply to any portion of a source other than the portion on which the innovative techno logical system or systems of continuous emission reduction is used. (2)(A) If a waiver under paragraph (1) is terminated under clause (ii) of paragraph (1)(D), the Administrator shall grant an ex tension of the requirements of this section for such source for such minimum period as may be necessary to comply with the applicable standard of performance under this section. Such period shall not extend beyond the date three years from the time such waiver is terminated. (B) An extension granted under this paragraph shall set forth emission limits and a compliance schedule containing increments of progress which require compliance with the applicable standards of performance as expeditiously as practicable and include such meas ures as are necessary and practicable in the interim to minimize emissions. Such schedule shall be treated as a standard of perform ance for purposes of subsection (e) of this section and section 113. [42 U.S.C. 7411] SEC. 112. HAZARDOUS AIR POLLUTANTS. (a) DEFINITIONS.—For purposes of this section, except sub section (r)— (1) MAJOR SOURCE.—The term ‘‘major source’’ means any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollut ants. The Administrator may establish a lesser quantity, or in the case of radionuclides different criteria, for a major source than that specified in the previous sentence, on the basis of the potency of the air pollutant, persistence, potential for bio accumulation, other characteristics of the air pollutant, or other relevant factors. (2) AREA SOURCE.—The term ‘‘area source’’ means any sta tionary source of hazardous air pollutants that is not a major source. For purposes of this section, the term ‘‘area source’’ Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 52Sec. 112 CLEAN AIR ACT 1 So in original. Probably refers to the date of enactment of Public Law 101–549 (Nov. 15, 1990). shall not include motor vehicles or nonroad vehicles subject to regulation under title II. (3) STATIONARY SOURCE.—The term ‘‘stationary source’’ shall have the same meaning as such term has under section 111(a). (4) NEW SOURCE.—The term ‘‘new source’’ means a sta tionary source the construction or reconstruction of which is commenced after the Administrator first proposes regulations under this section establishing an emission standard applicable to such source. (5) MODIFICATION.—The term ‘‘modification’’ means any physical change in, or change in the method of operation of, a major source which increases the actual emissions of any haz ardous air pollutant emitted by such source by more than a de minimis amount or which results in the emission of any haz ardous air pollutant not previously emitted by more than a de minimis amount. (6) HAZARDOUS AIR POLLUTANT.—The term ‘‘hazardous air pollutant’’ means any air pollutant listed pursuant to sub section (b). (7) ADVERSE ENVIRONMENTAL EFFECT.—The term ‘‘adverse environmental effect’’ means any significant and widespread adverse effect, which may reasonably be anticipated, to wild life, aquatic life, or other natural resources, including adverse impacts on populations of endangered or threatened species or significant degradation of environmental quality over broad areas. (8) ELECTRIC UTILITY STEAM GENERATING UNIT.—The term ‘‘electric utility steam generating unit’’ means any fossil fuel fired combustion unit of more than 25 megawatts that serves a generator that produces electricity for sale. A unit that co generates steam and electricity and supplies more than one third of its potential electric output capacity and more than 25 megawatts electrical output to any utility power distribution system for sale shall be considered an electric utility steam generating unit. (9) OWNER OR OPERATOR.—The term ‘‘owner or operator’’ means any person who owns, leases, operates, controls, or su pervises a stationary source. (10) EXISTING SOURCE.—The term ‘‘existing source’’ means any stationary source other than a new source. (11) CARCINOGENIC EFFECT.—Unless revised, the term ‘‘carcinogenic effect’’ shall have the meaning provided by the Administrator under Guidelines for Carcinogenic Risk Assess ment as of the date of enactment. 1 Any revisions in the exist ing Guidelines shall be subject to notice and opportunity for comment. (b) LIST OF POLLUTANTS.— (1) INITIAL LIST.—The Congress establishes for purposes of this section a list of hazardous air pollutants as follows: Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 53 Sec. 112CLEAN AIR ACT CAS number Chemical name 75070 Acetaldehyde 60355 Acetamide 75058 Acetonitrile 98862 Acetophenone 53963 2-Acetylaminofluorene 107028 Acrolein 79061 Acrylamide 79107 Acrylic acid 107131 Acrylonitrile 107051 Allyl chloride 92671 4-Aminobiphenyl 62533 Aniline 90040 o-Anisidine 1332214 Asbestos 71432 Benzene (including benzene from gasoline) 92875 Benzidine 98077 Benzotrichloride 100447 Benzyl chloride 92524 Biphenyl 117817 Bis(2-ethylhexyl)phthalate (DEHP) 542881 Bis(chloromethyl)ether 75252 Bromoform 106990 1,3-Butadiene 156627 Calcium cyanamide 105602 Caprolactam 133062 Captan 63252 Carbaryl 75150 Carbon disulfide 56235 Carbon tetrachloride 463581 Carbonyl sulfide 120809 Catechol 133904 Chloramben 57749 Chlordane 7782505 Chlorine 79118 Chloroacetic acid 532274 2-Chloroacetophenone 108907 Chlorobenzene 510156 Chlorobenzilate 67663 Chloroform 107302 Chloromethyl methyl ether 126998 Chloroprene 1319773 Cresols/Cresylic acid (isomers and mixture) 95487 o-Cresol 108394 m-Cresol 106445 p-Cresol 98828 Cumene 94757 2,4-D, salts and esters 3547044 DDE 334883 Diazomethane 132649 Dibenzofurans 96128 1,2-Dibromo-3-chloropropane 84742 Dibutylphthalate 106467 1,4-Dichlorobenzene(p) 91941 3,3-Dichlorobenzidene 111444 Dichloroethyl ether (Bis(2-chloroethyl)ether) 542756 1,3-Dichloropropene 62737 Dichlorvos 111422 Diethanolamine 121697 N,N-Diethyl aniline (N,N-Dimethylaniline) 64675 Diethyl sulfate 119904 3,3-Dimethoxybenzidine 60117 Dimethyl aminoazobenzene 119937 3,3′-Dimethyl benzidine 79447 Dimethyl carbamoyl chloride Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 54Sec. 112 CLEAN AIR ACT CAS number Chemical name 68122 Dimethyl formamide 57147 1,1-Dimethyl hydrazine 131113 Dimethyl phthalate 77781 Dimethyl sulfate 534521 4,6-Dinitro-o-cresol, and salts 51285 2,4-Dinitrophenol 121142 2,4-Dinitrotoluene 123911 1,4-Dioxane (1,4-Diethyleneoxide) 122667 1,2-Diphenylhydrazine 106898 Epichlorohydrin (l-Chloro-2,3-epoxypropane) 106887 1,2-Epoxybutane 140885 Ethyl acrylate 100414 Ethyl benzene 51796 Ethyl carbamate (Urethane) 75003 Ethyl chloride (Chloroethane) 106934 Ethylene dibromide (Dibromoethane) 107062 Ethylene dichloride (1,2-Dichloroethane) 107211 Ethylene glycol 151564 Ethylene imine (Aziridine) 75218 Ethylene oxide 96457 Ethylene thiourea 75343 Ethylidene dichloride (1,1-Dichloroethane) 50000 Formaldehyde 76448 Heptachlor 118741 Hexachlorobenzene 87683 Hexachlorobutadiene 77474 Hexachlorocyclopentadiene 67721 Hexachloroethane 822060 Hexamethylene-1,6-diisocyanate 680319 Hexamethylphosphoramide 110543 Hexane 302012 Hydrazine 7647010 Hydrochloric acid 7664393 Hydrogen fluoride (Hydrofluoric acid) 123319 Hydroquinone 78591 Isophorone 58899 Lindane (all isomers) 108316 Maleic anhydride 67561 Methanol 72435 Methoxychlor 74839 Methyl bromide (Bromomethane) 74873 Methyl chloride (Chloromethane) 71556 Methyl chloroform (1,1,1-Trichloroethane) 78933 Methyl ethyl ketone (2-Butanone) 60344 Methyl hydrazine 74884 Methyl iodide (Iodomethane) 108101 Methyl isobutyl ketone (Hexone) 624839 Methyl isocyanate 80626 Methyl methacrylate 1634044 Methyl tert butyl ether 101144 4,4-Methylene bis(2-chloroaniline) 75092 Methylene chloride (Dichloromethane) 101688 Methylene diphenyl diisocyanate (MDI) 101779 4,4′-Methylenedianiline 91203 Naphthalene 98953 Nitrobenzene 92933 4-Nitrobiphenyl 100027 4-Nitrophenol 79469 2-Nitropropane 684935 N-Nitroso-N-methylurea 62759 N-Nitrosodimethylamine 59892 N-Nitrosomorpholine 56382 Parathion 82688 Pentachloronitrobenzene (Quintobenzene) Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 55 Sec. 112CLEAN AIR ACT CAS number Chemical name 87865 Pentachlorophenol 108952 Phenol 106503 p-Phenylenediamine 75445 Phosgene 7803512 Phosphine 7723140 Phosphorus 85449 Phthalic anhydride 1336363 Polychlorinated biphenyls (Aroclors) 1120714 1,3-Propane sultone 57578 beta-Propiolactone 123386 Propionaldehyde 114261 Propoxur (Baygon) 78875 Propylene dichloride (1,2-Dichloropropane) 75569 Propylene oxide 75558 1,2-Propylenimine (2-Methyl aziridine) 91225 Quinoline 106514 Quinone 100425 Styrene 96093 Styrene oxide 1746016 2,3,7,8-Tetrachlorodibenzo-p-dioxin 79345 1,1,2,2-Tetrachloroethane 127184 Tetrachloroethylene (Perchloroethylene) 7550450 Titanium tetrachloride 108883 Toluene 95807 2,4-Toluene diamine 584849 2,4-Toluene diisocyanate 95534 o-Toluidine 8001352 Toxaphene (chlorinated camphene) 120821 1,2,4-Trichlorobenzene 79005 1,1,2-Trichloroethane 79016 Trichloroethylene 95954 2,4,5-Trichlorophenol 88062 2,4,6-Trichlorophenol 121448 Triethylamine 1582098 Trifluralin 540841 2,2,4-Trimethylpentane 108054 Vinyl acetate 593602 Vinyl bromide 75014 Vinyl chloride 75354 Vinylidene chloride (1,1-Dichloroethylene) 1330207 Xylenes (isomers and mixture) 95476 o-Xylenes 108383 m-Xylenes 106423 p-Xylenes 0 Antimony Compounds 0 Arsenic Compounds (inorganic including arsine) 0 Beryllium Compounds 0 Cadmium Compounds 0 Chromium Compounds 0 Cobalt Compounds 0 Coke Oven Emissions 0 Cyanide Compounds 1 0 Glycol ethers 2 0 Lead Compounds 0 Manganese Compounds 0 Mercury Compounds 0 Fine mineral fibers 3 0 Nickel Compounds 0 Polycylic Organic Matter 4 0 Radionuclides (including radon) 5 0 Selenium Compounds NOTE: For all listings above which contain the word ‘‘compounds’’ and for glycol ethers, the following applies: Unless otherwise specified, these listings are defined as including any unique chemical substance that contains the named chemical (i.e., antimony, arsenic, etc.) as part of that chemical’s infrastructure. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 56Sec. 112 CLEAN AIR ACT 1 So in original. Probably should be ‘‘effects’’. 1 X’CN where X = H’ or any other group where a formal dissociation may occur. For example KCN or Ca(CN)2 2 Includes mono- and di- ethers of ethylene glycol, diethylene glycol, and triethylene glycol R– (OCH2CH2)n–OR’ where n = 1, 2, or 3 R = alkyl or aryl groups R’ = R, H, or groups which, when removed, yield glycol ethers with the structure: R– (OCH2CH)n–OH. Polymers are excluded from the glycol category. 3 Includes mineral fiber emissions from facilities manufacturing or processing glass, rock, or slag fibers (or other mineral derived fibers) of average diameter 1 micrometer or less. 4 Includes organic compounds with more than one benzene ring, and which have a boiling point greater than or equal to 100°C. 5 A type of atom which spontaneously undergoes radioactive decay. (2) REVISION OF THE LIST.—The Administrator shall peri odically review the list established by this subsection and pub lish the results thereof and, where appropriate, revise such list by rule, adding pollutants which present, or may present, through inhalation or other routes of exposure, a threat of ad verse human health effects (including, but not limited to, sub stances which are known to be, or may reasonably be antici pated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive dysfunction, or which are acutely or chronically toxic) or adverse environmental effects whether through ambient concentrations, bioaccumulation, deposition, or otherwise, but not including releases subject to regulation under subsection (r) as a result of emissions to the air. No air pollutant which is listed under section 108(a) may be added to the list under this section, except that the prohibition of this sentence shall not apply to any pollutant which independently meets the listing criteria of this paragraph and is a precursor to a pollutant which is listed under section 108(a) or to any pollutant which is in a class of pollutants listed under such section. No substance, practice, process or activity regulated under title VI of this Act shall be subject to regulation under this section solely due to its adverse effects on the environ ment. (3) PETITIONS TO MODIFY THE LIST.— (A) Beginning at any time after 6 months after the date of enactment of the Clean Air Act Amendments of 1990, any person may petition the Administrator to modify the list of hazardous air pollutants under this subsection by adding or deleting a substance or, in case of listed pol lutants without CAS numbers (other than coke oven emis sions, mineral fibers, or polycyclic organic matter) remov ing certain unique substances. Within 18 months after re ceipt of a petition, the Administrator shall either grant or deny the petition by publishing a written explanation of the reasons for the Administrator’s decision. Any such pe tition shall include a showing by the petitioner that there is adequate data on the health or environmental defects 1 of the pollutant or other evidence adequate to support the petition. The Administrator may not deny a petition solely on the basis of inadequate resources or time for review. (B) The Administrator shall add a substance to the list upon a showing by the petitioner or on the Administrator’s own determination that the substance is an air pollutant Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 57 Sec. 112CLEAN AIR ACT and that emissions, ambient concentrations, bioaccumula tion or deposition of the substance are known to cause or may reasonably be anticipated to cause adverse effects to human health or adverse environmental effects. (C) The Administrator shall delete a substance from the list upon a showing by the petitioner or on the Admin istrator’s own determination that there is adequate data on the health and environmental effects of the substance to determine that emissions, ambient concentrations, bio accumulation or deposition of the substance may not rea sonably be anticipated to cause any adverse effects to the human health or adverse environmental effects. (D) The Administrator shall delete one or more unique chemical substances that contain a listed hazardous air pollutant not having a CAS number (other than coke oven emissions, mineral fibers, or polycyclic organic matter) upon a showing by the petitioner or on the Administrator’s own determination that such unique chemical substances that contain the named chemical of such listed hazardous air pollutant meet the deletion requirements of subpara graph (C). The Administrator must grant or deny a dele tion petition prior to promulgating any emission standards pursuant to subsection (d) applicable to any source cat egory or subcategory of a listed hazardous air pollutant without a CAS number listed under subsection (b) for which a deletion petition has been filed within 12 months of the date of enactment of the Clean Air Act Amendments of 1990. (4) FURTHER INFORMATION.—If the Administrator deter mines that information on the health or environmental effects of a substance is not sufficient to make a determination re quired by this subsection, the Administrator may use any au thority available to the Administrator to acquire such informa tion. (5) TEST METHODS.—The Administrator may establish, by rule, test measures and other analytic procedures for moni toring and measuring emissions, ambient concentrations, depo sition, and bioaccumulation of hazardous air pollutants. (6) PREVENTION OF SIGNIFICANT DETERIORATION.—The pro visions of part C (prevention of significant deterioration) shall not apply to pollutants listed under this section. (7) LEAD.—The Administrator may not list elemental lead as a hazardous air pollutant under this subsection. (c) LIST OF SOURCE CATEGORIES.— (1) IN GENERAL.—Not later than 12 months after the date of enactment of the Clean Air Act Amendments of 1990, the Administrator shall publish, and shall from time to time, but no less often than every 8 years, revise, if appropriate, in re sponse to public comment or new information, a list of all cat egories and subcategories of major sources and area sources (listed under paragraph (3)) of the air pollutants listed pursu ant to subsection (b). To the extent practicable, the categories and subcategories listed under this subsection shall be con sistent with the list of source categories established pursuant Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 58Sec. 112 CLEAN AIR ACT to section 111 and part C. Nothing in the preceding sentence limits the Administrator’s authority to establish subcategories under this section, as appropriate. (2) REQUIREMENT FOR EMISSIONS STANDARDS.—For the cat egories and subcategories the Administrator lists, the Adminis trator shall establish emissions standards under subsection (d), according to the schedule in this subsection and subsection (e). (3) AREA SOURCES.—The Administrator shall list under this subsection each category or subcategory of area sources which the Administrator finds presents a threat of adverse ef fects to human health or the environment (by such sources in dividually or in the aggregate) warranting regulation under this section. The Administrator shall, not later than 5 years after the date of enactment of the Clean Air Act Amendments of 1990 and pursuant to subsection (k)(3)(B), list, based on ac tual or estimated aggregate emissions of a listed pollutant or pollutants, sufficient categories or subcategories of area sources to ensure that area sources representing 90 percent of the area source emissions of the 30 hazardous air pollutants that present the greatest threat to public health in the largest number of urban areas are subject to regulation under this sec tion. Such regulations shall be promulgated not later than 10 years after such date of enactment. (4) PREVIOUSLY REGULATED CATEGORIES.—The Adminis trator may, in the Administrator’s discretion, list any category or subcategory of sources previously regulated under this sec tion as in effect before the date of enactment of the Clean Air Act Amendments of 1990. (5) ADDITIONAL CATEGORIES.—In addition to those cat egories and subcategories of sources listed for regulation pur suant to paragraphs (1) and (3), the Administrator may at any time list additional categories and subcategories of sources of hazardous air pollutants according to the same criteria for list ing applicable under such paragraphs. In the case of source categories and subcategories listed after publication of the ini tial list required under paragraph (1) or (3), emission stand ards under subsection (d) for the category or subcategory shall be promulgated within 10 years after the date of enactment of the Clean Air Act Amendments of 1990, or within 2 years after the date on which such category or subcategory is listed, whichever is later. (6) SPECIFIC POLLUTANTS.—With respect to alkylated lead compounds, polycyclic organic matter, hexachlorobenzene, mer cury, polychlorinated biphenyls, 2,3,7,8 tetrachlorodibenzofurans and 2,3,7,8-tetrachlorodibenzo-p dioxin, the Administrator shall, not later than 5 years after the date of enactment of the Clean Air Act Amendments of 1990, list categories and subcategories of sources assuring that sources accounting for not less than 90 per centum of the ag gregate emissions of each such pollutant are subject to stand ards under subsection (d)(2) or (d)(4). Such standards shall be promulgated not later than 10 years after such date of enact ment. This paragraph shall not be construed to require the Ad Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 59 Sec. 112CLEAN AIR ACT ministrator to promulgate standards for such pollutants emit ted by electric utility steam generating units. (7) RESEARCH FACILITIES.—The Administrator shall estab lish a separate category covering research or laboratory facili ties, as necessary to assure the equitable treatment of such fa cilities. For purposes of this section, ‘‘research or laboratory fa cility’’ means any stationary source whose primary purpose is to conduct research and development into new processes and products, where such source is operated under the close super vision of technically trained personnel and is not engaged in the manufacture of products for commercial sale in commerce, except in a de minimis manner. (8) BOAT MANUFACTURING.—When establishing emissions standards for styrene, the Administrator shall list boat manu facturing as a separate subcategory unless the Administrator finds that such listing would be inconsistent with the goals and requirements of this Act. (9) DELETIONS FROM THE LIST.— (A) Where the sole reason for the inclusion of a source category on the list required under this subsection is the emission of a unique chemical substance, the Adminis trator shall delete the source category from the list if it is appropriate because of action taken under either subpara graphs (C) or (D) of subsection (b)(3). (B) The Administrator may delete any source category from the list under this subsection, on petition of any per son or on the Administrator’s own motion, whenever the Administrator makes the following determination or deter minations, as applicable: (i) In the case of hazardous air pollutants emitted by sources in the category that may result in cancer in humans, a determination that no source in the cat egory (or group of sources in the case of area sources) emits such hazardous air pollutants in quantities which may cause a lifetime risk of cancer greater than one in one million to the individual in the population who is most exposed to emissions of such pollutants from the source (or group of sources in the case of area sources). (ii) In the case of hazardous air pollutants that may result in adverse health effects in humans other than cancer or adverse environmental effects, a deter mination that emissions from no source in the cat egory or subcategory concerned (or group of sources in the case of area sources) exceed a level which is ade quate to protect public health with an ample margin of safety and no adverse environmental effect will re sult from emissions from any source (or from a group of sources in the case of area sources). The Administrator shall grant or deny a petition under this paragraph within 1 year after the petition is filed. (d) EMISSION STANDARDS.— (1) IN GENERAL.—The Administrator shall promulgate reg ulations establishing emission standards for each category or Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 60Sec. 112 CLEAN AIR ACT subcategory of major sources and area sources of hazardous air pollutants listed for regulation pursuant to subsection (c) in ac cordance with the schedules provided in subsections (c) and (e). The Administrator may distinguish among classes, types, and sizes of sources within a category or subcategory in estab lishing such standards except that, there shall be no delay in the compliance date for any standard applicable to any source under subsection (i) as the result of the authority provided by this sentence. (2) STANDARDS AND METHODS.—Emissions standards pro mulgated under this subsection and applicable to new or exist ing sources of hazardous air pollutants shall require the max imum degree of reduction in emissions of the hazardous air pollutants subject to this section (including a prohibition on such emissions, where achievable) that the Administrator, tak ing into consideration the cost of achieving such emission re duction, and any non-air quality health and environmental im pacts and energy requirements, determines is achievable for new or existing sources in the category or subcategory to which such emission standard applies, through application of meas ures, processes, methods, systems or techniques including, but not limited to, measures which— (A) reduce the volume of, or eliminate emissions of, such pollutants through process changes, substitution of materials or other modifications, (B) enclose systems or processes to eliminate emis sions, (C) collect, capture or treat such pollutants when re leased from a process, stack, storage or fugitive emissions point, (D) are design, equipment, work practice, or oper ational standards (including requirements for operator training or certification) as provided in subsection (h), or (E) are a combination of the above. None of the measures described in subparagraphs (A) through (D) shall, consistent with the provisions of section 114(c), in any way compromise any United States patent or United States trademark right, or any confidential business informa tion, or any trade secret or any other intellectual property right. (3) NEW AND EXISTING SOURCES.—The maximum degree of reduction in emissions that is deemed achievable for new sources in a category or subcategory shall not be less stringent than the emission control that is achieved in practice by the best controlled similar source, as determined by the Adminis trator. Emission standards promulgated under this subsection for existing sources in a category or subcategory may be less stringent than standards for new sources in the same category or subcategory but shall not be less stringent, and may be more stringent than— (A) the average emission limitation achieved by the best performing 12 percent of the existing sources (for which the Administrator has emissions information), ex cluding those sources that have, within 18 months before Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 61 Sec. 112CLEAN AIR ACT the emission standard is proposed or within 30 months be fore such standard is promulgated, whichever is later, first achieved a level of emission rate or emission reduction which complies, or would comply if the source is not sub ject to such standard, with the lowest achievable emission rate (as defined by section 171) applicable to the source category and prevailing at the time, in the category or sub category for categories and subcategories with 30 or more sources, or (B) the average emission limitation achieved by the best performing 5 sources (for which the Administrator has or could reasonably obtain emissions information) in the category or subcategory for categories or subcategories with fewer than 30 sources. (4) HEALTH THRESHOLD.—With respect to pollutants for which a health threshold has been established, the Adminis trator may consider such threshold level, with an ample mar gin of safety, when establishing emission standards under this subsection. (5) ALTERNATIVE STANDARD FOR AREA SOURCES.—With re spect only to categories and subcategories of area sources listed pursuant to subsection (c), the Administrator may, in lieu of the authorities provided in paragraph (2) and subsection (f), elect to promulgate standards or requirements applicable to sources in such categories or subcategories which provide for the use of generally available control technologies or manage ment practices by such sources to reduce emissions of haz ardous air pollutants. (6) REVIEW AND REVISION.—The Administrator shall re view, and revise as necessary (taking into account develop ments in practices, processes, and control technologies), emis sion standards promulgated under this section no less often than every 8 years. (7) OTHER REQUIREMENTS PRESERVED.—No emission stand ard or other requirement promulgated under this section shall be interpreted, construed or applied to diminish or replace the requirements of a more stringent emission limitation or other applicable requirement established pursuant to section 111, part C or D, or other authority of this Act or a standard issued under State authority. (8) COKE OVENS.— (A) Not later than December 31, 1992, the Adminis trator shall promulgate regulations establishing emission standards under paragraphs (2) and (3) of this subsection for coke oven batteries. In establishing such standards, the Administrator shall evaluate— (i) the use of sodium silicate (or equivalent) luting compounds to prevent door leaks, and other operating practices and technologies for their effectiveness in re ducing coke oven emissions, and their suitability for use on new and existing coke oven batteries, taking into account costs and reasonable commercial door warranties; and Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 62Sec. 112 CLEAN AIR ACT (ii) as a basis for emission standards under this subsection for new coke oven batteries that begin con struction after the date of proposal of such standards, the Jewell design Thompson non-recovery coke oven batteries and other non-recovery coke oven tech nologies, and other appropriate emission control and coke production technologies, as to their effectiveness in reducing coke oven emissions and their capability for production of steel quality coke. Such regulations shall require at a minimum that coke oven batteries will not exceed 8 per centum leaking doors, 1 per centum leaking lids, 5 per centum leaking offtakes, and 16 seconds visible emissions per charge, with no exclu sion for emissions during the period after the closing of self-sealing oven doors. Notwithstanding subsection (i), the compliance date for such emission standards for existing coke oven batteries shall be December 31, 1995. (B) The Administrator shall promulgate work practice regulations under this subsection for coke oven batteries requiring, as appropriate— (i) the use of sodium silicate (or equivalent) luting compounds, if the Administrator determines that use of sodium silicate is an effective means of emissions control and is achievable, taking into account costs and reasonable commercial warranties for doors and related equipment; and (ii) door and jam cleaning practices. Notwithstanding subsection (i), the compliance date for such work practice regulations for coke oven batteries shall be not later than the date 3 years after the date of enactment of the Clean Air Act Amendments of 1990. (C) For coke oven batteries electing to qualify for an extension of the compliance date for standards promul gated under subsection (f) in accordance with subsection (i)(8), the emission standards under this subsection for coke oven batteries shall require that coke oven batteries not exceed 8 per centum leaking doors, 1 per centum leak ing lids, 5 per centum leaking offtakes, and 16 seconds visible emissions per charge, with no exclusion for emis sions during the period after the closing of self-sealing doors. Notwithstanding subsection (i), the compliance date for such emission standards for existing coke oven bat teries seeking an extension shall be not later than the date 3 years after the date of enactment of the Clean Air Act Amendments of 1990. (9) SOURCES LICENSED BY THE NUCLEAR REGULATORY COM MISSION.—No standard for radionuclide emissions from any category or subcategory of facilities licensed by the Nuclear Regulatory Commission (or an Agreement State) is required to be promulgated under this section if the Administrator deter mines, by rule, and after consultation with the Nuclear Regu latory Commission, that the regulatory program established by the Nuclear Regulatory Commission pursuant to the Atomic Energy Act for such category or subcategory provides an ample Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 63 Sec. 112CLEAN AIR ACT margin of safety to protect the public health. Nothing in this subsection shall preclude or deny the right of any State or po litical subdivision thereof to adopt or enforce any standard or limitation respecting emissions of radionuclides which is more stringent than the standard or limitation in effect under sec tion 111 or this section. (10) EFFECTIVE DATE.—Emission standards or other regu lations promulgated under this subsection shall be effective upon promulgation. (e) SCHEDULE FOR STANDARDS AND REVIEW.— (1) IN GENERAL.—The Administrator shall promulgate reg ulations establishing emission standards for categories and subcategories of sources initially listed for regulation pursuant to subsection (c)(1) as expeditiously as practicable, assuring that— (A) emission standards for not less than 40 categories and subcategories (not counting coke oven batteries) shall be promulgated not later than 2 years after the date of en actment of the Clean Air Act Amendments of 1990; (B) emission standards for coke oven batteries shall be promulgated not later than December 31, 1992; (C) emission standards for 25 per centum of the listed categories and subcategories shall be promulgated not later than 4 years after the date of enactment of the Clean Air Act Amendments of 1990; (D) emission standards for an additional 25 per cen tum of the listed categories and subcategories shall be pro mulgated not later than 7 years after the date of enact ment of the Clean Air Act Amendments of 1990; and (E) emission standards for all categories and subcat egories shall be promulgated not later than 10 years after the date of enactment of the Clean Air Act Amendments of 1990. (2) In determining priorities for promulgating standards under subsection (d), the Administrator shall consider— (A) the known or anticipated adverse effects of such pollutants on public health and the environment; (B) the quantity and location of emissions or reason ably anticipated emissions of hazardous air pollutants that each category or subcategory will emit; and (C) the efficiency of grouping categories or subcat egories according to the pollutants emitted, or the proc esses or technologies used. (3) PUBLISHED SCHEDULE.—Not later than 24 months after the date of enactment of the Clean Air Act Amendments of 1990 and after opportunity for comment, the Administrator shall publish a schedule establishing a date for the promulga tion of emission standards for each category and subcategory of sources listed pursuant to subsection (c)(1) and (3) which shall be consistent with the requirements of paragraphs (1) and (2). The determination of priorities for the promulgation of standards pursuant to this paragraph is not a rulemaking and shall not be subject to judicial review, except that, failure to promulgate any standard pursuant to the schedule established Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 64Sec. 112 CLEAN AIR ACT by this paragraph shall be subject to review under section 304 of this Act. (4) JUDICIAL REVIEW.—Notwithstanding section 307 of this Act, no action of the Administrator adding a pollutant to the list under subsection (b) or listing a source category or sub category under subsection (c) shall be a final agency action subject to judicial review, except that any such action may be reviewed under such section 307 when the Administrator issues emission standards for such pollutant or category. (5) PUBLICLY OWNED TREATMENT WORKS.—The Adminis trator shall promulgate standards pursuant to subsection (d) applicable to publicly owned treatment works (as defined in title II of the Federal Water Pollution Control Act) not later than 5 years after the date of enactment of the Clean Air Act Amendments of 1990. (f) STANDARD TO PROTECT HEALTH AND THE ENVIRONMENT.— (1) REPORT.—Not later than 6 years after the date of en actment of the Clean Air Act Amendments of 1990 the Admin istrator shall investigate and report, after consultation with the Surgeon General and after opportunity for public comment, to Congress on— (A) methods of calculating the risk to public health re maining, or likely to remain, from sources subject to regu lation under this section after the application of standards under subsection (d); (B) the public health significance of such estimated re maining risk and the technologically and commercially available methods and costs of reducing such risks; (C) the actual health effects with respect to persons living in the vicinity of sources, any available epidemiolog ical or other health studies, risks presented by background concentrations of hazardous air pollutants, any uncertain ties in risk assessment methodology or other health as sessment technique, and any negative health or environ mental consequences to the community of efforts to reduce such risks; and (D) recommendations as to legislation regarding such remaining risk. (2) EMISSION STANDARDS.— (A) If Congress does not act on any recommendation submitted under paragraph (1), the Administrator shall, within 8 years after promulgation of standards for each category or subcategory of sources pursuant to subsection (d), promulgate standards for such category or subcategory if promulgation of such standards is required in order to provide an ample margin of safety to protect public health in accordance with this section (as in effect before the date of enactment of the Clean Air Act Amendments of 1990) or to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental ef fect. Emission standards promulgated under this sub section shall provide an ample margin of safety to protect public health in accordance with this section (as in effect before the date of enactment of the Clean Air Act Amend Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 65 Sec. 112CLEAN AIR ACT ments of 1990), unless the Administrator determines that a more stringent standard is necessary to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. If standards pro mulgated pursuant to subsection (d) and applicable to a category or subcategory of sources emitting a pollutant (or pollutants) classified as a known, probable or possible human carcinogen do not reduce lifetime excess cancer risks to the individual most exposed to emissions from a source in the category or subcategory to less than one in one million, the Administrator shall promulgate standards under this subsection for such source category. (B) Nothing in subparagraph (A) or in any other provi sion of this section shall be construed as affecting, or ap plying to the Administrator’s interpretation of this section, as in effect before the date of enactment of the Clean Air Act Amendments of 1990 and set forth in the Federal Reg ister of September 14, 1989 (54 Federal Register 38044). (C) The Administrator shall determine whether or not to promulgate such standards and, if the Administrator de cides to promulgate such standards, shall promulgate the standards 8 years after promulgation of the standards under subsection (d) for each source category or sub category concerned. In the case of categories or subcat egories for which standards under subsection (d) are re quired to be promulgated within 2 years after the date of enactment of the Clean Air Act Amendments of 1990, the Administrator shall have 9 years after promulgation of the standards under subsection (d) to make the determination under the preceding sentence and, if required, to promul gate the standards under this paragraph. (3) EFFECTIVE DATE.—Any emission standard established pursuant to this subsection shall become effective upon pro mulgation. (4) PROHIBITION.—No air pollutant to which a standard under this subsection applies may be emitted from any sta tionary source in violation of such standard, except that in the case of an existing source— (A) such standard shall not apply until 90 days after its effective date, and (B) the Administrator may grant a waiver permitting such source a period of up to 2 years after the effective date of a standard to comply with the standard if the Ad ministrator finds that such period is necessary for the in stallation of controls and that steps will be taken during the period of the waiver to assure that the health of per sons will be protected from imminent endangerment. (5) AREA SOURCES.—The Administrator shall not be re quired to conduct any review under this subsection or promul gate emission limitations under this subsection for any cat egory or subcategory of area sources that is listed pursuant to subsection (c)(3) and for which an emission standard is promul gated pursuant to subsection (d)(5). Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 66Sec. 112 CLEAN AIR ACT (6) UNIQUE CHEMICAL SUBSTANCES.—In establishing stand ards for the control of unique chemical substances of listed pol lutants without CAS numbers under this subsection, the Ad ministrator shall establish such standards with respect to the health and environmental effects of the substances actually emitted by sources and direct transformation byproducts of such emissions in the categories and subcategories. (g) MODIFICATIONS.— (1) OFFSETS.— (A) A physical change in, or change in the method of operation of, a major source which results in a greater than de minimis increase in actual emissions of a haz ardous air pollutant shall not be considered a modification, if such increase in the quantity of actual emissions of any hazardous air pollutant from such source will be offset by an equal or greater decrease in the quantity of emissions of another hazardous air pollutant (or pollutants) from such source which is deemed more hazardous, pursuant to guidance issued by the Administrator under subparagraph (B). The owner or operator of such source shall submit a showing to the Administrator (or the State) that such in crease has been offset under the preceding sentence. (B) The Administrator shall, after notice and oppor tunity for comment and not later than 18 months after the date of enactment of the Clean Air Act Amendments of 1990, publish guidance with respect to implementation of this subsection. Such guidance shall include an identifica tion, to the extent practicable, of the relative hazard to human health resulting from emissions to the ambient air of each of the pollutants listed under subsection (b) suffi cient to facilitate the offset showing authorized by sub paragraph (A). Such guidance shall not authorize offsets between pollutants where the increased pollutant (or more than one pollutant in a stream of pollutants) causes ad verse effects to human health for which no safety thresh old for exposure can be determined unless there are cor responding decreases in such types of pollutant(s). (2) CONSTRUCTION, RECONSTRUCTION AND MODIFICA TIONS.— (A) After the effective date of a permit program under title V in any State, no person may modify a major source of hazardous air pollutants in such State, unless the Ad ministrator (or the State) determines that the maximum achievable control technology emission limitation under this section for existing sources will be met. Such deter mination shall be made on a case-by-case basis where no applicable emissions limitations have been established by the Administrator. (B) After the effective date of a permit program under title V in any State, no person may construct or recon struct any major source of hazardous air pollutants, unless the Administrator (or the State) determines that the max imum achievable control technology emission limitation under this section for new sources will be met. Such deter Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 67 Sec. 112CLEAN AIR ACT mination shall be made on a case-by-case basis where no applicable emission limitations have been established by the Administrator. (3) PROCEDURES FOR MODIFICATIONS.—The Administrator (or the State) shall establish reasonable procedures for assur ing that the requirements applying to modifications under this section are reflected in the permit. (h) WORK PRACTICE STANDARDS AND OTHER REQUIREMENTS.— (1) IN GENERAL.—For purposes of this section, if it is not feasible in the judgment of the Administrator to prescribe or enforce an emission standard for control of a hazardous air pol lutant or pollutants, the Administrator may, in lieu thereof, promulgate a design, equipment, work practice, or operational standard, or combination thereof, which in the Administrator’s judgment is consistent with the provisions of subsection (d) or (f). In the event the Administrator promulgates a design or equipment standard under this subsection, the Administrator shall include as part of such standard such requirements as will assure the proper operation and maintenance of any such element of design or equipment. (2) DEFINITION.—For the purpose of this subsection, the phrase ‘‘not feasible to prescribe or enforce an emission stand ard’’ means any situation in which the Administrator deter mines that— (A) a hazardous air pollutant or pollutants cannot be emitted through a conveyance designed and constructed to emit or capture such pollutant, or that any requirement for, or use of, such a conveyance would be inconsistent with any Federal, State or local law, or (B) the application of measurement methodology to a particular class of sources is not practicable due to techno logical and economic limitations. (3) ALTERNATIVE STANDARD.—If after notice and oppor tunity for comment, the owner or operator of any source estab lishes to the satisfaction of the Administrator that an alter native means of emission limitation will achieve a reduction in emissions of any air pollutant at least equivalent to the reduc tion in emissions of such pollutant achieved under the require ments of paragraph (1), the Administrator shall permit the use of such alternative by the source for purposes of compliance with this section with respect to such pollutant. (4) NUMERICAL STANDARD REQUIRED.—Any standard pro mulgated under paragraph (1) shall be promulgated in terms of an emission standard whenever it is feasible to promulgate and enforce a standard in such terms. (i) SCHEDULE FOR COMPLIANCE.— (1) PRECONSTRUCTION AND OPERATING REQUIREMENTS.— After the effective date of any emission standard, limitation, or regulation under subsection (d), (f) or (h), no person may con struct any new major source or reconstruct any existing major source subject to such emission standard, regulation or limita tion unless the Administrator (or a State with a permit pro gram approved under title V) determines that such source, if Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 68Sec. 112 CLEAN AIR ACT properly constructed, reconstructed and operated, will comply with the standard, regulation or limitation. (2) SPECIAL RULE.—Notwithstanding the requirements of paragraph (1), a new source which commences construction or reconstruction after a standard, limitation or regulation appli cable to such source is proposed and before such standard, lim itation or regulation is promulgated shall not be required to comply with such promulgated standard until the date 3 years after the date of promulgation if— (A) the promulgated standard, limitation or regulation is more stringent than the standard, limitation or regula tion proposed; and (B) the source complies with the standard, limitation, or regulation as proposed during the 3-year period imme diately after promulgation. (3) COMPLIANCE SCHEDULE FOR EXISTING SOURCES.— (A) After the effective date of any emissions standard, limitation or regulation promulgated under this section and applicable to a source, no person may operate such source in violation of such standard, limitation or regula tion except, in the case of an existing source, the Adminis trator shall establish a compliance date or dates for each category or subcategory of existing sources, which shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the effective date of such standard, except as provided in subparagraph (B) and paragraphs (4) through (8). (B) The Administrator (or a State with a program ap proved under title V) may issue a permit that grants an extension permitting an existing source up to 1 additional year to comply with standards under subsection (d) if such additional period is necessary for the installation of con trols. An additional extension of up to 3 years may be added for mining waste operations, if the 4-year compli ance time is insufficient to dry and cover mining waste in order to reduce emissions of any pollutant listed under subsection (b). (4) PRESIDENTIAL EXEMPTION.—The President may exempt any stationary source from compliance with any standard or limitation under this section for a period of not more than 2 years if the President determines that the technology to imple ment such standard is not available and that it is in the na tional security interests of the United States to do so. An ex emption under this paragraph may be extended for 1 or more additional periods, each period not to exceed 2 years. The President shall report to Congress with respect to each exemp tion (or extension thereof) made under this paragraph. (5) EARLY REDUCTION.— (A) The Administrator (or a State acting pursuant to a permit program approved under title V) shall issue a permit allowing an existing source, for which the owner or operator demonstrates that the source has achieved a re duction of 90 per centum or more in emissions of haz ardous air pollutants (95 per centum in the case of haz Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 69 Sec. 112CLEAN AIR ACT ardous air pollutants which are particulates) from the source, to meet an alternative emission limitation reflect ing such reduction in lieu of an emission limitation pro mulgated under subsection (d) for a period of 6 years from the compliance date for the otherwise applicable standard, provided that such reduction is achieved before the other wise applicable standard under subsection (d) is first pro posed. Nothing in this paragraph shall preclude a State from requiring reductions in excess of those specified in this subparagraph as a condition of granting the extension authorized by the previous sentence. (B) An existing source which achieves the reduction referred to in subparagraph (A) after the proposal of an applicable standard but before January 1, 1994, may qual ify under subparagraph (A), if the source makes an en forceable commitment to achieve such reduction before the proposal of the standard. Such commitment shall be en forceable to the same extent as a regulation under this sec tion. (C) The reduction shall be determined with respect to verifiable and actual emissions in a base year not earlier than calendar year 1987, provided that, there is no evi dence that emissions in the base year are artificially or substantially greater than emissions in other years prior to implementation of emissions reduction measures. The Administrator may allow a source to use a baseline year of 1985 or 1986 provided that the source can demonstrate to the satisfaction of the Administrator that emissions data for the source reflects verifiable data based on infor mation for such source, received by the Administrator prior to the enactment of the Clean Air Act Amendments of 1990, pursuant to an information request issued under section 114. (D) For each source granted an alternative emission limitation under this paragraph there shall be established by a permit issued pursuant to title V an enforceable emis sion limitation for hazardous air pollutants reflecting the reduction which qualifies the source for an alternative emission limitation under this paragraph. An alternative emission limitation under this paragraph shall not be available with respect to standards or requirements pro mulgated pursuant to subsection (f) and the Administrator shall, for the purpose of determining whether a standard under subsection (f) is necessary, review emissions from sources granted an alternative emission limitation under this paragraph at the same time that other sources in the category or subcategory are reviewed. (E) With respect to pollutants for which high risks of adverse public health effects may be associated with expo sure to small quantities including, but not limited to, chlorinated dioxins and furans, the Administrator shall by regulation limit the use of offsetting reductions in emis sions of other hazardous air pollutants from the source as counting toward the 90 per centum reduction in such high Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 70Sec. 112 CLEAN AIR ACT risk pollutants qualifying for an alternative emissions limi tation under this paragraph. (6) OTHER REDUCTIONS.—Notwithstanding the require ments of this section, no existing source that has installed— (A) best available control technology (as defined in sec tion 169(3)), or (B) technology required to meet a lowest achievable emission rate (as defined in section 171), prior to the promulgation of a standard under this section ap plicable to such source and the same pollutant (or stream of pollutants) controlled pursuant to an action described in sub paragraph (A) or (B) shall be required to comply with such standard under this section until the date 5 years after the date on which such installation or reduction has been achieved, as determined by the Administrator. The Administrator may issue such rules and guidance as are necessary to implement this paragraph. (7) EXTENSION FOR NEW SOURCES.—A source for which con struction or reconstruction is commenced after the date an emission standard applicable to such source is proposed pursu ant to subsection (d) but before the date an emission standard applicable to such source is proposed pursuant to subsection (f) shall not be required to comply with the emission standard under subsection (f) until the date 10 years after the date con struction or reconstruction is commenced. (8) COKE OVENS. (A) Any coke oven battery that complies with the emission limitations established under subsection (d)(8)(C), subparagraph (B), and subparagraph (C), and complies with the provisions of subparagraph (E), shall not be re quired to achieve emission limitations promulgated under subsection (f) until January 1, 2020. (B)(i) Not later than December 31, 1992, the Adminis trator shall promulgate emission limitations for coke oven emissions from coke oven batteries. Notwithstanding para graph (3) of this subsection, the compliance date for such emission limitations for existing coke oven batteries shall be January 1, 1998. Such emission limitations shall reflect the lowest achievable emission rate as defined in section 171 for a coke oven battery that is rebuilt or a replacement at a coke oven plant for an existing battery. Such emission limitations shall be no less stringent than— (I) 3 per centum leaking doors (5 per centum leak ing doors for six meter batteries); (II) 1 per centum leaking lids; (III) 4 per centum leaking offtakes; and (IV) 16 seconds visible emissions per charge, with an exclusion for emissions during the period after the closing of self-sealing oven doors (or the total mass emis sions equivalent). The rulemaking in which such emission limitations are promulgated shall also establish an appro priate measurement methodology for determining compli ance with such emission limitations, and shall establish such emission limitations in terms of an equivalent level Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 71 Sec. 112CLEAN AIR ACT of mass emissions reduction from a coke oven battery, un less the Administrator finds that such a mass emissions standard would not be practicable or enforceable. Such measurement methodology, to the extent it measures leak ing doors, shall take into consideration alternative test methods that reflect the best technology and practices ac tually applied in the affected industries, and shall assure that the final test methods are consistent with the per formance of such best technology and practices. (ii) If the Administrator fails to promulgate such emis sion limitations under this subparagraph prior to the effec tive date of such emission limitations, the emission limita tions applicable to coke oven batteries under this subpara graph shall be— (I) 3 per centum leaking doors (5 per centum leak ing doors for six meter batteries); (II) 1 per centum leaking lids; (III) 4 per centum leaking offtakes; and (IV) 16 seconds visible emissions per charge, or the total mass emissions equivalent (if the total mass emissions equivalent is determined to be practicable and enforceable), with no exclusion for emissions during the pe riod after the closing of self-sealing oven doors. (C) Not later than January 1, 2007, the Administrator shall review the emission limitations promulgated under subparagraph (B) and revise, as necessary, such emission limitations to reflect the lowest achievable emission rate as defined in section 171 at the time for a coke oven bat tery that is rebuilt or a replacement at a coke oven plant for an existing battery. Such emission limitations shall be no less stringent than the emission limitation promulgated under subparagraph (B). Notwithstanding paragraph (2) of this subsection, the compliance date for such emission lim itations for existing coke oven batteries shall be January 1, 2010. (D) At any time prior to January 1, 1998, the owner or operator of any coke oven battery may elect to comply with emission limitations promulgated under subsection (f) by the date such emission limitations would otherwise apply to such coke oven battery, in lieu of the emission limitations and the compliance dates provided under sub paragraphs (B) and (C) of this paragraph. Any such owner or operator shall be legally bound to comply with such emission limitations promulgated under subsection (f) with respect to such coke oven battery as of January 1, 2003. If no such emission limitations have been promulgated for such coke oven battery, the Administrator shall promul gate such emission limitations in accordance with sub section (f) for such coke oven battery. (E) Coke oven batteries qualifying for an extension under subparagraph (A) shall make available not later than January 1, 2000, to the surrounding communities the results of any risk assessment performed by the Adminis trator to determine the appropriate level of any emission Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 72Sec. 112 CLEAN AIR ACT standard established by the Administrator pursuant to subsection (f). (F) Notwithstanding the provisions of this section, re construction of any source of coke oven emissions quali fying for an extension under this paragraph shall not sub ject such source to emission limitations under subsection (f) more stringent than those established under subpara graphs (B) and (C) until January 1, 2020. For the purposes of this subparagraph, the term ‘‘reconstruction’’ includes the replacement of existing coke oven battery capacity with new coke oven batteries of comparable or lower capac ity and lower potential emissions. (j) EQUIVALENT EMISSION LIMITATION BY PERMIT.— (1) EFFECTIVE DATE.—The requirements of this subsection shall apply in each State beginning on the effective date of a permit program established pursuant to title V in such State, but not prior to the date 42 months after the date of enactment of the Clean Air Act Amendments of 1990. (2) FAILURE TO PROMULGATE A STANDARD.—In the event that the Administrator fails to promulgate a standard for a category or subcategory of major sources by the date estab lished pursuant to subsection (e)(1) and (3), and beginning 18 months after such date (but not prior to the effective date of a permit program under title V), the owner or operator of any major source in such category or subcategory shall submit a permit application under paragraph (3) and such owner or op erator shall also comply with paragraphs (5) and (6). (3) APPLICATIONS.—By the date established by paragraph (2), the owner or operator of a major source subject to this sub section shall file an application for a permit. If the owner or operator of a source has submitted a timely and complete ap plication for a permit required by this subsection, any failure to have a permit shall not be a violation of paragraph (2), un less the delay in final action is due to the failure of the appli cant to timely submit information required or requested to process the application. The Administrator shall not later than 18 months after the date of enactment of the Clean Air Act Amendments of 1990, and after notice and opportunity for com ment, establish requirements for applications under this sub section including a standard application form and criteria for determining in a timely manner the completeness of applica tions. (4) REVIEW AND APPROVAL.—Permit applications submitted under this subsection shall be reviewed and approved or dis approved according to the provisions of section 505. In the event that the Administrator (or the State) disapproves a per mit application submitted under this subsection or determines that the application is incomplete, the applicant shall have up to 6 months to revise the application to meet the objections of the Administrator (or the State). (5) EMISSION LIMITATION.—The permit shall be issued pur suant to title V and shall contain emission limitations for the hazardous air pollutants subject to regulation under this sec tion and emitted by the source that the Administrator (or the Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 73 Sec. 112CLEAN AIR ACT State) determines, on a case-by-case basis, to be equivalent to the limitation that would apply to such source if an emission standard had been promulgated in a timely manner under sub section (d). In the alternative, if the applicable criteria are met, the permit may contain an emissions limitation established ac cording to the provisions of subsection (i)(5). For purposes of the preceding sentence, the reduction required by subsection (i)(5)(A) shall be achieved by the date on which the relevant standard should have been promulgated under subsection (d). No such pollutant may be emitted in amounts exceeding an emission limitation contained in a permit immediately for new sources and, as expeditiously as practicable, but not later than the date 3 years after the permit is issued for existing sources or such other compliance date as would apply under subsection (i). (6) APPLICABILITY OF SUBSEQUENT STANDARDS.—If the Ad ministrator promulgates an emission standard that is applica ble to the major source prior to the date on which a permit ap plication is approved, the emission limitation in the permit shall reflect the promulgated standard rather than the emis sion limitation determined pursuant to paragraph (5), provided that the source shall have the compliance period provided under subsection (i). If the Administrator promulgates a stand ard under subsection (d) that would be applicable to the source in lieu of the emission limitation established by permit under this subsection after the date on which the permit has been issued, the Administrator (or the State) shall revise such per mit upon the next renewal to reflect the standard promulgated by the Administrator providing such source a reasonable time to comply, but no longer than 8 years after such standard is promulgated or 8 years after the date on which the source is first required to comply with the emissions limitation estab lished by paragraph (5), whichever is earlier. (k) AREA SOURCE PROGRAM.— (1) FINDINGS AND PURPOSE.—The Congress finds that emis sions of hazardous air pollutants from area sources may indi vidually, or in the aggregate, present significant risks to public health in urban areas. Considering the large number of per sons exposed and the risks of carcinogenic and other adverse health effects from hazardous air pollutants, ambient con centrations characteristic of large urban areas should be re duced to levels substantially below those currently experienced. It is the purpose of this subsection to achieve a substantial re duction in emissions of hazardous air pollutants from area sources and an equivalent reduction in the public health risks associated with such sources including a reduction of not less than 75 per centum in the incidence of cancer attributable to emissions from such sources. (2) RESEARCH PROGRAM.—The Administrator shall, after consultation with State and local air pollution control officials, conduct a program of research with respect to sources of haz ardous air pollutants in urban areas and shall include within such program— Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 74Sec. 112 CLEAN AIR ACT 1 So in original. Should have a comma after ‘‘Fungicide’’. 2 So in original. The phrase ‘‘of 1976’’ should appear after ‘‘Act’’. (A) ambient monitoring for a broad range of hazardous air pollutants (including, but not limited to, volatile or ganic compounds, metals, pesticides and products of in complete combustion) in a representative number of urban locations; (B) analysis to characterize the sources of such pollu tion with a focus on area sources and the contribution that such sources make to public health risks from hazardous air pollutants; and (C) consideration of atmospheric transformation and other factors which can elevate public health risks from such pollutants. Health effects considered under this program shall include, but not be limited to, carcinogenicity, mutagenicity, teratogenicity, neurotoxicity, reproductive dysfunction and other acute and chronic effects including the role of such pollutants as precur sors of ozone or acid aerosol formation. The Administrator shall report the preliminary results of such research not later than 3 years after the date of enactment of the Clean Air Act Amendments of 1990. (3) NATIONAL STRATEGY.— (A) Considering information collected pursuant to the monitoring program authorized by paragraph (2), the Ad ministrator shall, not later than 5 years after the date of enactment of the Clean Air Act Amendments of 1990 and after notice and opportunity for public comment, prepare and transmit to the Congress a comprehensive strategy to control emissions of hazardous air pollutants from area sources in urban areas. (B) The strategy shall— (i) identify not less than 30 hazardous air pollut ants which, as the result of emissions from area sources, present the greatest threat to public health in the largest number of urban areas and that are or will be listed pursuant to subsection (b), and (ii) identify the source categories or subcategories emitting such pollutants that are or will be listed pur suant to subsection (c). When identifying categories and subcategories of sources under this subparagraph, the Administrator shall assure that sources accounting for 90 per centum or more of the aggregate emissions of each of the 30 identified hazardous air pollutants are subject to standards pursuant to subsection (d). (C) The strategy shall include a schedule of specific ac tions to substantially reduce the public health risks posed by the release of hazardous air pollutants from area sources that will be implemented by the Administrator under the authority of this or other laws (including, but not limited to, the Toxic Substances Control Act, the Fed eral Insecticide, Fungicide 1 and Rodenticide Act and the Resource Conservation and Recovery Act 2) or by the Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 75 Sec. 112CLEAN AIR ACT States. The strategy shall achieve a reduction in the inci dence of cancer attributable to exposure to hazardous air pollutants emitted by stationary sources of not less than 75 per centum, considering control of emissions of haz ardous air pollutants from all stationary sources and re sulting from measures implemented by the Administrator or by the States under this or other laws. (D) The strategy may also identify research needs in monitoring, analytical methodology, modeling or pollution control techniques and recommendations for changes in law that would further the goals and objectives of this sub section. (E) Nothing in this subsection shall be interpreted to preclude or delay implementation of actions with respect to area sources of hazardous air pollutants under consider ation pursuant to this or any other law and that may be promulgated before the strategy is prepared. (F) The Administrator shall implement the strategy as expeditiously as practicable assuring that all sources are in compliance with all requirements not later than 9 years after the date of enactment of the Clean Air Act Amend ments of 1990. (G) As part of such strategy the Administrator shall provide for ambient monitoring and emissions modeling in urban areas as appropriate to demonstrate that the goals and objectives of the strategy are being met. (4) AREAWIDE ACTIVITIES.—In addition to the national urban air toxics strategy authorized by paragraph (3), the Ad ministrator shall also encourage and support areawide strate gies developed by State or local air pollution control agencies that are intended to reduce risks from emissions by area sources within a particular urban area. From the funds avail able for grants under this section, the Administrator shall set aside not less than 10 per centum to support areawide strate gies addressing hazardous air pollutants emitted by area sources and shall award such funds on a demonstration basis to those States with innovative and effective strategies. At the request of State or local air pollution control officials, the Ad ministrator shall prepare guidelines for control technologies or management practices which may be applicable to various cat egories or subcategories of area sources. (5) REPORT.—The Administrator shall report to the Con gress at intervals not later than 8 and 12 years after the date of enactment of the Clean Air Act Amendments of 1990 on ac tions taken under this subsection and other parts of this Act to reduce the risk to public health posed by the release of haz ardous air pollutants from area sources. The reports shall also identify specific metropolitan areas that continue to experience high risks to public health as the result of emissions from area sources. (l) STATE PROGRAMS.— (1) IN GENERAL.—Each State may develop and submit to the Administrator for approval a program for the implementa tion and enforcement (including a review of enforcement dele Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 76Sec. 112 CLEAN AIR ACT gations previously granted) of emission standards and other re quirements for air pollutants subject to this section or require ments for the prevention and mitigation of accidental releases pursuant to subsection (r). A program submitted by a State under this subsection may provide for partial or complete dele gation of the Administrator’s authorities and responsibilities to implement and enforce emissions standards and prevention re quirements but shall not include authority to set standards less stringent than those promulgated by the Administrator under this Act. (2) GUIDANCE.—Not later than 12 months after the date of enactment of the Clean Air Act Amendments of 1990, the Ad ministrator shall publish guidance that would be useful to the States in developing programs for submittal under this sub section. The guidance shall also provide for the registration of all facilities producing, processing, handling or storing any sub stance listed pursuant to subsection (r) in amounts greater than the threshold quantity. The Administrator shall include as an element in such guidance an optional program begun in 1986 for the review of high-risk point sources of air pollutants including, but not limited to, hazardous air pollutants listed pursuant to subsection (b). (3) TECHNICAL ASSISTANCE.—The Administrator shall es tablish and maintain an air toxics clearinghouse and center to provide technical information and assistance to State and local agencies and, on a cost recovery basis, to others on control technology, health and ecological risk assessment, risk anal ysis, ambient monitoring and modeling, and emissions meas urement and monitoring. The Administrator shall use the au thority of section 103 to examine methods for preventing, measuring, and controlling emissions and evaluating associ ated health and ecological risks. Where appropriate, such ac tivity shall be conducted with not-for-profit organizations. The Administrator may conduct research on methods for pre venting, measuring and controlling emissions and evaluating associated health and environment risks. All information col lected under this paragraph shall be available to the public. (4) GRANTS.—Upon application of a State, the Adminis trator may make grants, subject to such terms and conditions as the Administrator deems appropriate, to such State for the purpose of assisting the State in developing and implementing a program for submittal and approval under this subsection. Programs assisted under this paragraph may include program elements addressing air pollutants or extremely hazardous substances other than those specifically subject to this section. Grants under this paragraph may include support for high-risk point source review as provided in paragraph (2) and support for the development and implementation of areawide area source programs pursuant to subsection (k). (5) APPROVAL OR DISAPPROVAL.—Not later than 180 days after receiving a program submitted by a State, and after no tice and opportunity for public comment, the Administrator shall either approve or disapprove such program. The Adminis Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 77 Sec. 112CLEAN AIR ACT trator shall disapprove any program submitted by a State, if the Administrator determines that— (A) the authorities contained in the program are not adequate to assure compliance by all sources within the State with each applicable standard, regulation or require ment established by the Administrator under this section; (B) adequate authority does not exist, or adequate re sources are not available, to implement the program; (C) the schedule for implementing the program and assuring compliance by affected sources is not sufficiently expeditious; or (D) the program is otherwise not in compliance with the guidance issued by the Administrator under paragraph (2) or is not likely to satisfy, in whole or in part, the objec tives of this Act. If the Administrator disapproves a State program, the Admin istrator shall notify the State of any revisions or modifications necessary to obtain approval. The State may revise and resub mit the proposed program for review and approval pursuant to the provisions of this subsection. (6) WITHDRAWAL.—Whenever the Administrator deter mines, after public hearing, that a State is not administering and enforcing a program approved pursuant to this subsection in accordance with the guidance published pursuant to para graph (2) or the requirements of paragraph (5), the Adminis trator shall so notify the State and, if action which will assure prompt compliance is not taken within 90 days, the Adminis trator shall withdraw approval of the program. The Adminis trator shall not withdraw approval of any program unless the State shall have been notified and the reasons for withdrawal shall have been stated in writing and made public. (7) AUTHORITY TO ENFORCE.—Nothing in this subsection shall prohibit the Administrator from enforcing any applicable emission standard or requirement under this section. (8) LOCAL PROGRAM.—The Administrator may, after notice and opportunity for public comment, approve a program devel oped and submitted by a local air pollution control agency (after consultation with the State) pursuant to this subsection and any such agency implementing an approved program may take any action authorized to be taken by a State under this section. (9) PERMIT AUTHORITY.—Nothing in this subsection shall affect the authorities and obligations of the Administrator or the State under title V. (m) ATMOSPHERIC DEPOSITION TO GREAT LAKES AND COASTAL WATERS.— (1) DEPOSITION ASSESSMENT.—The Administrator, in co operation with the Under Secretary of Commerce for Oceans and Atmosphere, shall conduct a program to identify and as sess the extent of atmospheric deposition of hazardous air pol lutants (and in the discretion of the Administrator, other air pollutants) to the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters. As part of such program, the Administrator shall— Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 78Sec. 112 CLEAN AIR ACT (A) monitor the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters, including monitoring of the Great Lakes through the monitoring network estab lished pursuant to paragraph (2) of this subsection and de signing and deploying an atmospheric monitoring network for coastal waters pursuant to paragraph (4); (B) investigate the sources and deposition rates of at mospheric deposition of air pollutants (and their atmos pheric transformation precursors); (C) conduct research to develop and improve moni toring methods and to determine the relative contribution of atmospheric pollutants to total pollution loadings to the Great Lakes, the Chesapeake Bay, Lake Champlain, and coastal waters; (D) evaluate any adverse effects to public health or the environment caused by such deposition (including effects resulting from indirect exposure pathways) and assess the contribution of such deposition to violations of water qual ity standards established pursuant to the Federal Water Pollution Control Act and drinking water standards estab lished pursuant to the Safe Drinking Water Act; and (E) sample for such pollutants in biota, fish, and wild life of the Great Lakes, the Chesapeake Bay, Lake Cham plain and coastal waters and characterize the sources of such pollutants. (2) GREAT LAKES MONITORING NETWORK.—The Adminis trator shall oversee, in accordance with Annex 15 of the Great Lakes Water Quality Agreement, the establishment and oper ation of a Great Lakes atmospheric deposition network to mon itor atmospheric deposition of hazardous air pollutants (and in the Administrator’s discretion, other air pollutants) to the Great Lakes. (A) As part of the network provided for in this para graph, and not later than December 31, 1991, the Admin istrator shall establish in each of the 5 Great Lakes at least 1 facility capable of monitoring the atmospheric depo sition of hazardous air pollutants in both dry and wet con ditions. (B) The Administrator shall use the data provided by the network to identify and track the movement of haz ardous air pollutants through the Great Lakes, to deter mine the portion of water pollution loadings attributable to atmospheric deposition of such pollutants, and to support development of remedial action plans and other manage ment plans as required by the Great Lakes Water Quality Agreement. (C) The Administrator shall assure that the data col lected by the Great Lakes atmospheric deposition moni toring network is in a format compatible with databases sponsored by the International Joint Commission, Canada, and the several States of the Great Lakes region. (3) MONITORING FOR THE CHESAPEAKE BAY AND LAKE CHAMPLAIN.—The Administrator shall establish at the Chesa peake Bay and Lake Champlain atmospheric deposition sta Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 79 Sec. 112CLEAN AIR ACT tions to monitor deposition of hazardous air pollutants (and in the Administrator’s discretion, other air pollutants) within the Chesapeake Bay and Lake Champlain watersheds. The Admin istrator shall determine the role of air deposition in the pollut ant loadings of the Chesapeake Bay and Lake Champlain, in vestigate the sources of air pollutants deposited in the water sheds, evaluate the health and environmental effects of such pollutant loadings, and shall sample such pollutants in biota, fish and wildlife within the watersheds, as necessary to charac terize such effects. (4) MONITORING FOR COASTAL WATERS.—The Administrator shall design and deploy atmospheric deposition monitoring net works for coastal waters and their watersheds and shall make any information collected through such networks available to the public. As part of this effort, the Administrator shall con duct research to develop and improve deposition monitoring methods, and to determine the relative contribution of atmos pheric pollutants to pollutant loadings. For purposes of this subsection, ‘‘coastal waters’’ shall mean estuaries selected pur suant to section 320(a)(2)(A) of the Federal Water Pollution Control Act or listed pursuant to section 320(a)(2)(B) of such Act or estuarine research reserves designated pursuant to sec tion 315 of the Coastal Zone Management Act (16 U.S.C. 1461). (5) REPORT.—Within 3 years of the date of enactment of the Clean Air Act Amendments of 1990 and biennially there after, the Administrator, in cooperation with the Under Sec retary of Commerce for Oceans and Atmosphere, shall submit to the Congress a report on the results of any monitoring, stud ies, and investigations conducted pursuant to this subsection. Such report shall include, at a minimum, an assessment of— (A) the contribution of atmospheric deposition to pollu tion loadings in the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters; (B) the environmental and public health effects of any pollution which is attributable to atmospheric deposition to the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters; (C) the source or sources of any pollution to the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters which is attributable to atmospheric deposition; (D) whether pollution loadings in the Great Lakes, the Chesapeake Bay, Lake Champlain or coastal waters cause or contribute to exceedances of drinking water standards pursuant to the Safe Drinking Water Act or water quality standards pursuant to the Federal Water Pollution Control Act or, with respect to the Great Lakes, exceedances of the specific objectives of the Great Lakes Water Quality Agree ment; and (E) a description of any revisions of the requirements, standards, and limitations pursuant to this Act and other applicable Federal laws as are necessary to assure protec tion of human health and the environment. (6) ADDITIONAL REGULATION.—As part of the report to Con gress, the Administrator shall determine whether the other Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 80Sec. 112 CLEAN AIR ACT provisions of this section are adequate to prevent serious ad verse effects to public health and serious or widespread envi ronmental effects, including such effects resulting from indirect exposure pathways, associated with atmospheric deposition to the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters of hazardous air pollutants (and their atmos pheric transformation products). The Administrator shall take into consideration the tendency of such pollutants to bio accumulate. Within 5 years after the date of enactment of the Clean Air Act Amendments of 1990, the Administrator shall, based on such report and determination, promulgate, in accord ance with this section, such further emission standards or con trol measures as may be necessary and appropriate to prevent such effects, including effects due to bioaccumulation and indi rect exposure pathways. Any requirements promulgated pursu ant to this paragraph with respect to coastal waters shall only apply to the coastal waters of the States which are subject to section 328(a). (n) OTHER PROVISIONS.— (1) ELECTRIC UTILITY STEAM GENERATING UNITS.— (A) The Administrator shall perform a study of the hazards to public health reasonably anticipated to occur as a result of emissions by electric utility steam generating units of pollutants listed under subsection (b) after imposi tion of the requirements of this Act. The Administrator shall report the results of this study to the Congress with in 3 years after the date of the enactment of the Clean Air Act Amendments of 1990. The Administrator shall develop and describe in the Administrator’s report to Congress al ternative control strategies for emissions which may war rant regulation under this section. The Administrator shall regulate electric utility steam generating units under this section, if the Administrator finds such regulation is ap propriate and necessary after considering the results of the study required by this subparagraph. (B) The Administrator shall conduct, and transmit to the Congress not later than 4 years after the date of enact ment of the Clean Air Act Amendments of 1990, a study of mercury emissions from electric utility steam generating units, municipal waste combustion units, and other sources, including area sources. Such study shall consider the rate and mass of such emissions, the health and envi ronmental effects of such emissions, technologies which are available to control such emissions, and the costs of such technologies. (C) The National Institute of Environmental Health Sciences shall conduct, and transmit to the Congress not later than 3 years after the date of enactment of the Clean Air Act Amendments of 1990, a study to determine the threshold level of mercury exposure below which adverse human health effects are not expected to occur. Such study shall include a threshold for mercury concentrations in the tissue of fish which may be consumed (including consump Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 81 Sec. 112CLEAN AIR ACT tion by sensitive populations) without adverse effects to public health. (2) COKE OVEN PRODUCTION TECHNOLOGY STUDY.— (A) The Secretary of the Department of Energy and the Administrator shall jointly undertake a 6-year study to assess coke oven production emission control technologies and to assist in the development and commercialization of technically practicable and economically viable control technologies which have the potential to significantly re duce emissions of hazardous air pollutants from coke oven production facilities. In identifying control technologies, the Secretary and the Administrator shall consider the range of existing coke oven operations and battery design and the availability of sources of materials for such coke ovens as well as alternatives to existing coke oven produc tion design. (B) The Secretary and the Administrator are author ized to enter into agreements with persons who propose to develop, install and operate coke production emission con trol technologies which have the potential for significant emissions reductions of hazardous air pollutants provided that Federal funds shall not exceed 50 per centum of the cost of any project assisted pursuant to this paragraph. (C) The Secretary shall prepare annual reports to Con gress on the status of the research program and at the completion of the study shall make recommendations to the Administrator identifying practicable and economically viable control technologies for coke oven production facili ties to reduce residual risks remaining after implementa tion of the standard under subsection (d). (D) There are authorized to be appropriated $5,000,000 for each of the fiscal years 1992 through 1997 to carry out the program authorized by this paragraph. (3) PUBLICLY OWNED TREATMENT WORKS.—The Adminis trator may conduct, in cooperation with the owners and opera tors of publicly owned treatment works, studies to characterize emissions of hazardous air pollutants emitted by such facili ties, to identify industrial, commercial and residential dis charges that contribute to such emissions and to demonstrate control measures for such emissions. When promulgating any standard under this section applicable to publicly owned treat ment works, the Administrator may provide for control meas ures that include pretreatment of discharges causing emissions of hazardous air pollutants and process or product substi tutions or limitations that may be effective in reducing such emissions. The Administrator may prescribe uniform sampling, modeling and risk assessment methods for use in imple menting this subsection. (4) OIL AND GAS WELLS; PIPELINE FACILITIES.— (A) Notwithstanding the provisions of subsection (a), emissions from any oil or gas exploration or production well (with its associated equipment) and emissions from any pipeline compressor or pump station shall not be ag gregated with emissions from other similar units, whether Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 82Sec. 112 CLEAN AIR ACT 1 So in original. Probably should be ‘‘section’’. or not such units are in a contiguous area or under com mon control, to determine whether such units or stations are major sources, and in the case of any oil or gas explo ration or production well (with its associated equipment), such emissions shall not be aggregated for any purpose under this section. (B) The Administrator shall not list oil and gas pro duction wells (with its associated equipment) as an area source category under subsection (c), except that the Ad ministrator may establish an area source category for oil and gas production wells located in any metropolitan sta tistical area or consolidated metropolitan statistical area with a population in excess of 1 million, if the Adminis trator determines that emissions of hazardous air pollut ants from such wells present more than a negligible risk of adverse effects to public health. (5) HYDROGEN SULFIDE.—The Administrator is directed to assess the hazards to public health and the environment re sulting from the emission of hydrogen sulfide associated with the extraction of oil and natural gas resources. To the extent practicable, the assessment shall build upon and not duplicate work conducted for an assessment pursuant to section 8002(m) of the Solid Waste Disposal Act and shall reflect consultation with the States. The assessment shall include a review of exist ing State and industry control standards, techniques and en forcement. The Administrator shall report to the Congress within 24 months after the date of enactment of the Clean Air Act Amendments of 1990 with the findings of such assessment, together with any recommendations, and shall, as appropriate, develop and implement a control strategy for emissions of hy drogen sulfide to protect human health and the environment, based on the findings of such assessment, using authorities under this Act including sections 1 111 and this section. (6) HYDROFLUORIC ACID.—Not later than 2 years after the date of enactment of the Clean Air Act Amendments of 1990, the Administrator shall, for those regions of the country which do not have comprehensive health and safety regulations with respect to hydrofluoric acid, complete a study of the potential hazards of hydrofluoric acid and the uses of hydrofluoric acid in industrial and commercial applications to public health and the environment considering a range of events including worst case accidental releases and shall make recommendations to the Congress for the reduction of such hazards, if appropriate. (7) RCRA FACILITIES.—In the case of any category or sub category of sources the air emissions of which are regulated under subtitle C of the Solid Waste Disposal Act, the Adminis trator shall take into account any regulations of such emissions which are promulgated under such subtitle and shall, to the maximum extent practicable and consistent with the provisions of this section, ensure that the requirements of such subtitle and this section are consistent. (o) NATIONAL ACADEMY OF SCIENCES STUDY.— Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 83 Sec. 112CLEAN AIR ACT (1) REQUEST OF THE ACADEMY.—Within 3 months of the date of enactment of the Clean Air Act Amendments of 1990, the Administrator shall enter into appropriate arrangements with the National Academy of Sciences to conduct a review of— (A) risk assessment methodology used by the Environ mental Protection Agency to determine the carcinogenic risk associated with exposure to hazardous air pollutants from source categories and subcategories subject to the re quirements of this section; and (B) improvements in such methodology. (2) ELEMENTS TO BE STUDIED.—In conducting such review, the National Academy of Sciences should consider, but not be limited to, the following— (A) the techniques used for estimating and describing the carcinogenic potency to humans of hazardous air pol lutants; and (B) the techniques used for estimating exposure to hazardous air pollutants (for hypothetical and actual maxi mally exposed individuals as well as other exposed individ uals). (3) OTHER HEALTH EFFECTS OF CONCERN.—To the extent practicable, the Academy shall evaluate and report on the methodology for assessing the risk of adverse human health ef fects other than cancer for which safe thresholds of exposure may not exist, including, but not limited to, inheritable genetic mutations, birth defects, and reproductive dysfunctions. (4) REPORT.—A report on the results of such review shall be submitted to the Senate Committee on Environment and Public Works, the House Committee on Energy and Commerce, the Risk Assessment and Management Commission established by section 303 of the Clean Air Act Amendments of 1990 and the Administrator not later than 30 months after the date of enactment of the Clean Air Act Amendments of 1990. (5) ASSISTANCE.—The Administrator shall assist the Acad emy in gathering any information the Academy deems nec essary to carry out this subsection. The Administrator may use any authority under this Act to obtain information from any person, and to require any person to conduct tests, keep and produce records, and make reports respecting research or other activities conducted by such person as necessary to carry out this subsection. (6) AUTHORIZATION.—Of the funds authorized to be appro priated to the Administrator by this Act, such amounts as are required shall be available to carry out this subsection. (7) GUIDELINES FOR CARCINOGENIC RISK ASSESSMENT.—The Administrator shall consider, but need not adopt, the rec ommendations contained in the report of the National Acad emy of Sciences prepared pursuant to this subsection and the views of the Science Advisory Board, with respect to such re port. Prior to the promulgation of any standard under sub section (f), and after notice and opportunity for comment, the Administrator shall publish revised Guidelines for Carcino genic Risk Assessment or a detailed explanation of the reasons Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 84Sec. 112 CLEAN AIR ACT that any recommendations contained in the report of the Na tional Academy of Sciences will not be implemented. The publi cation of such revised Guidelines shall be a final Agency action for purposes of section 307. (p) MICKEY LELAND URBAN AIR TOXICS RESEARCH CENTER.— (1) ESTABLISHMENT.—The Administrator shall oversee the establishment of a National Urban Air Toxics Research Center, to be located at a university, a hospital, or other facility capa ble of undertaking and maintaining similar research capabili ties in the areas of epidemiology, oncology, toxicology, pul monary medicine, pathology, and biostatistics. The center shall be known as the Mickey Leland National Urban Air Toxics Re search Center. The geographic site of the National Urban Air Toxics Research Center should be further directed to Harris County, Texas, in order to take full advantage of the well de veloped scientific community presence on-site at the Texas Medical Center as well as the extensive data previously com piled for the comprehensive monitoring system currently in place. (2) BOARD OF DIRECTORS.—The National Urban Air Toxics Research Center shall be governed by a Board of Directors to be comprised of 9 members, the appointment of which shall be allocated pro rata among the Speaker of the House, the Major ity Leader of the Senate and the President. The members of the Board of Directors shall be selected based on their respec tive academic and professional backgrounds and expertise in matters relating to public health, environmental pollution and industrial hygiene. The duties of the Board of Directors shall be to determine policy and research guidelines, submit views from center sponsors and the public and issue periodic reports of center findings and activities. (3) SCIENTIFIC ADVISORY PANEL.—The Board of Directors shall be advised by a Scientific Advisory Panel, the 13 mem bers of which shall be appointed by the Board, and to include eminent members of the scientific and medical communities. The Panel membership may include scientists with relevant experience from the National Institute of Environmental Health Sciences, the Center for Disease Control, the Environ mental Protection Agency, the National Cancer Institute, and others, and the Panel shall conduct peer review and evaluate research results. The Panel shall assist the Board in devel oping the research agenda, reviewing proposals and applica tions, and advise on the awarding of research grants. (4) FUNDING.—The center shall be established and funded with both Federal and private source funds. (q) SAVINGS PROVISION.— (1) STANDARDS PREVIOUSLY PROMULGATED.—Any standard under this section in effect before the date of enactment of the Clean Air Act Amendments of 1990 shall remain in force and effect after such date unless modified as provided in this sec tion before the date of enactment of such Amendments or under such Amendments. Except as provided in paragraph (4), any standard under this section which has been promulgated, but has not taken effect, before such date shall not be affected Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 85 Sec. 112CLEAN AIR ACT by such Amendments unless modified as provided in this sec tion before such date or under such Amendments. Each such standard shall be reviewed and, if appropriate, revised, to com ply with the requirements of subsection (d) within 10 years after the date of enactment of the Clean Air Act Amendments of 1990. If a timely petition for review of any such standard under section 307 is pending on such date of enactment, the standard shall be upheld if it complies with this section as in effect before that date. If any such standard is remanded to the Administrator, the Administrator may in the Administrator’s discretion apply either the requirements of this section, or those of this section as in effect before the date of enactment of the Clean Air Act Amendments of 1990. (2) SPECIAL RULE.—Notwithstanding paragraph (1), no standard shall be established under this section, as amended by the Clean Air Act Amendments of 1990, for radionuclide emissions from (A) elemental phosphorous plants, (B) grate cal cination elemental phosphorous plants, (C) phosphogypsum stacks, or (D) any subcategory of the foregoing. This section, as in effect prior to the date of enactment of the Clean Air Act Amendments of 1990, shall remain in effect for radionuclide emissions from such plants and stacks. (3) OTHER CATEGORIES.—Notwithstanding paragraph (1), this section, as in effect prior to the date of enactment of the Clean Air Act Amendments of 1990, shall remain in effect for radionuclide emissions from non-Department of Energy Fed eral facilities that are not licensed by the Nuclear Regulatory Commission, coal-fired utility and industrial boilers, under ground uranium mines, surface uranium mines, and disposal of uranium mill tailings piles, unless the Administrator, in the Administrator’s discretion, applies the requirements of this sec tion as modified by the Clean Air Act Amendments of 1990 to such sources of radionuclides. (4) MEDICAL FACILITIES.—Notwithstanding paragraph (1), no standard promulgated under this section prior to the date of enactment of the Clean Air Act Amendments of 1990 with respect to medical research or treatment facilities shall take ef fect for two years following the date of enactment of the Clean Air Act Amendments of 1990, unless the Administrator makes a determination pursuant to a rulemaking under section 112(d)(9). If the Administrator determines that the regulatory program established by the Nuclear Regulatory Commission for such facilities does not provide an ample margin of safety to protect public health, the requirements of section 112 shall fully apply to such facilities. If the Administrator determines that such regulatory program does provide an ample margin of safety to protect the public health, the Administrator is not re quired to promulgate a standard under this section for such fa cilities, as provided in section 112(d)(9). (r) PREVENTION OF ACCIDENTAL RELEASES.— (1) PURPOSE AND GENERAL DUTY.—It shall be the objective of the regulations and programs authorized under this sub section to prevent the accidental release and to minimize the consequences of any such release of any substance listed pur Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 86Sec. 112 CLEAN AIR ACT 1 So in original. Reference should be to section 5 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 654). suant to paragraph (3) or any other extremely hazardous sub stance. The owners and operators of stationary sources pro ducing, processing, handling or storing such substances have a general duty in the same manner and to the same extent as section 654, title 29 of the United States Code, 1 to identify hazards which may result from such releases using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur. For purposes of this paragraph, the provisions of sec tion 304 shall not be available to any person or otherwise be construed to be applicable to this paragraph. Nothing in this section shall be interpreted, construed, implied or applied to create any liability or basis for suit for compensation for bodily injury or any other injury or property damages to any person which may result from accidental releases of such substances. (2) DEFINITIONS.— (A) The term ‘‘accidental release’’ means an unantici pated emission of a regulated substance or other extremely hazardous substance into the ambient air from a sta tionary source. (B) The term ‘‘regulated substance’’ means a substance listed under paragraph (3). (C) The term ‘‘stationary source’’ means any buildings, structures, equipment, installations or substance emitting stationary activities (i) which belong to the same industrial group, (ii) which are located on one or more contiguous properties, (iii) which are under the control of the same person (or persons under common control), and (iv) from which an accidental release may occur. (D) The term ‘‘retail facility’’ means a stationary source at which more than one-half of the income is ob tained from direct sales to end users or at which more than one-half of the fuel sold, by volume, is sold through a cylinder exchange program. (3) LIST OF SUBSTANCES.—The Administrator shall promul gate not later than 24 months after enactment of the Clean Air Act Amendments of 1990 an initial list of 100 substances which, in the case of an accidental release, are known to cause or may reasonably be anticipated to cause death, injury, or se rious adverse effects to human health or the environment. For purposes of promulgating such list, the Administrator shall use, but is not limited to, the list of extremely hazardous sub stances published under the Emergency Planning and Commu nity Right-to-Know Act of 1986, with such modifications as the Administrator deems appropriate. The initial list shall include chlorine, anhydrous ammonia, methyl chloride, ethylene oxide, vinyl chloride, methyl isocyanate, hydrogen cyanide, ammonia, hydrogen sulfide, toluene diisocyanate, phosgene, bromine, an hydrous hydrogen chloride, hydrogen fluoride, anhydrous sul fur dioxide, and sulfur trioxide. The initial list shall include at Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 87 Sec. 112CLEAN AIR ACT least 100 substances which pose the greatest risk of causing death, injury, or serious adverse effects to human health or the environment from accidental releases. Regulations establishing the list shall include an explanation of the basis for estab lishing the list. The list may be revised from time to time by the Administrator on the Administrator’s own motion or by pe tition and shall be reviewed at least every 5 years. No air pol lutant for which a national primary ambient air quality stand ard has been established shall be included on any such list. No substance, practice, process, or activity regulated under title VI shall be subject to regulations under this subsection. The Ad ministrator shall establish procedures for the addition and de letion of substances from the list established under this para graph consistent with those applicable to the list in subsection (b). (4) FACTORS TO BE CONSIDERED.—In listing substances under paragraph (3), the Administrator— (A) shall consider— (i) the severity of any acute adverse health effects associated with accidental releases of the substance; (ii) the likelihood of accidental releases of the sub stance; and (iii) the potential magnitude of human exposure to accidental releases of the substance; and (B) shall not list a flammable substance when used as a fuel or held for sale as a fuel at a retail facility under this subsection solely because of the explosive or flam mable properties of the substance, unless a fire or explo sion caused by the substance will result in acute adverse health effects from human exposure to the substance, in cluding the unburned fuel or its combustion byproducts, other than those caused by the heat of the fire or impact of the explosion. (5) THRESHOLD QUANTITY.—At the time any substance is listed pursuant to paragraph (3), the Administrator shall es tablish by rule, a threshold quantity for the substance, taking into account the toxicity, reactivity, volatility, dispersibility, combustibility, or flammability of the substance and the amount of the substance which, as a result of an accidental re lease, is known to cause or may reasonably be anticipated to cause death, injury or serious adverse effects to human health for which the substance was listed. The Administrator is au thorized to establish a greater threshold quantity for, or to ex empt entirely, any substance that is a nutrient used in agri culture when held by a farmer. (6) CHEMICAL SAFETY BOARD.— (A) There is hereby established an independent safety board to be known as the Chemical Safety and Hazard In vestigation Board. (B) The Board shall consist of 5 members, including a Chairperson, who shall be appointed by the President, by and with the advice and consent of the Senate. Members of the Board shall be appointed on the basis of technical qualification, professional standing, and demonstrated Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 88Sec. 112 CLEAN AIR ACT 1 So in original. The phrase ‘‘of 1970’’ should appear after ‘‘Act’’. knowledge in the fields of accident reconstruction, safety engineering, human factors, toxicology, or air pollution regulation. The terms of office of members of the Board shall be 5 years. Any member of the Board, including the Chairperson, may be removed for inefficiency, neglect of duty, or malfeasance in office. The Chairperson shall be the Chief Executive Officer of the Board and shall exercise the executive and administrative functions of the Board. (C) The Board shall— (i) investigate (or cause to be investigated), deter mine and report to the public in writing the facts, con ditions, and circumstances and the cause or probable cause of any accidental release resulting in a fatality, serious injury or substantial property damages; (ii) issue periodic reports to the Congress, Federal, State and local agencies, including the Environmental Protection Agency and the Occupational Safety and Health Administration, concerned with the safety of chemical production, processing, handling and storage, and other interested persons recommending measures to reduce the likelihood or the consequences of acci dental releases and proposing corrective steps to make chemical production, processing, handling and storage as safe and free from risk of injury as is possible and may include in such reports proposed rules or orders which should be issued by the Administrator under the authority of this section or the Secretary of Labor under the Occupational Safety and Health Act 1 to pre vent or minimize the consequences of any release of substances that may cause death, injury or other seri ous adverse effects on human health or substantial property damage as the result of an accidental release; and (iii) establish by regulation requirements binding on persons for reporting accidental releases into the ambient air subject to the Board’s investigatory juris diction. Reporting releases to the National Response Center, in lieu of the Board directly, shall satisfy such regulations. The National Response Center shall promptly notify the Board of any releases which are within the Board’s jurisdiction. (D) The Board may utilize the expertise and experi ence of other agencies. (E) The Board shall coordinate its activities with in vestigations and studies conducted by other agencies of the United States having a responsibility to protect public health and safety. The Board shall enter into a memo randum of understanding with the National Transpor tation Safety Board to assure coordination of functions and to limit duplication of activities which shall designate the National Transportation Safety Board as the lead agency for the investigation of releases which are transportation Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 89 Sec. 112CLEAN AIR ACT 1 So in original. Probably refers to paragraph (7)(B). related. The Board shall not be authorized to investigate marine oil spills, which the National Transportation Safety Board is authorized to investigate. The Board shall enter into a memorandum of understanding with the Occupa tional Safety and Health Administration so as to limit du plication of activities. In no event shall the Board forego an investigation where an accidental release causes a fa tality or serious injury among the general public, or had the potential to cause substantial property damage or a number of deaths or injuries among the general public. (F) The Board is authorized to conduct research and studies with respect to the potential for accidental re leases, whether or not an accidental release has occurred, where there is evidence which indicates the presence of a potential hazard or hazards. To the extent practicable, the Board shall conduct such studies in cooperation with other Federal agencies having emergency response authorities, State and local governmental agencies and associations and organizations from the industrial, commercial, and nonprofit sectors. (G) No part of the conclusions, findings, or rec ommendations of the Board relating to any accidental re lease or the investigation thereof shall be admitted as evi dence or used in any action or suit for damages arising out of any matter mentioned in such report. (H) Not later than 18 months after the date of enact ment of the Clean Air Act Amendments of 1990, the Board shall publish a report accompanied by recommendations to the Administrator on the use of hazard assessments in preventing the occurrence and minimizing the con sequences of accidental releases of extremely hazardous substances. The recommendations shall include a list of extremely hazardous substances which are not regulated substances (including threshold quantities for such sub stances) and categories of stationary sources for which hazard assessments would be an appropriate measure to aid in the prevention of accidental releases and to mini mize the consequences of those releases that do occur. The recommendations shall also include a description of the in formation and analysis which would be appropriate to in clude in any hazard assessment. The Board shall also make recommendations with respect to the role of risk management plans as required by paragraph (8)(B) 1 in preventing accidental releases. The Board may from time to time review and revise its recommendations under this subparagraph. (I) Whenever the Board submits a recommendation with respect to accidental releases to the Administrator, the Administrator shall respond to such recommendation formally and in writing not later than 180 days after re ceipt thereof. The response to the Board’s recommendation Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 90Sec. 112 CLEAN AIR ACT 1 See footnote 1 on page 87. by the Administrator shall indicate whether the Adminis trator will— (i) initiate a rulemaking or issue such orders as are necessary to implement the recommendation in full or in part, pursuant to any timetable contained in the recommendation; (ii) decline to initiate a rulemaking or issue orders as recommended. Any determination by the Administrator not to implement a recommendation of the Board or to implement a rec ommendation only in part, including any variation from the schedule contained in the recommendation, shall be ac companied by a statement from the Administrator setting forth the reasons for such determination. (J) The Board may make recommendations with re spect to accidental releases to the Secretary of Labor. Whenever the Board submits such recommendation, the Secretary shall respond to such recommendation formally and in writing not later than 180 days after receipt there of. The response to the Board’s recommendation by the Ad ministrator shall indicate whether the Secretary will— (i) initiate a rulemaking or issue such orders as are necessary to implement the recommendation in full or in part, pursuant to any timetable contained in the recommendation; (ii) decline to initiate a rulemaking or issue orders as recommended. Any determination by the Secretary not to implement a recommendation or to implement a recommendation only in part, including any variation from the schedule con tained in the recommendation, shall be accompanied by a statement from the Secretary setting forth the reasons for such determination. (K) Within 2 years after enactment of the Clean Air Act Amendments of 1990, the Board shall issue a report to the Administrator of the Environmental Protection Agency and to the Administrator of the Occupational Safety and Health Administration recommending the adoption of reg ulations for the preparation of risk management plans and general requirements for the prevention of accidental re leases of regulated substances into the ambient air (includ ing recommendations for listing substances under para graph (3)) and for the mitigation of the potential adverse effect on human health or the environment as a result of accidental releases which should be applicable to any sta tionary source handling any regulated substance in more than threshold amounts. The Board may include proposed rules or orders which should be issued by the Adminis trator under authority of this subsection or by the Sec retary of Labor under the Occupational Safety and Health Act. 1 Any such recommendations shall be specific and shall identify the regulated substance or class of regulated Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 91 Sec. 112CLEAN AIR ACT substances (or other substances) to which the rec ommendations apply. The Administrator shall consider such recommendations before promulgating regulations re quired by paragraph (7)(B). (L) The Board, or upon authority of the Board, any member thereof, any administrative law judge employed by or assigned to the Board, or any officer or employee duly designated by the Board, may for the purpose of car rying out duties authorized by subparagraph (C)— (i) hold such hearings, sit and act at such times and places, administer such oaths, and require by sub poena or otherwise attendance and testimony of such witnesses and the production of evidence and may re quire by order that any person engaged in the produc tion, processing, handling, or storage of extremely haz ardous substances submit written reports and re sponses to requests and questions within such time and in such form as the Board may require; and (ii) upon presenting appropriate credentials and a written notice of inspection authority, enter any prop erty where an accidental release causing a fatality, se rious injury or substantial property damage has oc curred and do all things therein necessary for a proper investigation pursuant to subparagraph (C) and in spect at reasonable times records, files, papers, proc esses, controls, and facilities and take such samples as are relevant to such investigation. Whenever the Administrator or the Board conducts an in spection of a facility pursuant to this subsection, employ ees and their representatives shall have the same rights to participate in such inspections as provided in the Occupa tional Safety and Health Act. 1 (M) In addition to that described in subparagraph (L), the Board may use any information gathering authority of the Administrator under this Act, including the subpoena power provided in section 307(a)(1) of this Act. (N) The Board is authorized to establish such proce dural and administrative rules as are necessary to the ex ercise of its functions and duties. The Board is authorized without regard to section 5 of title 41 of the United States Code to enter into contracts, leases, cooperative agree ments or other transactions as may be necessary in the conduct of the duties and functions of the Board with any other agency, institution, or person. (O) After the effective date of any reporting require ment promulgated pursuant to subparagraph (C)(iii) it shall be unlawful for any person to fail to report any re lease of any extremely hazardous substance as required by such subparagraph. The Administrator is authorized to en force any regulation or requirements established by the Board pursuant to subparagraph (C)(iii) using the authori ties of sections 113 and 114. Any request for information from the owner or operator of a stationary source made by the Board or by the Administrator under this section shall Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 92Sec. 112 CLEAN AIR ACT 1 So in original. Probably should be ‘‘subparagraph’’. be treated, for purposes of sections 113, 114, 116, 120, 303, 304 and 307 and any other enforcement provisions of this Act, as a request made by the Administrator under section 114 and may be enforced by the Chairperson of the Board or by the Administrator as provided in such section. (P) The Administrator shall provide to the Board such support and facilities as may be necessary for operation of the Board. (Q) Consistent with subsection 1 (G) and section 114(c) any records, reports or information obtained by the Board shall be available to the Administrator, the Secretary of Labor, the Congress and the public, except that upon a showing satisfactory to the Board by any person that records, reports, or information, or particular part thereof (other than release or emissions data) to which the Board has access, if made public, is likely to cause substantial harm to the person’s competitive position, the Board shall consider such record, report, or information or particular portion thereof confidential in accordance with section 1905 of title 18 of the United States Code, except that such record, report, or information may be disclosed to other of ficers, employees, and authorized representatives of the United States concerned with carrying out this Act or when relevant under any proceeding under this Act. This subparagraph does not constitute authority to withhold records, reports, or information from the Congress. (R) Whenever the Board submits or transmits any budget estimate, budget request, supplemental budget re quest, or other budget information, legislative rec ommendation, prepared testimony for congressional hear ings, recommendation or study to the President, the Sec retary of Labor, the Administrator, or the Director of the Office of Management and Budget, it shall concurrently transmit a copy thereof to the Congress. No report of the Board shall be subject to review by the Administrator or any Federal agency or to judicial review in any court. No officer or agency of the United States shall have authority to require the Board to submit its budget requests or esti mates, legislative recommendations, prepared testimony, comments, recommendations or reports to any officer or agency of the United States for approval or review prior to the submission of such recommendations, testimony, com ments or reports to the Congress. In the performance of their functions as established by this Act, the members, of ficers and employees of the Board shall not be responsible to or subject to supervision or direction, in carrying out any duties under this subsection, of any officer or em ployee or agent of the Environmental Protection Agency, the Department of Labor or any other agency of the United States except that the President may remove any member, officer or employee of the Board for inefficiency, neglect of duty or malfeasance in office. Nothing in this section shall Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 93 Sec. 112CLEAN AIR ACT affect the application of title 5, United States Code to offi cers or employees of the Board. (S) The Board shall submit an annual report to the President and to the Congress which shall include, but not be limited to, information on accidental releases which have been investigated by or reported to the Board during the previous year, recommendations for legislative or ad ministrative action which the Board has made, the actions which have been taken by the Administrator or the Sec retary of Labor or the heads of other agencies to imple ment such recommendations, an identification of priorities for study and investigation in the succeeding year, progress in the development of risk-reduction technologies and the response to and implementation of significant re search findings on chemical safety in the public and pri vate sector. (7) ACCIDENT PREVENTION.— (A) In order to prevent accidental releases of regulated substances, the Administrator is authorized to promulgate release prevention, detection, and correction requirements which may include monitoring, record-keeping, reporting, training, vapor recovery, secondary containment, and other design, equipment, work practice, and operational require ments. Regulations promulgated under this paragraph may make distinctions between various types, classes, and kinds of facilities, devices and systems taking into consid eration factors including, but not limited to, the size, loca tion, process, process controls, quantity of substances han dled, potency of substances, and response capabilities present at any stationary source. Regulations promulgated pursuant to this subparagraph shall have an effective date, as determined by the Administrator, assuring compli ance as expeditiously as practicable. (B)(i) Within 3 years after the date of enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate reasonable regulations and appropriate guidance to provide, to the greatest extent practicable, for the prevention and detection of accidental releases of regu lated substances and for response to such releases by the owners or operators of the sources of such releases. The Administrator shall utilize the expertise of the Secretaries of Transportation and Labor in promulgating such regula tions. As appropriate, such regulations shall cover the use, operation, repair, replacement, and maintenance of equip ment to monitor, detect, inspect, and control such releases, including training of persons in the use and maintenance of such equipment and in the conduct of periodic inspec tions. The regulations shall include procedures and meas ures for emergency response after an accidental release of a regulated substance in order to protect human health and the environment. The regulations shall cover storage, as well as operations. The regulations shall, as appro priate, recognize differences in size, operations, processes, class and categories of sources and the voluntary actions Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 94Sec. 112 CLEAN AIR ACT of such sources to prevent such releases and respond to such releases. The regulations shall be applicable to a sta tionary source 3 years after the date of promulgation, or 3 years after the date on which a regulated substance present at the source in more than threshold amounts is first listed under paragraph (3), whichever is later. (ii) The regulations under this subparagraph shall re quire the owner or operator of stationary sources at which a regulated substance is present in more than a threshold quantity to prepare and implement a risk management plan to detect and prevent or minimize accidental releases of such substances from the stationary source, and to pro vide a prompt emergency response to any such releases in order to protect human health and the environment. Such plan shall provide for compliance with the requirements of this subsection and shall also include each of the following: (I) a hazard assessment to assess the potential ef fects of an accidental release of any regulated sub stance. This assessment shall include an estimate of potential release quantities and a determination of downwind effects, including potential exposures to af fected populations. Such assessment shall include a previous release history of the past 5 years, including the size, concentration, and duration of releases, and shall include an evaluation of worst case accidental re leases; (II) a program for preventing accidental releases of regulated substances, including safety precautions and maintenance, monitoring and employee training measures to be used at the source; and (III) a response program providing for specific ac tions to be taken in response to an accidental release of a regulated substance so as to protect human health and the environment, including procedures for inform ing the public and local agencies responsible for re sponding to accidental releases, emergency health care, and employee training measures. At the time regulations are promulgated under this sub paragraph, the Administrator shall promulgate guidelines to assist stationary sources in the preparation of risk man agement plans. The guidelines shall, to the extent prac ticable, include model risk management plans. (iii) The owner or operator of each stationary source covered by clause (ii) shall register a risk management plan prepared under this subparagraph with the Adminis trator before the effective date of regulations under clause (i) in such form and manner as the Administrator shall, by rule, require. Plans prepared pursuant to this subpara graph shall also be submitted to the Chemical Safety and Hazard Investigation Board, to the State in which the sta tionary source is located, and to any local agency or entity having responsibility for planning for or responding to ac cidental releases which may occur at such source, and shall be available to the public under section 114(c). The Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 95 Sec. 112CLEAN AIR ACT 1 So in original. Should refer to section 4 of the Occupational Safety and Health Act of 1970. Administrator shall establish, by rule, an auditing system to regularly review and, if necessary, require revision in risk management plans to assure that the plans comply with this subparagraph. Each such plan shall be updated periodically as required by the Administrator, by rule. (C) Any regulations promulgated pursuant to this sub section shall to the maximum extent practicable, con sistent with this subsection, be consistent with the rec ommendations and standards established by the American Society of Mechanical Engineers (ASME), the American National Standards Institute (ANSI) or the American Soci ety of Testing Materials (ASTM). The Administrator shall take into consideration the concerns of small business in promulgating regulations under this subsection. (D) In carrying out the authority of this paragraph, the Administrator shall consult with the Secretary of Labor and the Secretary of Transportation and shall co ordinate any requirements under this paragraph with any requirements established for comparable purposes by the Occupational Safety and Health Administration or the De partment of Transportation. Nothing in this subsection shall be interpreted, construed or applied to impose re quirements affecting, or to grant the Administrator, the Chemical Safety and Hazard Investigation Board, or any other agency any authority to regulate (including require ments for hazard assessment), the accidental release of radionuclides arising from the construction and operation of facilities licensed by the Nuclear Regulatory Commis sion. (E) After the effective date of any regulation or re quirement imposed under this subsection, it shall be un lawful for any person to operate any stationary source sub ject to such regulation or requirement in violation of such regulation or requirement. Each regulation or requirement under this subsection shall for purposes of sections 113, 114, 116, 120, 304, and 307 and other enforcement provi sions of this Act, be treated as a standard in effect under subsection (d). (F) Notwithstanding the provisions of title V or this section, no stationary source shall be required to apply for, or operate pursuant to, a permit issued under such title solely because such source is subject to regulations or re quirements under this subsection. (G) In exercising any authority under this subsection, the Administrator shall not, for purposes of section 653(b)(1) of title 29 of the United States Code, 1 be deemed to be exercising statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health. (H) PUBLIC ACCESS TO OFF-SITE CONSEQUENCE ANAL YSIS INFORMATION.— (i) DEFINITIONS.—In this subparagraph: Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 96Sec. 112 CLEAN AIR ACT (I) COVERED PERSON.—The term ‘‘covered per son’’ means— (aa) an officer or employee of the United States; (bb) an officer or employee of an agent or contractor of the Federal Government; (cc) an officer or employee of a State or local government; (dd) an officer or employee of an agent or contractor of a State or local government; (ee) an individual affiliated with an entity that has been given, by a State or local gov ernment, responsibility for preventing, plan ning for, or responding to accidental releases; (ff) an officer or employee or an agent or contractor of an entity described in item (ee); and (gg) a qualified researcher under clause (vii). (II) OFFICIAL USE.—The term ‘‘official use’’ means an action of a Federal, State, or local gov ernment agency or an entity referred to in sub clause (I)(ee) intended to carry out a function rel evant to preventing, planning for, or responding to accidental releases. (III) OFF-SITE CONSEQUENCE ANALYSIS INFOR MATION.—The term ‘‘off-site consequence analysis information’’ means those portions of a risk man agement plan, excluding the executive summary of the plan, consisting of an evaluation of 1 or more worst-case release scenarios or alternative release scenarios, and any electronic data base created by the Administrator from those portions. (IV) RISK MANAGEMENT PLAN.—The term ‘‘risk management plan’’ means a risk management plan submitted to the Administrator by an owner or operator of a stationary source under subpara graph (B)(iii). (ii) REGULATIONS.—Not later than 1 year after the date of enactment of this subparagraph, the President shall— (I) assess— (aa) the increased risk of terrorist and other criminal activity associated with the posting of off-site consequence analysis infor mation on the Internet; and (bb) the incentives created by public dis closure of off-site consequence analysis infor mation for reduction in the risk of accidental releases; and (II) based on the assessment under subclause (I), promulgate regulations governing the distribu tion of off-site consequence analysis information in a manner that, in the opinion of the President, Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 97 Sec. 112CLEAN AIR ACT minimizes the likelihood of accidental releases and the risk described in subclause (I)(aa) and the likelihood of harm to public health and welfare, and— (aa) allows access by any member of the public to paper copies of off-site consequence analysis information for a limited number of stationary sources located anywhere in the United States, without any geographical re striction; (bb) allows other public access to off-site consequence analysis information as appro priate; (cc) allows access for official use by a cov ered person described in any of items (cc) through (ff) of clause (i)(I) (referred to in this subclause as a ‘‘State or local covered person’’) to off-site consequence analysis information relating to stationary sources located in the person’s State; (dd) allows a State or local covered person to provide, for official use, off-site consequence analysis information relating to stationary sources located in the person’s State to a State or local covered person in a contiguous State; and (ee) allows a State or local covered person to obtain for official use, by request to the Ad ministrator, off-site consequence analysis in formation that is not available to the person under item (cc). (iii) AVAILABILITY UNDER FREEDOM OF INFORMA TION ACT.— (I) FIRST YEAR.—Off-site consequence analysis information, and any ranking of stationary sources derived from the information, shall not be made available under section 552 of title 5, United States Code, during the 1-year period beginning on the date of enactment of this subparagraph. (II) AFTER FIRST YEAR.—If the regulations under clause (ii) are promulgated on or before the end of the period described in subclause (I), off site consequence analysis information covered by the regulations, and any ranking of stationary sources derived from the information, shall not be made available under section 552 of title 5, United States Code, after the end of that period. (III) APPLICABILITY.—Subclauses (I) and (II) apply to off-site consequence analysis information submitted to the Administrator before, on, or after the date of enactment of this subparagraph. (iv) AVAILABILITY OF INFORMATION DURING TRANSI TION PERIOD.—The Administrator shall make off-site consequence analysis information available to covered Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 98Sec. 112 CLEAN AIR ACT persons for official use in a manner that meets the re quirements of items (cc) through (ee) of clause (ii)(II), and to the public in a form that does not make avail able any information concerning the identity or loca tion of stationary sources, during the period— (I) beginning on the date of enactment of this subparagraph; and (II) ending on the earlier of the date of pro mulgation of the regulations under clause (ii) or the date that is 1 year after the date of enactment of this subparagraph. (v) PROHIBITION ON UNAUTHORIZED DISCLOSURE OF INFORMATION BY COVERED PERSONS.— (I) IN GENERAL.—Beginning on the date of en actment of this subparagraph, a covered person shall not disclose to the public off-site consequence analysis information in any form, or any statewide or national ranking of identified stationary sources derived from such information, except as authorized by this subparagraph (including the regulations promulgated under clause (ii)). After the end of the 1-year period beginning on the date of enactment of this subparagraph, if regulations have not been promulgated under clause (ii), the preceding sentence shall not apply. (II) CRIMINAL PENALTIES.—Notwithstanding section 113, a covered person that willfully vio lates a restriction or prohibition established by this subparagraph (including the regulations pro mulgated under clause (ii)) shall, upon conviction, be fined for an infraction under section 3571 of title 18, United States Code, (but shall not be sub ject to imprisonment) for each unauthorized dis closure of off-site consequence analysis informa tion, except that subsection (d) of such section 3571 shall not apply to a case in which the offense results in pecuniary loss unless the defendant knew that such loss would occur. The disclosure of off-site consequence analysis information for each specific stationary source shall be considered a separate offense. The total of all penalties that may be imposed on a single person or organization under this item shall not exceed $1,000,000 for violations committed during any 1 calendar year. (III) APPLICABILITY.—If the owner or operator of a stationary source makes off-site consequence analysis information relating to that stationary source available to the public without restriction— (aa) subclauses (I) and (II) shall not apply with respect to the information; and (bb) the owner or operator shall notify the Administrator of the public availability of the information. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 99 Sec. 112CLEAN AIR ACT (IV) LIST.—The Administrator shall maintain and make publicly available a list of all stationary sources that have provided notification under sub clause (III)(bb). (vi) NOTICE.—The Administrator shall provide no tice of the definition of official use as provided in clause (i)(III) and examples of actions that would and would not meet that definition, and notice of the re strictions on further dissemination and the penalties established by this Act to each covered person who re ceives off-site consequence analysis information under clause (iv) and each covered person who receives off site consequence analysis information for an official use under the regulations promulgated under clause (ii). (vii) QUALIFIED RESEARCHERS.— (I) IN GENERAL.—Not later than 180 days after the date of enactment of this subparagraph, the Administrator, in consultation with the Attor ney General, shall develop and implement a sys tem for providing off-site consequence analysis in formation, including facility identification, to any qualified researcher, including a qualified re searcher from industry or any public interest group. (II) LIMITATION ON DISSEMINATION.—The sys tem shall not allow the researcher to disseminate, or make available on the Internet, the off-site con sequence analysis information, or any portion of the off-site consequence analysis information, re ceived under this clause. (viii) READ-ONLY INFORMATION TECHNOLOGY SYS TEM.—In consultation with the Attorney General and the heads of other appropriate Federal agencies, the Administrator shall establish an information tech nology system that provides for the availability to the public of off-site consequence analysis information by means of a central data base under the control of the Federal Government that contains information that users may read, but that provides no means by which an electronic or mechanical copy of the information may be made. (ix) VOLUNTARY INDUSTRY ACCIDENT PREVENTION STANDARDS.—The Environmental Protection Agency, the Department of Justice, and other appropriate agencies may provide technical assistance to owners and operators of stationary sources and participate in the development of voluntary industry standards that will help achieve the objectives set forth in paragraph (1). (x) EFFECT ON STATE OR LOCAL LAW.— (I) IN GENERAL.—Subject to subclause (II), this subparagraph (including the regulations pro mulgated under this subparagraph) shall super Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 100Sec. 112 CLEAN AIR ACT sede any provision of State or local law that is in consistent with this subparagraph (including the regulations). (II) AVAILABILITY OF INFORMATION UNDER STATE LAW.—Nothing in this subparagraph pre cludes a State from making available data on the off-site consequences of chemical releases collected in accordance with State law. (xi) REPORT.— (I) IN GENERAL.—Not later than 3 years after the date of enactment of this subparagraph, the Attorney General, in consultation with appro priate State, local, and Federal Government agen cies, affected industry, and the public, shall sub mit to Congress a report that describes the extent to which regulations promulgated under this para graph have resulted in actions, including the de sign and maintenance of safe facilities, that are effective in detecting, preventing, and minimizing the consequences of releases of regulated sub stances that may be caused by criminal activity. As part of this report, the Attorney General, using available data to the extent possible, and a sam pling of covered stationary sources selected at the discretion of the Attorney General, and in con sultation with appropriate State, local, and Fed eral governmental agencies, affected industry, and the public, shall review the vulnerability of cov ered stationary sources to criminal and terrorist activity, current industry practices regarding site security, and security of transportation of regu lated substances. The Attorney General shall sub mit this report, containing the results of the re view, together with recommendations, if any, for reducing vulnerability of covered stationary sources to criminal and terrorist activity, to the Committee on Commerce of the United States House of Representatives and the Committee on Environment and Public Works of the United States Senate and other relevant committees of Congress. (II) INTERIM REPORT.—Not later than 12 months after the date of enactment of this sub paragraph, the Attorney General shall submit to the Committee on Commerce of the United States House of Representatives and the Committee on Environment and Public Works of the United States Senate, and other relevant committees of Congress, an interim report that includes, at a minimum— (aa) the preliminary findings under sub clause (I); (bb) the methods used to develop the find ings; and Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 101 Sec. 112CLEAN AIR ACT (cc) an explanation of the activities ex pected to occur that could cause the findings of the report under subclause (I) to be dif ferent than the preliminary findings. (III) AVAILABILITY OF INFORMATION.—Informa tion that is developed by the Attorney General or requested by the Attorney General and received from a covered stationary source for the purpose of conducting the review under subclauses (I) and (II) shall be exempt from disclosure under section 552 of title 5, United States Code, if such informa tion would pose a threat to national security. (xii) SCOPE.—This subparagraph— (I) applies only to covered persons; and (II) does not restrict the dissemination of off site consequence analysis information by any cov ered person in any manner or form except in the form of a risk management plan or an electronic data base created by the Administrator from off site consequence analysis information. (xiii) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the Administrator and the Attorney General such sums as are necessary to carry out this subparagraph (including the regula tions promulgated under clause (ii)), to remain avail able until expended. (8) RESEARCH ON HAZARD ASSESSMENTS.—The Adminis trator may collect and publish information on accident sce narios and consequences covering a range of possible events for substances listed under paragraph (3). The Administrator shall establish a program of long-term research to develop and dis seminate information on methods and techniques for hazard assessment which may be useful in improving and validating the procedures employed in the preparation of hazard assess ments under this subsection. (9) ORDER AUTHORITY.— (A) In addition to any other action taken, when the Administrator determines that there may be an imminent and substantial endangerment to the human health or welfare or the environment because of an actual or threat ened accidental release of a regulated substance, the Ad ministrator may secure such relief as may be necessary to abate such danger or threat, and the district court of the United States in the district in which the threat occurs shall have jurisdiction to grant such relief as the public in terest and the equities of the case may require. The Ad ministrator may also, after notice to the State in which the stationary source is located, take other action under this paragraph including, but not limited to, issuing such or ders as may be necessary to protect human health. The Administrator shall take action under section 303 rather than this paragraph whenever the authority of such sec tion is adequate to protect human health and the environ ment. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 102Sec. 112 CLEAN AIR ACT (B) Orders issued pursuant to this paragraph may be enforced in an action brought in the appropriate United States district court as if the order were issued under sec tion 303. (C) Within 180 days after enactment of the Clean Air Act Amendments of 1990, the Administrator shall publish guidance for using the order authorities established by this paragraph. Such guidance shall provide for the coordinated use of the authorities of this paragraph with other emer gency powers authorized by section 106 of the Comprehen sive Environmental Response, Compensation and Liability Act, sections 311(c), 308, 309 and 504(a) of the Federal Water Pollution Control Act, sections 3007, 3008, 3013, and 7003 of the Solid Waste Disposal Act, sections 1445 and 1431 of the Safe Drinking Water Act, sections 5 and 7 of the Toxic Substances Control Act, and sections 113, 114, and 303 of this Act. (10) PRESIDENTIAL REVIEW.—The President shall conduct a review of release prevention, mitigation and response authori ties of the various Federal agencies and shall clarify and co ordinate agency responsibilities to assure the most effective and efficient implementation of such authorities and to identify any deficiencies in authority or resources which may exist. The President may utilize the resources and solicit the rec ommendations of the Chemical Safety and Hazard Investiga tion Board in conducting such review. At the conclusion of such review, but not later than 24 months after the date of enact ment of the Clean Air Act Amendments of 1990, the President shall transmit a message to the Congress on the release pre vention, mitigation and response activities of the Federal Gov ernment making such recommendations for change in law as the President may deem appropriate. Nothing in this para graph shall be interpreted, construed or applied to authorize the President to modify or reassign release prevention, mitiga tion or response authorities otherwise established by law. (11) STATE AUTHORITY.—Nothing in this subsection shall preclude, deny or limit any right of a State or political subdivi sion thereof to adopt or enforce any regulation, requirement, limitation or standard (including any procedural requirement) that is more stringent than a regulation, requirement, limita tion or standard in effect under this subsection or that applies to a substance not subject to this subsection. (s) PERIODIC REPORT.—Not later than January 15, 1993 and every 3 years thereafter, the Administrator shall prepare and transmit to the Congress a comprehensive report on the measures taken by the Agency and by the States to implement the provisions of this section. The Administrator shall maintain a database on pollutants and sources subject to the provisions of this section and shall include aggregate information from the database in each an nual report. The report shall include, but not be limited to— (1) a status report on standard-setting under subsections (d) and (f); Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 103 Sec. 113CLEAN AIR ACT (2) information with respect to compliance with such standards including the costs of compliance experienced by sources in various categories and subcategories; (3) development and implementation of the national urban air toxics program; and (4) recommendations of the Chemical Safety and Hazard Investigation Board with respect to the prevention and mitiga tion of accidental releases. [42 U.S.C. 7412] SEC. 113. FEDERAL ENFORCEMENT. (a) IN GENERAL.— (1) ORDER TO COMPLY WITH SIP.—Whenever, on the basis of any information available to the Administrator, the Admin istrator finds that any person has violated or is in violation of any requirement or prohibition of an applicable implementa tion plan or permit, the Administrator shall notify the person and the State in which the plan applies of such finding. At any time after the expiration of 30 days following the date on which such notice of a violation is issued, the Administrator may, without regard to the period of violation (subject to sec tion 2462 of title 28 of the United States Code)— (A) issue an order requiring such person to comply with the requirements or prohibitions of such plan or per mit, (B) issue an administrative penalty order in accord ance with subsection (d), or (C) bring a civil action in accordance with subsection (b). (2) STATE FAILURE TO ENFORCE SIP OR PERMIT PROGRAM.— Whenever, on the basis of information available to the Admin istrator, the Administrator finds that violations of an applica ble implementation plan or an approved permit program under title V are so widespread that such violations appear to result from a failure of the State in which the plan or permit program applies to enforce the plan or permit program effectively, the Administrator shall so notify the State. In the case of a permit program, the notice shall be made in accordance with title V. If the Administrator finds such failure extends beyond the 30th day after such notice (90 days in the case of such permit pro gram), the Administrator shall give public notice of such find ing. During the period beginning with such public notice and ending when such State satisfies the Administrator that it will enforce such plan or permit program (hereafter referred to in this section as ‘‘period of federally assumed enforcement’’), the Administrator may enforce any requirement or prohibition of such plan or permit program with respect to any person by— (A) issuing an order requiring such person to comply with such requirement or prohibition, (B) issuing an administrative penalty order in accord ance with subsection (d), or (C) bringing a civil action in accordance with sub section (b). Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 104Sec. 113 CLEAN AIR ACT (3) EPA ENFORCEMENT OF OTHER REQUIREMENTS.—Except for a requirement or prohibition enforceable under the pre ceding provisions of this subsection, whenever, on the basis of any information available to the Administrator, the Adminis trator finds that any 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 lim ited to, a requirement or 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 Administrator may— (A) issue an administrative penalty order in accord ance 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 crimi nal action in accordance with subsection (c). (4) REQUIREMENTS FOR ORDERS.—An order issued under this subsection (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 Adminis trator concerning the alleged violation. A copy of any order issued under this subsection shall be sent to the State air pol lution control agency of any State in which the violation oc curs. 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 require ments. In any case in which an order under this subsection (or notice to a violator under paragraph (1)) is issued to a corpora tion, a copy of such order (or notice) shall be issued to appro priate 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 sub section shall prevent the State or the Administrator from as sessing any penalties nor otherwise affect or limit the State’s or the United States authority to enforce under other provi sions 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 ap proved under this Act. (5) FAILURE TO COMPLY WITH NEW SOURCE REQUIRE MENTS.—Whenever, on the basis of any available information, the Administrator finds that a State is not acting in compli ance with any requirement or prohibition of the Act relating to the construction of new sources or the modification of existing sources, the Administrator may— Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 105 Sec. 113CLEAN AIR ACT (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 accord ance 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 oper ator of an affected source, a major emitting facility, or a major sta tionary 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 implemen tation 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 vio lated, 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 lo cated, and such court shall have jurisdiction to restrain such viola tion, to require compliance, to assess such civil penalty, to collect any fees owed the United States under 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 Administrator under this subsection, the court may award costs of litigation (including reasonable attorney and expert witness fees) to the party or parties against whom such action was brought if the court finds that such action was unrea sonable. (c) CRIMINAL PENALTIES.—(1) Any person who knowingly vio lates any requirement or prohibition of an applicable implementa tion 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 re Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 106Sec. 113 CLEAN AIR ACT 1 Comma omitted by section 701 of Public Law 101–549 (104 Stat. 2675). quirement or prohibition), any order under subsection (a) of this section, requirement or prohibition of section 111(e) of this title (re lating 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 require ments), an order under section 303 of title III (relating to emer gency orders), section 502(a) or 503(c) of title V (relating to per mits), or any requirement or prohibition of title IV (relating to acid deposition control), or title VI (relating to stratospheric ozone con trol), including a requirement of any rule, order, waiver, or permit promulgated or approved under such sections or titles, and includ ing 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 convic tion of any person under this paragraph is for a violation com mitted 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 know ingly alters, conceals, or fails to file or maintain any notice, ap plication, record, report, plan, or other document required pur suant to this Act to be either filed or maintained (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 main tained or followed under this Act 1 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 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. (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 con viction, 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 para graph, 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 sec tion 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 Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 107 Sec. 113CLEAN AIR ACT 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 para graph, 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 sec tion 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 an other 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 of not more than 15 years, or both. Any person committing such violation which is an organi zation 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 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. For any air pollutant for which the Admin istrator 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 de fendant, but not by the defendant, may not be attributed to the defendant; except that in proving a defendant’s possession of actual knowl edge, 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 con duct 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 experimen tation 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 pros ecution that may apply with respect to other Federal criminal of fenses may apply under subparagraph (A) of this paragraph and Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 108Sec. 113 CLEAN AIR ACT 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 rea son 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, partner ship, 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’’ in cludes, 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 per son assessing a civil administrative penalty of up to $25,000, per day of violation, whenever, on the basis of any available informa tion, the Administrator finds that such person— (A) has violated or is violating any requirement or prohibi tion of an applicable implementation plan (such order shall be issued (i) during any period of federally assumed enforcement, or (ii) more than thirty days following the date of the Adminis trator’s notification under subsection (a)(1) of this section of a finding that such person has violated or is violating such re quirement 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, per mit, or plan 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); or (C) attempts to construct or modify a major stationary source in any area with respect to which a finding under sub section (a)(5) of this section has been made. The Administrator’s authority under this paragraph shall be lim ited 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 At torney 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 op portunity 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 Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 109 Sec. 113CLEAN AIR ACT 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 re ceived 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 des ignated by the Administrator. Any person to whom a field citation is assessed may, within a reasonable time as prescribed by the Ad ministrator through regulation, elect to pay the penalty assessment or to request a hearing on the field citation. If a request for a hear ing 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 stat utory 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 viola tion is alleged to have occurred, in which such person resides, or where such person’s principal place of business is located, by filing in such court within 30 days following the date the administrative penalty order becomes final under paragraph (2), 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 Adminis trator 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 para graph. In any such proceedings, the United States may seek to re cover 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, Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 110Sec. 113 CLEAN AIR ACT 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 collec tion proceedings and a quarterly nonpayment penalty for each quarter during which such failure to pay persists. Such non payment penalty shall be 10 percent of the aggregate amount of such person’s outstanding penalties and nonpayment penalties ac crued 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 pen alty 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 appli cable test method), payment by the violator of penalties previously assessed for the same violation, the economic benefit of noncompli ance, and the seriousness of the violation. The court shall not as sess penalties for noncompliance with administrative subpoenas under section 307(a), or actions under section 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 sec tion, or section 304(a), or an assessment may be made under sec tion 120, where the Administrator or an air pollution control agen cy 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 viola tion occurred or that the violation was not continuing in nature. (f) AWARDS.—The Administrator may pay an award, not to ex ceed $10,000, to any person who furnishes information or services which lead to a criminal conviction or a judicial or administrative civil 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 United States or any State or local government who furnishes information or ren Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 111 Sec. 114CLEAN AIR ACT 1 Sections 302(c) and 702(a)(1) of Public Law 104–549 (104 Stat. 2574, 2680) both struck the word ‘‘or’’ and both amended section 114(a) to refer, in slightly different language, to a new sec tion 129. In addition to being duplicative, the amendment made by section 302(c) adds a second comma following ‘‘section 112,’’. ders service in the performance of an official duty is ineligible for payment under this subsection. The Administrator may, by regula tion, prescribe additional criteria for eligibility for such an award. (g) SETTLEMENTS; PUBLIC PARTICIPATION.—At least 30 days be fore a consent order or settlement agreement of any kind under this Act to which the United States is a party (other than enforce ment actions under section 113, 120, or title II, whether or not in volving civil or criminal penalties, or judgments subject to Depart ment of Justice policy on public participation) is final or filed with a court, the Administrator shall provide a reasonable opportunity by notice in the Federal Register to persons who are not named as parties or intervenors to the action or matter to comment in writ ing. The Administrator or the Attorney General, as appropriate, shall promptly consider any such written comments and may with draw or withhold his consent to the proposed order or agreement if the comments disclose facts or considerations which indicate that such consent is inappropriate, improper, inadequate, or incon sistent with the requirements of this Act. Nothing in this sub section 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 viola tions, such term shall not include any person who is a stationary engineer or technician responsible for the operation, maintenance, 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 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 manage ment personnel or a corporate officer. Except in the case of know ing 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, 1 any emis sion standard under section 112, ø, or any regulation of solid waste combustion under section 129,¿ øor any regulation under section 129 (relating to solid waste combustion),¿ 1 (ii) of determining whether any person is in violation of any such standard or any re quirement of such a plan, or (iii) carrying out any provision of this Act (except a provision of title II with respect to a manufacturer of new motor vehicles or new motor vehicle engines)— Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 112Sec. 114 CLEAN AIR ACT (1) the Administrator may require any person who owns or operates any emission source, who manufactures emission con trol 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 equip ment, and use such audit procedures, or methods; (D) sample such emissions (in accordance with such procedures or methods, at such locations, at such intervals, during such periods and in such manner as the Adminis trator shall prescribe); (E) keep records on control equipment parameters, production variables or other indirect data when direct monitoring of emissions is impractical; (F) submit compliance certifications in accordance with section 114(a)(3); and (G) provide such other information as the Adminis trator 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 meth od required under paragraph (1), and sample any emis sions which such person is required to sample under para graph (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. Com pliance certifications shall include (A) identification of the ap plicable 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 Admin istrator may require. Compliance certifications and monitoring data shall be subject to subsection (c) of this section. Submis sion of a compliance certification shall in no way limit the Ad ministrator’s authorities to investigate or otherwise implement this Act. The Administrator shall promulgate 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. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 113 Sec. 115CLEAN AIR ACT 1 See footnote 2 on page 34. (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 sub section (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 en titled to protection as trade secrets of such person, the Adminis trator shall consider such record, report, or information or par ticular 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 offi cers, employees, or authorized representatives of the United States concerned with carrying out this Act or when relevant in any pro ceeding 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 appli cable implementation plan or as part of an order under section 113(d), 1 before carrying out an entry, inspection, or monitoring under paragraph (2) of subsection (a) with respect to such stand ard, limitation, or other requirement, the Administrator (or his rep resentatives) shall provide the State air pollution control agency with reasonable prior notice of such action, indicating the purpose of such action. No State agency which receives notice under this paragraph of an action proposed to be taken may use the informa tion contained in the notice to inform the person whose property is proposed to be affected of the proposed action. If the Adminis trator has reasonable basis for believing that a State agency is so using or will so use such information, notice to the agency under this paragraph is not required until such time as the Administrator determines the agency will no longer so use information contained in a notice under this paragraph. Nothing in this section shall be construed to require notification to any State agency of any action taken by the Administrator with respect to any standard, limita tion, or other requirement which is not part of an applicable imple mentation 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 evi dence in any such action any information or material obtained not withstanding 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 Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 114Sec. 115 CLEAN AIR ACT which may reasonably be anticipated to endanger public health or welfare in a foreign country or whenever the Secretary of State re quests him to do so with respect to such pollution which the Sec retary 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 pol lution occurring in that country as is given that country by this section. (d) Recommendations issued following any abatement con ference conducted prior to the enactment of the Clean Air Act Amendments of 1977 shall remain in effect with respect to any pol lutant for which no national ambient air quality standard has been established under section 109 of this Act unless the Administrator, after consultation with all agencies which were party to the con ference, rescinds any such recommendation on grounds of obsoles cence. [42 U.S.C. 7415] RETENTION OF STATE AUTHORITY 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 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 con trol or abatement of air pollution; except that if an emission stand ard 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 qual ity 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 Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 115 Sec. 118CLEAN AIR ACT 1 So in original. Probably should refer to section 112(b)(1). Section 112(b)(1) has no subpara graph (A). Administrator shall from time to time establish advisory commit tees. Committee members shall include, but not be limited to, per sons who are knowledgeable concerning air quality from the stand point 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 enti tled to receive compensation at a rate to be fixed by the Adminis trator, but not exceeding $100 per diem, including traveltime, and while away from their homes or regular places of business they may be allowed travel expenses, including per diem in lieu of sub sistence, as authorized by section 5703 of title 5 of the United States Code for persons in the Government service employed inter mittently. (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), 1 (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, agen cy, and instrumentality of executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, and each offi cer, agent, or employee thereof, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, admin istrative authority, and process and sanctions respecting the con trol and abatement of air pollution in the same manner, and to the same extent as any nongovernmental entity. The preceding sen tence 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 immu nity of such agencies, officers, agents, or employees under any law or rule of law. No officer, agent, or employee of the United States Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 116Sec. 118 CLEAN AIR ACT 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 de partment, 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 appro priation 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 ad dition 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 prop erty 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 Con gress 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 in strumentality 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. (d) VEHICLES OPERATED ON FEDERAL INSTALLATIONS.—Each department, agency, and instrumentality of executive, legislative, and judicial branches of the Federal Government having jurisdic tion 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 in spection and maintenance program established under the provi sions of subpart 2 of part D or subpart 3 of part D for the State in which such property or facility is located (without regard 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 certificate of compliance from the vehicle inspection and maintenance 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 ve hicle registration); Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 117 Sec. 119CLEAN AIR ACT 1 See footnote 2 on page 34. 1 So in original. Probably should be ‘‘sections’’. (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 Ad ministrator determines that such order has been issued in ac cordance with the requirements of this Act. Not later than ninety days after submission by the State to the Ad ministrator of notice of the issuance of a primary nonferrous smelt er order under this section, the Administrator shall determine whether or not such order has been issued by the State in accord ance with the requirements of this Act. If the Administrator deter mines that such order has not been issued in accordance with such requirements, he shall conduct a hearing respecting the reasonably available control technology for primary nonferrous smelters. (2)(A) An order issued under this section to a primary non ferrous smelter shall be referred to as a ‘‘primary nonferrous smelt er order’’. No primary nonferrous smelter may receive both an en forcement order under section 113(d) 1 and a primary nonferrous smelter order under this section. (B) Before any hearing conducted under this section, in the case of an application made by the owner or operator of a primary nonferrous smelter for a second order under this section, the 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 by the Administrator or the State in any case in which such State or Administrator is acting on its own initiative. Such statement (in cluding 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 condi tions when acting on their own initiative). (C) Any decision with respect to the issuance of a primary non ferrous 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 1 110, 304, and 307 of this Act, any order issued by the State and in effect pursuant to this sub section 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— Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 118Sec. 119 CLEAN AIR ACT (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 limita tion or standard for sulfur oxides which is necessary and in tended to be itself sufficient to enable attainment and mainte nance of national primary and secondary ambient air quality standards for sulfur oxides; and (3) such smelter is unable to comply with such require ment by the applicable date for compliance because no means of emission limitation applicable to such smelter which will en able it to achieve compliance with such requirement has been adequately demonstrated to be reasonably available (as deter mined 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 nec essary means of emission limitation as expeditiously as practicable after the Administrator determines such means have been ade quately demonstrated to be reasonably available within the mean ing 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 post ponement of the requirement with respect to which such order is issued beyond January 1, 1983. The second such order shall not re sult 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 may be necessary in the judgment of the Administrator to assure attain ment and maintenance of the national primary and secondary am bient 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 compli ance 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 ap plies comply with such reporting requirements and conduct such monitoring as the Administrator determines may be nec essary, 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 Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 119 Sec. 119CLEAN AIR ACT measures upon the agreement of the owner or operator of the smelter— (i) to comply with such conditions as the Administrator de termines are necessary to maximize the reliability and enforce ability 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 devel opment 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 par ticular smelter by the State or the Administrator, after notice and a hearing on the record, and upon a showing by the owner or oper ator of the smelter that such requirement would be so costly as to necessitate permanent or prolonged temporary cessation of oper ations of the smelter. Upon application for such waiver, the Admin istrator shall be notified and shall, within ninety days, hold a hear ing on the record in accordance with section 554 of title 5 of the United States Code. At such hearing the Administrator shall re quire the smelter involved to present information relating to any alleged cessation of operations and the detailed reasons or justifica tions 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 rec ommendations 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 non ferrous smelter order under this section, no additional continuous emission reduction technology shall be required as a condition of such order unless the Administrator determines, at any time, after notice and public hearing, that such additional continuous emission reduction technology is adequately demonstrated to be reasonably available for the primary nonferrous smelter industry. (e) At any time during which an order under this section ap plies, the Administration may enter upon a public hearing respect ing 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 ter mination of such order would result in undue hardship, the termi nation 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— Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 120Sec. 120 CLEAN AIR ACT (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 re quiring 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 sec tion, 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 compliance schedule under any applicable implementation plan (whether or not such source is subject to a Federal or State consent de cree), or (ii) a stationary source which is not in compliance with an emission limitation, emission standard, standard of perform ance, 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 sub paragraph (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, suspen sion, 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 subpara graph, the costs referred to in such subsection (d)(2) shall be the economic value of noncompliance with the interim emission control Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 121 Sec. 120CLEAN AIR ACT 1 See footnote 2 on page 34. 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 require ments with respect to that source if, in accordance with the proce dures 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) 1 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 exten sion under the second sentence of section 119(c)(1) (as in effect before the date of the enactment of the Clean Air Act Amend ments 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 Environ mental Coordination Act of 1974 or under any legislation which amends or supersedes such provisions; (iii) the use of innovative technology sanctioned by an en forcement order under section 113(d)(4); 1 (iv) an inability to comply with any such requirement, for which inability the source has received an order under section 113(d) 1 (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 in ability 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 oper ator of such source; or (v) the conditions by reason of which a temporary emer gency suspension is authorized under section 110 (f) or (g). An exemption under this subparagraph shall cease to be effective if the source fails to comply with the interim emission control re quirements 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 pen alty by the Administrator, if— Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 122Sec. 120 CLEAN AIR ACT (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 re ferred 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, which ever 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 sched ule 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 pe tition under subparagraph (B), to submit that calculation and proposed schedule, together with the information nec essary 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 non compliance 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 pe tition (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 find ings and conclusions) within such ninety day period; (6)(A) authorize the Administrator on his own initiative to review the decision of the State under paragraph (5) and dis approve it if it is not in accordance with the requirements of this section, and (B) require the Administrator to do so not later than sixty days after receipt of a petition under this sub paragraph, 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 noncom plying source for which such notice is given unless there has been a final determination granting a petition under para graph (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 as Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 123 Sec. 120CLEAN AIR ACT sessment 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 Ad ministrator. 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 assess ment 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 ap plicable 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 schedule for payment, and the information necessary for independent verification thereof, the State (or the Administrator, as the case may be) may enter into a contract with any person who has no 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 as sessment 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 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 col lected 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 compliance beyond July 1, 1979, may have for the owner of such source, including the quarterly equivalent of the capital costs of com pliance and debt service over a normal amortization period, not to exceed ten years, operation and maintenance costs foregone as a result of noncompliance, and any additional economic value which such a delay may have for the owner or operator 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 pur pose of bringing that source into, and maintaining compliance Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 124Sec. 120 CLEAN AIR ACT with, such requirement, to the extent that such expenditures have not been taken into account in the calculation of the pen alty 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 non compliance. 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 sub section (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 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 ap propriate prevailing rates (as determined by the Secretary of the Treasury) for any overpayment by such person, or (B) assess and collect an additional payment with interest at appropriate prevailing rates (as determined by the Secretary of the Treasury) for any underpayment by such person. (5) Any person who fails to pay the amount of any penalty with respect to any source under this section on a timely basis shall be required to pay in addition a quarterly nonpayment penalty for each quarter during which such failure to pay persists. Such non payment penalty shall be in an amount equal to 20 percent of the aggregate amount of such person’s penalties and nonpayment pen Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 125 Sec. 121CLEAN AIR ACT 1 See footnote 2 on page 34. alties with respect to such source which are unpaid as of the begin ning 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 limi tation or requirement, whichever is later, but in no event later than three years after the approval or promulgation of such emis sion limitation or requirement. [42 U.S.C. 7420] CONSULTATION SEC. 121. In carrying out the requirements of this Act requir ing 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 (B) in part C (pertaining to prevention of significant deterioration), and in carrying out the requirements of section 113(d) 1 (relating to certain enforcement orders), the State shall provide a satisfactory process of consultation with general purpose local governments, designated organizations of elected officials of local governments and any Federal land manager having authority over Federal land to which the State plan applies, effective with respect to any such requirement which is adopted more than one year after the date of enactment of the Clean Air Act Amendments of 1977 as part of such plan. Such process shall be in accordance with regulations promulgated by the Administrator to assure adequate consultation. The Administrator shall update as necessary the original regula tions required and promulgated under this section (as in effect im mediately before the date of the enactment of the Clean Air Act Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 126Sec. 122 CLEAN AIR ACT Amendments of 1990) to ensure adequate consultation. Only a gen eral purpose unit of local government, regional agency, or council of governments adversely affected by action of the Administrator approving any portion of a plan referred to in this subsection may petition for judicial review of such action on the basis of a violation of the requirements of this section. [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 no tice and opportunity for public hearing, the Administrator shall re view all available relevant information and determine whether or not emissions of radioactive pollutants (including source material, special nuclear material, and byproduct material), cadmium, ar senic 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 affirma tive determination with respect to any such substance, he shall si multaneously with such determination include such substance 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 Administrator, causes, or contributes to, air pollution which may reasonably be an ticipated to result in an increase in mortality or an increase in seri ous irreversible, or incapacitating reversible, illness), or shall in clude each category of stationary sources emitting such substance in significant amounts in the list published 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 sub section (a) with respect to any substance (whether or not enumer ated in subsection (a)). (c)(1) Before listing any source material, special nuclear, or by product material (or component or derivative thereof) as provided in subsection (a), the Administrator shall consult with the Nuclear Regulatory Commission. (2) Not later than six months after listing any such material (or component or derivative thereof) the Administrator and the Nu clear Regulatory Commission shall enter into an interagency agree ment with respect to those sources or facilities which are under the jurisdiction of the Commission. This agreement shall, to the max imum extent practicable consistent with this Act, minimize duplica tion of effort and conserve administrative resources in the estab lishment, 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 Ad ministrator) 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 Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 127 Sec. 124CLEAN AIR ACT 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 construc tion contract was awarded before February 8, 1974, may be taken into account. (b) For the purpose of this section, the term ‘‘dispersion tech nique’’ includes any intermittent or supplemental control of air pol lutants 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 emis sions 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, 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 dem onstrates, after notice and opportunity for public hearing, to the satisfaction of the Administrator, that a greater height is necessary as provided under the preceding sentence. In no event may the Ad ministrator 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— Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 128Sec. 124 CLEAN AIR ACT (1) the extent to which compliance with requirements of such plan is dependent upon the use by major fuel burning sta tionary sources of petroleum products or natural gas, (2) the extent to which such plan may reasonably be an ticipated 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 determina tion under this paragraph to the Administrator promptly upon completion thereof. (b)(1) Not later than eighteen months after the date of enact ment of this section, the Administrator shall review the submis sions of the States under subsection (a) and shall require each State to revise its plan if, in the judgment of the Administrator, such plan revision is necessary to assure that such plan will be adequate to assure compliance with the requirements of this Act in such State on a reliable and long-term basis, taking into account the actual or potential prohibitions on use of petroleum products or natural gas, or both, under any other authority of law. (2) Before requiring a plan revision under this subsection, with respect to any State the Administrator shall take into account the report of the review conducted by such State under paragraph (1) and shall consult with the Governor of the State respecting such required revision. [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 burn ing stationary source referred to in this subsection (or class or category thereof) is located, (2) the Administrator, or (3) the President (or his designee), may determine that action under subsection (b) is necessary to pre vent or minimize significant local or regional economic disruption or unemployment which would otherwise result from use by such source (or class or category) of— (A) coal or coal derivatives other than locally or regionally available coal, (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 Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 129 Sec. 125CLEAN AIR ACT (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 derivatives to com ply with implementation plan requirements. In taking any action under this subsection, the Governor, the President, or the Presi dent’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 sup plies 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 nec essary 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 burn ing stationary sources— (1) which have the design capacity to produce 250,000,000 Btu’s per hour (or its equivalent), as determined by the Admin istrator, 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 au thority of law. (e) Except as may otherwise be provided by rule by the State or the Administrator for good cause, any action required to be taken by a major fuel burning stationary source under this section shall not be deemed to constitute a modification for purposes of sec tion 111(a) (2) and (4) of this Act. (f) For purposes of sections 113 and 120 a prohibition under subsection (b), and a corresponding rule or order under subsection (c), shall be treated as a requirement of section 113. For purposes of any plan (or portion thereof) promulgated under section 110(c), any rule or order under subsection (c) corresponding to a prohibi tion under subsection (b), shall be treated as a part of such plan. For purposes of section 113, a prohibition under subsection (b), ap plicable to any source, and a corresponding rule or order under subsection (c), shall be treated as part of the applicable implemen tation 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. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 130Sec. 126 CLEAN AIR ACT 1 Section 109(a)(2)(A) of Public Law 101–549 (104 Stat. 2470) amended subsection (c) in the first sentence by inserting ‘‘this section and’’ after ‘‘violation of’’ without further specification. The words ‘‘violation of’’ appear in two places. The amendment probably intended to insert the new language only in the first place the words ‘‘violation of’’ appear. 1 See footnote 1 on previous page. (h) For the purpose of this section the term ‘‘locally or region ally available coal or coal derivatives’’ means coal or coal deriva tives which is, or can in the judgment of the State or the Adminis trator feasibly be, mined or produced in the local or regional area (as determined by the Administrator) in which the major fuel burn ing 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 deteriora tion 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 Adminis trator 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), it shall be a violation of øthis section and¿ 1 the applicable imple mentation 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 øthis section and¿ 1 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 Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 131 Sec. 128CLEAN AIR ACT 2 See footnote 2 on page 34. 3 Public Law 95–95 added section 127, but omitted the section heading. 4 So in original. Probably should be ‘‘calendar year.’’ 5 Section 128 was enacted with a subsection (a) but without a subsection (b). 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 expe ditiously 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) 2 after the expiration of such period during which the Administrator has permitted contin uous operation. [42 U.S.C. 7426] øPUBLIC NOTIFICATION¿ 3 SEC. 127. (a) Each State plan shall contain measures which will be effective to notify the public during any calendar 4 on a reg ular basis of instances or areas in which any national primary am bient 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 pub lic 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 qual ity. Such measures may include the posting of warning signs on interstate highway access points to metropolitan areas or tele vision, 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) 5 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 enforce ment orders under this Act shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders under this Act, and (2) any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed. A State may adopt any requirements respecting conflicts of interest for such boards or bodies or heads of executive agencies, or any other entities which are more stringent than the requirements of paragraphs (1) and (2), and the Administrator shall approve any such more stringent requirements submitted as part of an imple mentation plan. [42 U.S.C. 7428] Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 132Sec. 129 CLEAN AIR ACT 1 So in original. Probably should be ‘‘subsection’’. 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 in cineration units. Such standards shall include emissions limi tations and other requirements applicable to new units and guidelines (under section 111(d) and this section) and other re quirements applicable to existing units. (B) Standards under section 111 and this section applica ble 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 sub paragraph 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 Adminis trator before the date of enactment of the Clean Air Act Amendments of 1990: Provided, That, such standards are sub sequently modified pursuant to the schedule established in this subparagraph to include each of the requirements of this sec tion. (C) Standards under section 111 and this section applica ble 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 applica ble 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 cat egories 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 1 (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 Ad ministrator 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 strin Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 133 Sec. 129CLEAN AIR ACT 1 So in original. Probably should refer to ‘‘(h)(3)’’. gent than the emissions control that is achieved in practice by the best controlled similar unit, as determined by the Adminis trator. 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 per cent 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 in cineration 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 require ments that minimize, on a site specific basis, to the maximum extent practicable, potential risks to public health or the envi ronment. (4) NUMERICAL EMISSIONS LIMITATIONS.—The performance standards promulgated under section 111 and this section and applicable to solid waste incineration units shall specify nu merical emission limitations for the following substances or mixtures: particulate matter (total and fine), opacity (as appro priate), 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 postcombustion concentrations of surrogate substances, param eters or periods of residence time in excess of stated tempera tures with respect to pollutants other than those listed in this paragraph. (5) REVIEW AND REVISION.—Not later than 5 years fol lowing the initial promulgation of any performance standards and other requirements under this section and section 111 ap plicable 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 sec tion and section 111 for solid waste incineration units shall in clude 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 re quired by subsection (a) (emissions limitations, notwith standing 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) 1 (residual risk). (2) STATE PLANS.—Not later than 1 year after the Adminis trator promulgates guidelines for a category of solid waste in cineration units, each State in which units in the category are Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 134Sec. 129 CLEAN AIR ACT operating shall submit to the Administrator a plan to imple ment 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 than 3 years after the State plan is approved by the Administrator but not later than 5 years after the guidelines were promulgated. The Adminis trator shall approve or disapprove any State plan within 180 days of the submission, and if a plan is disapproved, the Ad ministrator 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, im plement and enforce a plan for existing solid waste inciner ation 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 years after the date on which the Administrator promulgated the relevant guide lines. Such plan shall assure that each unit subject to the plan is in compliance with all provisions of the guidelines not later than 5 years after the date the relevant guidelines are promul gated. (c) MONITORING.—The Administrator shall, as part of each per formance standard promulgated pursuant to subsection (a) and sec tion 111, promulgate regulations requiring the owner or operator of each solid waste incineration unit— (1) to monitor emissions from the unit at the point at which such emissions are emitted into the ambient air (or within the stack, combustion chamber or pollution control equipment, as appropriate) and at such other points as nec essary to protect public health and the environment; (2) to monitor such other parameters relating to the oper ation of the unit and its pollution control technology as the Ad ministrator determines are appropriate; and (3) to report the results of such monitoring. Such regulations shall contain provisions regarding the frequency of monitoring, test methods and procedures validated on solid waste incineration units, and the form and frequency of reports containing the results of monitoring and shall require that any monitoring reports or test results indicating an exceedance of any standard under this section shall be reported separately and in a manner that facilitates review for purposes of enforcement actions. Such regulations shall require that copies of the results of such monitoring be maintained on file at the facility concerned and that copies shall be made available for inspection and copying by inter ested members of the public during business hours. (d) OPERATOR TRAINING.—Not later than 24 months after the enactment of the Clean Air Act Amendments of 1990, the Adminis trator shall develop and promote a model State program for the training and certification of solid waste incineration unit operators and high-capacity fossil fuel fired plant operators. The Adminis trator may authorize any State to implement a model program for the training of solid waste incineration unit operators and high-ca Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 135 Sec. 129CLEAN AIR ACT pacity fossil fuel fired plant operators, if the State has adopted a program which is at least as effective as the model program devel oped by the Administrator. Beginning on the date 36 months after the date on which performance standards and guidelines are pro mulgated under subsection (a) and section 111 for any category of solid waste incineration units it shall be unlawful to operate any unit in the category unless each person with control over processes affecting emissions from such unit has satisfactorily completed a training program meeting the requirements established by the Ad ministrator under this subsection. (e) PERMITS.—Beginning (1) 36 months after the promulgation of a performance standard under subsection (a) and section 111 ap plicable to a category of solid waste incineration units, or (2) the effective date of a permit program under title V in the State in which the unit is located, whichever is later, each unit in the cat egory shall operate pursuant to a permit issued under this sub section and title V. Permits required by this subsection may be re newed according to the provisions of title V. Notwithstanding any other provision of this Act, each permit for a solid waste inciner ation unit combusting municipal waste issued under this Act shall be issued for a period of up to 12 years and shall be reviewed every 5 years after date of issuance or reissuance. Each permit shall con tinue in effect after the date of issuance until the date of termi nation, unless the Administrator or State determines that the unit is not in compliance with all standards and conditions contained in the permit. Such determination shall be made at regular intervals during the term of the permit, such intervals not to exceed 5 years, and only after public comment and public hearing. No permit for a solid waste incineration unit may be issued under this Act by an agency, instrumentality or person that is also responsible, in whole or part, for the design and construction or operation of the unit. Notwithstanding any other provision of this subsection, the Admin istrator or the State shall require the owner or operator of any unit to comply with emissions limitations or implement any other meas ures, if the Administrator or the State determines that emissions in the absence of such limitations or measures may reasonably be anticipated to endanger public health or the environment. The Ad ministrator’s determination under the preceding sentence is a dis cretionary decision. (f) EFFECTIVE DATE AND ENFORCEMENT.— (1) NEW UNITS.—Performance standards and other require ments promulgated pursuant to this section and section 111 and applicable to new solid waste incineration units shall be effective as of the date 6 months after the date of promulga tion. (2) EXISTING UNITS.—Performance standards and other re quirements promulgated pursuant to this section and section 111 and applicable to existing solid waste incineration units shall be effective as expeditiously as practicable after approval of a State plan under subsection (b)(2) (or promulgation of a plan by the Administrator under subsection (b)(3)) but in no event later than 3 years after the State plan is approved or 5 years after the date such standards or requirements are pro mulgated, whichever is earlier. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 136Sec. 129 CLEAN AIR ACT (3) PROHIBITION.—After the effective date of any perform ance standard, emission limitation or other requirement pro mulgated pursuant to this section and section 111, it shall be unlawful for any owner or operator of any solid waste inciner ation unit to which such standard, limitation or requirement applies to operate such unit in violation of such limitation, standard or requirement or for any other person to violate an applicable requirement of this section. (4) COORDINATION WITH OTHER AUTHORITIES.—For pur poses of sections 111(e), 113, 114, 116, 120, 303, 304, 307 and other provisions for the enforcement of this Act, each perform ance standard, emission limitation or other requirement estab lished pursuant to this section by the Administrator or a State or local government, shall be treated in the same manner as a standard of performance under section 111 which is an emis sion limitation. (g) DEFINITIONS.—For purposes of section 306 of the Clean Air Act Amendments of 1990 and this section only— (1) SOLID WASTE INCINERATION UNIT.—The term ‘‘solid waste incineration unit’’ means a distinct operating unit of any facility which combusts any solid waste material from commer cial or industrial establishments or the general public (includ ing single and multiple residences, hotels, and motels). Such term does not include incinerators or other units required to have a permit under section 3005 of the Solid Waste Disposal Act. The term ‘‘solid waste incineration unit’’ does not include (A) materials recovery facilities (including primary or sec ondary smelters) which combust waste for the primary purpose of recovering metals, (B) qualifying small power production fa cilities, as defined in section 3(17)(C) of the Federal Power Act (16 U.S.C. 769(17)(C)), or qualifying cogeneration facilities, as defined in section 3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B)), which burn homogeneous waste (such as units which burn tires or used oil, but not including refuse-derived fuel) for the production of electric energy or in the case of qualifying cogeneration facilities which burn homogeneous waste for the production of electric energy and steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes, or (C) air curtain in cinerators provided that such incinerators only burn wood wastes, yard wastes and clean lumber and that such air cur tain incinerators comply with opacity limitations to be estab lished by the Administrator by rule. (2) NEW SOLID WASTE INCINERATION UNIT.—The term ‘‘new solid waste incineration unit’’ means a solid waste incineration unit the construction of which is commenced after the Adminis trator proposes requirements under this section establishing emissions standards or other requirements which would be ap plicable to such unit or a modified solid waste incineration unit. (3) MODIFIED SOLID WASTE INCINERATION UNIT.—The term ‘‘modified solid waste incineration unit’’ means a solid waste incineration unit at which modifications have occurred after the effective date of a standard under subsection (a) if (A) the Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 137 Sec. 129CLEAN AIR ACT 1 So in original. Probably should be ‘‘the’’. cumulative cost of the modifications, over the life of the unit, exceed 50 per centum of the original cost of construction and installation of the unit (not including the cost of any land pur chased in connection with such construction or installation) up dated to current costs, or (B) the modification is a physical change in or change in the method of operation of the unit which increases the amount of any air pollutant emitted by the unit for which standards have been established under this sec tion or section 111. (4) EXISTING SOLID WASTE INCINERATION UNIT.—The term ‘‘existing solid waste incineration unit’’ means a solid waste unit which is not a new or modified solid waste incineration unit. (5) MUNICIPAL WASTE.—The term ‘‘municipal waste’’ means refuse (and refuse-derived fuel) collected from the general pub lic and from residential, commercial, institutional, and indus trial sources consisting of paper, wood, yard wastes, food wastes, plastics, leather, rubber, and other combustible mate rials and non-combustible materials such as metal, glass and rock, provided that: (A) the term does not include industrial process wastes or medical wastes that are segregated from such other wastes; and (B) an incineration unit shall not be considered to be combusting municipal waste for purposes of section 111 or this section if it combusts a fuel feed stream, 30 percent or less of the weight of which is comprised, in aggre gate, of municipal waste. (6) OTHER TERMS.—The terms solid waste and medical waste shall have the meanings established by the Adminis trator pursuant to the Solid Waste Disposal Act. (h) OTHER AUTHORITY.— (1) STATE AUTHORITY.—Nothing in this section shall pre clude or deny the right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, limita tion or standard relating to solid waste incineration units that is more stringent than a regulation, requirement, limitation or standard in effect under this section or under any other provi sion of this Act. (2) OTHER AUTHORITY UNDER THIS ACT.—Nothing in this section shall diminish the authority of the Administrator or a State to establish any other requirements applicable to solid waste incineration units under any other authority of law, in cluding the authority to establish for any air pollutant a na tional ambient air quality standard, except that no solid waste incineration unit subject to performance standards under this section and section 111 shall be subject to standards under sec tion 112(d) of this Act. (3) RESIDUAL RISK.—The Administrator shall promulgate standards under section 112(f) for a category of solid waste in cineration units, if promulgation of such standards is required under section 112(f). For purposes of this 1 preceding sentence only— Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 138Sec. 130 CLEAN AIR ACT (A) the performance standards under subsection (a) and section 111 applicable to a category of solid waste in cineration units shall be deemed standards under section 112(d)(2), and (B) the Administrator shall consider and regulate, if required, the pollutants listed under subsection (a)(4) and no others. (4) ACID RAIN.—A solid waste incineration unit shall not be a utility unit as defined in title IV: Provided, That, more than 80 per centum of its annual average fuel consumption meas ured on a Btu basis, during a period or periods to be deter mined by the Administrator, is from a fuel (including any waste burned as a fuel) other than a fossil fuel. (5) REQUIREMENTS OF PARTS C AND D.—No requirement of an applicable implementation plan under section 165 (relating to construction of facilities in regions identified pursuant to section 107(d)(1)(A) (ii) or (iii)) or under section 172(c)(5) (relat ing to permits for construction and operation in nonattainment areas) may be used to weaken the standards in effect under this section. [42 U.S.C. 7429] SEC. 130. EMISSION FACTORS. Within 6 months after enactment of the Clean Air Act Amend ments of 1990, and at least every 3 years thereafter, the Adminis trator shall review and, if necessary, revise, the methods (‘‘emission factors’’) used for purposes of this Act to estimate the quantity of emissions of carbon monoxide, volatile organic compounds, and ox ides of nitrogen from sources of such air pollutants (including area sources and mobile sources). In addition, the Administrator shall establish emission factors for sources for which no such methods have previously been established by the Administrator. The Admin istrator shall permit any person to demonstrate improved emis sions estimating techniques, and following approval of such tech niques, the Administrator shall authorize the use of such tech niques. Any such technique may be approved only after appropriate public participation. Until the Administrator has completed the re vision required by this section, nothing in this section shall be con strued to affect the validity of emission factors established by the Administrator before the date of the enactment of the Clean Air Act Amendments of 1990. [42 U.S.C. 7430] SEC. 131. LAND USE AUTHORITY. Nothing in this Act constitutes an infringement on the existing authority of counties and cities to plan or control land use, and nothing in this Act provides or transfers authority over such land use. [42 U.S.C. 7431] Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 139 Sec. 162CLEAN AIR ACT 1 Repealed by section 601 of Public Law 101–549 (104 Stat. 2648). 2 For related provisions, see section 120(b) of Public Law 95–95 (Appendix). 3 So in original. Probably should be ‘‘anticipated’’. 4 So in original. Enacted without opening parenthesis. øPART B—OZONE PROTECTION¿ 1 PART C—PREVENTION OF SIGNIFICANT DETERIORATION OF AIR QUALITY 2 SUBPART 1 PURPOSES SEC. 160. The purposes of this part are as follows: (1) to protect public health and welfare from any actual or potential adverse effect which in the Administrator’s judgment may reasonably be anticipate 3 to occur from air pollution or from exposures to pollutants in other media, which pollutants originate as emissions to the ambient air),4 notwithstanding attainment and maintenance of all national ambient air qual ity standards; (2) to preserve, protect, and enhance the air quality in na tional parks, national wilderness areas, national monuments, national seashores, and other areas of special national or re gional natural, recreational, scenic, or historic value; (3) to insure that economic growth will occur in a manner consistent with the preservation of existing clean air resources; (4) to assure that emissions from any source in any State will not interfere with any portion of the applicable implemen tation plan to prevent significant deterioration of air quality for any other State; and (5) to assure that any decision to permit increased air pol lution in any area to which this section applies is made only after careful evaluation of all the consequences of such a deci sion and after adequate procedural opportunities for informed public participation in the decisionmaking process. [42 U.S.C. 7470] PLAN REQUIREMENTS SEC. 161. In accordance with the policy of section 101(b)(1), each applicable implementation plan shall contain emission limita tions and such other measures as may be necessary, as determined under regulations promulgated under this part, to prevent signifi cant deterioration of air quality in each region (or portion thereof) designated pursuant to section 107 as attainment or unclassifiable. [42 U.S.C. 7471] INITIAL CLASSIFICATIONS SEC. 162. (a) Upon the enactment of this part, all— (1) international parks, (2) national wilderness areas which exceed 5,000 acres in size, (3) national memorial parks which exceed 5,000 acres in size, and Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 140Sec. 163 CLEAN AIR ACT (4) national parks which exceed six thousand acres in size, and which are in existence on the date of enactment of the Clean Air Act Amendments of 1977 shall be class I areas and may not be redesignated. All areas which were redesignated as class I under regulations promulgated before such date of enactment shall be class I areas which may be redesignated as provided in this part. The extent of the areas designated as Class I under this sec tion shall conform to any changes in the boundaries of such areas which have occurred subsequent to the date of the enactment of the Clean Air Act Amendments of 1977, or which may occur subse quent to the date of the enactment of the Clean Air Act Amend ments of 1990. (b) All areas in such State designated pursuant to section 107(d) as attainment or unclassifiable which are not established as class I under subsection (a) shall be class II areas unless redesig nated under section 164. [42 U.S.C. 7472] INCREMENTS AND CEILINGS SEC. 163. (a) In the case of sulfur oxide and particulate matter, each applicable implementation plan shall contain measures assur ing that maximum allowable increases over baseline concentrations of, and maximum allowable concentrations of, such pollutant shall not be exceeded. In the case of any maximum allowable increase (except an allowable increase specified under section 165(d)(2)(C)(iv)) for a pollutant based on concentrations permitted under national ambient air quality standards for any period other than an annual period, such regulations shall permit such max imum allowable increase to be exceeded during one such period per year. (b)(1) For any class I area, the maximum allowable increase in concentrations of sulfur dioxide and particulate matter over the baseline concentration of such pollutants shall not exceed the fol lowing amounts: Maximum allowable increase [Micrograms per cubic meter] Pollutant Particulate matter: Annual geometric mean ................................................................................. 5 Twenty-four-hour maximum .......................................................................... 10 Sulfur dioxide: Annual arithmetic mean ................................................................................ 2 Twenty-four-hour maximum .......................................................................... 5 Three-hour maximum ..................................................................................... 25 (2) For any class II area, the maximum allowable increase in concentrations of sulfur dioxide and particulate matter over the baseline concentration of such pollutants shall not exceed the fol lowing amounts: Maximum allowable increase [Micrograms per cubic meter] Pollutant Particulate matter: Annual geometric mean ................................................................................. 19 Twenty-four-hour maximum .......................................................................... 37 Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 141 Sec. 163CLEAN AIR ACT 1 The period probably should be a comma. Pollutant Sulfur dioxide: Annual arithmetic mean ................................................................................ 20 Twenty-four-hour maximum .......................................................................... 91 Three-hour maximum ..................................................................................... 512 (3) For any class III area, the maximum allowable increase in concentrations of sulfur dioxide and particulate matter over the baseline concentration of such pollutants shall not exceed the fol lowing amounts: Maximum allowable increase [Micrograms per cubic meter] Pollutant Particulate matter: Annual geometric mean ................................................................................. 37 Twenty-four-hour maximum .......................................................................... 75 Sulfur dioxide: Annual arithmetic mean ................................................................................ 40 Twenty-four-hour maximum .......................................................................... 182 Three-hour maximum ..................................................................................... 700 (4) The maximum allowable concentration of any air pollutant in any area to which this part applies shall not exceed a concentra tion for such pollutant for each period of exposure equal to— (A) the concentration permitted under the national sec ondary ambient air quality standard, or (B) the concentration permitted under the national pri mary ambient air quality standard, whichever concentration is lowest for such pollutant for such period of exposure. (c)(1) In the case of any State which has a plan approved by the Administrator for purposes of carrying out this part, the Gov ernor of such State may, after notice and opportunity for public hearing, issue orders or promulgate rules providing that for pur poses of determining compliance with the maximum allowable in creases in ambient concentrations of an air pollutant, the following concentrations of such pollutant shall not be taken into account: (A) concentrations of such pollutant attributable to the in crease in emissions from stationary sources which have con verted from the use of petroleum products, or natural gas, or both, by reason of an order which is in effect under the provi sions of sections 2 (a) and (b) of the Energy Supply and Envi ronmental Coordination Act of 1974 (or any subsequent legisla tion which supersedes such provisions) over the emissions from such sources before the effective date of such order.1 (B) the concentrations of such pollutant attributable to the increase in emissions from stationary sources which have con verted from using natural gas by reason of a natural gas cur tailment pursuant to a natural gas curtailment plan in effect pursuant to the Federal Power Act over the emissions from such sources before the effective date of such plan, (C) concentrations of particulate matter attributable to the increase in emissions from construction or other temporary emission-related activities, and Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 142Sec. 164 CLEAN AIR ACT 1 Probably should have been ‘‘paragraphs’’. 2 Section 108(n) of Public Law 101–549 (104 Stat. 2569) amended sec. 164(a) by making an insertion immediately before the sentence beginning ‘‘Any area (other than an area referred to in paragraph (1) or (2)).’’ The amendment should not have included the second parenthesis fol lowing (2). (D) the increase in concentrations attributable to new sources outside the United States over the concentrations at tributable to existing sources which are included in the base line concentration determined in accordance with section 169(4). (2) No action taken with respect to a source under paragraph (1)(A) or (1)(B) shall apply more than five years after the effective date of the order referred to in paragraph (1)(A) or the plan re ferred to in paragraph (1)(B), whichever is applicable. If both such order and plan are applicable, no such action shall apply more than five years after the later of such effective dates. (3) No action under this subsection shall take effect unless the Governor submits the order or rule providing for such exclusion to the Administrator and the Administrator determines that such order or rule is in compliance with the provisions of this sub section. [42 U.S.C. 7473] AREA REDESIGNATION SEC. 164. (a) Except as otherwise provided under subsection (c), a State may redesignate such areas as it deems appropriate as class I areas. The following areas may be redesignated only as class I or II: (1) an area which exceeds ten thousand acres in size and is a national monument, a national primitive area, a national preserve, a national recreation area, a national wild and scenic river, a national wildlife refuge, a national lakeshore or sea shore, and (2) a national park or national wilderness area established after the date of enactment of this Act which exceeds ten thou sand acres in size. The extent of the areas referred to in paragraph 1 (1) and (2) shall conform to any changes in the boundaries of such areas which have occurred subsequent to the date of the enactment of the Clean Air Act Amendments of 1977, or which may occur subsequent to the date of the enactment of the Clean Air Act Amendments of 1990. 2 Any area (other than an area referred to in paragraph (1) or (2) or an area established as class I under the first sentence of section 162(a)) may be redesignated by the State as class III if— (A) such redesignation has been specifically approved by the Governor of the State, after consultation with the appro priate Committees of the legislature if it is in session or with the leadership of the legislature if it is not in session (unless State law provides that such redesignation must be specifically approved by State legislation) and if general purpose units of local government representing a majority of the residents of the area so redesignated enact legislation (including for such units of local government resolutions where appropriate) con curring in the State’s redesignation; Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 143 Sec. 164CLEAN AIR ACT (B) such redesignation will not cause, or contribute to, con centrations of any air pollutant which exceed any maximum al lowable increase or maximum allowable concentration per mitted under the classification of any other area; and (C) such redesignation otherwise meets the requirements of this part. Subparagraph (A) of this paragraph shall not apply to area redes ignations by Indian tribes. (b)(1)(A) Prior to redesignation of any area under this part, no tice shall be afforded and public hearings shall be conducted in areas proposed to be redesignated and in areas which may be af fected by the proposed redesignation. Prior to any such public hear ing a satisfactory description and analysis of the health, environ mental, economic, social, and energy effects of the proposed redes ignation shall be prepared and made available for public inspection and prior to any such redesignation, the description and analysis of such effects shall be reviewed and examined by the redesig nating authorities. (B) Prior to the issuance of notice under subparagraph (A) re specting the redesignation of any area under this subsection, if such area includes any Federal lands, the State shall provide writ ten notice to the appropriate Federal land manager and afford ade quate opportunity (but not in excess of 60 days) to confer with the State respecting the intended notice of redesignation and to submit written comments and recommendations with respect to such in tended notice of redesignation. In redesignating any area under this section with respect to which any Federal land manager has submitted written comments and recommendations, the State shall publish a list of any inconsistency between such redesignation and such recommendations and an explanation of such inconsistency (together with the reasons for making such redesignation against the recommendation of the Federal land manager). (C) The Administrator shall promulgate regulations not later than six months after date of enactment of this part, to assure, in sofar as practicable, that prior to any public hearing on redesigna tion of any area, there shall be available for public inspection any specific plans for any new or modified major emitting facility which may be permitted to be constructed and operated only if the area in question is designated or redesignated as class III. (2) The Administrator may disapprove the redesignation of any area only if he finds, after notice and opportunity for public hear ing, that such redesignation does not meet the procedural require ments of this section or is inconsistent with the requirements of section 162(a) or of subsection (a) of this section. If any such dis approval occurs, the classification of the area shall be that which was in effect prior to the redesignation which was disapproved. (c) Lands within the exterior boundaries of reservations of fed erally recognized Indian tribes may be redesignated only by the ap propriate Indian governing body. Such Indian governing body shall be subject in all respect to the provisions of subsection (e). (d) The Federal Land Manager shall review all national monu ments, primitive areas, and national preserves, and shall rec ommend any appropriate areas for redesignation as class I where air quality related values are important attributes of the area. The Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 144Sec. 165 CLEAN AIR ACT 1 Probably should be ‘‘with’’. Federal Land Manager shall report such recommendations, within 1 supporting analysis, to the Congress and the affected States within one year after enactment of this section. The Federal Land Man ager shall consult with the appropriate States before making such recommendations. (e) If any State affected by the redesignation of any area by an Indian tribe or any Indian tribe affected by the redesignation of an area by a State disagrees with such redesignation of any area, or if a permit is proposed to be issued for any new major emitting fa cility proposed for construction in any State which the Governor of an affected State or governing body of an affected Indian tribe de termines will cause or contribute to a cumulative change in air quality in excess of that allowed in this part within the affected State or tribal reservation, the Governor or Indian ruling body may request the Administrator to enter into negotiations with the par ties involved to resolve such dispute. If requested by any State or Indian tribe involved, the Administrator shall make a recommenda tion to resolve the dispute and protect the air quality related val ues of the lands involved. If the parties involved do not reach agreement, the Administrator shall resolve the dispute and his de termination, or the results of agreements reached through other means, shall become part of the applicable plan and shall be en forceable as part of such plan. In resolving such disputes relating to area redesignation, the Administrator shall consider the extent to which the lands involved are of sufficient size to allow effective air quality management or have air quality related values of such an area. [42 U.S.C. 7474] PRECONSTRUCTION REQUIREMENTS SEC. 165. (a) No major emitting facility on which construction is commenced after the date of the enactment of this part, may be constructed in any area to which this part applies unless— (1) a permit has been issued for such proposed facility in accordance with this part setting forth emission limitations for such facility which conform to the requirements of this part; (2) the proposed permit has been subject to a review in ac cordance with this section, the required analysis has been con ducted in accordance with regulations promulgated by the Ad ministrator, and a public hearing has been held with oppor tunity for interested persons including representatives of the Administrator to appear and submit written or oral presen tations on the air quality impact of such source, alternatives thereto, control technology requirements, and other appro priate considerations; (3) the owner or operator of such facility demonstrates, as required pursuant to section 110(j), that emissions from con struction or operation of such facility will not cause, or con tribute to, air pollution in excess of any (A) maximum allow able increase or maximum allowable concentration for any pol lutant in any area to which this part applies more than one Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 145 Sec. 165CLEAN AIR ACT time per year, (B) national ambient air quality standard in any air quality control region, or (C) any other applicable emission standard or standard of performance under this Act; (4) the proposed facility is subject to the best available con trol technology for each pollutant subject to regulation under this Act emitted from, or which results from, such facility; (5) the provisions of subsection (d) with respect to protec tion of class I areas have been complied with for such facility; (6) there has been an analysis of any air quality impacts projected for the area as a result of growth associated with such facility; (7) the person who owns or operates, or proposes to own or operate, a major emitting facility for which a permit is re quired under this part agrees to conduct such monitoring as may be necessary to determine the effect which emissions from any such facility may have, or is having, on air quality in any area which may be affected by emissions from such source; and (8) in the case of a source which proposes to construct in a class III area, emissions from which would cause or con tribute to exceeding the maximum allowable increments appli cable in a class II area and where no standard under section 111 of this Act has been promulgated subsequent to enactment of the Clean Air Act Amendments of 1977, for such source cat egory, the Administrator has approved the determination of best available technology as set forth in the permit. (b) The demonstration pertaining to maximum allowable in creases required under subsection (a)(3) shall not apply to max imum allowable increases for class II areas in the case of an expan sion or modification of a major emitting facility which is in exist ence on the date of enactment of the Clean Air Act Amendments of 1977, whose allowable emissions of air pollutants, after compli ance with subsection (a)(4), will be less than fifty tons per year and for which the owner or operator of such facility demonstrates that emissions of particulate matter and sulfur oxides will not cause or contribute to ambient air quality levels in excess of the national secondary ambient air quality standard for either of such pollut ants. (c) Any completed permit application under section 110 for a major emitting facility in any area to which this part applies shall be granted or denied not later than one year after the date of filing of such completed application. (d)(1) Each State shall transmit to the Administrator a copy of each permit application relating to a major emitting facility re ceived by such State and provide notice to the Administrator of every action related to the consideration of such permit. (2)(A) The Administrator shall provide notice of the permit ap plication to the Federal Land Manager and the Federal official charged with direct responsibility for management of any lands within a class I area which may be affected by emissions from the proposed facility. (B) The Federal Land Manager and the Federal official charged with direct responsibility for management of such lands shall have an affirmative responsibility to protect the air quality related values (including visibility) of any such lands within a class Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 146Sec. 165 CLEAN AIR ACT I area and to consider, in consultation with the Administrator, whether a proposed major emitting facility will have an adverse impact on such values. (C)(i) In any case where the Federal official charged with direct responsibility for management of any lands within a class I area or the Federal Land Manager of such lands, or the Administrator, or the Governor of an adjacent State containing such a class I area files a notice alleging that emissions from a proposed major emit ting facility may cause or contribute to a change in the air quality in such area and identifying the potential adverse impact of such change, a permit shall not be issued unless the owner or operator of such facility demonstrates that emissions of particulate matter and sulfur dioxide will not cause or contribute to concentrations which exceed the maximum allowable increases for a class I area. (ii) In any case where the Federal Land Manager demonstrates to the satisfaction of the State that the emissions from such facility will have an adverse impact on the air quality-related values (in cluding visibility) of such lands, notwithstanding the fact that the change in air quality resulting from emissions from such facility will not cause or contribute to concentrations which exceed the maximum allowable increases for a class I area, a permit shall not be issued. (iii) In any case where the owner or operator of such facility demonstrates to the satisfaction of the Federal Land Manager, and the Federal Land Manager so certifies, that the emissions from such facility will have no adverse impact on the air quality-related values of such lands (including visibility) notwithstanding the fact that the change in air quality resulting from emissions from such facility will cause or contribute to concentrations which exceed the maximum allowable increases for class I areas, the State may issue a permit. (iv) In the case of a permit issued pursuant to clause (iii), such facility shall comply with such emission limitations under such per mit as may be necessary to assure that emissions of sulfur oxides and particulates from such facility, will not cause or contribute to concentrations of such pollutant which exceed the following max imum allowable increases over the baseline concentration for such pollutants: Maximum allowable increase [Micrograms per cubic meter] Particulate matter: Annual geometric mean ................................................................................. 19 Twenty-four-hour maximum .......................................................................... 37 Sulfur dioxide: Annual arithmetic mean ................................................................................ 20 Twenty-four-hour maximum .......................................................................... 91 Three-hour maximum ..................................................................................... 325 (D)(i) In any case where the owner or operator of a proposed major emitting facility who has been denied a certification under subparagraph (C)(iii) demonstrates to the satisfaction of the Gov ernor, after notice and public hearing, and the Governor finds, that the facility cannot be constructed by reason of any maximum allow able increase for sulfur dioxide for periods of twenty-four hours or less applicable to any class I area and, in the case of Federal man Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 147 Sec. 165CLEAN AIR ACT datory class I areas, that a variance under this clause will not ad versely affect the air quality related values of the area (including visibility), the Governor, after consideration of the Federal Land Manager’s recommendation (if any) and subject to his concurrence, may grant a variance from such maximum allowable increase. If such variance is granted, a permit may be issued to such source pursuant to the requirements of this subparagraph. (ii) In any case in which the Governor recommends a variance under this subparagraph in which the Federal Land Manager does not concur, the recommendations of the Governor and the Federal Land Manager shall be transmitted to the President. The President may approve the Governor’s recommendation if he finds that such variance is in the national interest. No Presidential finding shall be reviewable in any court. The variance shall take effect if the President approves the Governor’s recommendations. The President shall approve or disapprove such recommendation within ninety days after his receipt of the recommendations of the Governor and the Federal Land Manager. (iii) In the case of a permit issued pursuant to this subpara graph, such facility shall comply with such emission limitations under such permit as may be necessary to assure that emissions of sulfur oxides from such facility will not (during any day on which the otherwise applicable maximum allowable increases are exceeded) cause or contribute to concentrations which exceed the following maximum allowable increases for such areas over the baseline concentration for such pollutant and to assure that such emissions will not cause or contribute to concentrations which ex ceed the otherwise applicable maximum allowable increases for pe riods of exposure of 24 hours or less on more than 18 days during any annual period: Maximum allowable increase [Micrograms per cubic meter] Period of exposure: Low terrain areas: 24-hr maximum ....................................................................................... 36 3-hr maximum ......................................................................................... 130 High terrain areas: 24-hr maximum ....................................................................................... 62 3-hr maximum ......................................................................................... 221 (iv) For purposes of clause (iii), the term ‘‘high terrain area’’ means with respect to any facility, any area having an elevation of 900 feet or more above the base of the stack of such facility, and the term ‘‘low terrain area’’ means any area other than a high ter rain area. (e)(1) The review provided for in subsection (a) shall be pre ceded by an analysis in accordance with regulations of the Admin istrator, promulgated under this subsection, which may be con ducted by the State (or any general purpose unit of local govern ment) or by the major emitting facility applying for such permit, of the ambient air quality at the proposed site and in areas which may be affected by emissions from such facility for each pollutant subject to regulation under this Act which will be emitted from such facility. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 148Sec. 166 CLEAN AIR ACT 1 Probably should be ‘‘to be’’. (2) Effective one year after date of enactment of this part, the analysis required by this subsection shall include continuous air quality monitoring data gathered for purposes of determining whether emissions from such facility will exceed the maximum al lowable increases or the maximum allowable concentration per mitted under this part. Such data shall be gathered over a period of one calendar year preceding the date of application for a permit under this part unless the State, in accordance with regulations promulgated by the Administrator, determines that a complete and adequate analysis for such purposes may be accomplished in a shorter period. The results of such analysis shall be available at the time of the public hearing on the application for such permit. (3) The Administrator shall within six months after the date of enactment of this part promulgate regulations respecting the analysis required under this subsection which regulations— (A) shall not require the use of any automatic or uniform buffer zone or zones, (B) shall require an analysis of the ambient air quality, cli mate and meteorology, terrain, soils and vegetation, and visi bility at the site of the proposed major emitting facility and in the area potentially affected by the emissions from such facility for each pollutant regulated under this Act which will be emit ted from, or which results from the construction or operation of, such facility, the size and nature of the proposed facility, the degree of continuous emission reduction which could be achieved by such facility, and such other factors as may be rel evant in determining the effect of emissions from a proposed facility on any air quality control region, (C) shall require the results of such analysis shall be 1 available at the time of the public hearing on the application for such permit, and (D) shall specify with reasonable particularity each air quality model or models to be used under specified sets of con ditions for purposes of this part. Any model or models designated under such regulations may be ad justed upon a determination, after notice and opportunity for public hearing, by the Administrator that such adjustment is necessary to take into account unique terrain or meteorological characteristics of an area potentially affected by emissions from a source applying for a permit required under this part. [42 U.S.C. 7475] OTHER POLLUTANTS SEC. 166. (a) In the case of the pollutants hydrocarbons, carbon monoxide, photochemical oxidants, and nitrogen oxides, the Admin istrator shall conduct a study and not later than two years after the date of enactment of this part, promulgate regulations to pre vent the significant deterioration of air quality which would result from the emissions of such pollutants. In the case of pollutants for which national ambient air quality standards are promulgated after the date of the enactment of this part, he shall promulgate Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 149 Sec. 167CLEAN AIR ACT such regulations not more than 2 years after the date of promulga tion of such standards. (b) Regulations referred to in subsection (a) shall become effec tive one year after the date of promulgation. Within 21 months after such date of promulgation such plan revision shall be sub mitted to the Administrator who shall approve or disapprove the plan within 25 months after such date or promulgation in the same manner as required under section 110. (c) Such regulations shall provide specific numerical measures against which permit applications may be evaluated, a framework for stimulating improved control technology, protection of air qual ity values, and fulfill the goals and purposes set forth in section 101 and section 160. (d) The regulations of the Administrator under subsection (a) shall provide specific measures at least as effective as the incre ments established in section 163 to fulfill such goals and purposes, and may contain air quality increments, emission density require ments, or other measures. (e) With respect to any air pollutant for which a national ambi ent air quality standard is established other than sulfur oxides or particulate matter, an area classification plan shall not be required under this section if the implementation plan adopted by the State and submitted for the Administrator’s approval or promulgated by the Administrator under section 110(c) contains other provisions which when considered as a whole, the Administrator finds will carry out the purposes in section 160 at least as effectively as an area classification plan for such pollutant. Such other provisions re ferred to in the preceding sentence need not require the establish ment of maximum allowable increases with respect to such pollut ant for any area to which this section applies. (f) PM–10 INCREMENTS.—The Administrator is authorized to substitute, for the maximum allowable increases in particulate matter specified in section 163(b) and section 165(d)(2)(C)(iv), max imum allowable increases in particulate matter with an aero dynamic diameter smaller than or equal to 10 micrometers. Such substituted maximum allowable increases shall be of equal strin gency in effect as those specified in the provisions for which they are substituted. Until the Administrator promulgates regulations under the authority of this subsection, the current maximum allow able increases in concentrations of particulate matter shall remain in effect. [42 U.S.C. 7476] ENFORCEMENT SEC. 167. The Administrator shall, and a State may, take such measures, including issuance of an order, or seeking injunctive re lief, as necessary to prevent the construction or modification of a major emitting facility which does not conform to the requirements of this part, or which is proposed to be constructed in any area des ignated pursuant to section 107(d) as attainment or unclassifiable and which is not subject to an implementation plan which meets the requirements of this part. [42 U.S.C. 7477] Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 150Sec. 168 CLEAN AIR ACT PERIOD BEFORE PLAN APPROVAL SEC. 168. (a) Until such time as an applicable implementation plan is in effect for any area, which plan meets the requirements of this part to prevent significant deterioration of air quality with respect to any air pollutant, applicable regulations under this Act prior to enactment of this part shall remain in effect to prevent sig nificant deterioration of air quality in any such area for any such pollutant except as otherwise provided in subsection (b). (b) If any regulation in effect prior to enactment of this part to prevent significant deterioration of air quality would be incon sistent with the requirements of section 162(a), section 163(b) or section 164(a), then such regulations shall be deemed amended so as to conform with such requirements. In the case of a facility on which construction was commenced (in accordance with this defini tion of ‘‘commenced’’ in section 169(2)) after June 1, 1975, and prior to the enactment of the Clean Air Act Amendments of 1977, the re view and permitting of such facility shall be in accordance with the regulations for the prevention of significant deterioration in effect prior to the enactment of the Clean Air Act Amendments of 1977. [42 U.S.C. 7478] DEFINITIONS SEC. 169. For purposes of this part— (1) The term ‘‘major emitting facility’’ means any of the fol lowing stationary sources of air pollutants which emit, or have the potential to emit, one hundred tons per year or more of any air pollutant from the following types of stationary sources: fos sil-fuel fired steam electric plants of more than two hundred and fifty million British thermal units per hour heat input, coal cleaning plants (thermal dryers), kraft pulp mills, Port land Cement plants, primary zinc smelters, iron and steel mill plants, primary aluminum ore reduction plants, primary cop per smelters, municipal incinerators capable of charging more than fifty tons of refuse per day, hydrofluoric, sulfuric, and ni tric acid plants, petroleum refineries, lime plants, phosphate rock processing plants, coke oven batteries, sulfur recovery plants, carbon black plants (furnace process) primary lead smelters, fuel conversion plants, sintering plants, secondary metal production facilities, chemical process plants, fossil-fuel boilers of more than two hundred and fifty million British ther mal units per hour heat input, petroleum storage and transfer facilities with a capacity exceeding three hundred thousand barrels, taconite ore processing facilities, glass fiber processing plants, charcoal production facilities. Such term also includes any other source with the potential to emit two hundred and fifty tons per year or more of any air pollutant. This term shall not include new or modified facilities which are nonprofit health or education institutions which have been exempted by the State. (2)(A) The term ‘‘commenced’’ as applied to construction of a major emitting facility means that the owner or operator has obtained all necessary preconstruction approvals or permits re quired by Federal, State, or local air pollution emissions and Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 151 Sec. 169CLEAN AIR ACT 1 Section 403(d) of Public Law 101–549 (104 Stat. 2631) amended section 169(3) by inserting ‘‘, clean fuels,’’ after ‘‘including fuel cleaning,’’. The comma following ‘‘including fuel cleaning’’ did not exist. air quality laws or regulations and either has (i) begun, or caused to begin, a continuous program of physical on-site con struction of the facility or (ii) entered into binding agreements or contractual obligations, which cannot be canceled or modi fied without substantial loss to the owner or operator, to un dertake a program of construction of the facility to be com pleted within a reasonable time. (B) The term ‘‘necessary preconstruction approvals or per mits’’ means those permits or approvals required by the per mitting authority as a precondition to undertaking any activity under clauses (i) or (ii) of subparagraph (A) of this paragraph. (C) The term ‘‘construction’’ when used in connection with any source or facility, includes the modification (as defined in section 111(a)) of any source or facility. (3) The term ‘‘best available control technology’’ means an emission limitation based on the maximum degree of reduction of each pollutant subject to regulation under this Act emitted from or which results from any major emitting facility, which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such facility through application of production processes and available methods, sys tems, and techniques, including fuel cleaning, 1 clean fuels, or treatment or innovative fuel combustion techniques for control of each such pollutant. In no event shall application of ‘‘best available control technology’’ result in emissions of any pollut ants which will exceed the emissions allowed by any applicable standard established pursuant to section 111 or 112 of this Act. Emissions from any source utilizing clean fuels, or any other means, to comply with this paragraph shall not be allowed to increase above levels that would have been required under this paragraph as it existed prior to enactment of the Clean Air Act Amendments of 1990. (4) The term ‘‘baseline concentration’’ means, with respect to a pollutant, the ambient concentration levels which exist at the time of the first application for a permit in an area subject to this part, based on air quality data available in the Environ mental Protection Agency or a State air pollution control agen cy and on such monitoring data as the permit applicant is re quired to submit. Such ambient concentration levels shall take into account all projected emissions in, or which may affect, such area from any major emitting facility on which construc tion commenced prior to January 6, 1975, but which has not begun operation by the date of the baseline air quality con centration determination. Emissions of sulfur oxides and par ticulate matter from any major emitting facility on which con struction commenced after January 6, 1975, shall not be in cluded in the baseline and shall be counted against the max Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 152Sec. 169A CLEAN AIR ACT imum allowable increases in pollutant concentrations estab lished under this part. [42 U.S.C. 7479] SUBPART 2 VISIBILITY PROTECTION FOR FEDERAL CLASS I AREAS SEC. 169A. (a)(1) Congress hereby declares as a national goal the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory class I Federal areas which impairment results from manmade air pollution. (2) Not later than six months after the date of the enactment of this section, the Secretary of the Interior in consultation with other Federal land managers shall review all mandatory class I Federal areas and identify those where visibility is an important value of the area. From time to time the Secretary of the Interior may revise such identifications. Not later than one year after such date of enactment, the Administrator shall, after consultation with the Secretary of the Interior, promulgate a list of mandatory class I Federal areas in which he determines visibility is an important value. (3) Not later than eighteen months after the date of enactment of this section, the Administrator shall complete a study and report to Congress on available methods for implementing the national goal set forth in paragraph (1). Such report shall include rec ommendations for— (A) methods for identifying, characterizing, determining, quantifying, and measuring visibility impairment in Federal areas referred to in paragraph (1), and (B) modeling techniques (or other methods) for deter mining the extent to which manmade air pollution may reason ably be anticipated to cause or contribute to such impairment, and (C) methods for preventing and remedying such manmade air pollution and resulting visibility impairment. Such report shall also identify the classes or categories of sources and the types of air pollutants which, alone or in conjunction with other sources or pollutants, may reasonably be anticipated to cause or contribute significantly to impairment of visibility. (4) Not later than twenty-four months after the date of enact ment of this section, and after notice and public hearing, the Ad ministrator shall promulgate regulations to assure (A) reasonable progress toward meeting the national goal specified in paragraph (1), and (B) compliance with the requirements of this section. (b) Regulations under subsection (a)(4) shall— (1) provide guidelines to the States, taking into account the recommendations under subsection (a)(3) on appropriate techniques and methods for implementing this section (as pro vided in subparagraphs (A) through (C) of such subsection (a)(3)), and (2) require each applicable implementation plan for a State in which any area listed by the Administrator under subsection (a)(2) is located (or for a State the emissions from which may Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 153 Sec. 169ACLEAN AIR ACT reasonably be anticipated to cause or contribute to any impair ment of visibility in any such area) to contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress toward meeting the na tional goal specified in subsection (a), including— (A) except as otherwise provided pursuant to sub section (c), a requirement that each major stationary source which is in existence on the date of enactment of this section, but which has not been in operation for more than fifteen years as of such date, and which, as deter mined by the State (or the Administrator in the case of a plan promulgated under section 110(c)) emits any air pol lutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in any such area, shall procure, install, and operate, as expeditiously as practicable (and maintain thereafter) the best available retrofit technology, as determined by the State (or the Ad ministrator in the case of a plan promulgated under sec tion 110(c)) for controlling emissions from such source for the purpose of eliminating or reducing any such impair ment, and (B) a long-term (ten to fifteen years) strategy for mak ing reasonable progress toward meeting the national goal specified in subsection (a). In the case of a fossil-fuel fired generating powerplant having a total generating capacity in excess of 750 megawatts, the emission limitations required under this paragraph shall be determined pur suant to guidelines, promulgated by the Administrator under para graph (1). (c)(1) The Administrator may, by rule, after notice and oppor tunity for public hearing, exempt any major stationary source from the requirement of subsection (b)(2)(A), upon his determination that such source does not or will not, by itself or in combination with other sources, emit any air pollutant which may reasonably be anticipated to cause or contribute to a significant impairment of visibility in any mandatory class I Federal area. (2) Paragraph (1) of this subsection shall not be applicable to any fossil-fuel fired powerplant with total design capacity of 750 megawatts or more, unless the owner or operator of any such plant demonstrates to the satisfaction of the Administrator that such powerplant is located at such distance from all areas listed by the Administrator under subsection (a)(2) that such powerplant does not or will not, by itself or in combination with other sources, emit any air pollutant which may reasonably be anticipated to cause or contribute to significant impairment of visibility in any such area. (3) An exemption under this subsection shall be effective only upon concurrence by the appropriate Federal land manager or managers with the Administrator’s determination under this sub section. (d) Before holding the public hearing on the proposed revision of an applicable implementation plan to meet the requirements of this section, the State (or the Administrator, in the case of a plan promulgated under section 110(c)) shall consult in person with the appropriate Federal land manager or managers and shall include Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 154Sec. 169A CLEAN AIR ACT a summary of the conclusions and recommendations of the Federal land managers in the notice to the public. (e) In promulgating regulations under this section, the Admin istrator shall not require the use of any automatic or uniform buff er zone or zones. (f) For purposes of section 304(a)(2), the meeting of the na tional goal specified in subsection (a)(1) by any specific date or dates shall not be considered a ‘‘nondiscretionary duty’’ of the Ad ministrator. (g) For the purpose of this section— (1) in determining reasonable progress there shall be taken into consideration the costs of compliance, the time nec essary for compliance, and the energy and nonair quality envi ronmental impacts of compliance, and the remaining useful life of any existing source subject to such requirements; (2) in determining best available retrofit technology the State (or the Administrator in determining emission limita tions which reflect such technology) shall take into consider ation the costs of compliance, the energy and nonair quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology; (3) the term ‘‘manmade air pollution’’ means air pollution which results directly or indirectly from human activities; (4) the term ‘‘as expeditiously as practicable’’ means as ex peditiously as practicable but in no event later than five years after the date of approval of a plan revision under this section (or the date of promulgation of such a plan revision in the case of action by the Administrator under section 110(c) for pur poses of this section); (5) the term ‘‘mandatory class I Federal areas’’ means Fed eral areas which may not be designated as other than class I under this part; (6) the terms ‘‘visibility impairment’’ and ‘‘impairment of visibility’’ shall include reduction in visual range and atmos pheric discoloration; and (7) the term ‘‘major stationary source’’ means the following types of stationary sources with the potential to emit 250 tons or more of any pollutant; fossil-fuel fired steam electric plants of more than 250 million British thermal units per hour heat input, coal cleaning plants (thermal dryers), kraft pulp mills, Portland Cement plants, primary zinc smelters, iron and steel mill plants, primary aluminum ore reduction plants, primary copper smelters, municipal incinerators capable of charging more than 250 tons of refuse per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum refineries, lime plants, phos phate rock processing plants, coke oven batteries, sulfur recov ery plants, carbon black plants (furnace process), primary lead smelters, fuel conversion plants, sintering plants, secondary metal production facilities, chemical process plants, fossil-fuel boilers of more than 250 million British thermal units per hour heat input, petroleum storage and transfer facilities with a ca Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 155 Sec. 169BCLEAN AIR ACT pacity exceeding 300,000 barrels, taconite ore processing facili ties, glass fiber processing plants, charcoal production facili ties. [42 U.S.C. 7491] SEC. 169B. VISIBILITY. (a) STUDIES.—(1) The Administrator, in conjunction with the National Park Service and other appropriate Federal agencies, shall conduct research to identify and evaluate sources and source regions of both visibility impairment and regions that provide pre dominantly clean air in class I areas. A total of $8,000,000 per year for 5 years is authorized to be appropriated for the Environmental Protection Agency and the other Federal agencies to conduct this research. The research shall include— (A) expansion of current visibility related monitoring in class I areas; (B) assessment of current sources of visibility impairing pollution and clean air corridors; (C) adaptation of regional air quality models for the as sessment of visibility; (D) studies of atmospheric chemistry and physics of visi bility. (2) Based on the findings available from the research required in subsection (a)(1) as well as other available scientific and tech nical data, studies, and other available information pertaining to visibility source-receptor relationships, the Administrator shall con duct an assessment and evaluation that identifies, to the extent possible, sources and source regions of visibility impairment includ ing natural sources as well as source regions of clear air for class I areas. The Administrator shall produce interim findings from this study within 3 years after enactment of the Clean Air Act Amend ments of 1990. (b) IMPACTS OF OTHER PROVISIONS.—Within 24 months after enactment of the Clean Air Act Amendments of 1990, the Adminis trator shall conduct an assessment of the progress and improve ments in visibility in class I areas that are likely to result from the implementation of the provisions of the Clean Air Act Amendments of 1990 other than the provisions of this section. Every 5 years thereafter the Administrator shall conduct an assessment of actual progress and improvement in visibility in class I areas. The Admin istrator shall prepare a written report on each assessment and transmit copies of these reports to the appropriate committees of Congress. (c) ESTABLISHMENT OF VISIBILITY TRANSPORT REGIONS AND COMMISSIONS.— (1) AUTHORITY TO ESTABLISH VISIBILITY TRANSPORT RE GIONS.—Whenever, upon the Administrator’s motion or by peti tion from the Governors of at least two affected States, the Ad ministrator has reason to believe that the current or projected interstate transport of air pollutants from one or more States contributes significantly to visibility impairment in class I areas located in the affected States, the Administrator may es tablish a transport region for such pollutants that includes such States. The Administrator, upon the Administrator’s own Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 156Sec. 169B CLEAN AIR ACT 1 Probably should refer to paragraph (2) of this subsection. 2 The first word in this subparagraph should be lower case. 3 The first word in this subparagraph should be lower case. 4 The number ‘‘2’’ should probably have been omitted. motion or upon petition from the Governor of any affected State, or upon the recommendations of a transport commission established under subsection (b) of this section 1 may— (A) add any State or portion of a State to a visibility transport region when the Administrator determines that the interstate transport of air pollutants from such State significantly contributes to visibility impairment in a class I area located within the transport region, or (B) remove any State or portion of a State from the re gion whenever the Administrator has reason to believe that the control of emissions in that State or portion of the State pursuant to this section will not significantly con tribute to the protection or enhancement of visibility in any class I area in the region. (2) VISIBILITY TRANSPORT COMMISSIONS.—Whenever the Administrator establishes a transport region under subsection (c)(1), the Administrator shall establish a transport commission comprised of (as a minimum) each of the following members: (A) the Governor of each State in the Visibility Trans port Region, or the Governor’s designee; (B) The 2 Administrator or the Administrator’s des ignee; and (C) A 3 representative of each Federal agency charged with the direct management of each class I area or areas within the Visibility Transport Region. (3) All representatives of the Federal Government shall be ex officio members. (4) The visibility transport commissions shall be exempt from the requirements of the Federal Advisory Committee Act (5 U.S.C. Appendix 2, 4 Section 1). (d) DUTIES OF VISIBILITY TRANSPORT COMMISSIONS.—A Visi bility Transport Commission— (1) shall assess the scientific and technical data, studies, and other currently available information, including studies conducted pursuant to subsection (a)(1), pertaining to adverse impacts on visibility from potential or projected growth in emissions from sources located in the Visibility Transport Re gion; and (2) shall, within 4 years of establishment, issue a report to the Administrator recommending what measures, if any, should be taken under the Clean Air Act to remedy such ad verse impacts. The report required by this subsection shall ad dress at least the following measures: (A) the establishment of clean air corridors, in which additional restrictions on increases in emissions may be appropriate to protect visibility in affected class I areas; (B) the imposition of the requirements of part D of this title affecting the construction of new major stationary sources or major modifications to existing sources in such Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 157 Sec. 171CLEAN AIR ACT 1 So in original. Table of sections does not conform to section headings as noted in brackets. clean air corridors specifically including the alternative siting analysis provisions of section 173(a)(5); and (C) the promulgation of regulations under section 169A to address long range strategies for addressing re gional haze which impairs visibility in affected class I areas. (e) DUTIES OF THE ADMINISTRATOR.—(1) The Administrator shall, taking into account the studies pursuant to subsection (a)(1) and the reports pursuant to subsection (d)(2) and any other rel evant information, within eighteen months of receipt of the report referred to in subsection (d)(2) of this section, carry out the Admin istrator’s regulatory responsibilities under section 169A, including criteria for measuring ‘‘reasonable progress’’ toward the national goal. (2) Any regulations promulgated under section 169A of this title pursuant to this subsection shall require affected States to re vise within 12 months their implementation plans under section 110 of this title to contain such emission limits, schedules of com pliance, and other measures as may be necessary to carry out regu lations promulgated pursuant to this subsection. (f) GRAND CANYON VISIBILITY TRANSPORT COMMISSION.—The Administrator pursuant to subsection (c)(1) shall, within 12 months, establish a visibility transport commission for the region affecting the visibility of the Grand Canyon National Park. [42 U.S.C. 7492] PART D—PLAN REQUIREMENTS FOR NONATTAINMENT AREAS Subpart 1—Nonattainment Areas in General Sec. 171. Definitions. Sec. 172. Nonattainment plan provisions [in general]. 1 Sec. 173. Permit requirements. Sec. 174. Planning procedures. [Sec. 175A. Maintenance plans.] 1 Sec. 175. Environmental Protection Agency grants. Sec. 176. Limitations on certain Federal assistance. [Sec. 176A. Interstate transport commissions.] 1 Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 158171 CLEAN AIR ACT 1 See footnote 1 on previous page. 2 For related provisions, see sections 129(a) and 129(c) of Public Law 95–95 (Appendix). Sec. 177. New motor vehicle emission standards in nonattainment areas. Sec. 178. Guidance documents. [Sec. 179. Sanctions and consequences of failure to attain.] 1 [Sec. 179B. International border areas.] 1 DEFINITIONS SEC. 171. For 2 the purpose of this part— (1) REASONABLE FURTHER PROGRESS.—The term ‘‘reason able further progress’’ means such annual incremental reduc tions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Adminis trator for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date. (2) NONATTAINMENT AREA.—The term ‘‘nonattainment area’’ means, for any air pollutant, an area which is designated ‘‘nonattainment’’ with respect to that pollutant within the meaning of section 107(d). (3) The term ‘‘lowest achievable emission rate’’ means for any source, that rate of emissions which reflects— (A) the most stringent emission limitation which is contained in the implementation plan of any State for such class or category of source, unless the owner or operator of the proposed source demonstrates that such limitations are not achievable, or (B) the most stringent emission limitation which is achieved in practice by such class or category of source, whichever is more stringent. In no event shall the application of this term permit a pro posed new or modified source to emit any pollutant in excess of the amount allowable under applicable new source stand ards of performance. (4) The terms ‘‘modifications’’ and ‘‘modified’’ mean the same as the term ‘‘modification’’ as used in section 111(a)(4) of this Act. [42 U.S.C. 7501] SEC. 172. NONATTAINMENT PLAN PROVISIONS IN GENERAL. (a) CLASSIFICATIONS AND ATTAINMENT DATES.— (1) CLASSIFICATIONS.—(A) On or after the date the Admin istrator promulgates the designation of an area as a nonattain ment area pursuant to section 107(d) with respect to any na tional ambient air quality standard (or any revised standard, including a revision of any standard in effect on the date of the enactment of the Clean Air Act Amendments of 1990), the Ad ministrator may classify the area for the purpose of applying an attainment date pursuant to paragraph (2), and for other purposes. In determining the appropriate classification, if any, for a nonattainment area, the Administrator may consider such factors as the severity of nonattainment in such area and the availability and feasibility of the pollution control meas Q:\COMP\ENVIR1\ENVIR1.TOC February 24, 2004 159 Sec. 172CLEAN AIR ACT ures that the Administrator believes may be necessary to pro vide for attainment of such standard in such area. (B) The Administrator shall publish a notice in the Federal Register announcing each classification under subparagraph (A), except the Administrator shall provide an opportunity for at least 30 days for written comment. Such classification shall not be subject to the provisions of sections 553 through 557 of title 5 of the United States Code (concerning notice and com ment) and shall not be subject to judicial review until the Ad ministrator takes final action under subsection (k) or (l) of sec tion 110 (concerning action on plan submissions) or section 179 (concerning sanctions) with respect to any plan submissions re quired by virtue of such classification. (C) This paragraph shall not apply with respect to non attainment areas for which classifications are specifically pro vided under other provisions of this part. (2) ATTAINMENT DATES FOR NONATTAINMENT AREAS.—(A) The attainment date for an area designated nonattainment with respect to a national primary ambient air quality stand ard shall be the date by which attainment can be achieved as expeditiously as practicable, but no later than 5 years from the date such area was designated nonattainment under section 107(d), except that the Administrator may extend the attain ment date to the extent the Administrator determines appro priate, for a period no greater than 10 years from the date of designation as nonattainment, considering the severity of non attainment and the availability and feasibility of pollution con trol measures. (B) The attainment date for an area designated nonattain ment with respect to a secondary national ambient air quality standard shall be the date by which attainment can be achieved as expeditiously as practicable after the date such area was designated nonattainment under section 107(d). (C) Upon application by any State, the Administrator may extend for 1 additional year (hereinafter referred to as the ‘‘Ex tension Year’’) the attainment date determined by the Admin istrator under subparagraph (A) or (B) if— (i) the State has complied with all requirements and commitments pertaining to the area in the applicable im plementation plan, and (ii) in accordance with guidance published by the Ad ministrator, no more than a minimal number of exceedances of the relevant national ambient air quality standard has occurred in the area in the year preceding the Extension Year. No more than 2 one-year extensions may be issued under this subparagraph for a single nonattainment area. (D) This paragraph shall not apply with respect to non attainment areas for which attainment dates are specifically provided under other provisions of this part. (b) SCHEDULE FOR PLAN SUBMISSIONS.—At the time the Ad ministrator promulgates the designation of an area as nonattain ment with respect to a national ambient air quality standard under section 107(d), the Administrator shall establish a schedule accord Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 160Sec. 172 CLEAN AIR ACT ing to which the State containing such area shall submit a plan or plan revision (including the plan items) meeting the applicable re quirements of subsection (c) and section 110(a)(2). Such schedule shall at a minimum, include a date or dates, extending no later than 3 years from the date of the nonattainment designation, for the submission of a plan or plan revision (including the plan items) meeting the applicable requirements of subsection (c) and section 110(a)(2). (c) NONATTAINMENT PLAN PROVISIONS.—The plan provisions (including plan items) required to be submitted under this part shall comply with each of the following: (1) IN GENERAL.—Such plan provisions shall provide for the implementation of all reasonably available control meas ures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be ob tained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment of the national primary ambient air quality standards. (2) RFP.—Such plan provisions shall require reasonable further progress. (3) INVENTORY.—Such plan provisions shall include a com prehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant or pollutants in such area, including such periodic revisions as the Administrator may determine necessary to assure that the requirements of this part are met. (4) IDENTIFICATION AND QUANTIFICATION.—Such plan pro visions shall expressly identify and quantify the emissions, if any, of any such pollutant or pollutants which will be allowed, in accordance with section 173(a)(1)(B), from the construction and operation of major new or modified stationary sources in each such area. The plan shall demonstrate to the satisfaction of the Administrator that the emissions quantified for this pur pose will be consistent with the achievement of reasonable fur ther progress and will not interfere with attainment of the ap plicable national ambient air quality standard by the applica ble attainment date. (5) PERMITS FOR NEW AND MODIFIED MAJOR STATIONARY SOURCES.—Such plan provisions shall require permits for the construction and operation of new or modified major stationary sources anywhere in the nonattainment area, in accordance with section 173. (6) OTHER MEASURES.—Such plan provisions shall include enforceable emission limitations, and such other control meas ures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emission rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to provide for attainment of such standard in such area by the applicable attainment date speci fied in this part. (7) COMPLIANCE WITH SECTION 110(a)(2).—Such plan provi sions shall also meet the applicable provisions of section 110(a)(2). Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 161 Sec. 173CLEAN AIR ACT 1 This reference should be to ‘‘172(c)(5)’’. (8) EQUIVALENT TECHNIQUES.—Upon application by any State, the Administrator may allow the use of equivalent mod eling, emission inventory, and planning procedures, unless the Administrator determines that the proposed techniques are, in the aggregate, less effective than the methods specified by the Administrator. (9) CONTINGENCY MEASURES.—Such plan shall provide for the implementation of specific measures to be undertaken if the area fails to make reasonable further progress, or to attain the national primary ambient air quality standard by the at tainment date applicable under this part. Such measures shall be included in the plan revision as contingency measures to take effect in any such case without further action by the State or the Administrator. (d) PLAN REVISIONS REQUIRED IN RESPONSE TO FINDING OF PLAN INADEQUACY.—Any plan revision for a nonattainment area which is required to be submitted in response to a finding by the Administrator pursuant to section 110(k)(5) (relating to calls for plan revisions) must correct the plan deficiency (or deficiencies) specified by the Administrator and meet all other applicable plan requirements of section 110 and this part. The Administrator may reasonably adjust the dates otherwise applicable under such re quirements to such revision (except for attainment dates that have not yet elapsed), to the extent necessary to achieve a consistent ap plication of such requirements. In order to facilitate submittal by the States of adequate and approvable plans consistent with the applicable requirements of this Act, the Administrator shall, as ap propriate and from time to time, issue written guidelines, interpre tations, and information to the States which shall be available to the public, taking into consideration any such guidelines, interpre tations, or information provided before the date of the enactment of the Clean Air Act Amendments of 1990. (e) FUTURE MODIFICATION OF STANDARD.—If the Administrator relaxes a national primary ambient air quality standard after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall, within 12 months after the relaxation, pro mulgate requirements applicable to all areas which have not at tained that standard as of the date of such relaxation. Such re quirements shall provide for controls which are not less stringent than the controls applicable to areas designated nonattainment be fore such relaxation. [42 U.S.C. 7502] SEC. 173. PERMIT REQUIREMENTS. (a) IN GENERAL.—The permit program required by section 172(b)(6) 1 shall provide that permits to construct and operate may be issued if— (1) in accordance with regulations issued by the Adminis trator for the determination of baseline emissions in a manner consistent with the assumptions underlying the applicable im plementation plan approved under section 110 and this part, the permitting agency determines that— Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 162Sec. 173 CLEAN AIR ACT 1 So in original. The word ‘‘that’’ appears to be unnecessary. 2 So in original. Probably the word ‘‘and’’ should be deleted. (A) by the time the source is to commence operation, sufficient offsetting emissions reductions have been ob tained, such that total allowable emissions from existing sources in the region, from new or modified sources which are not major emitting facilities, and from the proposed source will be sufficiently less than total emissions from existing sources (as determined in accordance with the reg ulations under this paragraph) prior to the application for such permit to construct or modify so as to represent (when considered together with the plan provisions re quired under section 172) reasonable further progress (as defined in section 171); or (B) in the case of a new or modified major stationary source which is located in a zone (within the nonattain ment area) identified by the Administrator, in consultation with the Secretary of Housing and Urban Development, as a zone to which economic development should be targeted, that 1 emissions of such pollutant resulting from the pro posed new or modified major stationary source will not cause or contribute to emissions levels which exceed the al lowance permitted for such pollutant for such area from new or modified major stationary sources under section 172(c); (2) the proposed source is required to comply with the low est achievable emission rate; (3) the owner or operator of the proposed new or modified source has demonstrated that all major stationary sources owned or operated by such person (or by any entity controlling, controlled by, or under common control with such person) in such State are subject to emission limitations and are in com pliance, or on a schedule for compliance, with all applicable emission limitations and standards under this Act; and 2 (4) the Administrator has not determined that the applica ble implementation plan is not being adequately implemented for the nonattainment area in which the proposed source is to be constructed or modified in accordance with the require ments of this part; and (5) an analysis of alternative sites, sizes, production proc esses, and environmental control techniques for such proposed source demonstrates that benefits of the proposed source sig nificantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification. Any emission reductions required as a precondition of the issuance of a permit under paragraph (1) shall be federally enforceable be fore such permit may be issued. (b) PROHIBITION ON USE OF OLD GROWTH ALLOWANCES.—Any growth allowance included in an applicable implementation plan to meet the requirements of section 172(b)(5) (as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990) shall not be valid for use in any area that received or re ceives a notice under section 110(a)(2)(H)(ii) (as in effect imme Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 163 Sec. 173CLEAN AIR ACT diately before the date of the enactment of the Clean Air Act Amendments of 1990) or under section 110(k)(1) that its applicable implementation plan containing such allowance is substantially in adequate. (c) OFFSETS.—(1) The owner or operator of a new or modified major stationary source may comply with any offset requirement in effect under this part for increased emissions of any air pollutant only by obtaining emission reductions of such air pollutant from the same source or other sources in the same nonattainment area, except that the State may allow the owner or operator of a source to obtain such emission reductions in another nonattainment area if (A) the other area has an equal or higher nonattainment classi fication than the area in which the source is located and (B) emis sions from such other area contribute to a violation of the national ambient air quality standard in the nonattainment area in which the source is located. Such emission reductions shall be, by the time a new or modified source commences operation, in effect and enforceable and shall assure that the total tonnage of increased emissions of the air pollutant from the new or modified source shall be offset by an equal or greater reduction, as applicable, in the ac tual emissions of such air pollutant from the same or other sources in the area. (2) Emission reductions otherwise required by this Act shall not be creditable as emissions reductions for purposes of any such offset requirement. Incidental emission reductions which are not otherwise required by this Act shall be creditable as emission re ductions for such purposes if such emission reductions meet the re quirements of paragraph (1). (d) CONTROL TECHNOLOGY INFORMATION.—The State shall pro vide that control technology information from permits issued under this section will be promptly submitted to the Administrator for purposes of making such information available through the RACT/ BACT/LAER clearinghouse to other States and to the general pub lic. (e) ROCKET ENGINES OR MOTORS.—The permitting authority of a State shall allow a source to offset by alternative or innovative means emission increases from rocket engine and motor firing, and cleaning related to such firing, at an existing or modified major source that tests rocket engines or motors under the following con ditions: (1) Any modification proposed is solely for the purpose of expanding the testing of rocket engines or motors at an exist ing source that is permitted to test such engines on the date of enactment of this subsection. (2) The source demonstrates to the satisfaction of the per mitting authority of the State that it has used all reasonable means to obtain and utilize offsets, as determined on an an nual basis, for the emissions increases beyond allowable levels, that all available offsets are being used, and that sufficient off sets are not available to the source. (3) The source has obtained a written finding from the De partment of Defense, Department of Transportation, National Aeronautics and Space Administration or other appropriate Federal agency, that the testing of rocket motors or engines at Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 164Sec. 174 CLEAN AIR ACT the facility is required for a program essential to the national security. (4) The source will comply with an alternative measure, imposed by the permitting authority, designed to offset any emission increases beyond permitted levels not directly offset by the source. In lieu of imposing any alternative offset meas ures, the permitting authority may impose an emissions fee to be paid to such authority of a State which shall be an amount no greater than 1.5 times the average cost of stationary source control measures adopted in that area during the previous 3 years. The permitting authority shall utilize the fees in a man ner that maximizes the emissions reductions in that area. [42 U.S.C. 7503] SEC. 174. PLANNING PROCEDURES. (a) IN GENERAL.—For any ozone, carbon monoxide, or PM–10 nonattainment area, the State containing such area and elected of ficials of affected local governments shall, before the date required for submittal of the inventory described under sections 182(a)(1) and 187(a)(1), jointly review and update as necessary the planning procedures adopted pursuant to this subsection as in effect imme diately before the date of the enactment of the Clean Air Act Amendments of 1990, or develop new planning procedures pursu ant to this subsection, as appropriate. In preparing such procedures the State and local elected officials shall determine which elements of a revised implementation plan will be developed, adopted, and implemented (through means including enforcement) by the State and which by local governments or regional agencies, or any com bination of local governments, regional agencies, or the State. The implementation plan required by this part shall be prepared by an organization certified by the State, in consultation with elected offi cials of local governments and in accordance with the determina tion under the second sentence of this subsection. Such organiza tion shall include elected officials of local governments in the af fected area, and representatives of the State air quality planning agency, the State transportation planning agency, the metropolitan planning organization designated to conduct the continuing, cooper ative and comprehensive transportation planning process for the area under section 134 of title 23, United States Code, the organi zation responsible for the air quality maintenance planning process under regulations implementing this Act, and any other organiza tion with responsibilities for developing, submitting, or imple menting the plan required by this part. Such organization may be one that carried out these functions before the date of the enact ment of the Clean Air Act Amendments of 1990. (b) COORDINATION.—The preparation of implementation plan provisions and subsequent plan revisions under the continuing transportation-air quality planning process described in section 108(e) shall be coordinated with the continuing, cooperative and comprehensive transportation planning process required under sec tion 134 of title 23, United States Code, and such planning proc esses shall take into account the requirements of this part. (c) JOINT PLANNING.—In the case of a nonattainment area that is included within more than one State, the affected States may Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 165 Sec. 175ACLEAN AIR ACT jointly, through interstate compact or otherwise, undertake and im plement all or part of the planning procedures described in this section. [42 U.S.C. 7504] ENVIRONMENTAL PROTECTION AGENCY GRANTS SEC. 175. (a) The Administrator shall make grants to any orga nization of local elected officials with transportation or air quality maintenance planning responsibilities recognized by the State under section 174(a) for payment of the reasonable costs of devel oping a plan revision under this part. (b) The amount granted to any organization under subsection (a) shall be 100 percent of any additional costs of developing a plan revision under this part for the first two fiscal years following re ceipt of the grant under this paragraph, and shall supplement any funds available under Federal law to such organization for trans portation or air quality maintenance planning. Grants under this section shall not be used for construction. [42 U.S.C. 7505] SEC. 175A. MAINTENANCE PLANS. (a) PLAN REVISION.—Each State which submits a request under section 107(d) for redesignation of a nonattainment area for any air pollutant as an area which has attained the national pri mary ambient air quality standard for that air pollutant shall also submit a revision of the applicable State implementation plan to provide for the maintenance of the national primary ambient air quality standard for such air pollutant in the area concerned for at least 10 years after the redesignation. The plan shall contain such additional measures, if any, as may be necessary to ensure such maintenance. (b) SUBSEQUENT PLAN REVISIONS.—8 years after redesignation of any area as an attainment area under section 107(d), the State shall submit to the Administrator an additional revision of the ap plicable State implementation plan for maintaining the national primary ambient air quality standard for 10 years after the expira tion of the 10-year period referred to in subsection (a). (c) NONATTAINMENT REQUIREMENTS APPLICABLE PENDING PLAN APPROVAL.—Until such plan revision is approved and an area is re designated as attainment for any area designated as a nonattain ment area, the requirements of this part shall continue in force and effect with respect to such area. (d) CONTINGENCY PROVISIONS.—Each plan revision submitted under this section shall contain such contingency provisions as the Administrator deems necessary to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area. Such provi sions shall include a requirement that the State will implement all measures with respect to the control of the air pollutant concerned which were contained in the State implementation plan for the area before redesignation of the area as an attainment area. The failure of any area redesignated as an attainment area to maintain the national ambient air quality standard concerned shall not re sult in a requirement that the State revise its State implementa Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 166Sec. 176 CLEAN AIR ACT tion plan unless the Administrator, in the Administrator’s discre tion, requires the State to submit a revised State implementation plan. [42 U.S.C. 7505a] LIMITATIONS ON CERTAIN FEDERAL ASSISTANCE SEC. 176. [Subsections (a) and (b), repealed by Public Law 101–549, sec. 110(4), 104 Stat. 2470.] (c)(1) No department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide finan cial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been ap proved or promulgated under section 110. No metropolitan plan ning organization designated under section 134 of title 23, United States Code, shall give its approval to any project, program, or plan which does not conform to an implementation plan approved or promulgated under section 110. The assurance of conformity to such an implementation plan shall be an affirmative responsibility of the head of such department, agency, or instrumentality. Con formity to an implementation plan means— (A) conformity to an implementation plan’s purpose of eliminating or reducing the severity and number of violations of the national ambient air quality standards and achieving ex peditious attainment of such standards; and (B) that such activities will not— (i) cause or contribute to any new violation of any standard in any area; (ii) increase the frequency or severity of any existing violation of any standard in any area; or (iii) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area. The determination of conformity shall be based on the most recent estimates of emissions, and such estimates shall be determined from the most recent population, employment, travel and conges tion estimates as determined by the metropolitan planning organi zation or other agency authorized to make such estimates. (2) Any transportation plan or program developed pursuant to title 23, United States Code, or the Urban Mass Transportation Act shall implement the transportation provisions of any applicable im plementation plan approved under this Act applicable to all or part of the area covered by such transportation plan or program. No Federal agency may approve, accept or fund any transportation plan, program or project unless such plan, program or project has been found to conform to any applicable implementation plan in ef fect under this Act. In particular— (A) no transportation plan or transportation improvement program may be adopted by a metropolitan planning organiza tion designated under title 23, United States Code, or the Urban Mass Transportation Act, or be found to be in con formity by a metropolitan planning organization until a final determination has been made that emissions expected from im plementation of such plans and programs are consistent with Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 167 Sec. 176CLEAN AIR ACT estimates of emissions from motor vehicles and necessary emis sions reductions contained in the applicable implementation plan, and that the plan or program will conform to the require ments of paragraph (1)(B); (B) no metropolitan planning organization or other recipi ent of funds under title 23, United States Code, or the Urban Mass Transportation Act shall adopt or approve a transpor tation improvement program of projects until it determines that such program provides for timely implementation of trans portation control measures consistent with schedules included in the applicable implementation plan; (C) a transportation project may be adopted or approved by a metropolitan planning organization or any recipient of funds designated under title 23, United States Code, or the Urban Mass Transportation Act, or found in conformity by a metro politan planning organization or approved, accepted, or funded by the Department of Transportation only if it meets either the requirements of subparagraph (D) or the following requirements— (i) such a project comes from a conforming plan and program; (ii) the design concept and scope of such project have not changed significantly since the conformity finding re garding the plan and program from which the project de rived; and (iii) the design concept and scope of such project at the time of the conformity determination for the program was adequate to determine emissions. (D) Any project not referred to in subparagraph (C) shall be treated as conforming to the applicable implementation plan only if it is demonstrated that the projected emissions from such project, when considered together with emissions pro jected for the conforming transportation plans and programs within the nonattainment area, do not cause such plans and programs to exceed the emission reduction projections and schedules assigned to such plans and programs in the applica ble implementation plan. (3) Until such time as the implementation plan revision re ferred to in paragraph (4)(C) is approved, conformity of such plans, programs, and projects will be demonstrated if— (A) the transportation plans and programs— (i) are consistent with the most recent estimates of mobile source emissions; (ii) provide for the expeditious implementation of transportation control measures in the applicable imple mentation plan; and (iii) with respect to ozone and carbon monoxide non attainment areas, contribute to annual emissions reduc tions consistent with sections 182(b)(1) and 187(a)(7); and (B) the transportation projects— (i) come from a conforming transportation plan and program as defined in subparagraph (A) or for 12 months after the date of the enactment of the Clean Air Act Amendments of 1990, from a transportation program Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 168Sec. 176 CLEAN AIR ACT found to conform within 3 years prior to such date of en actment; and (ii) in carbon monoxide nonattainment areas, elimi nate or reduce the severity and number of violations of the carbon monoxide standards in the area substantially af fected by the project. With regard to subparagraph (B)(ii), such determination may be made as part of either the conformity determination for the transportation program or for the individual project taken as a whole during the environmental review phase of project development. (4)(A) No later than one year after the date of enactment of the Clean Air Act Amendments of 1990, the Administrator shall pro mulgate criteria and procedures for determining conformity (except in the case of transportation plans, programs, and projects) of, and for keeping the Administrator informed about, the activities re ferred to in paragraph (1). No later than one year after such date of enactment, the Administrator, with the concurrence of the Sec retary of Transportation, shall promulgate criteria and procedures for demonstrating and assuring conformity in the case of transpor tation plans, programs, and projects. A suit may be brought against the Administrator and the Secretary of Transportation under sec tion 304 to compel promulgation of such criteria and procedures and the Federal district court shall have jurisdiction to order such promulgation. (B) The procedures and criteria shall, at a minimum— (i) address the consultation procedures to be undertaken by metropolitan planning organizations and the Secretary of Transportation with State and local air quality agencies and State departments of transportation before such organizations and the Secretary make conformity determinations; (ii) address the appropriate frequency for making con formity determinations, but in no case shall such determina tions for transportation plans and programs be less frequent than every three years; and (iii) address how conformity determinations will be made with respect to maintenance plans. (C) Such procedures shall also include a requirement that each State shall submit to the Administrator and the Secretary of Transportation within 24 months of such date of enactment, a revi sion to its implementation plan that includes criteria and proce dures for assessing the conformity of any plan, program, or project subject to the conformity requirements of this subsection. (D) Compliance with the rules of the Administrator for deter mining the conformity of transportation plans, programs, and projects funded or approved under title 23 of the United States Code or the Federal Transit Act to State or Federal implementation plans shall not be required for traffic signal synchronization projects prior to the funding, approval or implementation of such projects. The supporting regional emissions analysis for any con formity determination made with respect to a transportation plan, program, or project shall consider the effect on emissions of any such project funded, approved, or implemented prior to the con formity determination. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 169 Sec. 176ACLEAN AIR ACT 1 Margin so in law. (5) 1 APPLICABILITY.—This subsection shall apply only with respect to— (A) a nonattainment area and each pollutant for which the area is designated as a nonattainment area; and (B) an area that was designated as a nonattainment area but that was later redesignated by the Administrator as an attainment area and that is required to develop a maintenance plan under section 175A with respect to the specific pollutant for which the area was designated non attainment. (6) 1 Notwithstanding paragraph 5, this subsection shall not apply with respect to an area designated nonattainment under section 107(d)(1) until 1 year after that area is first des ignated nonattainment for a specific national ambient air qual ity standard. This paragraph only applies with respect to the national ambient air quality standard for which an area is newly designated nonattainment and does not affect the area’s requirements with respect to all other national ambient air quality standards for which the area is designated nonattain ment or has been redesignated from nonattainment to attain ment with a maintenance plan pursuant to section 175(A) (in cluding any pre-existing national ambient air quality standard for a pollutant for which a new or revised standard has been issued). (d) Each department, agency, or instrumentality of the Federal Government having authority to conduct or support any program with air-quality related transportation consequences shall give pri ority in the exercise of such authority, consistent with statutory re quirements for allocation among States or other jurisdictions, to the implementation of those portions of plans prepared under this section to achieve and maintain the national primary ambient air quality standard. This paragraph extends to, but is not limited to, authority exercised under the Urban Mass Transportation Act, title 23 of the United States Code, and the Housing and Urban Develop ment Act. [42 U.S.C. 7506] SEC. 176A. INTERSTATE TRANSPORT COMMISSIONS. (a) AUTHORITY TO ESTABLISH INTERSTATE TRANSPORT RE GIONS.—Whenever, on the Administrator’s own motion or by peti tion from the Governor of any State, the Administrator has reason to believe that the interstate transport of air pollutants from one or more States contributes significantly to a violation of a national ambient air quality standard in one or more other States, the Ad ministrator may establish, by rule, a transport region for such pol lutant that includes such States. The Administrator, on the Admin istrator’s own motion or upon petition from the Governor of any State, or upon the recommendation of a transport commission es tablished under subsection (b), may— (1) add any State or portion of a State to any region estab lished under this subsection whenever the Administrator has reason to believe that the interstate transport of air pollutants Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 170Sec. 176A CLEAN AIR ACT from such State significantly contributes to a violation of the standard in the transport region, or (2) remove any State or portion of a State from the region whenever the Administrator has reason to believe that the con trol of emissions in that State or portion of the State pursuant to this section will not significantly contribute to the attain ment of the standard in any area in the region. The Administrator shall approve or disapprove any such petition or recommendation within 18 months of its receipt. The Administrator shall establish appropriate proceedings for public participation re garding such petitions and motions, including notice and comment. (b) TRANSPORT COMMISSIONS.— (1) ESTABLISHMENT.—Whenever the Administrator estab lishes a transport region under subsection (a), the Adminis trator shall establish a transport commission comprised of (at a minimum) each of the following members: (A) The Governor of each State in the region or the designee of each such Governor. (B) The Administrator or the Administrator’s designee. (C) The Regional Administrator (or the Administra tor’s designee) for each Regional Office for each Environ mental Protection Agency Region affected by the transport region concerned. (D) An air pollution control official representing each State in the region, appointed by the Governor. Decisions of, and recommendations and requests to, the Ad ministrator by each transport commission may be made only by a majority vote of all members other than the Administrator and the Regional Administrators (or designees thereof). (2) RECOMMENDATIONS.—The transport commission shall assess the degree of interstate transport of the pollutant or precursors to the pollutant throughout the transport region, as sess strategies for mitigating the interstate pollution, and rec ommend to the Administrator such measures as the Commis sion determines to be necessary to ensure that the plans for the relevant States meet the requirements of section 110(a)(2)(D). Such commission shall not be subject to the provi sions of the Federal Advisory Committee Act (5 U.S.C. App.). (c) COMMISSION REQUESTS.—A transport commission estab lished under subsection (b) may request the Administrator to issue a finding under section 110(k)(5) that the implementation plan for one or more of the States in the transport region is substantially inadequate to meet the requirements of section 110(a)(2)(D). The Administrator shall approve, disapprove, or partially approve and partially disapprove such a request within 18 months of its receipt and, to the extent the Administrator approves such request, issue the finding under section 110(k)(5) at the time of such approval. In acting on such request, the Administrator shall provide an oppor tunity for public participation and shall address each specific rec ommendation made by the commission. Approval or disapproval of such a request shall constitute final agency action within the meaning of section 307(b). [42 U.S.C. 7506a] Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 171 Sec. 179CLEAN AIR ACT NEW MOTOR VEHICLE EMISSION STANDARDS IN NONATTAINMENT AREAS SEC. 177. Notwithstanding section 209(a), any State which has plan provisions approved under this part may adopt and enforce for any model year standards relating to control of emissions from new motor vehicles or new motor vehicle engines and take such other actions as are referred to in section 209(a) respecting such vehicles if— (1) such standards are identical to the California stand ards for which a waiver has been granted for such model year, and (2) California and such State adopt such standards at least two years before commencement of such model year (as deter mined by regulations of the Administrator). Nothing in this section or in title II of this Act shall be construed as author izing any such State to prohibit or limit, directly or indirectly, the manufacture or sale of a new motor vehicle or motor vehi cle engine that is certified in California as meeting California standards, or to take any action of any kind to create, or have the effect of creating, a motor vehicle or motor vehicle engine different than a motor vehicle or engine certified in California under California standards (a ‘‘third vehicle’’) or otherwise cre ate such a ‘‘third vehicle’’. [42 U.S.C. 7507] GUIDANCE DOCUMENTS SEC. 178. The Administrator shall issue guidance documents under section 108 for purposes of assisting States in implementing requirements of this part respecting the lowest achievable emission rate. Such a document shall be published not later than nine months after the date of enactment of this part and shall be re vised at least every two years thereafter. [42 U.S.C. 7508] SEC. 179. SANCTIONS AND CONSEQUENCES OF FAILURE TO ATTAIN. (a) STATE FAILURE.—For any implementation plan or plan revi sion required under this part (or required in response to a finding of substantial inadequacy as described in section 110(k)(5)), if the Administrator— (1) finds that a State has failed, for an area designated nonattainment under section 107(d), to submit a plan, or to submit 1 or more of the elements (as determined by the Ad ministrator) required by the provisions of this Act applicable to such an area, or has failed to make a submission for such an area that satisfies the minimum criteria established in relation to any such element under section 110(k), (2) disapproves a submission under section 110(k), for an area designated nonattainment under section 107, based on the submission’s failure to meet one or more of the elements required by the provisions of this Act applicable to such an area, (3)(A) determines that a State has failed to make any sub mission as may be required under this Act, other than one de Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 172Sec. 179 CLEAN AIR ACT scribed under paragraph (1) or (2), including an adequate maintenance plan, or has failed to make any submission, as may be required under this Act, other than one described under paragraph (1) or (2), that satisfies the minimum criteria established in relation to such submission under section 110(k)(1)(A), or (B) disapproves in whole or in part a submission described under subparagraph (A), or (4) finds that any requirement of an approved plan (or ap proved part of a plan) is not being implemented, unless such deficiency has been corrected within 18 months after the finding, disapproval, or determination referred to in para graphs (1), (2), (3), and (4), one of the sanctions referred to in sub section (b) shall apply, as selected by the Administrator, until the Administrator determines that the State has come into compliance, except that if the Administrator finds a lack of good faith, sanc tions under both paragraph (1) and paragraph (2) of subsection (b) shall apply until the Administrator determines that the State has come into compliance. If the Administrator has selected one of such sanctions and the deficiency has not been corrected within 6 months thereafter, sanctions under both paragraph (1) and para graph (2) of subsection (b) shall apply until the Administrator de termines that the State has come into compliance. In addition to any other sanction applicable as provided in this section, the Ad ministrator may withhold all or part of the grants for support of air pollution planning and control programs that the Administrator may award under section 105. (b) SANCTIONS.—The sanctions available to the Administrator as provided in subsection (a) are as follows: (1) HIGHWAY SANCTIONS.—(A) The Administrator may im pose a prohibition, applicable to a nonattainment area, on the approval by the Secretary of Transportation of any projects or the awarding by the Secretary of any grants, under title 23, United States Code, other than projects or grants for safety where the Secretary determines, based on accident or other ap propriate data submitted by the State, that the principal pur pose of the project is an improvement in safety to resolve a demonstrated safety problem and likely will result in a signifi cant reduction in, or avoidance of, accidents. Such prohibition shall become effective upon the selection by the Administrator of this sanction. (B) In addition to safety, projects or grants that may be approved by the Secretary, notwithstanding the prohibition in subparagraph (A), are the following— (i) capital programs for public transit; (ii) construction or restriction of certain roads or lanes solely for the use of passenger buses or high occupancy ve hicles; (iii) planning for requirements for employers to reduce employee work-trip-related vehicle emissions; (iv) highway ramp metering, traffic signalization, and related programs that improve traffic flow and achieve a net emission reduction; Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 173 Sec. 179CLEAN AIR ACT (v) fringe and transportation corridor parking facilities serving multiple occupancy vehicle programs or transit op erations; (vi) programs to limit or restrict vehicle use in down town areas or other areas of emission concentration par ticularly during periods of peak use, through road use charges, tolls, parking surcharges, or other pricing mecha nisms, vehicle restricted zones or periods, or vehicle reg istration programs; (vii) programs for breakdown and accident scene man agement, nonrecurring congestion, and vehicle information systems, to reduce congestion and emissions; and (viii) such other transportation-related programs as the Administrator, in consultation with the Secretary of Transportation, finds would improve air quality and would not encourage single occupancy vehicle capacity. In considering such measures, the State should seek to ensure adequate access to downtown, other commercial, and residen tial areas, and avoid increasing or relocating emissions and congestion rather than reducing them. (2) OFFSETS.—In applying the emissions offset requirements of section 173 to new or modified sources or emissions units for which a permit is required under part D, the ratio of emission reductions to increased emissions shall be at least 2 to 1. (c) NOTICE OF FAILURE TO ATTAIN.—(1) As expeditiously as practicable after the applicable attainment date for any nonattain ment area, but not later than 6 months after such date, the Admin istrator shall determine, based on the area’s air quality as of the attainment date, whether the area attained the standard by that date. (2) Upon making the determination under paragraph (1), the Administrator shall publish a notice in the Federal Register con taining such determination and identifying each area that the Ad ministrator has determined to have failed to attain. The Adminis trator may revise or supplement such determination at any time based on more complete information or analysis concerning the area’s air quality as of the attainment date. (d) CONSEQUENCES FOR FAILURE TO ATTAIN.—(1) Within 1 year after the Administrator publishes the notice under subsection (c)(2) (relating to notice of failure to attain), each State containing a non attainment area shall submit a revision to the applicable imple mentation plan meeting the requirements of paragraph (2) of this subsection. (2) The revision required under paragraph (1) shall meet the requirements of section 110 and section 172. In addition, the revi sion shall include such additional measures as the Administrator may reasonably prescribe, including all measures that can be fea sibly implemented in the area in light of technological achievability, costs, and any nonair quality and other air quality related health and environmental impacts. (3) The attainment date applicable to the revision required under paragraph (1) shall be the same as provided in the provi sions of section 172(a)(2), except that in applying such provisions the phrase ‘‘from the date of the notice under section 179(c)(2)’’ Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 174Sec. 179B CLEAN AIR ACT 1 There is no section 179A. 2 So in original. Probably should refer to ‘‘this Act’’. 3 There is no paragraph (9) in section 136(b). shall be substituted for the phrase ‘‘from the date such area was designated nonattainment under section 107(d)’’ and for the phrase ‘‘from the date of designation as nonattainment’’. [42 U.S.C. 7509] SEC. 179B. 1 INTERNATIONAL BORDER AREAS. (a) IMPLEMENTATION PLANS AND REVISIONS.—Notwithstanding any other provision of law, an implementation plan or plan revision required under this Act shall be approved by the Administrator if— (1) such plan or revision meets all the requirements appli cable to it under the Act 2 other than a requirement that such plan or revision demonstrate attainment and maintenance of the relevant national ambient air quality standards by the at tainment date specified under the applicable provision of this Act, or in a regulation promulgated under such provision, and (2) the submitting State establishes to the satisfaction of the Administrator that the implementation plan of such State would be adequate to attain and maintain the relevant na tional ambient air quality standards by the attainment date specified under the applicable provision of this Act, or in a reg ulation promulgated under such provision, but for emissions emanating from outside of the United States. (b) ATTAINMENT OF OZONE LEVELS.—Notwithstanding any other provision of law, any State that establishes to the satisfaction of the Administrator that, with respect to an ozone nonattainment area in such State, such State would have attained the national ambient air quality standard for ozone by the applicable attain ment date, but for emissions emanating from outside of the United States, shall not be subject to the provisions of section 181(a)(2) or (5) or section 185. (c) ATTAINMENT OF CARBON MONOXIDE LEVELS.—Notwith standing any other provision of law, any State that establishes to the satisfaction of the Administrator, with respect to a carbon mon oxide nonattainment area in such State, that such State has at tained the national ambient air quality standard for carbon mon oxide by the applicable attainment date, but for emissions ema nating from outside of the United States, shall not be subject to the provisions of section 186(b)(2) or (9). 3 (d) ATTAINMENT OF PM–10 LEVELS.—Notwithstanding any other provision of law, any State that establishes to the satisfaction of the Administrator that, with respect to a PM–10 nonattainment area in such State, such State would have attained the national ambient air quality standard for carbon monoxide by the applicable attainment date, but for emissions emanating from outside the United States, shall not be subject to the provisions of section 188(b)(2). [42 U.S.C. 7509a] Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 175 Sec. 181CLEAN AIR ACT 1 So in original. Probably should be ‘‘Severe Area’’. Subpart 2—Additional Provisions for Ozone Nonattainment Areas Sec. 181. Classifications and attainment dates. Sec. 182. Plan submissions and requirements. Sec. 183. Federal ozone measures. Sec. 184. Control of interstate ozone air pollution. Sec. 185. Enforcement for Severe and Extreme ozone nonattainment areas for fail ure to attain. Sec. 185A. Transitional areas. Sec. 185B. NOX and VOC study. SEC. 181. CLASSIFICATIONS AND ATTAINMENT DATES. (a) CLASSIFICATION AND ATTAINMENT DATES FOR 1989 NON ATTAINMENT AREAS.—(1) Each area designated nonattainment for ozone pursuant to section 107(d) shall be classified at the time of such designation, under table 1, by operation of law, as a Marginal Area, a Moderate Area, a Serious Area, a Severe Area, or an Ex treme Area based on the design value for the area. The design value shall be calculated according to the interpretation method ology issued by the Administrator most recently before the date of the enactment of the Clean Air Act Amendments of 1990. For each area classified under this subsection, the primary standard attain ment date for ozone shall be as expeditiously as practicable but not later than the date provided in table 1. TABLE 1 Area class Design value* Primary standard at-tainment date** Marginal ..................................... 0.121 up to 0.138 ....... 3 years after enact ment Moderate .................................... 0.138 up to 0.160 ....... 6 years after enact ment Serious ........................................ 0.160 up to 0.180 ....... 9 years after enact ment Severe ......................................... 0.180 up to 0.280 ....... 15 years after enact ment Extreme ...................................... 0.280 and above ........ 20 years after enact ment * The design value is measured in parts per million (ppm). ** The primary standard attainment date is measured from the date of the enactment of the Clean Air Amendments of 1990. (2) Notwithstanding table 1, in the case of a severe area 1 with a 1988 ozone design value between 0.190 and 0.280 ppm, the at tainment date shall be 17 years (in lieu of 15 years) after the date of the enactment of the Clean Air Amendments of 1990. (3) At the time of publication of the notice under section 107(d)(4) (relating to area designations) for each ozone nonattain ment area, the Administrator shall publish a notice announcing the classification of such ozone nonattainment area. The provisions of section 172(a)(1)(B) (relating to lack of notice and comment and ju dicial review) shall apply to such classification. (4) If an area classified under paragraph (1) (Table 1) would have been classified in another category if the design value in the area were 5 percent greater or 5 percent less than the level on Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 176Sec. 181 CLEAN AIR ACT 1 So in original. Probably should be ‘‘Area’’. which such classification was based, the Administrator may, in the Administrator’s discretion, within 90 days after the initial classi fication, by the procedure required under paragraph (3), adjust the classification to place the area in such other category. In making such adjustment, the Administrator may consider the number of exceedances of the national primary ambient air quality standard for ozone in the area, the level of pollution transport between the area and other affected areas, including both intrastate and inter state transport, and the mix of sources and air pollutants in the area. (5) Upon application by any State, the Administrator may ex tend for 1 additional year (hereinafter referred to as the ‘‘Extension Year’’) the date specified in table 1 of paragraph (1) of this sub section if— (A) the State has complied with all requirements and com mitments pertaining to the area in the applicable implementa tion plan, and (B) no more than 1 exceedance of the national ambient air quality standard level for ozone has occurred in the area in the year preceding the Extension Year. No more than 2 one-year extensions may be issued under this paragraph for a single nonattainment area. (b) NEW DESIGNATIONS AND RECLASSIFICATIONS.— (1) NEW DESIGNATIONS TO NONATTAINMENT.—Any area that is designated attainment or unclassifiable for ozone under section 107(d)(4), and that is subsequently redesignated to non attainment for ozone under section 107(d)(3), shall, at the time of the redesignation, be classified by operation of law in accord ance with table 1 under subsection (a). Upon its classification, the area shall be subject to the same requirements under sec tion 110, subpart 1 of this part, and this subpart that would have applied had the area been so classified at the time of the notice under subsection (a)(3), except that any absolute, fixed date applicable in connection with any such requirement is ex tended by operation of law by a period equal to the length of time between the date of the enactment of the Clean Air Act Amendments of 1990 and the date the area is classified under this paragraph. (2) RECLASSIFICATION UPON FAILURE TO ATTAIN.—(A) With in 6 months following the applicable attainment date (includ ing any extension thereof) for an ozone nonattainment area, the Administrator shall determine, based on the area’s design value (as of the attainment date), whether the area attained the standard by that date. Except for any Severe or Extreme area, 1 any area that the Administrator finds has not attained the standard by that date shall be reclassified by operation of law in accordance with table 1 of subsection (a) to the higher of— (i) the next higher classification for the area, or (ii) the classification applicable to the area’s design value as determined at the time of the notice required under subparagraph (B). Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 177 Sec. 181CLEAN AIR ACT 1 Should be ‘‘terms’’. No area shall be reclassified as Extreme under clause (ii). (B) The Administrator shall publish a notice in the Federal Register, no later than 6 months following the attainment date, identifying each area that the Administrator has deter mined under subparagraph (A) as having failed to attain and identifying the reclassification, if any, described under sub paragraph (A). (3) VOLUNTARY RECLASSIFICATION.—The Administrator shall grant the request of any State to reclassify a nonattain ment area in that State in accordance with table 1 of sub section (a) to a higher classification. The Administrator shall publish a notice in the Federal Register of any such request and of action by the Administrator granting the request. (4) FAILURE OF SEVERE AREAS TO ATTAIN STANDARD.—(A) If any Severe Area fails to achieve the national primary ambient air quality standard for ozone by the applicable attainment date (including any extension thereof), the fee provisions under section 185 shall apply within the area, the percent reduction requirements of section 182(c)(2)(B) and (C) (relating to reason able further progress demonstration and NOx control) shall continue to apply to the area, and the State shall demonstrate that such percent reduction has been achieved in each 3-year interval after such failure until the standard is attained. Any failure to make such a demonstration shall be subject to the sanctions provided under this part. (B) In addition to the requirements of subparagraph (A), if the ozone design value for a Severe Area referred to in sub paragraph (A) is above 0.140 ppm for the year of the applicable attainment date, or if the area has failed to achieve its most recent milestone under section 182(g), the new source review requirements applicable under this subpart in Extreme Areas shall apply in the area and the term 1 ‘‘major source’’ and ‘‘major stationary source’’ shall have the same meaning as in Extreme Areas. (C) In addition to the requirements of subparagraph (A) for those areas referred to in subparagraph (A) and not covered by subparagraph (B), the provisions referred to in subparagraph (B) shall apply after 3 years from the applicable attainment date unless the area has attained the standard by the end of such 3-year period. (D) If, after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator modifies the method of determining compliance with the national primary ambient air quality standard, a design value or other indicator com parable to 0.140 in terms of its relationship to the standard shall be used in lieu of 0.140 for purposes of applying the pro visions of subparagraphs (B) and (C). (c) REFERENCES TO TERMS.—(1) Any reference in this subpart to a ‘‘Marginal Area’’, a ‘‘Moderate Area’’, a ‘‘Serious Area’’, a ‘‘Se vere Area’’, or an ‘‘Extreme Area’’ shall be considered a reference to a Marginal Area, a Moderate Area, a Serious Area, a Severe Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 178Sec. 182 CLEAN AIR ACT 1 Sections 1004 and 1005 of the Act entitled ‘‘An Act Making emergency supplemental appro priations for additional disaster assistance, for anti-terrorism initiatives, for assistance in the recovery from the tragedy that occurred at Oklahoma City, and making rescissions for the fiscal year ending September 30, 1995, and for other purposes’’ (109 Stat. 194; Public Law 104–19) provide as follows: ADMINISTRATIVE PROVISIONS SEC. 1004. None of the funds made available in any appropriations Act for fiscal year 1995 may be used by the Environmental Protection Agency to require any State to comply with the requirement of section 182 of the Clean Air Act by adopting or implementing a test-only or IM240 enhanced vehicle inspection and maintenance program, except that EPA may approve such a program if a State chooses to submit one to meet that requirement. SEC. 1005. None of the funds made available in any appropriations Act for fiscal year 1995 may be used by the Environmental Protection Agency to impose or enforce any requirement that a State implement trip reduction measures to reduce vehicular emissions. Section 304 of the Clean Air Act (42 U.S.C. 7604) shall not apply with respect to any such requirement during the period beginning on the date of the enactment of this Act and ending September 30, 1995. Area, or an Extreme Area as respectively classified under this sec tion. (2) Any reference in this subpart to ‘‘next higher classification’’ or comparable terms shall be considered a reference to the classi fication related to the next higher set of design values in table 1. [42 U.S.C. 7511] SEC. 182. PLAN SUBMISSIONS AND REQUIREMENTS. 1 (a) MARGINAL AREAS.—Each State in which all or part of a Marginal Area is located shall, with respect to the Marginal Area (or portion thereof, to the extent specified in this subsection), sub mit to the Administrator the State implementation plan revisions (including the plan items) described under this subsection except to the extent the State has made such submissions as of the date of the enactment of the Clean Air Act Amendments of 1990. (1) INVENTORY.—Within 2 years after the date of the en actment of the Clean Air Act Amendments of 1990, the State shall submit a comprehensive, accurate, current inventory of actual emissions from all sources, as described in section 172(c)(3), in accordance with guidance provided by the Admin istrator. (2) CORRECTIONS TO THE STATE IMPLEMENTATION PLAN.— Within the periods prescribed in this paragraph, the State shall submit a revision to the State implementation plan that meets the following requirements— (A) REASONABLY AVAILABLE CONTROL TECHNOLOGY CORRECTIONS.—For any Marginal Area (or, within the Ad ministrator’s discretion, portion thereof) the State shall submit, within 6 months of the date of classification under section 181(a), a revision that includes such provisions to correct requirements in (or add requirements to) the plan concerning reasonably available control technology as were required under section 172(b) (as in effect immediately be fore the date of the enactment of the Clean Air Act Amendments of 1990), as interpreted in guidance issued by the Administrator under section 108 before the date of the enactment of the Clean Air Act Amendments of 1990. (B) SAVINGS CLAUSE FOR VEHICLE INSPECTION AND MAINTENANCE.—(i) For any Marginal Area (or, within the Administrator’s discretion, portion thereof), the plan for which already includes, or was required by section Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 179 Sec. 182CLEAN AIR ACT 172(b)(11)(B) (as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990) to have included, a specific schedule for implementation of a vehicle emission control inspection and maintenance pro gram, the State shall submit, immediately after the date of the enactment of the Clean Air Act Amendments of 1990, a revision that includes any provisions necessary to provide for a vehicle inspection and maintenance program of no less stringency than that of either the program de fined in House Report Numbered 95–294, 95th Congress, 1st Session, 281–291 (1977) as interpreted in guidance of the Administrator issued pursuant to section 172(b)(11)(B) (as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990) or the program already included in the plan, whichever is more stringent. (ii) Within 12 months after the date of the enactment of the Clean Air Act Amendments of 1990, the Adminis trator shall review, revise, update, and republish in the Federal Register the guidance for the States for motor ve hicle inspection and maintenance programs required by this Act, taking into consideration the Administrator’s in vestigations and audits of such program. The guidance shall, at a minimum, cover the frequency of inspections, the types of vehicles to be inspected (which shall include leased vehicles that are registered in the nonattainment area), vehicle maintenance by owners and operators, au dits by the State, the test method and measures, including whether centralized or decentralized, inspection methods and procedures, quality of inspection, components covered, assurance that a vehicle subject to a recall notice from a manufacturer has complied with that notice, and effective implementation and enforcement, including ensuring that any retesting of a vehicle after a failure shall include proof of corrective action and providing for denial of vehicle reg istration in the case of tampering or misfueling. The guid ance which shall be incorporated in the applicable State implementation plans by the States shall provide the States with continued reasonable flexibility to fashion ef fective, reasonable, and fair programs for the affected con sumer. No later than 2 years after the Administrator pro mulgates regulations under section 202(m)(3) (relating to emission control diagnostics), the State shall submit a re vision to such program to meet any requirements that the Administrator may prescribe under that section. (C) PERMIT PROGRAMS.—Within 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, the State shall submit a revision that includes each of the following: (i) Provisions to require permits, in accordance with sections 172(c)(5) and 173, for the construction and operation of each new or modified major sta tionary source (with respect to ozone) to be located in the area. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 180Sec. 182 CLEAN AIR ACT 1 Should be ‘‘subparagraph’’. (ii) Provisions to correct requirements in (or add requirements to) the plan concerning permit programs as were required under section 172(b)(6) (as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990), as interpreted in regulations of the Administrator promulgated as of the date of the enactment of the Clean Air Act Amend ments of 1990. (3) PERIODIC INVENTORY.— (A) GENERAL REQUIREMENT.—No later than the end of each 3-year period after submission of the inventory under paragraph (1) until the area is redesignated to attainment, the State shall submit a revised inventory meeting the re quirements of subsection (a)(1). (B) EMISSIONS STATEMENTS.—(i) Within 2 years after the date of the enactment of the Clean Air Act Amend ments of 1990, the State shall submit a revision to the State implementation plan to require that the owner or op erator of each stationary source of oxides of nitrogen or volatile organic compounds provide the State with a state ment, in such form as the Administrator may prescribe (or accept an equivalent alternative developed by the State), for classes or categories of sources, showing the actual emissions of oxides of nitrogen and volatile organic com pounds from that source. The first such statement shall be submitted within 3 years after the date of the enactment of the Clean Air Act Amendments of 1990. Subsequent statements shall be submitted at least every year there after. The statement shall contain a certification that the information contained in the statement is accurate to the best knowledge of the individual certifying the statement. (ii) The State may waive the application of clause (i) to any class or category of stationary sources which emit less than 25 tons per year of volatile organic compounds or oxides of nitrogen if the State, in its submissions under subparagraphs 1 (1) or (3)(A), provides an inventory of emissions from such class or category of sources, based on the use of the emission factors established by the Adminis trator or other methods acceptable to the Administrator. (4) GENERAL OFFSET REQUIREMENT.—For purposes of satis fying the emission offset requirements of this part, the ratio of total emission reductions of volatile organic compounds to total increased emissions of such air pollutant shall be at least 1.1 to 1. The Administrator may, in the Administrator’s discretion, require States to submit a schedule for submitting any of the revisions or other items required under this subsection. The requirements of this subsection shall apply in lieu of any requirement that the State submit a demonstration that the applicable implementation plan provides for attainment of the ozone standard by the applica ble attainment date in any Marginal Area. Section 172(c)(9) (relat ing to contingency measures) shall not apply to Marginal Areas. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 181 Sec. 182CLEAN AIR ACT (b) MODERATE AREAS.—Each State in which all or part of a Moderate Area is located shall, with respect to the Moderate Area, make the submissions described under subsection (a) (relating to Marginal Areas), and shall also submit the revisions to the applica ble implementation plan described under this subsection. (1) PLAN PROVISIONS FOR REASONABLE FURTHER PROGRESS.— (A) GENERAL RULE.—(i) By no later than 3 years after the date of the enactment of the Clean Air Act Amend ments of 1990, the State shall submit a revision to the ap plicable implementation plan to provide for volatile organic compound emission reductions, within 6 years after the date of the enactment of the Clean Air Act Amendments of 1990, of at least 15 percent from baseline emissions, ac counting for any growth in emissions after the year in which the Clean Air Act Amendments of 1990 are enacted. Such plan shall provide for such specific annual reductions in emissions of volatile organic compounds and oxides of nitrogen as necessary to attain the national primary ambi ent air quality standard for ozone by the attainment date applicable under this Act. This subparagraph shall not apply in the case of oxides of nitrogen for those areas for which the Administrator determines (when the Adminis trator approves the plan or plan revision) that additional reductions of oxides of nitrogen would not contribute to at tainment. (ii) A percentage less than 15 percent may be used for purposes of clause (i) in the case of any State which dem onstrates to the satisfaction of the Administrator that— (I) new source review provisions are applicable in the nonattainment areas in the same manner and to the same extent as required under subsection (e) in the case of Extreme Areas (with the exception that, in applying such provisions, the terms ‘‘major source’’ and ‘‘major stationary source’’ shall include (in addi tion to the sources described in section 302) any sta tionary source or group of sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 5 tons per year of volatile organic compounds); (II) reasonably available control technology is re quired for all existing major sources (as defined in subclause (I)); and (III) the plan reflecting a lesser percentage than 15 percent includes all measures that can feasibly be implemented in the area, in light of technological achievability. To qualify for a lesser percentage under this clause, a State must demonstrate to the satisfaction of the Adminis trator that the plan for the area includes the measures that are achieved in practice by sources in the same source category in nonattainment areas of the next higher cat egory. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 182Sec. 182 CLEAN AIR ACT (B) BASELINE EMISSIONS.—For purposes of subpara graph (A), the term ‘‘baseline emissions’’ means the total amount of actual VOC or NOx emissions from all anthropo genic sources in the area during the calendar year of the enactment of the Clean Air Act Amendments of 1990, ex cluding emissions that would be eliminated under the reg ulations described in clauses (i) and (ii) of subparagraph (D). (C) GENERAL RULE FOR CREDITABILITY OF REDUC TIONS.—Except as provided under subparagraph (D), emis sions reductions are creditable toward the 15 percent re quired under subparagraph (A) to the extent they have ac tually occurred, as of 6 years after the date of the enact ment of the Clean Air Act Amendments of 1990, from the implementation of measures required under the applicable implementation plan, rules promulgated by the Adminis trator, or a permit under title V. (D) LIMITS ON CREDITABILITY OF REDUCTIONS.—Emis sion reductions from the following measures are not cred itable toward the 15 percent reductions required under subparagraph (A): (i) Any measure relating to motor vehicle exhaust or evaporative emissions promulgated by the Adminis trator by January 1, 1990. (ii) Regulations concerning Reid Vapor Pressure promulgated by the Administrator by the date of the enactment of the Clean Air Act Amendments of 1990 or required to be promulgated under section 211(h). (iii) Measures required under subsection (a)(2)(A) (concerning corrections to implementation plans pre scribed under guidance by the Administrator). (iv) Measures required under subsection (a)(2)(B) to be submitted immediately after the date of the en actment of the Clean Air Act Amendments of 1990 (concerning corrections to motor vehicle inspection and maintenance programs). (2) REASONABLY AVAILABLE CONTROL TECHNOLOGY.—The State shall submit a revision to the applicable implementation plan to include provisions to require the implementation of rea sonably available control technology under section 172(c)(1) with respect to each of the following: (A) Each category of VOC sources in the area covered by a CTG document issued by the Administrator between the date of the enactment of the Clean Air Act Amend ments of 1990 and the date of attainment. (B) All VOC sources in the area covered by any CTG issued before the date of the enactment of the Clean Air Act Amendments of 1990. (C) All other major stationary sources of VOCs that are located in the area. Each revision described in subparagraph (A) shall be sub mitted within the period set forth by the Administrator in issuing the relevant CTG document. The revisions with respect to sources described in subparagraphs (B) and (C) shall be sub Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 183 Sec. 182CLEAN AIR ACT 1 Should refer to ‘‘section 324’’. mitted by 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, and shall provide for the imple mentation of the required measures as expeditiously as prac ticable but no later than May 31, 1995. (3) GASOLINE VAPOR RECOVERY.— (A) GENERAL RULE.—Not later than 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, the State shall submit a revision to the applicable implementation plan to require all owners or operators of gasoline dispensing systems to install and operate, by the date prescribed under subparagraph (B), a system for gas oline vapor recovery of emissions from the fueling of motor vehicles. The Administrator shall issue guidance as appro priate as to the effectiveness of such system. This subpara graph shall apply only to facilities which sell more than 10,000 gallons of gasoline per month (50,000 gallons per month in the case of an independent small business mar keter of gasoline as defined in section 325 1). (B) EFFECTIVE DATE.—The date required under sub paragraph (A) shall be— (i) 6 months after the adoption date, in the case of gasoline dispensing facilities for which construction commenced after the date of the enactment of the Clean Air Act Amendments of 1990; (ii) one year after the adoption date, in the case of gasoline dispensing facilities which dispense at least 100,000 gallons of gasoline per month, based on aver age monthly sales for the 2-year period before the adoption date; or (iii) 2 years after the adoption date, in the case of all other gasoline dispensing facilities. Any gasoline dispensing facility described under both clause (i) and clause (ii) shall meet the requirements of clause (i). (C) REFERENCE TO TERMS.—For purposes of this para graph, any reference to the term ‘‘adoption date’’ shall be considered a reference to the date of adoption by the State of requirements for the installation and operation of a sys tem for gasoline vapor recovery of emissions from the fuel ing of motor vehicles. (4) MOTOR VEHICLE INSPECTION AND MAINTENANCE.—For all Moderate Areas, the State shall submit, immediately after the date of the enactment of the Clean Air Act Amendments of 1990, a revision to the applicable implementation plan that includes provisions necessary to provide for a vehicle inspec tion and maintenance program as described in subsection (a)(2)(B) (without regard to whether or not the area was re quired by section 172(b)(11)(B) (as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990) to have included a specific schedule for implementa tion of such a program). Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 184Sec. 182 CLEAN AIR ACT (5) GENERAL OFFSET REQUIREMENT.—For purposes of satis fying the emission offset requirements of this part, the ratio of total emission reductions of volatile organic compounds to total increase emissions of such air pollutant shall be at least 1.15 to 1. (c) SERIOUS AREAS.—Except as otherwise specified in para graph (4), each State in which all or part of a Serious Area is lo cated shall, with respect to the Serious Area (or portion thereof, to the extent specified in this subsection), make the submissions de scribed under subsection (b) (relating to Moderate Areas), and shall also submit the revisions to the applicable implementation plan (in cluding the plan items) described under this subsection. For any Serious Area, the terms ‘‘major source’’ and ‘‘major stationary source’’ include (in addition to the sources described in section 302) any stationary source or group of sources located within a contig uous area and under common control that emits, or has the poten tial to emit, at least 50 tons per year of volatile organic compounds. (1) ENHANCED MONITORING.—In order to obtain more com prehensive and representative data on ozone air pollution, not later than 18 months after the date of the enactment of the Clean Air Act Amendments of 1990 the Administrator shall promulgate rules, after notice and public comment, for en hanced monitoring of ozone, oxides of nitrogen, and volatile or ganic compounds. The rules shall, among other things, cover the location and maintenance of monitors. Immediately fol lowing the promulgation of rules by the Administrator relating to enhanced monitoring, the State shall commence such actions as may be necessary to adopt and implement a program based on such rules, to improve monitoring for ambient concentra tions of ozone, oxides of nitrogen and volatile organic com pounds and to improve monitoring of emissions of oxides of ni trogen and volatile organic compounds. Each State implemen tation plan for the area shall contain measures to improve the ambient monitoring of such air pollutants. (2) ATTAINMENT AND REASONABLE FURTHER PROGRESS DEM ONSTRATIONS.—Within 4 years after the date of the enactment of the Clean Air Act Amendments of 1990, the State shall sub mit a revision to the applicable implementation plan that in cludes each of the following: (A) ATTAINMENT DEMONSTRATION.—A demonstration that the plan, as revised, will provide for attainment of the ozone national ambient air quality standard by the appli cable attainment date. This attainment demonstration must be based on photochemical grid modeling or any other analytical method determined by the Administrator, in the Administrator’s discretion, to be at least as effective. (B) REASONABLE FURTHER PROGRESS DEMONSTRA TION.—A demonstration that the plan, as revised, will re sult in VOC emissions reductions from the baseline emis sions described in subsection (b)(1)(B) equal to the fol lowing amount averaged over each consecutive 3-year pe riod beginning 6 years after the date of the enactment of the Clean Air Act Amendments of 1990, until the attain ment date: Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 185 Sec. 182CLEAN AIR ACT 1 There should be no apostrophe. (i) at least 3 percent of baseline emissions each year; or (ii) an amount less than 3 percent of such baseline emissions each year, if the State demonstrates to the satisfaction of the Administrator that the plan reflect ing such lesser amount includes all measures that can feasibly be implemented in the area, in light of techno logical achievability. To lessen the 3 percent requirement under clause (ii), a State must demonstrate to the satisfaction of the Adminis trator that the plan for the area includes the measures that are achieved in practice by sources in the same source category in nonattainment areas of the next higher classi fication. Any determination to lessen the 3 percent re quirement shall be reviewed at each milestone under sec tion 182(g) and revised to reflect such new measures (if any) achieved in practice by sources in the same category in any State, allowing a reasonable time to implement such measures. The emission reductions described in this subparagraph shall be calculated in accordance with sub section (b)(1) (C) and (D) (concerning creditability of reduc tions). The reductions creditable for the period beginning 6 years after the date of the enactment of the Clean Air Act Amendments of 1990, shall include reductions that oc curred before such period, computed in accordance with subsection (b)(1), that exceed the 15-percent amount of re ductions required under subsection (b)(1)(A). (C) NOx CONTROL.—The revision may contain, in lieu of the demonstration required under subparagraph (B), a demonstration to the satisfaction of the Administrator that the applicable implementation plan, as revised, provides for reductions of emissions of VOC’s 1 and oxides of nitro gen (calculated according to the creditability provisions of subsection (b)(1) (C) and (D)), that would result in a reduc tion in ozone concentrations at least equivalent to that which would result from the amount of VOC emission re ductions required under subparagraph (B). Within 1 year after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall issue guid ance concerning the conditions under which NOx control may be substituted for VOC control or may be combined with VOC control in order to maximize the reduction in ozone air pollution. In accord with such guidance, a lesser percentage of VOCs may be accepted as an adequate dem onstration for purposes of this subsection. (3) ENHANCED VEHICLE INSPECTION AND MAINTENANCE PRO GRAM.— (A) REQUIREMENT FOR SUBMISSION.—Within 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, the State shall submit a revision to the applicable implementation plan to provide for an en hanced program to reduce hydrocarbon emissions and NOx Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 186Sec. 182 CLEAN AIR ACT emissions from in-use motor vehicles registered in each ur banized area (in the nonattainment area), as defined by the Bureau of the Census, with a 1980 population of 200,000 or more. (B) EFFECTIVE DATE OF STATE PROGRAMS; GUIDANCE.— The State program required under subparagraph (A) shall take effect no later than 2 years from the date of the en actment of the Clean Air Act Amendments of 1990, and shall comply in all respects with guidance published in the Federal Register (and from time to time revised) by the Administrator for enhanced vehicle inspection and mainte nance programs. Such guidance shall include— (i) a performance standard achievable by a pro gram combining emission testing, including on-road emission testing, with inspection to detect tampering with emission control devices and misfueling for all light-duty vehicles and all light-duty trucks subject to standards under section 202; and (ii) program administration features necessary to reasonably assure that adequate management re sources, tools, and practices are in place to attain and maintain the performance standard. Compliance with the performance standard under clause (i) shall be determined using a method to be established by the Administrator. (C) STATE PROGRAM.—The State program required under subparagraph (A) shall include, at a minimum, each of the following elements— (i) Computerized emission analyzers, including on road testing devices. (ii) No waivers for vehicles and parts covered by the emission control performance warranty as pro vided for in section 207(b) unless a warranty remedy has been denied in writing, or for tampering-related repairs. (iii) In view of the air quality purpose of the pro gram, if, for any vehicle, waivers are permitted for emissions-related repairs not covered by warranty, an expenditure to qualify for the waiver of an amount of $450 or more for such repairs (adjusted annually as determined by the Administrator on the basis of the Consumer Price Index in the same manner as pro vided in title V). (iv) Enforcement through denial of vehicle reg istration (except for any program in operation before the date of the enactment of the Clean Air Act Amend ments of 1990 whose enforcement mechanism is dem onstrated to the Administrator to be more effective than the applicable vehicle registration program in as suring that noncomplying vehicles are not operated on public roads). (v) Annual emission testing and necessary adjust ment, repair, and maintenance, unless the State dem onstrates to the satisfaction of the Administrator that Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 187 Sec. 182CLEAN AIR ACT a biennial inspection, in combination with other fea tures of the program which exceed the requirements of this Act, will result in emission reductions which equal or exceed the reductions which can be obtained through such annual inspections. (vi) Operation of the program on a centralized basis, unless the State demonstrates to the satisfac tion of the Administrator that a decentralized program will be equally effective. An electronically connected testing system, a licensing system, or other measures (or any combination thereof) may be considered, in ac cordance with criteria established by the Adminis trator, as equally effective for such purposes. (vii) Inspection of emission control diagnostic sys tems and the maintenance or repair of malfunctions or system deterioration identified by or affecting such diagnostics systems. Each State shall biennially prepare a report to the Admin istrator which assesses the emission reductions achieved by the program required under this paragraph based on data collected during inspection and repair of vehicles. The methods used to assess the emission reductions shall be those established by the Administrator. (4) CLEAN-FUEL VEHICLE PROGRAMS.—(A) Except to the ex tent that substitute provisions have been approved by the Ad ministrator under subparagraph (B), the State shall submit to the Administrator, within 42 months of the date of the enact ment of the Clean Air Act Amendments of 1990, a revision to the applicable implementation plan for each area described under part C of title II to include such measures as may be necessary to ensure the effectiveness of the applicable provi sions of the clean-fuel vehicle program prescribed under part C of title II, including all measures necessary to make the use of clean alternative fuels in clean-fuel vehicles (as defined in part C of title II) economic from the standpoint of vehicle own ers. Such a revision shall also be submitted for each area that opts into the clean fuel-vehicle program as provided in part C of title II. (B) The Administrator shall approve, as a substitute for all or a portion of the clean-fuel vehicle program prescribed under part C of title II, any revision to the relevant applicable imple mentation plan that in the Administrator’s judgment will achieve long-term reductions in ozone-producing and toxic air emissions equal to those achieved under part C of title II, or the percentage thereof attributable to the portion of the clean fuel vehicle program for which the revision is to substitute. The Administrator may approve such revision only if it consists exclusively of provisions other than those required under this Act for the area. Any State seeking approval of such revision must submit the revision to the Administrator within 24 months of the date of the enactment of the Clean Air Act Amendments of 1990. The Administrator shall approve or dis approve any such revision within 30 months of the date of the enactment of the Clean Air Act Amendments of 1990. The Ad Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 188Sec. 182 CLEAN AIR ACT 1 Paragraph (5) was enacted with subparagraph (A) but without a subparagraph (B). ministrator shall publish the revision submitted by a State in the Federal Register upon receipt. Such notice shall constitute a notice of proposed rulemaking on whether or not to approve such revision and shall be deemed to comply with the require ments concerning notices of proposed rulemaking contained in sections 553 through 557 of title 5 of the United States Code (related to notice and comment). Where the Administrator ap proves such revision for any area, the State need not submit the revision required by subparagraph (A) for the area with re spect to the portions of the Federal clean-fuel vehicle program for which the Administrator has approved the revision as a substitute. (C) If the Administrator determines, under section 179, that the State has failed to submit any portion of the program required under subparagraph (A), then, in addition to any sanctions available under section 179, the State may not re ceive credit, in any demonstration of attainment or reasonable further progress for the area, for any emission reductions from implementation of the corresponding aspects of the Federal clean-fuel vehicle requirements established in part C of title II. (5) TRANSPORTATION CONTROL.—(A) 1 Beginning 6 years after the date of the enactment of the Clean Air Act Amend ments of 1990 and each third year thereafter, the State shall submit a demonstration as to whether current aggregate vehi cle mileage, aggregate vehicle emissions, congestion levels, and other relevant parameters are consistent with those used for the area’s demonstration of attainment. Where such param eters and emissions levels exceed the levels projected for pur poses of the area’s attainment demonstration, the State shall within 18 months develop and submit a revision of the applica ble implementation plan that includes a transportation control measures program consisting of measures from, but not limited to, section 108(f) that will reduce emissions to levels that are consistent with emission levels projected in such demonstra tion. In considering such measures, the State should ensure adequate access to downtown, other commercial, and residen tial areas and should avoid measures that increase or relocate emissions and congestion rather than reduce them. Such revi sion shall be developed in accordance with guidance issued by the Administrator pursuant to section 108(e) and with the re quirements of section 174(b) and shall include implementation and funding schedules that achieve expeditious emissions re ductions in accordance with implementation plan projections. (6) DE MINIMIS RULE.—The new source review provisions under this part shall ensure that increased emissions of vola tile organic compounds resulting from any physical change in, or change in the method of operation of, a stationary source lo cated in the area shall not be considered de minimis for pur poses of determining the applicability of the permit require ments established by this Act unless the increase in net emis sions of such air pollutant from such source does not exceed 25 tons when aggregated with all other net increases in emissions Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 189 Sec. 182CLEAN AIR ACT from the source over any period of 5 consecutive calendar years which includes the calendar year in which such increase oc curred. (7) SPECIAL RULE FOR MODIFICATIONS OF SOURCES EMIT TING LESS THAN 100 TONS.—In the case of any major stationary source of volatile organic compounds located in the area (other than a source which emits or has the potential to emit 100 tons or more of volatile organic compounds per year), whenever any change (as described in section 111(a)(4)) at that source results in any increase (other than a de minimis increase) in emissions of volatile organic compounds from any discrete operation, unit, or other pollutant emitting activity at the source, such in crease shall be considered a modification for purposes of sec tion 172(c)(5) and section 173(a), except that such increase shall not be considered a modification for such purposes if the owner or operator of the source elects to offset the increase by a greater reduction in emissions of volatile organic compounds concerned from other operations, units, or activities within the source at an internal offset ratio of at least 1.3 to 1. If the owner or operator does not make such election, such change shall be considered a modification for such purposes, but in ap plying section 173(a)(2) in the case of any such modification, the best available control technology (BACT), as defined in sec tion 169, shall be substituted for the lowest achievable emis sion rate (LAER). The Administrator shall establish and pub lish policies and procedures for implementing the provisions of this paragraph. (8) SPECIAL RULE FOR MODIFICATIONS OF SOURCES EMIT TING 100 TONS OR MORE.—In the case of any major stationary source of volatile organic compounds located in the area which emits or has the potential to emit 100 tons or more of volatile organic compounds per year, whenever any change (as de scribed in section 111(a)(4)) at that source results in any in crease (other than a de minimis increase) in emissions of vola tile organic compounds from any discrete operation, unit, or other pollutant emitting activity at the source, such increase shall be considered a modification for purposes of section 172(c)(5) and section 173(a), except that if the owner or oper ator of the source elects to offset the increase by a greater re duction in emissions of volatile organic compounds from other operations, units, or activities within the source at an internal offset ratio of at least 1.3 to 1, the requirements of section 173(a)(2) (concerning the lowest achievable emission rate (LAER)) shall not apply. (9) CONTINGENCY PROVISIONS.—In addition to the contin gency provisions required under section 172(c)(9), the plan re vision shall provide for the implementation of specific meas ures to be undertaken if the area fails to meet any applicable milestone. Such measures shall be included in the plan revi sion as contingency measures to take effect without further ac tion by the State or the Administrator upon a failure by the State to meet the applicable milestone. (10) GENERAL OFFSET REQUIREMENT.—For purposes of sat isfying the emission offset requirements of this part, the ratio Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 190Sec. 182 CLEAN AIR ACT 1So in original. Probably should be ‘‘Serious Areas’’. 2 So in original. Probably should be ‘‘subsections (b)(1)(A)’’. of total emission reductions of volatile organic compounds to total increase emissions of such air pollutant shall be at least 1.2 to 1. Any reference to ‘‘attainment date’’ in subsection (b), which is in corporated by reference into this subsection, shall refer to the at tainment date for serious areas. 1 (d) SEVERE AREAS.—Each State in which all or part of a Severe Area is located shall, with respect to the Severe Area, make the submissions described under subsection (c) (relating to Serious Areas), and shall also submit the revisions to the applicable imple mentation plan (including the plan items) described under this sub section. For any Severe Area, the terms ‘‘major source’’ and ‘‘major stationary source’’ include (in addition to the sources described in section 302) any stationary source or group of sources located with in a contiguous area and under common control that emits, or has the potential to emit, at least 25 tons per year of volatile organic compounds. (1) VEHICLE MILES TRAVELED.—(A) Within 2 years after the date of enactment of the Clean Air Act Amendments of 1990, the State shall submit a revision that identifies and adopts specific enforceable transportation control strategies and trans portation control measures to offset any growth in emissions from growth in vehicle miles traveled or numbers of vehicle trips in such area and to attain reduction in motor vehicle emissions as necessary, in combination with other emission re duction requirements of this subpart, to comply with the re quirements of subsection (b)(2)(B) 2 and (c)(2)(B) (pertaining to periodic emissions reduction requirements). The State shall consider measures specified in section 108(f), and choose from among and implement such measures as necessary to dem onstrate attainment with the national ambient air quality standards; in considering such measures, the State should en sure adequate access to downtown, other commercial, and resi dential areas and should avoid measures that increase or relo cate emissions and congestion rather than reduce them. (B) The State may also, in its discretion, submit a revision at any time requiring employers in such area to implement programs to reduce work-related vehicle trips and miles trav elled by employees. Such revision shall be developed in accord ance with guidance issued by the Administrator pursuant to section 108(f) and may require that employers in such area in crease average passenger occupancy per vehicle in commuting trips between home and the workplace during peak travel peri ods. The guidance of the Administrator may specify average ve hicle occupancy rates which vary for locations within a non attainment area (suburban, center city, business district) or among nonattainment areas reflecting existing occupancy rates and the availability of high occupancy modes. Any State re quired to submit a revision under this subparagraph (as in ef fect before the date of enactment of this sentence) containing provisions requiring employers to reduce work-related vehicle Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 191 Sec. 182CLEAN AIR ACT 1 Should be ‘‘paragraphs’’. trips and miles travelled by employees may, in accordance with State law, remove such provisions from the implementation plan, or withdraw its submission, if the State notifies the Ad ministrator, in writing, that the State has undertaken, or will undertake, one or more alternative methods that will achieve emission reductions equivalent to those to be achieved by the removed or withdrawn provisions. (2) OFFSET REQUIREMENT.—For purposes of satisfying the offset requirements pursuant to this part, the ratio of total emission reductions of VOCs to total increased emissions of such air pollutant shall be at least 1.3 to 1, except that if the State plan requires all existing major sources in the nonattain ment area to use best available control technology (as defined in section 169(3)) for the control of volatile organic compounds, the ratio shall be at least 1.2 to 1. (3) ENFORCEMENT UNDER SECTION 185.—By December 31, 2000, the State shall submit a plan revision which includes the provisions required under section 185. Any reference to the term ‘‘attainment date’’ in subsection (b) or (c), which is incorporated by reference into this subsection (d), shall refer to the attainment date for Severe Areas. (e) EXTREME AREAS.—Each State in which all or part of an Ex treme Area is located shall, with respect to the Extreme Area, make the submissions described under subsection (d) (relating to Severe Areas), and shall also submit the revisions to the applicable implementation plan (including the plan items) described under this subsection. The provisions of clause (ii) of subsection (c)(2)(B) (relating to reductions of less than 3 percent), the provisions of paragaphs 1 (6), (7) and (8) of subsection (c) (relating to de minimus rule and modification of sources), and the provisions of clause (ii) of subsection (b)(1)(A) (relating to reductions of less than 15 per cent) shall not apply in the case of an Extreme Area. For any Ex treme Area, the terms ‘‘major source’’ and ‘‘major stationary source’’ includes (in addition to the sources described in section 302) any stationary source or group of sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 10 tons per year of volatile organic compounds. (1) OFFSET REQUIREMENT.—For purposes of satisfying the offset requirements pursuant to this part, the ratio of total emission reductions of VOCs to total increased emissions of such air pollutant shall be at least 1.5 to 1, except that if the State plan requires all existing major sources in the nonattain ment area to use best available control technology (as defined in section 169(3)) for the control of volatile organic compounds, the ratio shall be at least 1.2 to 1. (2) MODIFICATIONS—Any change (as described in section 111(a)(4)) at a major stationary source which results in any in crease in emissions from any discrete operation, unit, or other pollutant emitting activity at the source shall be considered a modification for purposes of section 172(c)(5) and section 173(a), except that for purposes of complying with the offset re quirement pursuant to section 173(a)(1), any such increase Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 192Sec. 182 CLEAN AIR ACT shall not be considered a modification if the owner or operator of the source elects to offset the increase by a greater reduction in emissions of the air pollutant concerned from other discrete operations, units, or activities within the source at an internal offset ratio of at least 1.3 to 1. The offset requirements of this part shall not be applicable in Extreme Areas to a modification of an existing source if such modification consists of installa tion of equipment required to comply with the applicable im plementation plan, permit, or this Act. (3) USE OF CLEAN FUELS OR ADVANCED CONTROL TECH NOLOGY.—For Extreme Areas, a plan revision shall be sub mitted within 3 years after the date of the enactment of the Clean Air Act Amendments of 1990 to require, effective 8 years after such date, that each new, modified, and existing electric utility and industrial and commercial boiler which emits more than 25 tons per year of oxides of nitrogen— (A) burn as its primary fuel natural gas, methanol, or ethanol (or a comparably low polluting fuel), or (B) use advanced control technology (such as catalytic control technology or other comparably effective control methods) for reduction of emissions of oxides of nitrogen. For purposes of this subsection, the term ‘‘primary fuel’’ means the fuel which is used 90 percent or more of the operating time. This paragraph shall not apply during any natural gas supply emergency (as defined in title III of the Natural Gas Policy Act of 1978). (4) TRAFFIC CONTROL MEASURES DURING HEAVY TRAFFIC HOURS.—For Extreme Areas, each implementation plan revi sion under this subsection may contain provisions establishing traffic control measures applicable during heavy traffic hours to reduce the use of high polluting vehicles or heavy-duty vehi cles, notwithstanding any other provision of law. (5) NEW TECHNOLOGIES.—The Administrator may, in ac cordance with section 110, approve provisions of an implemen tation plan for an Extreme Area which anticipate development of new control techniques or improvement of existing control technologies, and an attainment demonstration based on such provisions, if the State demonstrates to the satisfaction of the Administrator that— (A) such provisions are not necessary to achieve the incremental emission reductions required during the first 10 years after the date of the enactment of the Clean Air Act Amendments of 1990; and (B) the State has submitted enforceable commitments to develop and adopt contingency measures to be imple mented as set forth herein if the anticipated technologies do not achieve planned reductions. Such contingency measures shall be submitted to the Adminis trator no later than 3 years before proposed implementation of the plan provisions and approved or disapproved by the Ad ministrator in accordance with section 110. The contingency measures shall be adequate to produce emission reductions sufficient, in conjunction with other approved plan provisions, to achieve the periodic emission reductions required by sub Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 193 Sec. 182CLEAN AIR ACT section (b)(1) or (c)(2) and attainment by the applicable dates. If the Administrator determines that an Extreme Area has failed to achieve an emission reduction requirement set forth in subsection (b)(1) or (c)(2), and that such failure is due in whole or part to an inability to fully implement provisions ap proved pursuant to this subsection, the Administrator shall re quire the State to implement the contingency measures to the extent necessary to assure compliance with subsections (b)(1) and (c)(2). Any reference to the term ‘‘attainment date’’ in subsection (b), (c), or (d) which is incorporated by reference into this subsection, shall refer to the attainment date for Extreme Areas. (f) NOx REQUIREMENTS.—(1) The plan provisions required under this subpart for major stationary sources of volatile organic compounds shall also apply to major stationary sources (as defined in section 302 and subsections (c), (d), and (e) of this section) of ox ides of nitrogen. This subsection shall not apply in the case of ox ides of nitrogen for those sources for which the Administrator de termines (when the Administrator approves a plan or plan revision) that net air quality benefits are greater in the absence of reduc tions of oxides of nitrogen from the sources concerned. This sub section shall also not apply in the case of oxides of nitrogen for— (A) nonattainment areas not within an ozone transport re gion under section 184 if the Administrator determines (when the Administrator approves a plan or plan revision) that addi tional reductions of oxides of nitrogen would not contribute to attainment of the national ambient air quality standard for ozone in the area, or (B) nonattainment areas within such an ozone transport region if the Administrator determines (when the Adminis trator approves a plan or plan revision) that additional reduc tions of oxides of nitrogen would not produce net ozone air quality benefits in such region. The Administrator shall, in the Administrator’s determinations, consider the study required under section 185B. (2)(A) If the Administrator determines that excess reductions in emissions of NOx would be achieved under paragraph (1), the Administrator may limit the application of paragraph (1) to the ex tent necessary to avoid achieving such excess reductions. (B) For purposes of this paragraph, excess reductions in emis sions of NOx are emission reductions for which the Administrator determines that net air quality benefits are greater in the absence of such reductions. Alternatively, for purposes of this paragraph, excess reductions in emissions of NOx are, for— (i) nonattainment areas not within an ozone transport re gion under section 184, emission reductions that the Adminis trator determines would not contribute to attainment of the national ambient air quality standard for ozone in the area, or (ii) nonattainment areas within such ozone transport re gion, emission reductions that the Administrator determines would not produce net ozone air quality benefits in such re gion. (3) At any time after the final report under section 185B is submitted to Congress, a person may petition the Administrator for Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 194Sec. 182 CLEAN AIR ACT a determination under paragraph (1) or (2) with respect to any nonattainment area or any ozone transport region under section 184. The Administrator shall grant or deny such petition within 6 months after its filing with the Administrator. (g) MILESTONES.— (1) REDUCTIONS IN EMISSIONS.—6 years after the date of the enactment of the Clean Air Amendments of 1990 and at in tervals of every 3 years thereafter, the State shall determine whether each nonattainment area (other than an area classi fied as Marginal or Moderate) has achieved a reduction in emissions during the preceding intervals equivalent to the total emission reductions required to be achieved by the end of such interval pursuant to subsection (b)(1) and the cor responding requirements of subsections (c)(2) (B) and (C), (d), and (e). Such reduction shall be referred to in this section as an applicable milestone. (2) COMPLIANCE DEMONSTRATION.—For each nonattain ment area referred to in paragraph (1), not later than 90 days after the date on which an applicable milestone occurs (not in cluding an attainment date on which a milestone occurs in cases where the standard has been attained), each State in which all or part of such area is located shall submit to the Ad ministrator a demonstration that the milestone has been met. A demonstration under this paragraph shall be submitted in such form and manner, and shall contain such information and analysis, as the Administrator shall require, by rule. The Ad ministrator shall determine whether or not a State’s dem onstration is adequate within 90 days after the Administrator’s receipt of a demonstration which contains the information and analysis required by the Administrator. (3) SERIOUS AND SEVERE AREAS; STATE ELECTION.—If a State fails to submit a demonstration under paragraph (2) for any Serious or Severe Area within the required period or if the Administrator determines that the area has not met any appli cable milestone, the State shall elect, within 90 days after such failure or determination— (A) to have the area reclassified to the next higher classification, (B) to implement specific additional measures ade quate, as determined by the Administrator, to meet the next milestone as provided in the applicable contingency plan, or (C) to adopt an economic incentive program as de scribed in paragraph (4). If the State makes an election under subparagraph (B), the Ad ministrator shall, within 90 days after the election, review such plan and shall, if the Administrator finds the contingency plan inadequate, require further measures necessary to meet such milestone. Once the State makes an election, it shall be deemed accepted by the Administrator as meeting the election requirement. If the State fails to make an election required under this paragraph within the required 90-day period or within 6 months thereafter, the area shall be reclassified to the next higher classification by operation of law at the expiration Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 195 Sec. 182CLEAN AIR ACT of such 6-month period. Within 12 months after the date re quired for the State to make an election, the State shall submit a revision of the applicable implementation plan for the area that meets the requirements of this paragraph. The Adminis trator shall review such plan revision and approve or dis approve the revision within 9 months after the date of its sub mission. (4) ECONOMIC INCENTIVE PROGRAM.—(A) An economic in centive program under this paragraph shall be consistent with rules published by the Administrator and sufficient, in com bination with other elements of the State plan, to achieve the next milestone. The State program may include a nondiscrim inatory system, consistent with applicable law regarding inter state commerce, of State established emissions fees or a system of marketable permits, or a system of State fees on sale or manufacture of products the use of which contributes to ozone formation, or any combination of the foregoing or other similar measures. The program may also include incentives and re quirements to reduce vehicle emissions and vehicle miles trav eled in the area, including any of the transportation control measures identified in section 108(f) . (B) Within 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall publish rules for the programs to be adopted pursuant to sub paragraph (A). Such rules shall include model plan provisions which may be adopted for reducing emissions from permitted stationary sources, area sources, and mobile sources. The guidelines shall require that any revenues generated by the plan provisions adopted pursuant to subparagraph (A) shall be used by the State for any of the following: (i) Providing incentives for achieving emission reduc tions. (ii) Providing assistance for the development of inno vative technologies for the control of ozone air pollution and for the development of lower-polluting solvents and surface coatings. Such assistance shall not provide for the payment of more than 75 percent of either the costs of any project to develop such a technology or the costs of devel opment of a lower-polluting solvent or surface coating. (iii) Funding the administrative costs of State pro grams under this Act. Not more than 50 percent of such revenues may be used for purposes of this clause. (5) EXTREME AREAS.—If a State fails to submit a dem onstration under paragraph (2) for any Extreme Area within the required period, or if the Administrator determines that the area has not met any applicable milestone, the State shall, within 9 months after such failure or determination, submit a plan revision to implement an economic incentive program which meets the requirements of paragraph (4). The Adminis trator shall review such plan revision and approve or dis approve the revision within 9 months after the date of its sub mission. (h) RURAL TRANSPORT AREAS.—(1) Notwithstanding any other provision of section 181 or this section, a State containing an ozone Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 196Sec. 182 CLEAN AIR ACT 1 So in original. Probably should be ‘‘Marginal Areas’’. nonattainment area that does not include, and is not adjacent to, any part of a Metropolitan Statistical Area or, where one exists, a Consolidated Metropolitan Statistical Area (as defined by the United States Bureau of the Census), which area is treated by the Administrator, in the Administrator’s discretion, as a rural trans port area within the meaning of paragraph (2), shall be treated by operation of law as satisfying the requirements of this section if it makes the submissions required under subsection (a) of this section (relating to marginal areas 1). (2) The Administrator may treat an ozone nonattainment area as a rural transport area if the Administrator finds that sources of VOC (and, where the Administrator determines relevant, NOx) emissions within the area do not make a significant contribution to the ozone concentrations measured in the area or in other areas. (i) RECLASSIFIED AREAS.—Each State containing an ozone non attainment area reclassified under section 181(b)(2) shall meet such requirements of subsections (b) through (d) of this section as may be applicable to the area as reclassified, according to the schedules prescribed in connection with such requirements, except that the Administrator may adjust any applicable deadlines (other than attainment dates) to the extent such adjustment is necessary or appropriate to assure consistency among the required submis sions. (j) MULTI-STATE OZONE NONATTAINMENT AREAS.— (1) COORDINATION AMONG STATES.—Each State in which there is located a portion of a single ozone nonattainment area which covers more than one State (hereinafter in this section referred to as a ‘‘multi-State ozone nonattainment area’’) shall— (A) take all reasonable steps to coordinate, sub stantively and procedurally, the revisions and implementa tion of State implementation plans applicable to the non attainment area concerned; and (B) use photochemical grid modeling or any other ana lytical method determined by the Administrator, in his dis cretion, to be at least as effective. The Administrator may not approve any revision of a State im plementation plan submitted under this part for a State in which part of a multi-State ozone nonattainment area is lo cated if the plan revision for that State fails to comply with the requirements of this subsection. (2) FAILURE TO DEMONSTRATE ATTAINMENT.—If any State in which there is located a portion of a multi-State ozone non attainment area fails to provide a demonstration of attainment of the national ambient air quality standard for ozone in that portion within the required period, the State may petition the Administrator to make a finding that the State would have been able to make such demonstration but for the failure of one or more other States in which other portions of the area are located to commit to the implementation of all measures required under section 182 (relating to plan submissions and requirements for ozone nonattainment areas). If the Adminis Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 197 Sec. 183CLEAN AIR ACT trator makes such finding, the provisions of section 179 (relat ing to sanctions) shall not apply, by reason of the failure to make such demonstration, in the portion of the multi-State ozone nonattainment area within the State submitting such petition. [42 U.S.C. 7511a] SEC. 183. FEDERAL OZONE MEASURES. (a) CONTROL TECHNIQUES GUIDELINES FOR VOC SOURCES.— Within 3 years after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall issue control tech niques guidelines, in accordance with section 108, for 11 categories of stationary sources of VOC emissions for which such guidelines have not been issued as of such date of enactment, not including the categories referred to in paragraphs (3) and (4) of subsection (b) of this section. The Administrator may issue such additional control techniques guidelines as the Administrator deems nec essary. (b) EXISTING AND NEW CTGS.—(1) Within 36 months after the date of the enactment of the Clean Air Act Amendments of 1990, and periodically thereafter, the Administrator shall review and, if necessary, update control technique guidance issued under section 108 before the date of the enactment of the Clean Air Act Amend ments of 1990. (2) In issuing the guidelines the Administrator shall give pri ority to those categories which the Administrator considers to make the most significant contribution to the formation of ozone air pol lution in ozone nonattainment areas, including hazardous waste treatment, storage, and disposal facilities which are permitted under subtitle C of the Solid Waste Disposal Act. Thereafter the Administrator shall periodically review and, if necessary, revise such guidelines. (3) Within 3 years after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall issue control techniques guidelines in accordance with section 108 to reduce the aggregate emissions of volatile organic compounds into the ambient air from aerospace coatings and solvents. Such control techniques guidelines shall, at a minimum, be adequate to reduce aggregate emissions of volatile organic compounds into the ambient air from the application of such coatings and solvents to such level as the Administrator determines may be achieved through the adoption of best available control measures. Such control technology guidance shall provide for such reductions in such increments and on such schedules as the Administrator determines to be reasonable, but in no event later than 10 years after the final issuance of such control technology guidance. In developing control technology guidance under this subsection, the Administrator shall consult with the Secretary of Defense, the Secretary of Transportation, and the Ad ministrator of the National Aeronautics and Space Administration with regard to the establishment of specifications for such coatings. In evaluating VOC reduction strategies, the guidance shall take into account the applicable requirements of section 112 and the need to protect stratospheric ozone. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 198Sec. 183 CLEAN AIR ACT (4) Within 3 years after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall issue control techniques guidelines in accordance with section 108 to reduce the aggregate emissions of volatile organic compounds and PM–10 into the ambient air from paints, coatings, and solvents used in ship building operations and ship repair. Such control techniques guide lines shall, at a minimum, be adequate to reduce aggregate emis sions of volatile organic compounds and PM–10 into the ambient air from the removal or application of such paints, coatings, and solvents to such level as the Administrator determines may be achieved through the adoption of the best available control meas ures. Such control techniques guidelines shall provide for such re ductions in such increments and on such schedules as the Adminis trator determines to be reasonable, but in no event later than 10 years after the final issuance of such control technology guidance. In developing control techniques guidelines under this subsection, the Administrator shall consult with the appropriate Federal agen cies. (c) ALTERNATIVE CONTROL TECHNIQUES.—Within 3 years after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall issue technical documents which identify alternative controls for all categories of stationary sources of volatile organic compounds and oxides of nitrogen which emit, or have the potential to emit 25 tons per year or more of such air pol lutant. The Administrator shall revise and update such documents as the Administrator determines necessary. (d) GUIDANCE FOR EVALUATING COST-EFFECTIVENESS.—Within 1 year after the date of the enactment of the Clean Air Act Amend ments of 1990, the Administrator shall provide guidance to the States to be used in evaluating the relative cost-effectiveness of various options for the control of emissions from existing stationary sources of air pollutants which contribute to nonattainment of the national ambient air quality standards for ozone. (e) CONTROL OF EMISSIONS FROM CERTAIN SOURCES.— (1) DEFINITIONS.—For purposes of this subsection— (A) BEST AVAILABLE CONTROLS.—The term ‘‘best avail able controls’’ means the degree of emissions reduction that the Administrator determines, on the basis of techno logical and economic feasibility, health, environmental, and energy impacts, is achievable through the application of the most effective equipment, measures, processes, methods, systems or techniques, including chemical refor mulation, product or feedstock substitution, repackaging, and directions for use, consumption, storage, or disposal. (B) CONSUMER OR COMMERCIAL PRODUCT.—The term ‘‘consumer or commercial product’’ means any substance, product (including paints, coatings, and solvents), or arti cle (including any container or packaging) held by any per son, the use, consumption, storage, disposal, destruction, or decomposition of which may result in the release of volatile organic compounds. The term does not include fuels or fuel additives regulated under section 211, or motor vehicles, non-road vehicles, and non-road engines as defined under section 216. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 199 Sec. 183CLEAN AIR ACT (C) REGULATED ENTITIES.—The term ‘‘regulated enti ties’’ means— (i) manufacturers, processors, wholesale distribu tors, or importers of consumer or commercial products for sale or distribution in interstate commerce in the United States; or (ii) manufacturers, processors, wholesale distribu tors, or importers that supply the entities listed under clause (i) with such products for sale or distribution in interstate commerce in the United States. (2) STUDY AND REPORT.— (A) STUDY.—The Administrator shall conduct a study of the emissions of volatile organic compounds into the am bient air from consumer and commercial products (or any combination thereof) in order to— (i) determine their potential to contribute to ozone levels which violate the national ambient air quality standard for ozone; and (ii) establish criteria for regulating consumer and commercial products or classes or categories thereof which shall be subject to control under this subsection. The study shall be completed and a report submitted to Congress not later than 3 years after the date of the enact ment of the Clean Air Act Amendments of 1990. (B) CONSIDERATION OF CERTAIN FACTORS.—In estab lishing the criteria under subparagraph (A)(ii), the Admin istrator shall take into consideration each of the following: (i) The uses, benefits, and commercial demand of consumer and commercial products. (ii) The health or safety functions (if any) served by such consumer and commercial products. (iii) Those consumer and commercial products which emit highly reactive volatile organic compounds into the ambient air. (iv) Those consumer and commercial products which are subject to the most cost-effective controls. (v) The availability of alternatives (if any) to such consumer and commercial products which are of com parable costs, considering health, safety, and environ mental impacts. (3) REGULATIONS TO REQUIRE EMISSION REDUCTIONS.— (A) IN GENERAL.—Upon submission of the final report under paragraph (2), the Administrator shall list those cat egories of consumer or commercial products that the Ad ministrator determines, based on the study, account for at least 80 percent of the VOC emissions, on a reactivity-ad justed basis, from consumer or commercial products in areas that violate the NAAQS for ozone. Credit toward the 80 percent emissions calculation shall be given for emis sion reductions from consumer or commercial products made after the date of enactment of this section. At such time, the Administrator shall divide the list into 4 groups establishing priorities for regulation based on the criteria established in paragraph (2). Every 2 years after promul Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 200Sec. 183 CLEAN AIR ACT gating such list, the Administrator shall regulate one group of categories until all 4 groups are regulated. The regulations shall require best available controls as defined in this section. Such regulations may exempt health use products for which the Administrator determines there is no suitable substitute. In order to carry out this section, the Administrator may, by regulation, control or prohibit any activity, including the manufacture or introduction into commerce, offering for sale, or sale of any consumer or commercial product which results in emission of volatile organic compounds into the ambient air. (B) REGULATED ENTITIES.—Regulations under this sub section may be imposed only with respect to regulated en tities. (C) USE OF CTGS.—For any consumer or commercial product the Administrator may issue control techniques guidelines under this Act in lieu of regulations required under subparagraph (A) if the Administrator determines that such guidance will be substantially as effective as reg ulations in reducing emissions of volatile organic com pounds which contribute to ozone levels in areas which violate the national ambient air quality standard for ozone. (4) SYSTEMS OF REGULATION.—The regulations under this subsection may include any system or systems of regulation as the Administrator may deem appropriate, including require ments for registration and labeling, self-monitoring and report ing, prohibitions, limitations, or economic incentives (including marketable permits and auctions of emissions rights) con cerning the manufacture, processing, distribution, use, con sumption, or disposal of the product. (5) SPECIAL FUND.—Any amounts collected by the Adminis trator under such regulations shall be deposited in a special fund in the United States Treasury for licensing and other services, which thereafter shall be available until expended, subject to annual appropriation Acts, solely to carry out the ac tivities of the Administrator for which such fees, charges, or collections are established or made. (6) ENFORCEMENT.—Any regulation established under this subsection shall be treated, for purposes of enforcement of this Act, as a standard under section 111 and any violation of such regulation shall be treated as a violation of a requirement of section 111(e). (7) STATE ADMINISTRATION.—Each State may develop and submit to the Administrator a procedure under State law for implementing and enforcing regulations promulgated under this subsection. If the Administrator finds the State procedure is adequate, the Administrator shall approve such procedure. Nothing in this paragraph shall prohibit the Administrator from enforcing any applicable regulations under this sub section. (8) SIZE, ETC.—No regulations regarding the size, shape, or labeling of a product may be promulgated, unless the Adminis Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 201 Sec. 183CLEAN AIR ACT 1 So in original. Probably should be ‘‘Department’’. trator determines such regulations to be useful in meeting any national ambient air quality standard. (9) STATE CONSULTATION.—Any State which proposes regu lations other than those adopted under this subsection shall consult with the Administrator regarding whether any other State or local subdivision has promulgated or is promulgating regulations on any products covered under this part. The Ad ministrator shall establish a clearinghouse of information, studies, and regulations proposed and promulgated regarding products covered under this subsection and disseminate such information collected as requested by State or local subdivi sions. (f) TANK VESSEL STANDARDS.— (1) SCHEDULE FOR STANDARDS.—(A) Within 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator, in consultation with the Secretary of the Department in which the Coast Guard is operating, shall promulgate standards applicable to the emission of VOCs and any other air pollutant from loading and unloading of tank ves sels (as that term is defined in section 2101 of title 46 of the United States Code) which the Administrator finds causes, or contributes to, air pollution that may be reasonably anticipated to endanger public health or welfare. Such standards shall re quire the application of reasonably available control tech nology, considering costs, any nonair-quality benefits, environ mental impacts, energy requirements and safety factors associ ated with alternative control techniques. To the extent prac ticable such standards shall apply to loading and unloading fa cilities and not to tank vessels. (B) Any regulation prescribed under this subsection (and any revision thereof) shall take effect after such period as the Administrator finds (after consultation with the Secretary of the department 1 in which the Coast Guard is operating) nec essary to permit the development and application of the req uisite technology, giving appropriate consideration to the cost of compliance within such period, except that the effective date shall not be more than 2 years after promulgation of such reg ulations. (2) REGULATIONS ON EQUIPMENT SAFETY.—Within 6 months after the date of the enactment of the Clean Air Act Amendments of 1990, the Secretary of the Department in which the Coast Guard is operating shall issue regulations to ensure the safety of the equipment and operations which are to control emissions from the loading and unloading of tank vessels, under section 3703 of title 46 of the United States Code and section 6 of the Ports and Waterways Safety Act (33 U.S.C. 1225). The standards promulgated by the Administrator under paragraph (1) and the regulations issued by a State or political subdivision regarding emissions from the loading and unloading of tank vessels shall be consistent with the regula tions regarding safety of the Department in which the Coast Guard is operating. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 202Sec. 183 CLEAN AIR ACT 1 This subsection was added by section 2 of the Border Smog Reduction Act of 1998 (P.L. 105– 286). Sections 3 and 4 of such Act are as follows: SEC. 3. GENERAL PROVISIONS. (a) IN GENERAL.—The amendment made by section 2 takes effect 180 days after the date of the enactment of this Act. Nothing in that amendment shall require action that is inconsistent with the obligations of the United States under any international agreement. (b) INFORMATION.—As soon as practicable after the date of the enactment of this Act, the ap propriate agency of the United States shall distribute information to publicize the prohibition set forth in the amendment made by section 2. SEC. 4. STUDY BY GENERAL ACCOUNTING OFFICE. (a) IN GENERAL.—The Comptroller General of the United States shall conduct a study of the impact of the amendment made by section 2. (b) CONTENTS OF STUDY.—The study under subsection (a) shall compare— (1) the potential impact of the amendment made by section 2 on air quality in ozone non attainment areas affected by the amendment; with (2) the impact on air quality in those areas caused by the increase in the number of vehi cles engaged in commerce operating in the United States and registered in, or operated from, Mexico, as a result of the implementation of the North American Free Trade Agree ment. (c) REPORT.—Not later than July 1, 1999, the Comptroller General of the United States shall submit to the Committee on Commerce of the House of Representatives and the Committee on Environment and Public Works of the Senate a report describing the findings of the study under subsection (a). (3) AGENCY AUTHORITY.—(A) The Administrator shall en sure compliance with the tank vessel emission standards pre scribed under paragraph (1)(A). The Secretary of the Depart ment in which the Coast Guard is operating shall also ensure compliance with the tank vessel standards prescribed under paragraph (1)(A). (B) The Secretary of the Department in which the Coast Guard is operating shall ensure compliance with the regula tions issued under paragraph (2). (4) STATE OR LOCAL STANDARDS.—After the Administrator promulgates standards under this section, no State or political subdivision thereof may adopt or attempt to enforce any stand ard respecting emissions from tank vessels subject to regula tion under paragraph (1) unless such standard is no less strin gent than the standards promulgated under paragraph (1). (5) ENFORCEMENT.—Any standard established under para graph (1)(A) shall be treated, for purposes of enforcement of this Act, as a standard under section 111 and any violation of such standard shall be treated as a violation of a requirement of section 111(e). (g) OZONE DESIGN VALUE STUDY.—The Administrator shall conduct a study of whether the methodology in use by the Environ mental Protection Agency as of the date of the enactment of the Clean Air Act Amendments of 1990 for establishing a design value for ozone provides a reasonable indicator of the ozone air quality of ozone nonattainment areas. The Administrator shall obtain input from States, local subdivisions thereof, and others. The study shall be completed and a report submitted to Congress not later than 3 years after the date of the enactment of the Clean Air Act Amendments of 1990. The results of the study shall be subject to peer and public review before submitting it to Congress. (h) 1 VEHICLES ENTERING OZONE NONATTAINMENT AREAS.— (1) AUTHORITY REGARDING OZONE INSPECTION AND MAINTE NANCE TESTING.— Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 203 Sec. 183CLEAN AIR ACT (A) IN GENERAL.—No noncommercial motor vehicle registered in a foreign country and operated by a United States citizen or by an alien who is a permanent resident of the United States, or who holds a visa for the purposes of employment or educational study in the United States, may enter a covered ozone nonattainment area from a for eign country bordering the United States and contiguous to the nonattainment area more than twice in a single cal endar-month period, if State law has requirements for the inspection and maintenance of such vehicles under the ap plicable implementation plan in the nonattainment area. (B) APPLICABILITY.—Subparagraph (A) shall not apply if the operator presents documentation at the United States border entry point establishing that the vehicle has complied with such inspection and maintenance require ments as are in effect and are applicable to motor vehicles of the same type and model year. (2) SANCTIONS FOR VIOLATIONS.—The President may im pose and collect from the operator of any motor vehicle who violates, or attempts to violate, paragraph (1) a civil penalty of not more than $200 for the second violation or attempted viola tion and $400 for the third and each subsequent violation or attempted violation. (3) STATE ELECTION.—The prohibition set forth in para graph (1) shall not apply in any State that elects to be exempt from the prohibition. Such an election shall take effect upon the President’s receipt of written notice from the Governor of the State notifying the President of such election. (4) ALTERNATIVE APPROACH.—The prohibition set forth in paragraph (1) shall not apply in a State, and the President may implement an alternative approach, if— (A) the Governor of the State submits to the President a written description of an alternative approach to facili tate the compliance, by some or all foreign-registered motor vehicles, with the motor vehicle inspection and maintenance requirements that are— (i) related to emissions of air pollutants; (ii) in effect under the applicable implementation plan in the covered ozone nonattainment area; and (iii) applicable to motor vehicles of the same types and model years as the foreign-registered motor vehi cles; and (B) the President approves the alternative approach as facilitating compliance with the motor vehicle inspection and maintenance requirements referred to in subpara graph (A). (5) DEFINITION OF COVERED OZONE NONATTAINMENT AREA.—In this section, the term ‘‘covered ozone nonattainment area’’ means a Serious Area, as classified under section 181 as of the date of the enactment of this subsection. [42 U.S.C. 7511b] Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 204Sec. 184 CLEAN AIR ACT 1 So in original. ‘‘Commission’’ should not be capitalized. SEC. 184. CONTROL OF INTERSTATE OZONE AIR POLLUTION. (a) OZONE TRANSPORT REGIONS.—A single transport region for ozone (within the meaning of section 176A(a)), comprised of the States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Is land, Vermont, and the Consolidated Metropolitan Statistical Area that includes the District of Columbia, is hereby established by op eration of law. The provisions of section 176A(a) (1) and (2) shall apply with respect to the transport region established under this section and any other transport region established for ozone, except to the extent inconsistent with the provisions of this section. The Administrator shall convene the commission required (under sec tion 176A(b)) as a result of the establishment of such region within 6 months of the date of the enactment of the Clean Air Act Amend ments of 1990. (b) PLAN PROVISIONS FOR STATES IN OZONE TRANSPORT RE GIONS.—(1) In accordance with section 110, not later than 2 years after the date of the enactment of the Clean Air Act Amendments of 1990 (or 9 months after the subsequent inclusion of a State in a transport region established for ozone), each State included with in a transport region established for ozone shall submit a State im plementation plan or revision thereof to the Administrator which requires the following— (A) that each area in such State that is in an ozone trans port region, and that is a metropolitan statistical area or part thereof with a population of 100,000 or more comply with the provisions of section 182(c)(2)(A) (pertaining to enhanced vehi cle inspection and maintenance programs); and (B) implementation of reasonably available control tech nology with respect to all sources of volatile organic compounds in the State covered by a control techniques guideline issued before or after the date of the enactment of the Clean Air Act Amendments of 1990. (2) Within 3 years after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall complete a study identifying control measures capable of achieving emission reductions comparable to those achievable through vehicle refuel ing controls contained in section 182(b)(3), and such measures or such vehicle refueling controls shall be implemented in accordance with the provisions of this section. Notwithstanding other deadlines in this section, the applicable implementation plan shall be revised to reflect such measures within 1 year of completion of the study. For purposes of this section any stationary source that emits or has the potential to emit at least 50 tons per year of volatile organic compounds shall be considered a major stationary source and sub ject to the requirements which would be applicable to major sta tionary sources if the area were classified as a Moderate nonattain ment area. (c) ADDITIONAL CONTROL MEASURES.— (1) RECOMMENDATIONS.—Upon petition of any State within a transport region established for ozone, and based on a major ity vote of the Governors on the Commission 1 (or their des Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 205 Sec. 184CLEAN AIR ACT 1 So in original. Probably should be ‘‘this’’. ignees), the Commission 1 may, after notice and opportunity for public comment, develop recommendations for additional con trol measures to be applied within all or a part of such trans port region if the commission determines such measures are necessary to bring any area in such region into attainment by the dates provided by this subpart. The commission shall transmit such recommendations to the Administrator. (2) NOTICE AND REVIEW.—Whenever the Administrator re ceives recommendations prepared by a commission pursuant to paragraph (1) (the date of receipt of which shall hereinafter in this section be referred to as the ‘‘receipt date’’), the Adminis trator shall— (A) immediately publish in the Federal Register a no tice stating that the recommendations are available and provide an opportunity for public hearing within 90 days beginning on the receipt date; and (B) commence a review of the recommendations to de termine whether the control measures in the recommenda tions are necessary to bring any area in such region into attainment by the dates provided by this subpart and are otherwise consistent with this Act. (3) CONSULTATION.—In undertaking the review required under paragraph (2)(B), the Administrator shall consult with members of the commission of the affected States and shall take into account the data, views, and comments received pur suant to paragraph (2)(A). (4) APPROVAL AND DISAPPROVAL.—Within 9 months after the receipt date, the Administrator shall (A) determine wheth er to approve, disapprove, or partially disapprove and partially approve the recommendations; (B) notify the commission in writing of such approval, disapproval, or partial disapproval; and (C) publish such determination in the Federal Register. If the Administrator disapproves or partially disapproves the rec ommendations, the Administrator shall specify— (i) why any disapproved additional control measures are not necessary to bring any area in such region into at tainment by the dates provided by this subpart or are oth erwise not consistent with the 1 Act; and (ii) recommendations concerning equal or more effec tive actions that could be taken by the commission to con form the disapproved portion of the recommendations to the requirements of this section. (5) FINDING.—Upon approval or partial approval of rec ommendations submitted by a commission, the Administrator shall issue to each State which is included in the transport re gion and to which a requirement of the approved plan applies, a finding under section 110(k)(5) that the implementation plan for such State is inadequate to meet the requirements of sec tion 110(a)(2)(D). Such finding shall require each such State to revise its implementation plan to include the approved addi tional control measures within one year after the finding is issued. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 206Sec. 185 CLEAN AIR ACT (d) BEST AVAILABLE AIR QUALITY MONITORING AND MOD ELING.—For purposes of this section, not later than 6 months after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate criteria for purposes of determining the contribution of sources in one area to concentra tions of ozone in another area which is a nonattainment area for ozone. Such criteria shall require that the best available air quality monitoring and modeling techniques be used for purposes of mak ing such determinations. [42 U.S.C. 7511c] SEC. 185. ENFORCEMENT FOR SEVERE AND EXTREME OZONE NON ATTAINMENT AREAS FOR FAILURE TO ATTAIN. (a) GENERAL RULE.—Each implementation plan revision re quired under section 182 (d) and (e) (relating to the attainment plan for Severe and Extreme ozone nonattainment areas) shall pro vide that, if the area to which such plan revision applies has failed to attain the national primary ambient air quality standard for ozone by the applicable attainment date, each major stationary source of VOCs located in the area shall, except as otherwise pro vided under subsection (c), pay a fee to the State as a penalty for such failure, computed in accordance with subsection (b), for each calendar year beginning after the attainment date, until the area is redesignated as an attainment area for ozone. Each such plan re vision should include procedures for assessment and collection of such fees. (b) COMPUTATION OF FEE.— (1) FEE AMOUNT.—The fee shall equal $5,000, adjusted in accordance with paragraph (3), per ton of VOC emitted by the source during the calendar year in excess of 80 percent of the baseline amount, computed under paragraph (2). (2) BASELINE AMOUNT.—For purposes of this section, the baseline amount shall be computed, in accordance with such guidance as the Administrator may provide, as the lower of the amount of actual VOC emissions (‘‘actuals’’) or VOC emissions allowed under the permit applicable to the source (or, if no such permit has been issued for the attainment year, the amount of VOC emissions allowed under the applicable imple mentation plan (‘‘allowables’’)) during the attainment year. Notwithstanding the preceding sentence, the Administrator may issue guidance authorizing the baseline amount to be de termined in accordance with the lower of average actuals or average allowables, determined over a period of more than one calendar year. Such guidance may provide that such average calculation for a specific source may be used if that source’s emissions are irregular, cyclical, or otherwise vary significantly from year to year. (3) ANNUAL ADJUSTMENT.—The fee amount under para graph (1) shall be adjusted annually, beginning in the year be ginning after the year of enactment, in accordance with section 502(b)(3)(B)(v) (relating to inflation adjustment). (c) EXCEPTION.—Notwithstanding any provision of this section, no source shall be required to pay any fee under subsection (a) with Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 207 Sec. 185ACLEAN AIR ACT respect to emissions during any year that is treated as an Exten sion Year under section 181(a)(5). (d) FEE COLLECTION BY THE ADMINISTRATOR.—If the Adminis trator has found that the fee provisions of the implementation plan do not meet the requirements of this section, or if the Adminis trator makes a finding that the State is not administering and en forcing the fee required under this section, the Administrator shall, in addition to any other action authorized under this title, collect, in accordance with procedures promulgated by the Administrator, the unpaid fees required under subsection (a). If the Administrator makes such a finding under section 179(a)(4), the Administrator may collect fees for periods before the determination, plus interest computed in accordance with section 6621(a)(2) of the Internal Rev enue Code of 1986 (relating to computation of interest on under payment of Federal taxes), to the extent the Administrator finds such fees have not been paid to the State. The provisions of clauses (ii) through (iii) of section 502(b)(3)(C) (relating to penalties and use of the funds, respectively) shall apply with respect to fees col lected under this subsection. (e) EXEMPTIONS FOR CERTAIN SMALL AREAS.—For areas with a total population under 200,000 which fail to attain the standard by the applicable attainment date, no sanction under this section or under any other provision of this Act shall apply if the area can demonstrate, consistent with guidance issued by the Administrator, that attainment in the area is prevented because of ozone or ozone precursors transported from other areas. The prohibition applies only in cases in which the area has met all requirements and im plemented all measures applicable to the area under this Act. [42 U.S.C. 7511d] SEC. 185A. TRANSITIONAL AREAS. If an area designated as an ozone nonattainment area as of the date of enactment of the Clean Air Act Amendments of 1990 has not violated the national primary ambient air quality standard for ozone for the 36-month period commencing on January 1, 1987, and ending on December 31, 1989, the Administrator shall suspend the application of the requirements of this subpart to such area until December 31, 1991. By June 30, 1992, the Administrator shall determine by order, based on the area’s design value as of the attainment date, whether the area attained such standard by De cember 31, 1991. If the Administrator determines that the area at tained the standard, the Administrator shall require, as part of the order, the State to submit a maintenance plan for the area within 12 months of such determination. If the Administrator determines that the area failed to attain the standard, the Administrator shall, by June 30, 1992, designate the area as nonattainment under sec tion 107(d)(4). [42 U.S.C. 7511e] SEC. 185B. NOx AND VOC STUDY. The Administrator, in conjunction with the National Academy of Sciences, shall conduct a study on the role of ozone precursors in tropospheric ozone formation and control. The study shall exam ine the roles of NOx and VOC emission reductions, the extent to which NOx reductions may contribute (or be counterproductive) to Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 208Sec. 185B CLEAN AIR ACT achievement of attainment in different nonattainment areas, the sensitivity of ozone to the control of NOx, the availability and ex tent of controls for NOx, the role of biogenic VOC emissions, and the basic information required for air quality models. The study shall be completed and a proposed report made public for 30 days comment within 1 year of the date of the enactment of the Clean Air Act Amendments of 1990, and a final report shall be submitted to Congress within 15 months after such date of enactment. The Administrator shall utilize all available information and studies, as well as develop additional information, in conducting the study re quired by this section. [42 U.S.C. 7511f] Subpart 3—Additional Provisions for Carbon Monoxide Nonattainment Areas Sec. 186. Classifications and attainment dates. Sec. 187. Plan submissions and requirements. SEC. 186. CLASSIFICATION AND ATTAINMENT DATES. (a) CLASSIFICATION BY OPERATION OF LAW AND ATTAINMENT DATES FOR NONATTAINMENT AREAS.—(1) Each area designated non attainment for carbon monoxide pursuant to section 107(d) shall be classified at the time of such designation under table 1, by oper ation of law, as a Moderate Area or a Serious Area based on the design value for the area. The design value shall be calculated ac cording to the interpretation methodology issued by the Adminis trator most recently before the date of the enactment of the Clean Air Act Amendments of 1990. For each area classified under this subsection, the primary standard attainment date for carbon mon oxide shall be as expeditiously as practicable but not later than the date provided in table 1: TABLE 3 1 Area classification Design value Primary standard at-tainment date Moderate ............................................. 9.1–16.4 ppm ............ December 31, 1995 Serious ................................................ 16.5 and above ......... December 31, 2000 1 So in original. Should be ‘‘TABLE 1’’. (2) At the time of publication of the notice required under sec tion 107 (designating carbon monoxide nonattainment areas), the Administrator shall publish a notice announcing the classification of each such carbon monoxide nonattainment area. The provisions of section 172(a)(1)(B) (relating to lack of notice-and-comment and judicial review) shall apply with respect to such classification. (3) If an area classified under paragraph (1), table 1, would have been classified in another category if the design value in the area were 5 percent greater or 5 percent less than the level on which such classification was based, the Administrator may, in the Administrator’s discretion, within 90 days after the date of the en actment of the Clean Air Act Amendments of 1990 by the proce dure required under paragraph (2), adjust the classification of the area. In making such adjustment, the Administrator may consider Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 209 Sec. 186CLEAN AIR ACT the number of exceedances of the national primary ambient air quality standard for carbon monoxide in the area, the level of pollu tion transport between the area and the other affected areas, and the mix of sources and air pollutants in the area. The Adminis trator may make the same adjustment for purposes of paragraphs (2), (3), (6), and (7) of section 187(a). (4) Upon application by any State, the Administrator may ex tend for 1 additional year (hereinafter in this subpart referred to as the ‘‘Extension Year’’) the date specified in table 1 of subsection (a) if— (A) the State has complied with all requirements and com mitments pertaining to the area in the applicable implementa tion plan, and (B) no more than one exceedance of the national ambient air quality standard level for carbon monoxide has occurred in the area in the year preceding the Extension Year. No more than 2 one-year extensions may be issued under this paragraph for a single nonattainment area. (b) NEW DESIGNATIONS AND RECLASSIFICATIONS.— (1) NEW DESIGNATIONS TO NONATTAINMENT.—Any area that is designated attainment or unclassifiable for carbon mon oxide under section 107(d)(4), and that is subsequently redesig nated to nonattainment for carbon monoxide under section 107(d)(3), shall, at the time of the redesignation, be classified by operation of law in accordance with table 1 under sub sections (a)(1) and (a)(4). Upon its classification, the area shall be subject to the same requirements under section 110, sub part 1 of this part, and this subpart that would have applied had the area been so classified at the time of the notice under subsection (a)(2), except that any absolute, fixed date applica ble in connection with any such requirement is extended by op eration of law by a period equal to the length of time between the date of the enactment of the Clean Air Act Amendments of 1990 and the date the area is classified. (2) RECLASSIFICATION OF MODERATE AREAS UPON FAILURE TO ATTAIN.— (A) GENERAL RULE.—Within 6 months following the applicable attainment date for a carbon monoxide non attainment area, the Administrator shall determine, based on the area’s design value as of the attainment date, whether the area has attained the standard by that date. Any Moderate Area that the Administrator finds has not attained the standard by that date shall be reclassified by operation of law in accordance with table 1 of subsection (a)(1) as a Serious Area. (B) PUBLICATION OF NOTICE.—The Administrator shall publish a notice in the Federal Register, no later than 6 months following the attainment date, identifying each area that the Administrator has determined, under sub paragraph (A), as having failed to attain and identifying the reclassification, if any, described under subparagraph (A). (c) REFERENCES TO TERMS.—Any reference in this subpart to a ‘‘Moderate Area’’ or a ‘‘Serious Area’’ shall be considered a ref Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 210Sec. 187 CLEAN AIR ACT erence to a Moderate Area or a Serious Area, respectively, as clas sified under this section. [42 U.S.C. 7512] SEC. 187. PLAN SUBMISSIONS AND REQUIREMENTS. (a) MODERATE AREAS.—Each State in which all or part of a Moderate Area is located shall, with respect to the Moderate Area (or portion thereof, to the extent specified in guidance of the Ad ministrator issued before the date of the enactment of the Clean Air Act Amendments of 1990), submit to the Administrator the State implementation plan revisions (including the plan items) de scribed under this subsection, within such periods as are prescribed under this subsection, except to the extent the State has made such submissions as of such date of enactment: (1) INVENTORY.—No later than 2 years from the date of the enactment of the Clean Air Act Amendments of 1990, the State shall submit a comprehensive, accurate, current inventory of actual emissions from all sources, as described in section 172(c)(3), in accordance with guidance provided by the Admin istrator. (2)(A) VEHICLE MILES TRAVELED.—No later than 2 years after the date of the enactment of the Clean Air Act Amend ments of 1990, for areas with a design value above 12.7 ppm at the time of classification, the plan revision shall contain a forecast of vehicle miles traveled in the nonattainment area concerned for each year before the year in which the plan projects the national ambient air quality standard for carbon monoxide to be attained in the area. The forecast shall be based on guidance which shall be published by the Adminis trator, in consultation with the Secretary of Transportation, within 6 months after the date of the enactment of the Clean Air Act Amendments of 1990. The plan revision shall provide for annual updates of the forecasts to be submitted to the Ad ministrator together with annual reports regarding the extent to which such forecasts proved to be accurate. Such annual re ports shall contain estimates of actual vehicle miles traveled in each year for which a forecast was required. (B) SPECIAL RULE FOR DENVER.—Within 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, in the case of Denver, the State shall submit a revision that includes the transportation control measures as required in section 182(d)(1)(A) except that such revision shall be for the purpose of reducing CO emissions rather than volatile organic compound emissions. If the State fails to include any such measure, the implementation plan shall contain an explanation of why such measure was not adopted and what emissions re duction measure was adopted to provide a comparable reduc tion in emissions, or reasons why such reduction is not nec essary to attain the national primary ambient air quality standard for carbon monoxide. (3) CONTINGENCY PROVISIONS.—No later than 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, for areas with a design value above 12.7 ppm at the time of classification, the plan revision shall provide for the im Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 211 Sec. 187CLEAN AIR ACT plementation of specific measures to be undertaken if any esti mate of vehicle miles traveled in the area which is submitted in an annual report under paragraph (2) exceeds the number predicted in the most recent prior forecast or if the area fails to attain the national primary ambient air quality standard for carbon monoxide by the primary standard attainment date. Such measures shall be included in the plan revision as contin gency measures to take effect without further action by the State or the Administrator if the prior forecast has been ex ceeded by an updated forecast or if the national standard is not attained by such deadline. (4) SAVINGS CLAUSE FOR VEHICLE INSPECTION AND MAINTE NANCE PROVISIONS OF THE STATE IMPLEMENTATION PLAN.—Im mediately after the date of the enactment of the Clean Air Act Amendments of 1990, for any Moderate Area (or, within the Administrator’s discretion, portion thereof), the plan for which is of the type described in section 182(a)(2)(B) any provisions necessary to ensure that the applicable implementation plan includes the vehicle inspection and maintenance program de scribed in section 182(a)(2)(B). (5) PERIODIC INVENTORY.—No later than September 30, 1995, and no later than the end of each 3 year period there after, until the area is redesignated to attainment, a revised inventory meeting the requirements of subsection (a)(1). (6) ENHANCED VEHICLE INSPECTION AND MAINTENANCE.— No later than 2 years after the date of the enactment of the Clean Air Act Amendments of 1990 in the case of Moderate Areas with a design value greater than 12.7 ppm at the time of classification, a revision that includes provisions for an enhanced vehicle inspection and maintenance program as re quired in section 182(c)(3) (concerning serious ozone nonattain ment areas), except that such program shall be for the purpose of reducing carbon monoxide rather than hydrocarbon emis sions. (7) ATTAINMENT DEMONSTRATION AND SPECIFIC ANNUAL EMISSION REDUCTIONS.—In the case of Moderate Areas with a design value greater than 12.7 ppm at the time of classifica tion, no later than 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, a revision to provide, and a demonstration that the plan as revised will provide, for attainment of the carbon monoxide NAAQS by the applicable attainment date and provisions for such specific annual emis sion reductions as are necessary to attain the standard by that date. The Administrator may, in the Administrator’s discretion, require States to submit a schedule for submitting any of the revisions or other items required under this subsection. In the case of Moderate Areas with a design value of 12.7 ppm or lower at the time of clas sification, the requirements of this subsection shall apply in lieu of any requirement that the State submit a demonstration that the applicable implementation plan provides for attainment of the car bon monoxide standard by the applicable attainment date. (b) SERIOUS AREAS.— Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 212Sec. 187 CLEAN AIR ACT 1 Probably should refer to ‘‘(a)(2)(B)’’. (1) IN GENERAL.—Each State in which all or part of a Seri ous Area is located shall, with respect to the Serious Area, make the submissions (other than those required under sub section (a)(1)(B) 1) applicable under subsection (a) to Moderate Areas with a design value of 12.7 ppm or greater at the time of classification, and shall also submit the revision and other items described under this subsection. (2) VEHICLE MILES TRAVELED.—Within 2 years after the date of the enactment of the Clean Air Act Amendments of 1990 the State shall submit a revision that includes the trans portation control measures as required in section 182(d)(1) ex cept that such revision shall be for the purpose of reducing CO emissions rather than volatile organic compound emissions. In the case of any such area (other than an area in New York State) which is a covered area (as defined in section 246(a)(2)(B)) for purposes of the Clean Fuel Fleet program under part C of title II, if the State fails to include any such measure, the implementation plan shall contain an explanation of why such measure was not adopted and what emissions re duction measure was adopted to provide a comparable reduc tion in emissions, or reasons why such reduction is not nec essary to attain the national primary ambient air quality standard for carbon monoxide. (3) OXYGENATED GASOLINE.—(A) Within 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, the State shall submit a revision to require that gasoline sold, supplied, offered for sale or supply, dispensed, trans ported or introduced into commerce in the larger of— (i) the Consolidated Metropolitan Statistical Area (as defined by the United States Office of Management and Budget) (CMSA) in which the area is located, or (ii) if the area is not located in a CMSA, the Metropoli tan Statistical Area (as defined by the United States Office of Management and Budget) in which the area is located, be blended, during the portion of the year in which the area is prone to high ambient concentrations of carbon monoxide (as determined by the Administrator), with fuels containing such level of oxygen as is necessary, in combination with other measures, to provide for attainment of the carbon monoxide national ambient air quality standard by the applicable attain ment date and maintenance of the national ambient air quality standard thereafter in the area. The revision shall provide that such requirement shall take effect no later than October 1, 1993, and shall include a program for implementation and en forcement of the requirement consistent with guidance to be issued by the Administrator. (B) Notwithstanding subparagraph (A), the revision de scribed in this paragraph shall not be required for an area if the State demonstrates to the satisfaction of the Administrator that the revision is not necessary to provide for attainment of the carbon monoxide national ambient air quality standard by Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 213 Sec. 187CLEAN AIR ACT the applicable attainment date and maintenance of the na tional ambient air quality standard thereafter in the area. (c) AREAS WITH SIGNIFICANT STATIONARY SOURCE EMISSIONS OF CO.— (1) SERIOUS AREAS.—In the case of Serious Areas in which stationary sources contribute significantly to carbon monoxide levels (as determined under rules issued by the Administrator), the State shall submit a plan revision within 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, which provides that the term ‘‘major stationary source’’ includes (in addition to the sources described in section 302) any stationary source which emits, or has the potential to emit, 50 tons per year or more of carbon monoxide. (2) WAIVERS FOR CERTAIN AREAS.—The Administrator may, on a case-by-case basis, waive any requirements that pertain to transportation controls, inspection and maintenance, or oxygenated fuels where the Administrator determines by rule that mobile sources of carbon monoxide do not contribute sig nificantly to carbon monoxide levels in the area. (3) GUIDELINES.—Within 6 months after the date of the en actment of the Clean Air Act Amendments of 1990, the Admin istrator shall issue guidelines for and rules determining wheth er stationary sources contribute significantly to carbon mon oxide levels in an area. (d) CO MILESTONE.— (1) MILESTONE DEMONSTRATION.—By March 31, 1996, each State in which all or part of a Serious Area is located shall submit to the Administrator a demonstration that the area has achieved a reduction in emissions of CO equivalent to the total of the specific annual emission reductions required by Decem ber 31, 1995. Such reductions shall be referred to in this sub section as the milestone. (2) ADEQUACY OF DEMONSTRATION.—A demonstration under this paragraph shall be submitted in such form and manner, and shall contain such information and analysis, as the Administrator shall require. The Administrator shall deter mine whether or not a State’s demonstration is adequate with in 90 days after the Administrator’s receipt of a demonstration which contains the information and analysis required by the Administrator. (3) FAILURE TO MEET EMISSION REDUCTION MILESTONE.—If a State fails to submit a demonstration under paragraph (1) within the required period, or if the Administrator notifies the State that the State has not met the milestone, the State shall, within 9 months after such a failure or notification, submit a plan revision to implement an economic incentive and trans portation control program as described in section 182(g)(4). Such revision shall be sufficient to achieve the specific annual reductions in carbon monoxide emissions set forth in the plan by the attainment date. (e) MULTI-STATE CO NONATTAINMENT AREAS.— (1) COORDINATION AMONG STATES.—Each State in which there is located a portion of a single nonattainment area for carbon monoxide which covers more than one State (‘‘multi Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 214Sec. 187 CLEAN AIR ACT State nonattainment area’’) shall take all reasonable steps to coordinate, substantively and procedurally, the revisions and implementation of State implementation plans applicable to the nonattainment area concerned. The Administrator may not approve any revision of a State implementation plan submitted under this part for a State in which part of a multi-State non attainment area is located if the plan revision for that State fails to comply with the requirements of this subsection. (2) FAILURE TO DEMONSTRATE ATTAINMENT.—If any State in which there is located a portion of a multi-State nonattain ment area fails to provide a demonstration of attainment of the national ambient air quality standard for carbon monoxide in that portion within the period required under this part the State may petition the Administrator to make a finding that the State would have been able to make such demonstration but for the failure of one or more other States in which other portions of the area are located to commit to the implementa tion of all measures required under section 187 (relating to plan submissions for carbon monoxide nonattainment areas). If the Administrator makes such finding, in the portion of the nonattainment area within the State submitting such petition, no sanction shall be imposed under section 179 or under any other provision of this Act, by reason of the failure to make such demonstration. (f) RECLASSIFIED AREAS.—Each State containing a carbon mon oxide nonattainment area reclassified under section 186(b)(2) shall meet the requirements of subsection (b) of this section, as may be applicable to the area as reclassified, according to the schedules prescribed in connection with such requirements, except that the Administrator may adjust any applicable deadlines (other than the attainment date) where such deadlines are shown to be infeasible. (g) FAILURE OF SERIOUS AREA TO ATTAIN STANDARD.—If the Administrator determines under section 186(b)(2) that the national primary ambient air quality standard for carbon monoxide has not been attained in a Serious Area by the applicable attainment date, the State shall submit a plan revision for the area within 9 months after the date of such determination. The plan revision shall pro vide that a program of incentives and requirements as described in section 182(g)(4) shall be applicable in the area, and such program, in combination with other elements of the revised plan, shall be adequate to reduce the total tonnage of emissions of carbon mon oxide in the area by at least 5 percent per year in each year after approval of the plan revision and before attainment of the national primary ambient air quality standard for carbon monoxide. [42 U.S.C. 7512a] Subpart 4—Additional Provisions for Particulate Matter Nonattainment Areas Sec. 188. Classifications and attainment dates. Sec. 189. Plan provisions and schedules for plan submissions. Sec. 190. Issuance of guidance. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 215 Sec. 188CLEAN AIR ACT 1 So in original. Probably should be ‘‘Moderate’’. SEC. 188. CLASSIFICATIONS AND ATTAINMENT DATES. (a) INITIAL CLASSIFICATIONS.—Every area designated non attainment for PM–10 pursuant to section 107(d) shall be classified at the time of such designation, by operation of law, as a mod erate 1 PM–10 nonattainment area (also referred to in this subpart as a ‘‘Moderate Area’’) at the time of such designation. At the time of publication of the notice under section 107(d)(4) (relating to area designations) for each PM–10 nonattainment area, the Adminis trator shall publish a notice announcing the classification of such area. The provisions of section 172(a)(1)(B) (relating to lack of no tice-and-comment and judicial review) shall apply with respect to such classification. (b) RECLASSIFICATION AS SERIOUS.— (1) RECLASSIFICATION BEFORE ATTAINMENT DATE.—The Ad ministrator may reclassify as a Serious PM–10 nonattainment area (identified in this subpart also as a ‘‘Serious Area’’) any area that the Administrator determines cannot practicably at tain the national ambient air quality standard for PM–10 by the attainment date (as prescribed in subsection (c)) for Mod erate Areas. The Administrator shall reclassify appropriate areas as Serious by the following dates: (A) For areas designated nonattainment for PM–10 under section 107(d)(4), the Administrator shall propose to reclassify appropriate areas by June 30, 1991, and take final action by December 31, 1991. (B) For areas subsequently designated nonattainment, the Administrator shall reclassify appropriate areas within 18 months after the required date for the State’s submis sion of a SIP for the Moderate Area. (2) RECLASSIFICATION UPON FAILURE TO ATTAIN.—Within 6 months following the applicable attainment date for a PM–10 nonattainment area, the Administrator shall determine wheth er the area attained the standard by that date. If the Adminis trator finds that any Moderate Area is not in attainment after the applicable attainment date— (A) the area shall be reclassified by operation of law as a Serious Area; and (B) the Administrator shall publish a notice in the Federal Register no later than 6 months following the at tainment date, identifying the area as having failed to at tain and identifying the reclassification described under subparagraph (A). (c) ATTAINMENT DATES.—Except as provided under subsection (d), the attainment dates for PM–10 nonattainment areas shall be as follows: (1) MODERATE AREAS.—For a Moderate Area, the attain ment date shall be as expeditiously as practicable but no later than the end of the sixth calendar year after the area’s des ignation as nonattainment, except that, for areas designated nonattainment for PM–10 under section 107(d)(4), the attain ment date shall not extend beyond December 31, 1994. Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 216Sec. 188 CLEAN AIR ACT 1 So in original. Probably should be ‘‘subsection’’. (2) SERIOUS AREAS.—For a Serious Area, the attainment date shall be as expeditiously as practicable but no later than the end of the tenth calendar year beginning after the area’s designation as nonattainment, except that, for areas des ignated nonattainment for PM–10 under section 107(d)(4), the date shall not extend beyond December 31, 2001. (d) EXTENSION OF ATTAINMENT DATE FOR MODERATE AREAS.— Upon application by any State, the Administrator may extend for 1 additional year (hereinafter referred to as the ‘‘Extension Year’’) the date specified in paragraph 1 (c)(1) if— (1) the State has complied with all requirements and com mitments pertaining to the area in the applicable implementa tion plan; and (2) no more than one exceedance of the 24-hour national ambient air quality standard level for PM–10 has occurred in the area in the year preceding the Extension Year, and the an nual mean concentration of PM–10 in the area for such year is less than or equal to the standard level. No more than 2 one-year extensions may be issued under the sub section for a single nonattainment area. (e) EXTENSION OF ATTAINMENT DATE FOR SERIOUS AREAS.— Upon application by any State, the Administrator may extend the attainment date for a Serious Area beyond the date specified under subsection (c), if attainment by the date established under sub section (c) would be impracticable, the State has complied with all requirements and commitments pertaining to that area in the im plementation plan, and the State demonstrates to the satisfaction of the Administrator that the plan for that area includes the most stringent measures that are included in the implementation plan of any State or are achieved in practice in any State, and can fea sibly be implemented in the area. At the time of such application, the State must submit a revision to the implementation plan that includes a demonstration of attainment by the most expeditious al ternative date practicable. In determining whether to grant an ex tension, and the appropriate length of time for any such extension, the Administrator may consider the nature and extent of non attainment, the types and numbers of sources or other emitting ac tivities in the area (including the influence of uncontrollable nat ural sources and transboundary emissions from foreign countries), the population exposed to concentrations in excess of the standard, the presence and concentration of potentially toxic substances in the mix of particulate emissions in the area, and the technological and economic feasibility of various control measures. The Adminis trator may not approve an extension until the State submits an at tainment demonstration for the area. The Administrator may grant at most one such extension for an area, of no more than 5 years. (f) WAIVERS FOR CERTAIN AREAS.—The Administrator may, on a case-by-case basis, waive any requirement applicable to any Seri ous Area under this subpart where the Administrator determines that anthropogenic sources of PM–10 do not contribute significantly to the violation of the PM–10 standard in the area. The Adminis trator may also waive a specific date for attainment of the standard Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 217 Sec. 189CLEAN AIR ACT 1 So in original. Probably should be ‘‘Moderate’’. 2 So in original. Probably should be ‘‘subsection’’. where the Administrator determines that nonanthropogenic sources of PM–10 contribute significantly to the violation of the PM–10 standard in the area. [42 U.S.C. 7513] SEC. 189. PLAN PROVISIONS AND SCHEDULES FOR PLAN SUBMIS SIONS. (a) MODERATE AREAS.— (1) PLAN PROVISIONS.—Each State in which all or part of a Moderate Area is located shall submit, according to the appli cable schedule under paragraph (2), an implementation plan that includes each of the following: (A) For the purpose of meeting the requirements of section 172(c)(5), a permit program providing that permits meeting the requirements of section 173 are required for the construction and operation of new and modified major stationary sources of PM–10. (B) Either (i) a demonstration (including air quality modeling) that the plan will provide for attainment by the applicable attainment date; or (ii) a demonstration that at tainment by such date is impracticable. (C) Provisions to assure that reasonably available con trol measures for the control of PM–10 shall be imple mented no later than December 10, 1993, or 4 years after designation in the case of an area classified as moderate 1 after the date of the enactment of the Clean Air Act Amendments of 1990. (2) SCHEDULE FOR PLAN SUBMISSIONS.—A State shall sub mit the plan required under subparagraph (1) no later than the following: (A) Within 1 year of the date of the enactment of the Clean Air Act Amendments of 1990, for areas designated nonattainment under section 107(d)(4), except that the provision required under subparagraph (1)(A) shall be sub mitted no later than June 30, 1992. (B) 18 months after the designation as nonattainment, for those areas designated nonattainment after the des ignations prescribed under section 107(d)(4). (b) SERIOUS AREAS.— (1) PLAN PROVISIONS.—In addition to the provisions sub mitted to meet the requirements of paragraph 2 (a)(1) (relating to Moderate Areas), each State in which all or part of a Serious Area is located shall submit an implementation plan for such area that includes each of the following: (A) A demonstration (including air quality modeling)— (i) that the plan provides for attainment of the PM–10 national ambient air quality standard by the applicable attainment date, or (ii) for any area for which the State is seeking, pursuant to section 188(e), an extension of the attain ment date beyond the date set forth in section 188(c), that attainment by that date would be impracticable, Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 218Sec. 189 CLEAN AIR ACT and that the plan provides for attainment by the most expeditious alternative date practicable. (B) Provisions to assure that the best available control measures for the control of PM–10 shall be implemented no later than 4 years after the date the area is classified (or reclassified) as a Serious Area. (2) SCHEDULE FOR PLAN SUBMISSIONS.—A State shall sub mit the demonstration required for an area under paragraph (1)(A) no later than 4 years after reclassification of the area to Serious, except that for areas reclassified under section 188(b)(2), the State shall submit the attainment demonstration within 18 months after reclassification to Serious. A State shall submit the provisions described under paragraph (1)(B) no later than 18 months after reclassification of the area as a Serious Area. (3) MAJOR SOURCES.—For any Serious Area, the terms ‘‘major source’’ and ‘‘major stationary source’’ include any sta tionary source or group of stationary sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 70 tons per year of PM–10. (c) MILESTONES.—(1) Plan revisions demonstrating attainment submitted to the Administrator for approval under this subpart shall contain quantitative milestones which are to be achieved every 3 years until the area is redesignated attainment and which demonstrate reasonable further progress, as defined in section 171(1), toward attainment by the applicable date. (2) Not later than 90 days after the date on which a milestone applicable to the area occurs, each State in which all or part of such area is located shall submit to the Administrator a dem onstration that all measures in the plan approved under this sec tion have been implemented and that the milestone has been met. A demonstration under this subsection shall be submitted in such form and manner, and shall contain such information and analysis, as the Administrator shall require. The Administrator shall deter mine whether or not a State’s demonstration under this subsection is adequate within 90 days after the Administrator’s receipt of a demonstration which contains the information and analysis re quired by the Administrator. (3) If a State fails to submit a demonstration under paragraph (2) with respect to a milestone within the required period or if the Administrator determines that the area has not met any applicable milestone, the Administrator shall require the State, within 9 months after such failure or determination to submit a plan revi sion that assures that the State will achieve the next milestone (or attain the national ambient air quality standard for PM–10, if there is no next milestone) by the applicable date. (d) FAILURE TO ATTAIN.—In the case of a Serious PM–10 non attainment area in which the PM–10 standard is not attained by the applicable attainment date, the State in which such area is lo cated shall, after notice and opportunity for public comment, sub mit within 12 months after the applicable attainment date, plan re visions which provide for attainment of the PM–10 air quality standard and, from the date of such submission until attainment, for an annual reduction in PM–10 or PM–10 precursor emissions Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 219 Sec. 191CLEAN AIR ACT within the area of not less than 5 percent of the amount of such emissions as reported in the most recent inventory prepared for such area. (e) PM–10 PRECURSORS.—The control requirements applicable under plans in effect under this part for major stationary sources of PM–10 shall also apply to major stationary sources of PM–10 precursors, except where the Administrator determines that such sources do not contribute significantly to PM–10 levels which ex ceed the standard in the area. The Administrator shall issue guide lines regarding the application of the preceding sentence. [42 U.S.C. 7513a] SEC. 190. ISSUANCE OF RACM AND BACM GUIDANCE. The Administrator shall issue, in the same manner and accord ing to the same procedure as guidance is issued under section 108(c), technical guidance on reasonably available control measures and best available control measures for urban fugitive dust, and emissions from residential wood combustion (including curtail ments and exemptions from such curtailments) and prescribed sil vicultural and agricultural burning, no later than 18 months fol lowing the date of the enactment of the Clean Air Act Amendments of 1990. The Administrator shall also examine other categories of sources contributing to nonattainment of the PM–10 standard, and determine whether additional guidance on reasonably available control measures and best available control measures is needed, and issue any such guidance no later than 3 years after the date of the enactment of the Clean Air Act Amendments of 1990. In issuing guidelines and making determinations under this section, the Administrator (in consultation with the State) shall take into account emission reductions achieved, or expected to be achieved, under title IV and other provisions of this Act. [42 U.S.C. 7513b] Subpart 5—Additional Provisions for Areas Des ignated Nonattainment for Sulfur Oxides, Nitro gen Dioxide, or Lead Sec. 191. Plan submission deadlines. Sec. 192. Attainment dates. SEC. 191. PLAN SUBMISSION DEADLINES. (a) SUBMISSION.—Any State containing an area designated or redesignated under section 107(d) as nonattainment with respect to the national primary ambient air quality standards for sulfur ox ides, nitrogen dioxide, or lead subsequent to the date of the enact ment of the Clean Air Act Amendments of 1990 shall submit to the Administrator, within 18 months of the designation, an applicable implementation plan meeting the requirements of this part. (b) STATES LACKING FULLY APPROVED STATE IMPLEMENTATION PLANS.—Any State containing an area designated nonattainment with respect to national primary ambient air quality standards for sulfur oxides or nitrogen dioxide under section 107(d)(1)(C)(i), but lacking a fully approved implementation plan complying with the requirements of this Act (including part D) as in effect immediately Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 220Sec. 192 CLEAN AIR ACT before the date of the enactment of the Clean Air Act Amendments of 1990, shall submit to the Administrator, within 18 months of the date of the enactment of the Clean Air Act Amendments of 1990, an implementation plan meeting the requirements of subpart 1 (ex cept as otherwise prescribed by section 192). [42 U.S.C. 7514] SEC. 192. ATTAINMENT DATES. (a) PLANS UNDER SECTION 191(a).—Implementation plans re quired under section 191(a) shall provide for attainment of the rel evant primary standard as expeditiously as practicable but no later than 5 years from the date of the nonattainment designation. (b) PLANS UNDER SECTION 191(b).—Implementation plans re quired under section 191(b) shall provide for attainment of the rel evant primary national ambient air quality standard within 5 years after the date of the enactment of the Clean Air Act Amend ments of 1990. (c) INADEQUATE PLANS.—Implementation plans for nonattain ment areas for sulfur oxides or nitrogen dioxide with plans that were approved by the Administrator before the date of the enact ment of the Clean Air Act Amendments of 1990 but, subsequent to such approval, were found by the Administrator to be substantially inadequate, shall provide for attainment of the relevant primary standard within 5 years from the date of such finding. [42 U.S.C. 7514a] Subpart 6—Savings Provisions Sec. 193. General savings clause. SEC. 193. GENERAL SAVINGS CLAUSE. Each regulation, standard, rule, notice, order and guidance promulgated or issued by the Administrator under this Act, as in effect before the date of the enactment of the Clean Air Act Amend ments of 1990 shall remain in effect according to its terms, except to the extent otherwise provided under this Act, inconsistent with any provision of this Act, or revised by the Administrator. No con trol requirement in effect, or required to be adopted by an order, settlement agreement, or plan in effect before the date of the enact ment of the Clean Air Act Amendments of 1990 in any area which is a nonattainment area for any air pollutant may be modified after such enactment in any manner unless the modification insures equivalent or greater emission reductions of such air pollutant. [42 U.S.C. 7515] TITLE II—EMISSION STANDARDS FOR MOVING SOURCES SHORT TITLE SEC. 201. This title may be cited as the ‘‘National Emission Standards Act.’’ [42 U.S.C. 7401 nt] Q:\COMP\ENVIR1\CLEANAIR.001 February 24, 2004 221 Sec. 202CLEAN AIR ACT PART A—MOTOR VEHICLE EMISSION AND FUEL STANDARDS ESTABLISHMENT OF STANDARDS SEC. 202. (a) Except as otherwise provided in subsection (b)— (1) The Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be antici pated to endanger public health or welfare. Such standards shall be applicable to such vehicles and engines for their useful life (as determined under subsection (d), relating to useful life of vehicles for purposes of certification), whether such vehicles and engines are designed as complete systems or incorporate devices to prevent or control such pollution. (2) Any regulation prescribed under paragraph (1) of this subsection (and any revision thereof) shall take effect after such period as the Administrator finds necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period. (3)(A) IN GENERAL—(i) Unless the standard is changed as provided in subparagraph (B), regulations under paragraph (1) of this subsection applicable to emissions of hydrocarbons, car bon monoxide, oxides of nitrogen, and particulate matter from classes or categories of heavy-duty vehicles or engines manu factured during or after model year 1983 shall contain stand ards which reflect the greatest degree of emission reduction achievable through the application of technology which the Ad ministrator determines will be available for the model year to which such standards apply, giving appropriate consideration to cost, energy, and safety factors associated with the applica tion of such technology. (ii) In establishing classes or categories of vehicles or en gines for purposes of regulations under this paragraph, the Ad ministrator may base such classes or categories on gross vehi cle weight, horsepower, type of fuel used or other appropriate factors. (B) REVISED STANDARDS FOR HEAVY DUTY TRUCKS.—(i) On the basis of information available to the Administrator con cerning the effects of air pollutants emitted from heavy-duty vehicles or engines and from other sources of mobile source re lated pollutants on the public health and welfare, and taking costs into account, the Administrator may promulgate regula tions under paragraph (1) of this subsection revising any standard promulgated under, or before the date of, the enact ment of the Clean Air Act Amendments of 1990 (or previously revised under this subparagraph) and applicable to classes or categories of heavy-duty vehicles or engines. (ii) Effective for the model year 1998 and thereafter, the regulations under paragraph (1) of this subsection applicable to emissions of oxides of nitrogen (NOx) from gasoline and diesel Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 222Sec. 202 CLEAN AIR ACT 1 Probably should refer to section 206(f). The ‘‘(1)’’ in section 206(f) was deleted by section 230(8)(A) of Public Law 101–549. fueled heavy duty trucks shall contain standards which provide that such emissions may not exceed 4.0 grams per brake horse power hour (gbh). (C) LEAD TIME AND STABILITY.—Any standard promul gated or revised under this paragraph and applicable to classes or categories of heavy-duty vehicles or engines shall apply for a period of no less than 3 model years beginning no earlier than the model year commencing 4 years after such revised standard is promulgated. (D) REBULDING PRACTICES.—The Administrator shall study the practice of rebuilding heavy-duty engines and the impact rebuilding has on engine emissions. On the basis of that study and other information available to the Administrator, the Ad ministrator may prescribe requirements to control rebuilding practices, including standards applicable to emissions from any rebuilt heavy-duty engines (whether or not the engine is past its statutory useful life), which in the Administrator’s judg ment cause, or contribute to , air pollution which may reason ably be anticipated to endanger public health or welfare taking costs into account. Any regulation shall take effect after a pe riod the Administrator finds necessary to permit the develop ment and application of the requisite control measures, giving appropriate consideration to the cost of compliance within the period and energy and safety factors. (E) MOTORCYCLES.—For purposes of this paragraph, mo torcycles and motorcycle engines shall be treated in the same manner as heavy-duty vehicles and engines (except as other wise permitted under section 206(f)(1) 1) unless the the Admin istrator promulgates a rule reclassifying motorcycles as light duty vehicles within the meaning of this section or unless the Administrator promulgates regulations under subsection (a) applying standards applicable to the emission of air pollutants from motorcycles as a separate class or category. In any case in which such standards are promulgated for such emissions from motorcycles as a separate class or category, the Adminis trator, in promulgating such standards, shall consider the need to achieve equivalency of emission reductions between motor cycles and other motor vehicles to the maximum extent prac ticable. (4)(A) Effective with respect to vehicles and engines manu factured after model year 1978, no emission control device, sys tem, or element of design shall be used in a new motor vehicle or new motor vehicle engine for purposes of complying with re quirements prescribed under this title if such device, system, or element of design will cause or contribute to an unreason able risk to public health, welfare, or safety in its operation or function. (B) In determining whether an unreasonable risk exists under subparagraph (A), the Administrator shall consider, among other factors, (i) whether and to what extent the use of any device, system, or element of design causes, increases, re Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 223 Sec. 202CLEAN AIR ACT duces, or eliminates emissions of any unregulated pollutants; (ii) available methods for reducing or eliminating any risk to public health, welfare, or safety which may be associated with the use of such device, system, or element of design, and (iii) the availability of other devices, systems, or elements of design which may be used to conform to requirements prescribed under this title without causing or contributing to such unrea sonable risk. The Administrator shall include in the consider ation required by this paragraph all relevant information de veloped pursuant to section 214. (5)(A) If the Administrator promulgates final regulations which define the degree of control required and the test proce dures by which compliance could be determined for gasoline vapor recovery of uncontrolled emissions from the fueling of motor vehicles, the Administrator shall, after consultation with the Secretary of Transportation with respect to motor vehicle safety, prescribe, by regulation, fill pipe standards for new motor vehicles in order to insure effective connection between such fill pipe and any vapor recovery system which the Admin istrator determines may be required to comply with such vapor recovery regulations. In promulgating such standards the Ad ministrator shall take into consideration limits on fill pipe di ameter, minimum design criteria for nozzle retainer lips, limits on the location of the unleaded fuel restrictors, a minimum ac cess zone surrounding a fill pipe, a minimum pipe or nozzle in sertion angle, and such other factors as he deems pertinent. (B) Regulations prescribing standards under subparagraph (A) shall not become effective until the introduction of the model year for which it would be feasible to implement such standards, taking into consideration the restraints of an ade quate leadtime for design and production. (C) Nothing in subparagraph (A) shall (i) prevent the Ad ministrator from specifying different nozzle and fill neck sizes for gasoline with additives and gasoline without additives or (ii) permit the Administrator to require a specific location, con figuration, modeling, or styling of the motor vehicle body with respect to the fuel tank fill neck or fill nozzle clearance enve lope. (D) For the purpose of this paragraph, the term ‘‘fill pipe’’ shall include the fuel tank fill pipe, fill neck, fill inlet, and clo sure. (6) ONBOARD VAPOR RECOVERY.—Within 1 year after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall, after consultation with the Sec retary of Transportation regarding the safety of vehicle-based (‘‘onboard’’) systems for the control of vehicle refueling emis sions, promulgate standards under this section requiring that new light-duty vehicles manufactured beginning in the fourth model year after the model year in which the standards are promulgated and thereafter shall be equipped with such sys tems. The standards required under this paragraph shall apply to a percentage of each manufacturer’s fleet of new light-duty vehicles beginning with the fourth model year after the model Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 224Sec. 202 CLEAN AIR ACT year in which the standards are promulgated. The percentage shall be as specified in the following table: IMPLEMENTATION SCHEDULE FOR ONBOARD VAPOR RECOVERY REQUIREMENTS Model year commencing after standards promulgated Percentage * Fourth ........................................................................................................ 40 Fifth ........................................................................................................... 80 After Fifth .................................................................................................. 100 * Percentages in the table refer to a percentage of the manufacturer’s sales volume. The standards shall require that such systems provide a min imum evaporative emission capture efficiency of 95 percent. The requirements of section 182(b)(3) (relating to stage II gaso line vapor recovery) for areas classified under section 181 as moderate for ozone shall not apply after promulgation of such standards and the Administrator may, by rule, revise or waive the application of the requirements of such section 182(b)(3) for areas classified under section 181 as Serious, Severe, or Ex treme for ozone, as appropriate, after such time as the Admin istrator determines that onboard emissions control systems re quired under this paragraph are in widespread use throughout the motor vehicle fleet. (b)(1)(A) The regulations under subsection (a) applicable to emissions of carbon monoxide and hydrocarbons from light-duty ve hicles and engines manufactured during model years 1977 through 1979 shall contain standards which provide that such emissions from such vehicles and engines may not exceed 1.5 grams per vehi cle mile of hydrocarbons and 15.0 grams per vehicle mile of carbon monoxide. The regulations under subsection (a) applicable to emis sions of carbon monoxide from light-duty vehicles and engines manufactured during the model year 1980 shall contain standards which provide that such emissions may not exceed 7.0 grams per vehicle mile. The regulations under subsection (a) applicable to emissions of hydrocarbons from light-duty vehicles and engines manufactured during or after model year 1980 shall contain stand ards which require a reduction of at least 90 percent from emis sions of such pollutant allowable under the standards under this section applicable to light-duty vehicles and engines manufactured in model year 1970. Unless waived as provided in paragraph (5), regulations under subsection (a) applicable to emissions of carbon monoxide from light-duty vehicles and engines manufactured dur ing or after the model year 1981 shall contain standards which re quire a reduction of at least 90 percent from emissions of such pol lutant allowable under the standards under this section applicable to light-duty vehicles and engines manufactured in model year 1970. (B) The regulations under subsection (a) applicable to emis sions of oxides of nitrogen from light-duty vehicles and engines manufactured during model years 1977 through 1980 shall contain standards which provide that such emissions from such vehicles and engines may not exceed 2.0 grams per vehicle mile. The regu lations under subsection (a) applicable to emissions of oxides of ni Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 225 Sec. 202CLEAN AIR ACT 1 Section 230(4)(C) of Public Law 101–549 (104 Stat. 2529) redesignated section 202(b)(6) as section 202(b)(3) without repealing or redesignating the preexisting section 202(b)(3). 2 Subparagraph (B) repealed by section 230(1) of P.L. 101–549, (104 Stat. 2529). trogen from light-duty vehicles and engines manufactured during the model year 1981 and thereafter shall contain standards which provide that such emissions from such vehicles and engines may not exceed 1.0 gram per vehicle mile. The Administrator shall pre scribe standards in lieu of those required by the preceding sentence which provide that emissions of oxides of nitrogen may not exceed 2.0 grams per vehicle mile for any light-duty vehicle manufactured during model years 1981 and 1982 by any manufacturer whose pro duction, by corporate identity, for calendar year 1976 was less than three hundred thousand light-duty motor vehicles worldwide if the Administrator determines that— (i) the ability of such manufacturer to meet emission standards in the 1975 and subsequent model years was, and is, primarily dependent upon technology developed by other manufacturers and purchased from such manufacturers; and (ii) such manufacturer lacks the financial resources and technological ability to develop such technology. (C) The Administrator may promulgate regulations under sub section (a)(1) revising any standard prescribed or previously revised under this subsection, as needed to protect public health or welfare, taking costs, energy, and safety into account. Any revised standard shall require a reduction of emissions from the standard that was previously applicable. Any such revision under this title may pro vide for a phase-in of the standard. It is the intent of Congress that the numerical emission standards specified in subsections (a)(3)(B)(ii), (g), (h), and (i) shall not be modified by the Adminis trator after the enactment of the Clean Air Act Amendments of 1990 for any model year before the model year 2004. (2) Emission standards under paragraph (1), and measurement techniques on which such standards are based (if not promulgated prior to the date of the enactment of the Clean Air Act Amend ments of 1990), shall be promulgated by regulation within 180 days after such date. (3) 1 For purposes of this part— (A)(i) The term ‘‘model year’’ with reference to any specific calendar year means the manufacturer’s annual production pe riod (as determined by the Administrator) which includes Jan uary 1 of such calendar year. If the manufacturer has no an nual production period, the term ‘‘model year’’ shall mean the calendar year. (ii) For the purpose of assuring that vehicles and engines manufactured before the beginning of a model year were not manufactured for purposes of circumventing the effective date of a standard required to be prescribed by subsection (b), the Administrator may prescribe regulations defining ‘‘model year’’ otherwise than as provided in clause (i). [(B)] 2 (C) The term ‘‘heavy duty vehicle’’ means a truck, bus, or other vehicle manufactured primarily for use on the public streets, roads, and highways (not including any vehicle oper ated exclusively on a rail or rails) which has a gross vehicle Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 226Sec. 202 CLEAN AIR ACT 1 So in original. Probably should be ‘‘paragraph’’. weight (as determined under regulations promulgated by the Administrator) in excess of six thousand pounds. Such term in cludes any such vehicle which has special features enabling off street or off-highway operation and use. (3) Upon the petition of any manufacturer, the Administrator, after notice and opportunity for public hearing, may waive the standard required under subparagraph (B) of paragraph (1) to not exceed 1.5 grams of oxides of nitrogen per vehicle mile for any class or category of light-duty vehicles or engines manufactured by such manufacturer during any period of up to four model years begin ning after the model year 1980 if the manufacturer demonstrates that such waiver is necessary to permit the use of an innovative power train technology, or innovative emission control device or system, in such class or category of vehicles or engines and that such technology or system was not utilized by more than 1 percent of the light-duty vehicles sold in the United States in the 1975 model year. Such waiver may be granted only if the Administrator determines— (A) that such waiver would not endanger public health, (B) that there is a substantial likelihood that the vehicles or engines will be able to comply with the applicable standard under this section at the expiration of the waiver, and (C) that the technology or system has a potential for long term air quality benefit and has the potential to meet or ex ceed the average fuel economy standard applicable under the Energy Policy and Conservation Act upon the expiration of the waiver. No waiver under this subparagraph 1 granted to any manufacturer shall apply to more than 5 percent of such manufacturer’s produc tion or more than fifty thousand vehicles or engines, whichever is greater. (c)(1) The Administrator shall undertake to enter into appro priate arrangements with the National Academy of Sciences to con duct a comprehensive study and investigation of the technological feasibility of meeting the emissions standards required to be pre scribed by the Administrator by subsection (b) of this section. (2) Of the funds authorized to be appropriated to the Adminis trator by this Act, such amounts as are required shall be available to carry out the study and investigation authorized by paragraph (1) of this subsection. (3) In entering into any arrangement with the National Acad emy of Sciences for conducting the study and investigation author ized by paragraph (1) of this subsection, the Administrator shall re quest the National Academy of Sciences to submit semiannual re ports on the progress of its study and investigation to the Adminis trator and the Congress, beginning not later than July 1, 1971, and continuing until such study and investigation is completed. (4) The Administrator shall furnish to such Academy at its re quest any information which the Academy deems necessary for the purpose of conducting the investigation and study authorized by paragraph (1) of this subsection. For the purpose of furnishing such information, the Administrator may use any authority he has Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 227 Sec. 202CLEAN AIR ACT 1 Section 207(b) of Public Law 101–549 (104 Stat. 2482) amended section 202 by adding a new subsection (f) without repealing or redesignating the preexisting (f). The new subsection (f) was added at the end of section 202, not after subsection (e) as it is shown in the text in this com pilation. under this Act (A) to obtain information from any person, and (B) to require such person to conduct such tests, keep such records, and make such reports respecting research or other activities con ducted by such person as may be reasonably necessary to carry out this subsection. (d) The Administrator shall prescribe regulations under which the useful life of vehicles and engines shall be determined for pur poses of subsection (a)(1) of this section and section 207. Such regu lations shall provide that except where a different useful life period is specified in this title useful life shall— (1) in the case of light duty vehicles and light duty vehicle engines and light-duty trucks up to 3,750 lbs. LVW and up to 6,000 lbs. GVWR, be a period of use of five years or of fifty thousand miles (or the equivalent), whichever first occurs, ex cept that in the case of any requirement of this section which first becomes applicable after the enactment of the Clean Air Act Amendments of 1990 where the useful life period is not otherwise specified for such vehicles and engines, the period shall be 10 years or 100,000 miles (or the equivalent), which ever first occurs, with testing for purposes of in-use compliance under section 207 up to (but not beyond) 7 years or 75,000 miles (or the equivalent), whichever first occurs; (2) in the case of any other motor vehicle or motor vehicle engine (other than motorcycles or motorcycle engines) be a pe riod of use set forth in paragraph (1) unless the Administrator determines that a period of use of greater duration or mileage is appropriate; and (3) in the case of any motorcycle or motorcycle engine, be a period of use the Administrator shall determine. (e) In the event a new power source or propulsion system for new motor vehicles or new motor vehicle engines is submitted for certification pursuant to section 206(a), the Administrator may postpone certification until he has prescribed standards for any air pollutants emitted by such vehicle or engine which in his judgment cause or contribute to, air pollution which may reasonably be an ticipated to endanger the public health or welfare but for which standards have not been prescribed under subsection (a). (f) 1(1) The high altitude regulation in effect with respect to model year 1977 motor vehicles shall not apply to the manufacture, distribution, or sale of 1978 and later model year motor vehicles. Any future regulation affecting the sale or distribution of motor ve hicles or engines manufactured before the model year 1984 in high altitude areas of the country shall take effect no earlier than model year 1981. (2) Any such future regulation applicable to high altitude vehi cles or engines shall not require a percentage of reduction in the emissions of such vehicles which is greater than the required per centage of reduction in emissions from motor vehicles as set forth in section 202(b). This percentage reduction shall be determined by comparing any proposed high altitude emission standards to high Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 228Sec. 202 CLEAN AIR ACT 1 See footnote 1 on previous page. 2 The phrase ‘‘prior to model year 1994’’ is inconsistent with the table and with the subsection heading. It probably should read ‘‘For model years after 1990’’. altitude emissions from vehicles manufactured during model year 1970. In no event shall regulations applicable to high altitude vehi cles manufactured before the model year 1984 establish a numer ical standard which is more stringent than that applicable to vehi cles certified under non-high altitude conditions. (3) Section 307(d) shall apply to any high altitude regulation referred to in paragraph (2) and before promulgating any such reg ulation, the Administrator shall consider and make a finding with respect to— (A) the economic impact upon consumers, individual high altitude dealers, and the automobile industry of any such regu lation, including the economic impact which was experienced as a result of the regulation imposed during model year 1977 with respect to high altitude certification requirements; (B) the present and future availability of emission control technology capable of meeting the applicable vehicle and en gine emission requirements without reducing model avail ability; and (C) the likelihood that the adoption of such a high altitude regulation will result in any significant improvement in air quality in any area to which it shall apply. (f) 1 MODEL YEARS AFTER 1990.—For model years prior to model year 1994, 2 the regulations under section 202(a) applicable to buses other than those subject to standards under section 219 shall contain a standard which provides that emissions of particu late matter (PM) from such buses may not exceed the standards set forth in the following table: PM STANDARD FOR BUSES Model year Standard * 1991 ............................................................................................................ 0.25 1992 ............................................................................................................ 0.25 1993 and thereafter .................................................................................. 0.10 * Standards are expressed in grams per brake horsepower hour (g/bhp/hr). (g) LIGHT-DUTY TRUCKS UP TO 6,000 LBS. GVWR AND LIGHT DUTY VEHICLES; STANDARDS FOR MODEL YEARS AFTER 1993.— (1) NMHC, CO, AND NOx.—Effective with respect to the model year 1994 and thereafter, the regulations under sub section (a) applicable to emissions of nonmethane hydrocarbons (NMHC), carbon monoxide (CO), and oxides of nitrogen (NOx) from light-duty trucks (LDTs) of up to 6,000 lbs. gross vehicle weight rating (GVWR) and light-duty vehicles (LDVs) shall contain standards which provide that emissions from a per centage of each manufacturer’s sales volume of such vehicles and trucks shall comply with the levels specified in table G. The percentage shall be as specified in the implementation schedule below: Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 229 Sec. 202CLEAN AIR ACT TABLE G—EMISSION STANDARDS FOR NMHC, CO, AND NOx FROM LIGHT-DUTY TRUCKS OF UP TO 6,000 LBS. GVWR AND LIGHT-DUTY VEHICLES Vehicle type Column A Column B (5 yrs/50,000 mi) (10 yrs/100,000 mi) NMHC CO NOx NMHC CO NOx LDTs (0–3,750 lbs. LVW) and light duty vehicles ................................... 0.25 3.4 0.4* 0.31 4.2 0.6* LDTs (3,751–5,750 lbs. LVW) ........... 0.32 4.4 0.7** 0.40 5.5 0.97 Standards are expressed in grams per mile (gpm). For standards under column A, for purposes of certification under section 206, the applicable useful life shall be 5 years or 50,000 miles (or the equivalent), whichever first occurs. For standards under column B, for purposes of certification under section 206, the applicable useful life shall be 10 years or 100,000 miles (or the equivalent), whichever first occurs. * In the case of diesel-fueled LDTs (0–3,750 LVW) and light-duty vehicles, before the model year 2004, in lieu of the 0.4 and 0.6 standards for NOx, the applicable standards for NOx shall be 1.0 gpm for a useful life of 5 years or 50,000 miles (or the equivalent), whichever first occurs, and 1.25 gpm for a useful life of 10 years or 100,000 miles (or the equivalent) whichever first occurs. ** This standard does not apply to diesel-fueled LDTs (3,751–5,750 lbs. LVW). IMPLEMENTATION SCHEDULE FOR TABLE G STANDARDS Model year Percentage * 1994 ............................................................................................................ 40 1995 ............................................................................................................ 80 after 1995 .................................................................................................. 100 * Percentages in the table refer to a percentage of each manufacturer’s sales volume. (2) PM STANDARD.—Effective with respect to model year 1994 and thereafter in the case of light-duty vehicles, and ef fective with respect to the model year 1995 and thereafter in the case of light-duty trucks (LDTs) of up to 6,000 lbs. gross vehicle weight rating (GVWR), the regulations under sub section (a) applicable to emissions of particulate matter (PM) from such vehicles and trucks shall contain standards which provide that such emissions from a percentage of each manu facturer’s sales volume of such vehicles and trucks shall not ex ceed the levels specified in the table below. The percentage shall be as specified in the Implementation Schedule below. PM STANDARD FOR LDTS OF UP TO 6,000 lbs. GVWR Useful life period Standard 5/50,000 ...................................................................................................... 0.08 gpm 10/100,000 .................................................................................................. 0.10 gpm The applicable useful life, for purposes of certification under section 206 and for purposes of in-use compliance under section 207, shall be 5 years or 50,000 miles (or the equivalent), which ever first occurs, in the case of the 5/50,000 standard. The applicable useful life, for purposes of certification under section 206 and for purposes of in-use compliance under section 207, shall be 10 years or 100,000 miles (or the equivalent), whichever first occurs in the case of the 10/100,000 standard. Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 230Sec. 202 CLEAN AIR ACT IMPLEMENTATION SCHEDULE FOR PM STANDARDS Model year Light-dutyvehicles LDTs 1994 .................................................................................. 40%* 1995 .................................................................................. 80%* 40%* 1996 .................................................................................. 100%* 80%* after 1996 ......................................................................... 100%* 100%* * Percentages in the table refer to a percentage of each manufacturer’s sales volume. (h) LIGHT-DUTY TRUCKS OF MORE THAN 6,000 LBS. GVWR; STANDARDS FOR MODEL YEARS AFTER 1995.—Effective with respect to the model year 1996 and thereafter, the regulations under sub section (a) applicable to emissions of nonmethane hydrocarbons (NMHC), carbon monoxide (CO), oxides of nitrogen (NOx), and par ticulate matter (PM) from light-duty trucks (LDTs) of more than 6,000 lbs. gross vehicle weight rating (GVWR) shall contain stand ards which provide that emissions from a specified percentage of each manufacturer’s sales volume of such trucks shall comply with the levels specified in table H. The specified percentage shall be 50 percent in model year 1996 and 100 percent thereafter. TABLE H—EMISSION STANDARDS FOR NMHC AND CO FROM GASOLINE AND DIESEL FUELED LIGHT-DUTY TRUCKS OF MORE THAN 6,000 LBS. GVWR LDT Test weight Column A Column B (5 yrs/50,000 mi) (11 yrs/120,000 mi) NMHC CO NOx NMHC CO NOx PM 3,751–5,750 lbs. TW ................ 0.32 4.4 0.7* 0.46 6.4 0.98 0.10 Over 5,750 lbs. TW .................. 0.39 5.0 1.1* 0.56 7.3 1.53 0.12 Standards are expressed in grams per mile (GPM). For standards under column A, for purposes of certification under section 206, the applicable useful life shall be 5 years or 50,000 miles (or the equivalent) whichever first occurs. For standards under column B, for purposes of certification under section 206, the applicable useful life shall be 11 years or 120,000 miles (or the equivalent), whichever first occurs. * Not applicable to diesel-fueled LDTs. (i) PHASE II STUDY FOR CERTAIN LIGHT-DUTY VEHICLES AND LIGHT-DUTY TRUCKS.—(1) The Administrator, with the participa tion of the Office of Technology Assessment, shall study whether or not further reductions in emissions from light-duty vehicles and light-duty trucks should be required pursuant to this title. The study shall consider whether to establish with respect to model years commencing after January 1, 2003, the standards and useful life period for gasoline and diesel-fueled light-duty vehicles and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs. or less specified in the following table: TABLE 3—PENDING EMISSION STANDARDS FOR GASOLINE AND DIESEL1 FUELED LIGHT-DUTY VEHICLES AND LIGHT-DUTY TRUCKS 3,750 LBS. LVW OR LESS Pollutant Emission level * NMHC ............................................................................................. 0.125 GPM Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 231 Sec. 202CLEAN AIR ACT Pollutant Emission level * NOx .................................................................................................. 0.2 GPM CO ................................................................................................... 1.7 GPM * Emission levels are expressed in grams per mile (GPM). For vehicles and engines subject to this subsection for purposes of section 202(d) and any reference thereto, the useful life of such vehicles and engines shall be a period of 10 years or 100,000 miles (or the equivalent), which ever first occurs. 1 Probably should be ‘‘DIESEL-FUELED’’. Such study shall also consider other standards and useful life peri ods which are more stringent or less stringent than those set forth in table 3 (but more stringent than those referred to in subsections (g) and (h)). (2)(A) As part of the study under paragraph (1), the Adminis trator shall examine the need for further reductions in emissions in order to attain or maintain the national ambient air quality standards, taking into consideration the waiver provisions of sec tion 209(b). As part of such study, the Administrator shall also examine— (i) the availability of technology (including the costs there of), in the case of light-duty vehicles and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs. or less, for meeting more stringent emission standards than those provided in sub sections (g) and (h) for model years commencing not earlier than after January 1, 2003, and not later than model year 2006, including the lead time and safety and energy impacts of meeting more stringent emission standards; and (ii) the need for, and cost effectiveness of, obtaining further reductions in emissions from such light-duty vehicles and light duty trucks, taking into consideration alternative means of at taining or maintaining the national primary ambient air qual ity standards pursuant to State implementation plans and other requirements of this Act, including their feasibility and cost effectiveness. (B) The Administrator shall submit a report to Congress no later than June 1, 1997, containing the results of the study under this subsection, including the results of the examination conducted under subparagraph (A). Before submittal of such report the Ad ministrator shall provide a reasonable opportunity for public com ment and shall include a summary of such comments in the report to Congress. (3)(A) Based on the study under paragraph (1) the Adminis trator shall determine, by rule, within 3 calendar years after the report is submitted to Congress, but not later than December 31, 1999, whether— (i) there is a need for further reductions in emissions as provided in paragraph (2)(A); (ii) the technology for meeting more stringent emission standards will be available, as provided in paragraph (2)(A)(i), in the case of light-duty vehicles and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs. or less, for model years commencing not earlier than January 1, 2003 and not later than model year 2006, considering the factors listed in paragraph (2)(A)(i); and Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 232Sec. 202 CLEAN AIR ACT (iii) obtaining further reductions in emissions from such vehicles will be needed and cost effective, taking into consider ation alternatives as provided in paragraph (2)(A)(ii). The rulemaking under this paragraph shall commence within 3 months after submission of the report to Congress under paragraph (2)(B). (B) If the Administrator determines under subparagraph (A) that— (i) there is no need for further reductions in emissions as provided in paragraph (2)(A); (ii) the technology for meeting more stringent emission standards will not be available as provided in paragraph (2)(A)(i), in the case of light-duty vehicles and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs. or less, for model years commencing not earlier than January 1, 2003, and not later than model year 2006, considering the factors listed in paragraph (2)(A)(i); or (iii) obtaining further reductions in emissions from such vehicles will not be needed or cost effective, taking into consid eration alternatives as provided in paragraph (2)(A)(ii), the Administrator shall not promulgate more stringent standards than those in effect pursuant to subsections (g) and (h). Nothing in this paragraph shall prohibit the Administrator from exercising the Administrator’s authority under subsection (a) to promulgate more stringent standards for light-duty vehicles and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs. or less at any other time thereafter in accordance with subsection (a). (C) If the Administrator determines under subparagraph (A) that— (i) there is a need for further reductions in emissions as provided in paragraph (2)(A); (ii) the technology for meeting more stringent emission standards will be available, as provided in paragraph (2)(A)(i), in the case of light-duty vehicles and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs. or less, for model years commencing not earlier than January 1, 2003, and not later than model year 2006, considering the factors listed in paragraph (2)(A)(i); and (iii) obtaining further reductions in emissions from such vehicles will be needed and cost effective, taking into consider ation alternatives as provided in paragraph (2)(A)(ii), the Administrator shall either promulgate the standards (and use ful life periods) set forth in Table 3 in paragraph (1) or promulgate alternative standards (and useful life periods) which are more stringent than those referred to in subsections (g) and (h). Any such standards (or useful life periods) promulgated by the Adminis trator shall take effect with respect to any such vehicles or engines no earlier than the model year 2003 but not later than model year 2006, as determined by the Administrator in the rule. (D) Nothing in this paragraph shall be construed by the Ad ministrator or by a court as a presumption that any standards (or useful life period) set forth in Table 3 shall be promulgated in the rulemaking required under this paragraph. The action required of the Administrator in accordance with this paragraph shall be treat Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 233 Sec. 202CLEAN AIR ACT ed as a nondiscretionary duty for purposes of section 304(a)(2) (re lating to citizen suits). (E) Unless the Administrator determines not to promulgate more stringent standards as provided in subparagraph (B) or to postpone the effective date of standards referred to in Table 3 in paragraph (1) or to establish alternative standards as provided in subparagraph (C), effective with respect to model years com mencing after January 1, 2003, the regulations under subsection (a) applicable to emissions of nonmethane hydrocarbons (NMHC), oxides of nitrogen (NOx), and carbon monoxide (CO) from motor ve hicles and motor vehicle engines in the classes specified in Table 3 in paragraph (1) above shall contain standards which provide that emissions may not exceed the pending emission levels speci fied in Table 3 in paragraph (1). (j) COLD CO STANDARD.— (1) PHASE I.—Not later than 12 months after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate regulations under subsection (a) of this section applicable to emissions of carbon monoxide from 1994 and later model year light-duty vehicles and light duty trucks when operated at 20 degrees Fahrenheit. The reg ulations shall contain standards which provide that emissions of carbon monoxide from a manufacturer’s vehicles when oper ated at 20 degrees Fahrenheit may not exceed, in the case of light-duty vehicles, 10.0 grams per mile, and in the case of light-duty trucks, a level comparable in stringency to the standard applicable to light-duty vehicles. The standards shall take effect after model year 1993 according to a phase-in schedule which requires a percentage of each manufacturer’s sales volume of light-duty vehicles and light-duty trucks to comply with applicable standards after model year 1993. The percentage shall be as specified in the following table: PHASE-IN SCHEDULE FOR COLD START STANDARDS Model Year Percentage 1994 ............................................................................................................ 40 1995 ............................................................................................................ 80 1996 and after ........................................................................................... 100 (2) PHASE II.—(A) Not later than June 1, 1997, the Admin istrator shall complete a study assessing the need for further reductions in emissions of carbon monoxide and the maximum reductions in such emissions achievable from model year 2001 and later model year light-duty vehicles and light-duty trucks when operated at 20 degrees Fahrenheit. (B)(i) If as of June 1, 1997, 6 or more nonattainment areas have a carbon monoxide design value of 9.5 ppm or greater, the regulations under subsection (a)(1) of this section applicable to emissions of carbon monoxide from model year 2002 and later model year light-duty vehicles and light-duty trucks shall con tain standards which provide that emissions of carbon mon oxide from such vehicles and trucks when operated at 20 de grees Fahrenheit may not exceed 3.4 grams per mile (gpm) in Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 234Sec. 202 CLEAN AIR ACT the case of light-duty vehicles and 4.4 grams per mile (gpm) in the case of light-duty trucks up to 6,000 GVWR and a level comparable in stringency in the case of light-duty trucks 6,000 GVWR and above. (ii) In determining for purposes of this subparagraph whether 6 or more nonattainment areas have a carbon mon oxide design value of 9.5 ppm or greater, the Administrator shall exclude the areas of Steubenville, Ohio, and Oshkosh, Wisconsin. (3) USEFUL-LIFE FOR PHASE I AND PHASE II STANDARDS.— In the case of the standards referred to in paragraphs (1) and (2), for purposes of certification under section 206 and in-use compliance under section 207, the applicable useful life period shall be 5 years or 50,000 miles, whichever first occurs, except that the Administrator may extend such useful life period (for purposes of section 206, or section 207, or both) if he deter mines that it is feasible for vehicles and engines subject to such standards to meet such standards for a longer useful life. If the Administrator extends such useful life period, the Ad ministrator may make an appropriate adjustment of applicable standards for such extended useful life. No such extended use ful life shall extend beyond the useful life period provided in regulations under subsection (d). (4) HEAVY-DUTY VEHICLES AND ENGINES.—The Adminis trator may also promulgate regulations under subsection (a)(1) applicable to emissions of carbon monoxide from heavy-duty vehicles and engines when operated at cold temperatures. (k) CONTROL OF EVAPORATIVE EMISSIONS.—The Administrator shall promulgate (and from time to time revise) regulations appli cable to evaporative emissions of hydrocarbons from all gasoline fueled motor vehicles— (1) during operation; and (2) over 2 or more days of nonuse; under ozone-prone summertime conditions (as determined by regu lations of the Administrator). The regulations shall take effect as expeditiously as possible and shall require the greatest degree of emission reduction achievable by means reasonably expected to be available for production during any model year to which the regula tions apply, giving appropriate consideration to fuel volatility, and to cost, energy, and safety factors associated with the application of the appropriate technology. The Administrator shall commence a rulemaking under this subsection within 12 months after the date of the enactment of the Clean Air Act Amendments of 1990. If final regulations are not promulgated under this subsection with in 18 months after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall submit a statement to the Congress containing an explanation of the reasons for the delay and a date certain for promulgation of such final regulations in accordance with this Act. Such date certain shall not be later than 15 months after the expiration of such 18 month deadline. (l) MOBILE SOURCE-RELATED AIR TOXICS.— (1) STUDY.—Not later than 18 months after the date of the enactment of the Clean Air Act Amendments of 1990, the Ad ministrator shall complete a study of the need for, and feasi Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 235 Sec. 202CLEAN AIR ACT 1 So in original. Should be a hyphen between ‘‘3’’ and ‘‘butadiene’’. bility of, controlling emissions of toxic air pollutants which are unregulated under this Act and associated with motor vehicles and motor vehicle fuels, and the need for, and feasibility of, controlling such emissions and the means and measures for such controls. The study shall focus on those categories of emissions that pose the greatest risk to human health or about which significant uncertainties remain, including emissions of benzene, formaldehyde, and 1, 3 1 butadiene. The proposed re port shall be available for public review and comment and shall include a summary of all comments. (2) STANDARDS.—Within 54 months after the date of the enactment of the Clean Air Act Amendments of 1990, the Ad ministrator shall, based on the study under paragraph (1), pro mulgate (and from time to time revise) regulations under sub section (a)(1) or section 211(c)(1) containing reasonable require ments to control hazardous air pollutants from motor vehicles and motor vehicle fuels. The regulations shall contain stand ards for such fuels or vehicles, or both, which the Adminis trator determines reflect the greatest degree of emission reduc tion achievable through the application of technology which will be available, taking into consideration the standards es tablished under subsection (a), the availability and costs of the technology, and noise, energy, and safety factors, and lead time. Such regulations shall not be inconsistent with standards under section 202(a). The regulations shall, at a minimum, apply to emissions of benzene and formaldehyde. (m) EMISSIONS CONTROL DIAGNOSTICS.— (1) REGULATIONS.—Within 18 months after the enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate regulations under subsection (a) requiring manufacturers to install on all new light duty vehicles and light duty trucks diagnostics systems capable of— (A) accurately identifying for the vehicle’s useful life as established under this section, emission-related systems deterioration or malfunction, including, at a minimum, the catalytic converter and oxygen sensor, which could cause or result in failure of the vehicles to comply with emission standards established under this section, (B) alerting the vehicle’s owner or operator to the like ly need for emission-related components or systems main tenance or repair, (C) storing and retrieving fault codes specified by the Administrator, and (D) providing access to stored information in a manner specified by the Administrator. The Administrator may, in the Administrator’s discretion, pro mulgate regulations requiring manufacturers to install such onboard diagnostic systems on heavy-duty vehicles and en gines. (2) EFFECTIVE DATE.—The regulations required under paragraph (1) of this subsection shall take effect in model year 1994, except that the Administrator may waive the application Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 236Sec. 202 CLEAN AIR ACT of such regulations for model year 1994 or 1995 (or both) with respect to any class or category of motor vehicles if the Admin istrator determines that it would be infeasible to apply the reg ulations to that class or category in such model year or years, consistent with corresponding regulations or policies adopted by the California Air Resources Board for such systems. (3) STATE INSPECTION.—The Administrator shall by regula tion require States that have implementation plans containing motor vehicle inspection and maintenance programs to amend their plans within 2 years after promulgation of such regula tions to provide for inspection of onboard diagnostics systems (as prescribed by regulations under paragraph (1) of this sub section) and for the maintenance or repair of malfunctions or system deterioration identified by or affecting such diagnostics systems. Such regulations shall not be inconsistent with the provisions for warranties promulgated under section 207(a) and (b). (4) SPECIFIC REQUIREMENTS.—In promulgating regulations under this subsection, the Administrator shall require— (A) that any connectors through which the emission control diagnostics system is accessed for inspection, diag nosis, service, or repair shall be standard and uniform on all motor vehicles and motor vehicle engines; (B) that access to the emission control diagnostics sys tem through such connectors shall be unrestricted and shall not require any access code or any device which is only available from a vehicle manufacturer; and (C) that the output of the data from the emission con trol diagnostics system through such connectors shall be usable without the need for any unique decoding informa tion or device. (5) INFORMATION AVAILABILITY.—The Administrator, by regulation, shall require (subject to the provisions of section 208(c) regarding the protection of methods or processes entitled to protection as trade secrets) manufacturers to provide promptly to any person engaged in the repairing or servicing of motor vehicles or motor vehicle engines, and the Adminis trator for use by any such persons, with any and all informa tion needed to make use of the emission control diagnostics system prescribed under this subsection and such other infor mation including instructions for making emission related di agnosis and repairs. No such information may be withheld under section 208(c) if that information is provided (directly or indirectly) by the manufacturer to franchised dealers or other persons engaged in the repair, diagnosing, or servicing of motor vehicles or motor vehicle engines. Such information shall also be available to the Administrator, subject to section 208(c), in carrying out the Administrator’s responsibilities under this section. [42 U.S.C. 7521] Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 237 Sec. 203CLEAN AIR ACT 1 So in original. Probably should be followed by a comma. PROHIBITED ACTS SEC. 203. (a) The following acts and the causing thereof are prohibited— (1) in the case of a manufacturer of new motor vehicles or new motor vehicle engines for distribution in commerce, the sale, or the offering for sale, or the introduction, or delivery for introduction, into commerce, or (in the case of any person, ex cept as provided by regulation of the Administrator), the im portation into the United States, of any new motor vehicle or new motor vehicle engine, manufactured after the effective date of regulations under this part which are applicable to such vehicle or engine unless such vehicle or engine is covered by a certificate of conformity issued (and in effect) under regu lations prescribed under this part or part C in the case of clean-fuel vehicles (except as provided in subsection (b)); (2)(A) for any person to fail or refuse to permit access to or copying of records or to fail to make reports or provide infor mation required under section 208; (B) for any person to fail or refuse to permit entry, testing or inspection authorized under section 206(c) or section 208; (C) for any person to fail or refuse to perform tests, or have tests performed as required under section 208; (D) for any manufacturer to fail to make information avail able as provided by regulation under section 202(m)(5); (3)(A) for any person to remove or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with regulations under this title prior to its sale and delivery to the ultimate pur chaser, or for any person knowingly to remove or render inop erative any such device or element of design after such sale and delivery to the ultimate purchaser; or (B) for any person to manufacture or sell, or offer to sell, or install, any part or component intended for use with, or as part of, any motor vehicle or motor vehicle engine, where a principal effect of the part or component is to bypass, defeat, or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with regulations under this title, and where the person knows or should know that such part or component is being offered for sale or installed for such use or put to such use; or (4) for any manufacturer of a new motor vehicle or new motor vehicle engine subject to standards prescribed under sec tion 202 or Part C— (A) to sell or lease any such vehicle or engine unless such manufacturer has complied with (i) the requirements of section 207 (a) and (b) with respect to such vehicle or engine, and unless a label or tag is affixed to such vehicle or engine in accordance with section 207(c)(3), or (ii) the corresponding requirements of part C in the case of clean fuel vehicles unless the manufacturer has complied with the corresponding requirements of part C 1 Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 238Sec. 203 CLEAN AIR ACT (B) to fail or refuse to comply with the requirements of section 207 (c) or (e), or the corresponding requirements of part C in the case of clean fuel vehicles 1 (C) except as provided in subsection (c)(3) of section 207 and the corresponding requirements of part C in the case of clean fuel vehicles, to provide directly or indirectly in any communication to the ultimate purchaser or any subsequent purchaser that the coverage of any warranty under this Act is conditioned upon use of any part, compo nent, or system manufactured by such manufacturer or any person acting for such manufacturer or under his con trol, or conditioned upon service performed by any such person, or (D) to fail or refuse to comply with the terms and con ditions of the warranty under section 207 (a) or (b) or the corresponding requirements of part C in the case of clean fuel vehicles with respect to any vehicle; or (5) for any person to violate section 218, 219, or part C of this title or any regulations under section 218, 219, or part C. No action with respect to any element of design referred to in para graph (3) (including any adjustment or alteration of such element) shall be treated as a prohibited act under such paragraph (3) if such action is in accordance with section 215. Nothing in para graph (3) shall be construed to require the use of manufacturer parts in maintaining or repairing any motor vehicle or motor vehi cle engine. For the purposes of the preceding sentence, the term ‘‘manufacturer parts’’ means, with respect to a motor vehicle en gine, parts produced or sold by the manufacturer of the motor vehi cle or motor vehicle engine. No action with respect to any device or element of design referred to in paragraph (3) shall be treated as a prohibited act under that paragraph if (i) the action is for the purpose of repair or replacement of the device or element, or is a necessary and temporary procedure to repair or replace any other item and the device or element is replaced upon completion of the procedure, and (ii) such action thereafter results in the proper func tioning of the device or element referred to in paragraph (3). No ac tion with respect to any device or element of design referred to in paragraph (3) shall be treated as a prohibited act under that para graph if the action is for the purpose of a conversion of a motor ve hicle for use of a clean alternative fuel (as defined in this title) and if such vehicle complies with the applicable standard under section 202 when operating on such fuel, and if in the case of a clean alter native fuel vehicle (as defined by rule by the Administrator), the device or element is replaced upon completion of the conversion procedure and such action results in proper functioning of the de vice or element when the motor vehicle operates on conventional fuel. (b)(1) The Administrator may exempt any new motor vehicle or new motor vehicle engine from subsection (a), upon such terms and conditions as he may find necessary for the purpose of research, in vestigations, studies, demonstrations, or training, or for reasons of national security. (2) A new motor vehicle or new motor vehicle engine offered for importation or imported by any person in violation of subsection (a) Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 239 Sec. 205CLEAN AIR ACT 1 So in original. Probably should be ‘‘section’’. shall be refused admission into the United States, but the Sec retary of the Treasury and the Administrator may, by joint regula tion, provide for deferring final determination as to admission and authorizing the delivery of such a motor vehicle or engine offered for import to the owner or consignee thereof upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to insure that any such motor vehicle or engine will be brought into conformity with the standards, requirements, and limitations applicable to it under this part. The Secretary of the Treasury shall, if a motor vehicle or engine is finally refused admission under this paragraph, cause disposition thereof in ac cordance with the customs laws unless it is exported, under regula tions prescribed by such Secretary, within ninety days of the date of notice of such refusal or such additional time as may be per mitted pursuant to such regulations, except that disposition in ac cordance with the customs laws may not be made in such manner as may result, directly or indirectly, in the sale, to the ultimate consumer, of a new motor vehicle or new motor vehicle engine that fails to comply with applicable standards of the Administrator under this part. (3) A new motor vehicle or new motor vehicle engine intended solely for export, and so labeled or tagged on the outside of the con tainer and on the vehicle or engine itself, shall be subject to the provisions of subsection (a), except that if the country which is to receive such vehicle or engine has emission standards which differ from the standards prescribed under section 202, then such vehicle or engine shall comply with the standards of such country which is to receive such vehicle or engine. [42 U.S.C. 7522] INJUNCTION PROCEEDINGS SEC. 204. (a) The district courts of the United States shall have jurisdiction to restrain violations of section 203(a). (b) Actions to restrain such violations shall be brought by and in the name of the United States. In any such action, subpenas for witnesses who are required to attend a district court in any district may run into any other district. [42 U.S.C. 7523] SEC. 205. CIVIL PENALTIES. (a) VIOLATIONS.—Any person who violates sections 1 203(a)(1), 203(a)(4), or 203(a)(5) or any manufacturer or dealer who violates section 203(a)(3)(A) shall be subject to a civil penalty of not more than $25,000. Any person other than a manufacturer or dealer who violates section 203(a)(3)(A) or any person who violates section 203(a)(3)(B) shall be subject to a civil penalty of not more than $2,500. Any such violation with respect to paragraph (1), (3)(A), or (4) of section 203(a) shall constitute a separate offense with respect to each motor vehicle or motor vehicle engine. Any such violation with respect to section 203(a)(3)(B) shall constitute a separate of fense with respect to each part or component. Any person who vio Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 240Sec. 205 CLEAN AIR ACT lates section 203(a)(2) shall be subject to a civil penalty of not more than $25,000 per day of violation. (b) CIVIL ACTIONS.—The Administrator may commence a civil action to assess and recover any civil penalty under subsection (a) of this section, section 211(d), or section 213(d). 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 oc curred or in which the defendant resides or has the Administrator’s principal place of business, and the court shall have jurisdiction to assess a civil penalty. In determining the amount of any civil pen alty to be assessed under this subsection, the court shall take into account the gravity of the violation, the economic benefit or savings (if any) resulting from the violation, the size of the violator’s busi ness, the violator’s history of compliance with this title, action taken to remedy the violation, the effect of the penalty on the viola tor’s ability to continue in business, and such other matters as jus tice may require. In any such action, subpoenas for witnesses who are required to attend a district court in any district may run into any other district. (c) ADMINISTRATIVE ASSESSMENT OF CERTAIN PENALTIES.— (1) ADMINISTRATIVE PENALTY AUTHORITY.—In lieu of com mencing a civil action under subsection (b), the Administrator may assess any civil penalty prescribed in subsection (a) of this section, section 211(d), or section 213(d), except that the max imum amount of penalty sought against each violator in a pen alty assessment proceeding shall not exceed $200,000, unless the Administrator and the Attorney General jointly determine that a matter involving a larger penalty amount is appropriate for administrative penalty assessment. Any such determination by the Administrator and the Attorney General shall not be subject to judicial review. Assessment of a civil penalty under this subsection shall be by an order made on the record after opportunity for a hearing in accordance with sections 554 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 oppor tunity to request such a hearing on the order, within 30 days of the date the notice is received by such person. The Adminis trator may compromise, or remit, with or without conditions, any administrative penalty which may be imposed under this section. (2) DETERMINING AMOUNT.—In determining the amount of any civil penalty assessed under this subsection, the Adminis trator shall take into account the gravity of the violation, the economic benefit or savings (if any) resulting from the viola tion, the size of the violator’s business, the violator’s history of compliance with this title, action taken to remedy the violation, the effect of the penalty on the violator’s ability to continue in business, and such other matters as justice may require. (3) EFFECT OF ADMINISTRATOR’S ACTION.—(A) Action by the Administrator under this subsection shall not affect or limit Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 241 Sec. 205CLEAN AIR ACT the Administrator’s authority to enforce any provision of this Act; except that any violation, (i) with respect to which the Administrator has com menced and is diligently prosecuting an action under this subsection, or (ii) for which the Administrator has issued a final order not subject to further judicial review and the violator has paid a penalty assessment under this subsection, shall not be the subject of civil penalty action under subsection (b). (B) No action by the Administrator under this subsection shall affect any person’s obligation to comply with any section of this Act. (4) FINALITY OF ORDER.—An order issued under this sub section shall become final 30 days after its issuance unless a petition for judicial review is filed under paragraph (5). (5) JUDICIAL REVIEW.—Any person against whom a civil penalty is assessed in accordance with this subsection may seek review of the 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 lo cated, within the 30-day period beginning on the date a civil penalty order is issued. Such person shall simultaneously send a copy of the filing by certified mail to the Administrator and the Attorney General. The Administrator shall file in the court a certified copy, or certified index, as appropriate, of the record on which the order was issued within 30 days. The court shall not set aside or remand any order issued in accordance with the requirements of this subsection unless there is not sub stantial evidence in the record, taken as a whole, to support the finding of a violation or unless the Administrator’s assess ment of the penalty constitutes an abuse of discretion, and the court shall not impose additional civil penalties unless the Ad ministrator’s assessment of the penalty constitutes an abuse of discretion. In any proceedings, the United States may seek to recover civil penalties assessed under this section. (6) COLLECTION.—If any person fails to pay an assessment of a civil penalty imposed by the Administrator as provided in this subsection— (A) after the order making the assessment has become final, or (B) after a court in an action brought under paragraph (5) has entered a final judgment in favor of the Adminis trator, the Administrator shall request the Attorney General to bring a civil action in an appropriate district court to recover the amount assessed (plus interest at rates established pursuant to section 6621(a)(2) of the Internal Revenue Code of 1986 from the date of the final order or the date of the final judgment, as the case may be). In such an action, the validity, amount, and appropriateness of the penalty shall not be subject to re view. Any person who fails to pay on a timely basis the amount of an assessment of a civil penalty as described in the first sen Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 242Sec. 206 CLEAN AIR ACT tence of this paragraph shall be required to pay, in addition to that amount and interest, the United States’ enforcement ex penses, including attorneys fees and costs for collection pro ceedings, and a quarterly nonpayment penalty for each quarter during which such failure to pay persists. The nonpayment penalty shall be in an amount equal to 10 percent of the aggre gate amount of that person’s penalties and nonpayment pen alties which are unpaid as of the beginning of such quarter. [42 U.S.C. 7524] MOTOR VEHICLE AND MOTOR VEHICLE ENGINE COMPLIANCE TESTING AND CERTIFICATION SEC. 206. (a)(1) The Administrator shall test, or require to be tested in such manner as he deems appropriate, any new motor ve hicle or new motor vehicle engine submitted by a manufacturer to determine whether such vehicle or engine conforms with the regu lations prescribed under section 202 of this Act. If such vehicle or engine conforms to such regulations, the Administrator shall issue a certificate of conformity upon such terms, and for such period (not in excess of one year) as he may prescribe. In the case of any original equipment manufacturer (as defined by the Administrator in regulations promulgated before the date of the enactment of the Clean Air Act Amendments of 1990) of vehicles or vehicle engines whose projected sales in the United States for any model year (as determined by the Administrator) will not exceed 300, the Adminis trator shall not require, for purposes of determining compliance with regulations under section 202 for the useful life of the vehicle or engine, operation of any vehicle or engine manufactured during such model year for more than 5,000 miles or 160 hours, respec tively, unless the Administrator, by regulation, prescribes other wise. The Administrator shall apply any adjustment factors that the Administrator deems appropriate to assure that each vehicle or engine will comply during its useful life (as determined under sec tion 202(d)) with the regulations prescribed under section 202. (2) The Administrator shall test any emission control system incorporated in a motor vehicle or motor vehicle engine submitted to him by any person, in order to determine whether such system enables such vehicle or engine to conform to the standards required to be prescribed under section 202(b) of this Act. If the Adminis trator finds on the basis of such tests that such vehicle or engine conforms to such standards, the Administrator shall issue a verification of compliance with emission standards for such system when incorporated in vehicles of a class of which the tested vehicle is representative. He shall inform manufacturers and the National Academy of Sciences, and make available to the public, the results of such tests. Tests under this paragraph shall be conducted under such terms and conditions (including requirements for preliminary testing by qualified independent laboratories) as the Administrator may prescribe by regulations. (3)(A) A certificate of conformity may be issued under this sec tion only if the Administrator determines that the manufacturer (or in the case of a vehicle or engine for import, any person) has estab lished to the satisfaction of the Administrator that any emission Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 243 Sec. 206CLEAN AIR ACT control device, system, or element of design installed on, or incor porated in, such vehicle or engine conforms to applicable require ments of section 202(a)(4). (B) The Administrator may conduct such tests and may require the manufacturer (or any such person) to conduct such tests and provide such information as is necessary to carry out subparagraph (A) of this paragraph. Such requirements shall include a require ment for prompt reporting of the emission of any unregulated pol lutant from a system, device, or element of design if such pollutant was not emitted, or was emitted in significantly lesser amounts, from the vehicle or engine without use of the system, device, or ele ment of design. (4)(A) Not later than 12 months after the date of the enact ment of the Clean Air Act Amendments of 1990, the Administrator shall revise the regulations promulgated under this subsection to add test procedures capable of determining whether model year 1994 and later model year light-duty vehicles and light-duty trucks, when properly maintained and used, will pass the inspec tion methods and procedures established under section 207(b) for that model year, under conditions reasonably likely to be encoun tered in the conduct of inspection and maintenance programs, but which those programs cannot reasonably influence or control. The conditions shall include fuel characteristics, ambient temperature, and short (30 minutes or less) waiting periods before tests are con ducted. The Administrator shall not grant a certificate of con formity under this subsection for any 1994 or later model year ve hicle or engine that the Administrator concludes cannot pass the test procedures established under this paragraph. (B) From time to time, the Administrator may revise the regu lations promulgated under subparagraph (A), as the Administrator deems appropriate. (b)(1) In order to determine whether new motor vehicles or new motor vehicle engines being manufactured by a manufacturer do in fact conform with the regulations with respect to which the certifi cate of conformity was issued, the Administrator is authorized to test such vehicles or engines. Such tests may be conducted by the Administrator directly or, in accordance with conditions specified by the Administrator, by the manufacturer. (2)(A)(i) If, based on tests conducted under paragraph (1) on a sample of new vehicles or engines covered by a certificate of con formity, the Administrator determines that all or part of the vehi cles or engines so covered do not conform with the regulations with respect to which the certificate of conformity was issued and with the requirements of section 202(a)(4), he may suspend or revoke such certificate in whole or in part, and shall so notify the manu facturer. Such suspension or revocation shall apply in the case of any new motor vehicles or new motor vehicle engines manufactured after the date of such notification (or manufactured before such date if still in the hands of the manufacturer), and shall apply until such time as the Administrator finds that vehicles and engines manufactured by the manufacturer do conform to such regulations and requirements. If, during any period of suspension or revoca tion, the Administrator finds that a vehicle or engine actually con Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 244Sec. 206 CLEAN AIR ACT forms to such regulations and requirements, he shall issue a certifi cate of conformity applicable to such vehicle or engine. (ii) If, based on tests conducted under paragraph (1) on any new vehicle or engine, the Administrator determines that such ve hicle or engine does not conform with such regulations, he may sus pend or revoke such certificate insofar as it applies to such vehicle or engine until such time as he finds such vehicle or engine actu ally so conforms with such regulations, and he shall so notify the manufacturer. (B)(i) At the request of any manufacturer the Administrator shall grant such manufacturer a hearing as to whether the tests have been properly conducted or any sampling methods have been properly applied, and make a determination on the record with re spect to any suspension or revocation under subparagraph (A); but suspension or revocation under subparagraph (A) shall not be stayed by reason of such hearing. (ii) In any case of actual controversy as to the validity of any determination under clause (i), the manufacturer may at any time prior to the 60th day after such determination is made file a peti tion with the United States court of appeals for the circuit wherein such manufacturer resides or has his principal place of business for a judicial review of such determination. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Adminis trator or other officer designated by him for that purpose. The Ad ministrator thereupon shall file in the court the record of the pro ceedings on which the Administrator based his determination, as provided in section 2112 of title 28 of the United States Code. (iii) If the petitioner applies to the court for leave to adduce ad ditional evidence, and shows to the satisfaction of the court that such additional evidence is material and that there were reason able grounds for the failure to adduce such evidence in the pro ceeding before the Administrator, the court may order such addi tional evidence (and evidence in rebuttal thereof) to be taken before the Administrator, in such manner and upon such terms and condi tions as 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. (iv) Upon the filing of the petition referred to in clause (ii), the court shall have jurisdiction to review the order in accordance with chapter 7 of title 5, United States Code, and to grant appropriate relief as provided in such chapter. (c) For purposes of enforcement of this section, officers or em ployees duly designated by the Administrator, upon presenting ap propriate credentials to the manufacturer or person in charge, are authorized (1) to enter, at reasonable times, any plant or other es tablishment of such manufacturers, for the purpose of conducting tests of vehicles of engines in the hands of the manufacturer, or (2) to inspect at reasonable times, records, files, papers, processes, con trols, and facilities used by such manufacturer in conducting tests under regulations of the Administrator. Each such inspection shall be commenced and completed with reasonable promptness. Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 245 Sec. 206CLEAN AIR ACT (d) The Administrator shall by regulation establish methods and procedures for making tests under this section. (e) The Administrator shall make available to the public the results of his tests of any motor vehicle or motor vehicle engine submitted by a manufacturer under subsection (a) as promptly as possible after the enactment of the Clean Air Amendments of 1970 and at the beginning of each model year which begins thereafter. Such results shall be described in such nontechnical manner as will reasonably disclose to prospective ultimate purchasers of new motor vehicles and new motor vehicle engines the comparative per formance of the vehicles and engines tested in meeting the stand ards prescribed under section 202 of this Act. (f) All light duty vehicles and engines manufactured during or after model year 1984 and all light-duty trucks manufactured dur ing or after model year 1995 shall comply with the requirements of section 202 of this Act regardless of the altitude at which they are sold. (g)(1) In the case of any class or category of heavy-duty vehi cles or engines to which a standard promulgated under section 202(a) of this Act applies, except as provided in paragraph (2), a certificate of conformity shall be issued under subsection (a) and shall not be suspended or revoked under subsection (b) for such ve hicles or engines manufactured by a manufacturer notwithstanding the failure of such vehicles or engines to meet such standard if such manufacturer pays a nonconformance penalty as provided under regulations promulgated by the Administrator after notice and opportunity for public hearing. In the case of motorcycles to which such a standard applies, such a certificate may be issued notwithstanding such failure if the manufacturer pays such a pen alty. (2) No certificate of conformity may be issued under paragraph (1) with respect to any class or category of vehicle or engine if the degree by which the manufacturer fails to meet any standard pro mulgated under section 202(a) with respect to such class or cat egory exceeds the percentage determined under regulations pro mulgated by the Administrator to be practicable. Such regulations shall require such testing of vehicle or engines being produced as may be necessary to determine the percentage of the classes or cat egories of vehicles or engines which are not in compliance with the regulations with respect to which a certificate of conformity was issued and shall be promulgated not later than one year after the date of enactment of the Clean Air Act Amendments of 1977. (3) The regulations promulgated under paragraph (1) shall, not later than one year after the date of enactment of the Clean Air Act Amendments of 1977, provide for nonconformance penalties in amounts determined under a formula established by the Adminis trator. Such penalties under such formula— (A) may vary from pollutant-to-pollutant; (B) may vary by class or category or vehicle or engine; (C) shall take into account the extent to which actual emis sions of any air pollutant exceed allowable emissions under the standards promulgated under section 202; Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 246Sec. 207 CLEAN AIR ACT 1 So in original. Probably should be ‘‘subsections’’. 2 Pursuant to section 209(4) of Public Law 101–549 (104 Stat. 2485), the last sentence of 207(a)(1) is effective beginning with cars manufactured in the 1995 model year. (D) shall be increased periodically in order to create incen tives for the development of production vehicles or engines which achieve the required degree of emission reduction; and (E) shall remove any competitive disadvantage to manufac turers whose engines or vehicles achieve the required degree of emission reduction (including any such disadvantage arising from the application of paragraph (4)). (4) In any case in which a certificate of conformity has been issued under this subsection, any warranty required under section 207(b)(2) and any action under section 207(c) shall be required to be effective only for the emission levels which the Administrator determines that such certificate was issued and not for the emis sion levels required under the applicable standard. (5) The authorities of section 208(a) shall apply, subject to the conditions of section 208(b), for purposes of this subsection. (h) Within 18 months after the enactment of the Clean Air Act Amendments of 1990, the Administrator shall review and revise as necessary the regulations under subsection 1 (a) and (b) of this sec tion regarding the testing of motor vehicles and motor vehicle en gines to insure that vehicles are tested under circumstances which reflect the actual current driving conditions under which motor ve hicles are used, including conditions relating to fuel, temperature, acceleration, and altitude. [42 U.S.C. 7525] COMPLIANCE BY VEHICLES AND ENGINES IN ACTUAL USE SEC. 207. (a)(1) Effective with respect to vehicles and engines manufactured in model years beginning more than 60 days after the date of the enactment of the Clean Air Amendments of 1970, the manufacturer of each new motor vehicle and new motor vehicle engine shall warrant to the ultimate purchaser and each subse quent purchaser that such vehicle or engine is (A) designed, built, and equipped so as to conform at the time of sale with applicable regulations under section 202, and (B) free from defects in mate rials and workmanship which cause such vehicle or engine to fail to conform with applicable regulations for its useful life (as deter mined under section 202(d). In the case of vehicles and engines manufactured in the model year 1995 and thereafter such warranty shall require that the vehicle or engine is free from any such de fects for the warranty period provided under subsection (i). 2 (2) In the case of a motor vehicle part or motor vehicle engine part, the manufacturer or rebuilder of such part may certify that use of such part will not result in a failure of the vehicle or engine to comply with emission standards promulgated under section 202. Such certification shall be made only under such regulations as may be promulgated by the Administrator to carry out the pur poses of subsection (b). The Administrator shall promulgate such regulations no later than two years following the date of the enact ment of this paragraph. Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 247 Sec. 207CLEAN AIR ACT 1 Section 209(1) of Public Law 101–549 (104 Stat. 2484) amended section 207(b) by striking out ‘‘useful life (as determined under section 202(d))’’ each place it appears and inserting ‘‘the warranty period (as determined under subsection (i))’’. The amendment probably should have also stricken the word ‘‘its’’. This amendment is effective beginning with cars manufactured in the 1995 model year. (3) The cost of any part, device, or component of any light-duty vehicle that is designed for emission control and which in the in structions issued pursuant to subsection (c)(3) of this section is scheduled for replacement during the useful life of the vehicle in order to maintain compliance with regulations under section 202 of this Act, the failure of which shall not interfere with the normal performance of the vehicle, and the expected retail price of which, including installation costs, is greater than 2 percent of the sug gested retail price of such vehicle, shall be borne or reimbursed at the time of replacement by the vehicle manufacturer and such re placement shall be provided without cost to the ultimate purchaser, subsequent purchaser, or dealer. The term ‘‘designed for emission control’’ as used in the preceding sentence means a catalytic con verter, thermal reactor, or other component installed on or in a ve hicle for the sole or primary purpose of reducing vehicle emissions (not including those vehicle components which were in general use prior to model year 1968 and the primary function of which is not related to emission control). (b) If the Administrator determines that (i) there are available testing methods and procedures to ascertain whether, when in ac tual use throughout its 1 the warranty period (as determined under subsection (i)), each vehicle and engine to which regulations under section 202 apply complies with the emission standards of such reg ulations, (ii) such methods and procedures are in accordance with good engineering practices, and (iii) such methods and procedures are reasonably capable of being correlated with tests conducted under section 206(a)(1), then— (1) he shall establish such methods and procedures by reg ulation, and (2) at such time as he determines that inspection facilities or equipment are available for purposes of carrying out testing methods and procedures established under paragraph (1), he shall prescribe regulations which shall require manufacturers to warrant the emission control device or system of each new motor vehicle or new motor vehicle engine to which a regula tion under section 202 applies and which is manufactured in a model year beginning after the Administrator first prescribes warranty regulations under this paragraph. The warranty under such regulations shall run to the ultimate purchaser and each subsequent purchaser and shall provide that if— (A) the vehicle or engine is maintained and operated in accordance with instructions under subsection (c)(3), (B) it fails to conform at any time during its 1 the war ranty period (as determined under subsection (i)) to the regulations prescribed under section 202, and (C) such nonconformity results in the ultimate pur chaser (or any subsequent purchaser) of such vehicle or en gine having to bear any penalty or other sanction (includ Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 248Sec. 207 CLEAN AIR ACT 1 Pursuant to section 209(2) of Public Law 101–549 (104 Stat. 2484), effective with respect to new motor vehicles and engines manufactured in the model year 1995 and thereafter, section 207 is amended by striking so much of section 207(b) as follows the third sentence thereof. 2 Public Law 95–95 added paragraph (3). This paragraph should have been indented. ing the denial of the right to use such vehicle or engine) under State or Federal law, then such manufacturer shall remedy such nonconformity under such warranty with the cost thereof to be borne by the manufacturer. No such warranty shall be invalid on the basis of any part used in the maintenance or repair of a vehicle or engine if such part was certified as provided under subsection (a)(2). øFor purposes of the warranty under this subsection, for the period after twenty-four months or twenty-four thousand miles (whichever first occurs) the term ‘‘emission control device or system’’ means a catalytic converter, thermal reactor, or other component installed on or in a vehicle for the sole or pri mary purpose of reducing vehicle emissions. Such terms shall not include those vehicle components which were in general use prior to model year 1968. 1¿ (c) Effective with respect to vehicles and engines manufactured during model years beginning more than 60 days after the date of enactment of the Clean Air Amendments of 1970— (1) If the Administrator determines that a substantial number of any class or category of vehicles or engines, al though properly maintained and used, do not conform to the regulations prescribed under section 202, when in actual use throughout their useful life (as determined under section 202(d)), he shall immediately notify the manufacturer thereof of such nonconformity, and he shall require the manufacturer to submit a plan for remedying the nonconformity of the vehi cles or engines with respect to which such notification is given. The plan shall provide that the nonconformity of any such ve hicles or engines which are properly used and maintained will be remedied at the expense of the manufacturer. If the manu facturer disagrees with such determination of nonconformity and so advises the Administrator, the Administrator shall af ford the manufacturer and other interested persons an oppor tunity to present their views and evidence in support thereof at a public hearing. Unless, as a result of such hearing the Ad ministrator withdraws such determination of nonconformity, he shall, within 60 days after the completion of such hearing, order the manufacturer to provide prompt notification of such nonconformity in accordance with paragraph (2). (2) Any notification required by paragraph (1) with respect to any class or category of vehicles or engines shall be given to dealers, ultimate purchasers, and subsequent purchasers (if known) in such manner and containing such information as the Administrator may by regulations require. (3)(A) 2 The manufacturer shall furnish with each new motor vehicle or motor vehicle engine written instructions for the proper maintenance and use of the vehicle or engine by the ultimate pur chaser and such instructions shall correspond to regulations which the Administrator shall promulgate. The manufacturer shall pro vide in boldface type on the first page of the written maintenance Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 249 Sec. 207CLEAN AIR ACT instructions notice that maintenance, replacement, or repair of the emission control devices and systems may be performed by any automotive repair establishment or individual using any auto motive part which has been certified as provided in subsection (a)(2). (B) The instruction under subparagraph (A) of this paragraph shall not include any condition on the ultimate purchaser’s using, in connection with such vehicle or engine, any component or service (other than a component or service provided without charge under the terms of the purchase agreement) which is identified by brand, trade, or corporate name; or directly or indirectly distinguishing be tween service performed by the franchised dealers of such manufac turer or any other service establishments with which such manu facturer has a commercial relationship, and service performed by independent automotive repair facilities with which such manufac turer has no commercial relationship; except that the prohibition of this subsection may be waived by the Administrator if— (i) the manufacturer satisfies the Administrator that the vehicle or engine will function properly only if the component or service so identified is used in connection with such vehicle or engine, and (ii) the Administrator finds that such a waiver is in the public interest. (C) In addition, the manufacturer shall indicate by means of a label or tag permanently affixed to such vehicle or engine that such vehicle or engine is covered by a certificate of conformity issued for the purpose of assuring achievement of emissions standards pre scribed under section 202 of this Act. Such label or tag shall con tain such other information relating to control of motor vehicle emissions as the Administrator shall prescribe by regulation. (4) INTERMEDIATE IN-USE STANDARDS.— (A) MODEL YEARS 1994 AND 1995.—For light-duty trucks of up to 6,000 lbs. gross vehicle weight rating (GVWR) and light-duty vehicles which are subject to standards under table G of section 202(g)(1) in model years 1994 and 1995 (40 percent of the manufacturer’s sales volume in model year 1994 and 80 percent in model year 1995), the stand ards applicable to NMHC, CO, and NOx for purposes of this subsection shall be those set forth in table A below in lieu of the standards for such air pollutants otherwise ap plicable under this title. TABLE A—INTERMIDIATE IN-USE STANDARDS LDTS UP TO 6,000 LBS. GVWR AND LIGHT-DUTY VEHICLES Vehicle type NMHC CO NOx Light-duty vehicles ................................................................... 0.32 3.4 0.4* LDT’s1 (0–3,750 LVW) .............................................................. 0.32 5.2 0.4* LDT’s1 (3,751–5,750 LVW) ....................................................... 0.41 6.7 0.7* * Not applicable to diesel-fueled vehicles. 1 ‘‘LDT’s’’ should have no apostrophe. (B) MODEL YEARS 1996 AND THEREAFTER.—(i) In the model years 1996 and 1997, light-duty trucks (LDTs) up to 6,000 lbs. gross vehicle weight rating (GVWR) and light Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 250Sec. 207 CLEAN AIR ACT 1 So in original. Probably should be ‘‘light-duty’’. duty vehicles which are not subject to final in-use stand ards under paragraph (5) (60 percent of the manufacturer’s sales volume in model year 1996 and 20 percent in model year 1997) shall be subject to the standards set forth in table A of subparagraph (A) for NMHC, CO, and NOx for purposes of this subsection in lieu of those set forth in paragraph (5). (ii) For LDTs of more than 6,000 lbs. GVWR— (I) in model year 1996 which are subject to the standards set forth in Table H of section 202(h) (50%); (II) in model year 1997 (100%); and (III) in model year 1998 which are not subject to final in-use standards under paragraph (5) (50%); the standards for NMHC, CO, and NOx for purposes of this subsection shall be those set forth in Table B below in lieu of the standards for such air pollutants otherwise applicable under this title. TABLE B—INTERMEDIATE IN-USE STANDARDS LDTS MORE THAN 6,000 LBS. GVWR Vehicle type NMHC CO NOx LDTs (3,751–5,750 lbs. TW) ................................................... 0.40 5.5 0.88* LDTs (over –5,750 lbs. TW) ................................................... 0.49 6.2 1.38* * Not applicable to diesel-fueled vehicles. (C) USEFUL LIFE.—In the case of the in-use standards applicable under this paragraph, for purposes of applying this subsection, the applicable useful life shall be 5 years or 50,000 miles or the equivalent (whichever first occurs). (5) FINAL IN-USE STANDARDS.—(A) After the model year 1995, for purposes of applying this subsection, in the case of the percentage specified in the implementation schedule below of each manufacturer’s sales volume of light-duty trucks of up to 6,000 lbs. gross vehicle weight rating (GVWR) and light 1 duty vehicles, the standards for NMHC, CO, and NOx shall be as provided in Table G in section 202(g), except that in apply ing the standards set forth in Table G for purposes of deter mining compliance with this subsection, the applicable useful life shall be (i) 5 years or 50,000 miles (or the equivalent) whichever first occurs in the case of standards applicable for purposes of certification at 50,000 miles; and (ii) 10 years or 100,000 miles (or the equivalent), whichever first occurs in the case of standards applicable for purposes of certification at 100,000 miles, except that no testing shall be done beyond 7 years or 75,000 miles, or the equivalent whichever first occurs. Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 251 Sec. 207CLEAN AIR ACT LDTS UP TO 6,000 LBS. GVWR AND LIGHT-DUTY VEHICLE SCHEDULE FOR IMPLEMENTATION OF FINAL IN-USE STANDARDS Model year Percent 1996 ............................................................................................................ 40 1997 ............................................................................................................ 80 1998 ............................................................................................................ 100 (B) After the model year 1997, for purposes of applying this subsection, in the case of the percentage specified in the implementation schedule below of each manufacturer’s sales volume of light-duty trucks of more than 6,000 lbs. gross vehi cle weight rating (GVWR), the standards for NMHC, CO, and NOx shall be as provided in Table H in section 202(h), except that in applying the standards set forth in Table H for pur poses of determining compliance with this subsection, the ap plicable useful life shall be (i) 5 years or 50,000 miles (or the equivalent) whichever first occurs in the case of standards ap plicable for purposes of certification at 50,000 miles; and (ii) 11 years or 120,000 miles (or the equivalent), whichever first oc curs in the case of standards applicable for purposes of certifi cation at 120,000 miles, except that no testing shall be done beyond 7 years or 90,000 miles (or the equivalent) whichever first occurs. LDTS OF MORE THAN 6,000 LBS. GVWR IMPLEMENTATION SCHEDULE FOR IMPLEMENTATION OF FINAL IN-USE STANDARDS Model year Percent 1998 ............................................................................................................ 50 1999 ............................................................................................................ 100 (6) DIESEL VEHICLES; IN-USE USEFUL LIFE AND TESTING.— (A) In the case of diesel-fueled light-duty trucks up to 6,000 lbs. GVWR and light-duty vehicles, the useful life for purposes of determining in-use compliance with the standards under section 202(g) for NOx shall be a period of 10 years or 100,000 miles (or the equivalent), whichever first occurs, in the case of standards applicable for purposes of certification at 100,000 miles, except that testing shall not be done for a period beyond 7 years or 75,000 miles (or the equivalent) whichever first oc curs. (B) In the case of diesel-fueled light-duty trucks of 6,000 lbs. GVWR or more, the useful life for purposes of determining in-use compliance with the standards under section 202(h) for NOx shall be a period of 11 years or 120,000 miles (or the equivalent), whichever first occurs, in the case of standards ap plicable for purposes of certification at 120,000 miles, except that testing shall not be done for a period beyond 7 years or 90,000 miles (or the equivalent) whichever first occurs. (d) Any cost obligation of any dealer incurred as a result of any requirement imposed by subsection (a), (b), or (c) shall be borne by the manufacturer. The transfer of any such cost obligation from a Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 252Sec. 207 CLEAN AIR ACT 1 So in law. The extra parenthetical was added by section 230(9) of Public Law 101–549 (104 Stat. 2529). 2 Pursuant to section 209(3) of Public Law 101–549 (104 Stat. 2484), subsection (i) is effective beginning with cars manufactured in the 1995 model year. manufacturer to any dealer through franchise or other agreement is prohibited. (e) If a manufacturer includes in any advertisement a state ment respecting the cost or value of emission control devices or sys tems, such manufacturer shall set forth in such statement the cost or value attributed to such devices or systems by the Secretary of Labor (through the Bureau of Labor Statistics). The Secretary of Labor, and his representatives, shall have the same access for this purpose to the books, documents, papers, and records of a manufac turer as the Comptroller General has to those of a recipient of as sistance for purposes of section 311. (f) Any inspection of a motor vehicle or a motor vehicle engine for purposes of subsection (c)(1), after its sale to the ultimate pur chaser, shall be made only if the owner of such vehicle or engine voluntarily permits such inspection to be made, except as may be provided by any State or local inspection program. (g) For the purposes of this section, the owner of any motor ve hicle or motor vehicle engine warranted under this section is re sponsible in the proper maintenance of such vehicle or engine to re place and to maintain, at his expense at any service establishment or facility of his choosing, such items as spark plugs, points, con densers, and any other part, item, or device related to emission control (but not designed for emission control under the terms of the last sentence of section 207(a)(3))) 1, unless such part, item, or device is covered by any warranty not mandated by this Act. (h)(1) Upon the sale of each new light-duty motor vehicle by a dealer, the dealer shall furnish to the purchaser a certificate that such motor vehicle conforms to the applicable regulations under section 202, including notice of the purchaser’s rights under para graph (2). (2) If at any time during the period for which the warranty ap plies under subsection (b), a motor vehicle fails to conform to the applicable regulations under section 202 as determined under sub section (b) of this section such nonconformity shall be remedied by the manufacturer at the cost of the manufacturer pursuant to such warranty as provided in section 207(b)(2) (without regard to sub paragraph (C) thereof). (3) Nothing in section 209(a) shall be construed to prohibit a State from testing, or requiring testing of, a motor vehicle after the date of sale of such vehicle to the ultimate purchaser (except that no new motor vehicle manufacturer or dealer may be required to conduct testing under this paragraph). (i) 2 WARRANTY PERIOD.— (1) IN GENERAL.—For purposes of subsection (a)(1) and subsection (b), the warranty period, effective with respect to new light-duty trucks and new light-duty vehicles and engines, manufactured in the model year 1995 and thereafter, shall be the first 2 years or 24,000 miles of use (whichever first occurs), except as provided in paragraph (2). For purposes of subsection (a)(1) and subsection (b), for other vehicles and engines the Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 253 Sec. 207CLEAN AIR ACT warranty period shall be the period established by the Admin istrator by regulation (promulgated prior to the enactment of the Clean Air Act Amendments of 1990) for such purposes un less the Administrator subsequently modifies such regulation. (2) SPECIFIED MAJOR EMISSION CONTROL COMPONENTS.—In the case of a specified major emission control component, the warranty period for new light-duty trucks and new light-duty vehicles and engines manufactured in the model year 1995 and thereafter for purposes of subsection (a)(1) and subsection (b) shall be 8 years or 80,000 miles of use (whichever first occurs). As used in this paragraph, the term ‘specified major emission control component’ means only a catalytic converter, an elec tronic emissions control unit, and an onboard emissions diag nostic device, except that the Administrator may designate any other pollution control device or component as a specified major emission control component if— (A) the device or component was not in general use on vehicles and engines manufactured prior to the model year 1990; and (B) the Administrator determines that the retail cost (exclusive of installation costs) of such device or component exceeds $200 (in 1989 dollars), adjusted for inflation or de flation as calculated by the Administrator at the time of such determination. For purposes of this paragraph, the term ‘‘onboard emissions diagnostic device’’ means any device installed for the purpose of storing or processing emissions related diagnostic informa tion, but not including any parts or other systems which it monitors except specified major emissions control components. Nothing in this Act shall be construed to provide that any part (other than a part referred to in the preceding sentence) shall be required to be warranted under this Act for the period of 8 years or 80,000 miles referred to in this paragraph. (3) INSTRUCTIONS.—Subparagraph (A) of subsection (b)(2) shall apply only where the Administrator has made a deter mination that the instructions concerned conform to the re quirements of subsection (c)(3). [42 U.S.C. 7541] SEC. 208. INFORMATION COLLECTION. (a) MANUFACTURER’S RESPONSIBILITY.—Every manufacturer of new motor vehicles or new motor vehicle engines, and every manu facturer of new motor vehicle or engine parts or components, and other persons subject to the requirements of this part or part C, shall establish and maintain records, perform tests where such testing is not otherwise reasonably available under this part and part C (including fees for testing), make reports and provide infor mation the Administrator may reasonably require to determine whether the manufacturer or other person has acted or is acting in compliance with this part and part C and regulations there under, or to otherwise carry out the provision of this part and part C, and shall, upon request of an officer or employee duly des ignated by the Administrator, permit such officer or employee at reasonable times to have access to and copy such records. Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 254Sec. 208 CLEAN AIR ACT (b) ENFORCEMENT AUTHORITY.—For the purposes of enforce ment of this section, officers or employees duly designated by the Administrator upon presenting appropriate credentials are authorized— (1) to enter, at reasonable times, any establishment of the manufacturer, or of any person whom the manufacturer en gages to perform any activity required by subsection (a), for the purposes of inspecting or observing any activity conducted pursuant to subsection (a), and (2) to inspect records, files, papers, processes, controls, and facilities used in performing any activity required by sub section (a), by such manufacturer or by any person whom the manufacturer engages to perform any such activity. (c) AVAILABILITY TO THE PUBLIC; TRADE SECRETS.—Any records, reports, or information obtained under this part or part C shall be available to the public, except that upon a showing satis factory to the Administrator by any person that records, reports, or information, or a particular portion thereof (other than emission data), to which the Administrator has access under this section, if made public, would divulge methods or processes entitled to protec tion as trade secrets of that person, the Administrator shall con sider the record, report, or information or particular portion thereof confidential in accordance with the purposes of section 1905 of title 18 of the United States Code. Any authorized representative of the Administrator shall be considered an employee of the United States for purposes of section 1905 of title 18 of the United States Code. Nothing in this section shall prohibit the Administrator or author ized representative of the Administrator from disclosing records, re ports or information to other officers, employees or authorized rep resentatives of the United States concerned with carrying out this Act or when relevant in any proceeding under this Act. Nothing in this section shall authorize the withholding of information by the Administrator or any officer or employee under the Administrator’s control from the duly authorized committees of the Congress. [42 U.S.C. 7542] STATE STANDARDS SEC. 209. (a) No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. No State shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition prece dent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment. (b)(1) The Administrator shall, after notice and opportunity for public hearing, waive application of this section to any State which has adopted standards (other than crankcase emission standards) for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, if the State determines that the State standards will be, in the aggregate, at least as pro tective of public health and welfare as applicable Federal stand Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 255 Sec. 209CLEAN AIR ACT ards. No such waiver shall be granted if the Administrator finds that— (A) the determination of the State is arbitrary and capri cious, (B) such State does not need such State standards to meet compelling and extraordinary conditions, or (C) such State standards and accompanying enforcement procedures are not consistent with section 202(a) of this part. (2) If each State standard is at least as stringent as the com parable applicable Federal standard, such State standard shall be deemed to be at least as protective of health and welfare as such Federal standards for purposes of paragraph (1). (3) In the case of any new motor vehicle or new motor vehicle engine to which State standards apply pursuant to a waiver grant ed under paragraph (1), compliance with such State standards shall be treated as compliance with applicable Federal standards for purposes of this title. (c) Whenever a regulation with respect to any motor vehicle part or motor vehicle engine part is in effect under section 207(a)(2), no State or political subdivision thereof shall adopt or at tempt to enforce any standard or any requirement of certification, inspection, or approval which relates to motor vehicle emissions and is applicable to the same aspect of such part. The preceding sentence shall not apply in the case of a State with respect to which a waiver is in effect under subsection (b). (d) Nothing in this part shall preclude or deny to any State or political subdivision thereof the right otherwise to control, regulate, or restrict the use, operation, or movement of registered or licensed motor vehicles. (e) NONROAD ENGINES OR VEHICLES.— (1) PROHIBITION ON CERTAIN STATE STANDARDS.—No State or any political subdivision thereof shall adopt or attempt to enforce any standard or other requirement relating to the con trol of emissions from either of the following new nonroad en gines or nonroad vehicles subject to regulation under this Act— (A) New engines which are used in construction equip ment or vehicles or used in farm equipment or vehicles and which are smaller than 175 horsepower. (B) New locomotives or new engines used in loco motives. Subsection (b) shall not apply for purposes of this paragraph. (2) OTHER NONROAD ENGINES OR VEHICLES.—(A) In the case of any nonroad vehicles or engines other than those re ferred to in subparagraph (A) or (B) of paragraph (1), the Ad ministrator shall, after notice and opportunity for public hear ing, authorize California to adopt and enforce standards and other requirements relating to the control of emissions from such vehicles or engines if California determines that Cali fornia standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards. No such authorization shall be granted if the Administrator finds that— Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 256Sec. 210 CLEAN AIR ACT (i) the determination of California is arbitrary and ca pricious, (ii) California does not need such California standards to meet compelling and extraordinary conditions, or (iii) California standards and accompanying enforce ment procedures are not consistent with this section. (B) Any State other than California which has plan provi sions approved under part D of title I may adopt and enforce, after notice to the Administrator, for any period, standards re lating to control of emissions from nonroad vehicles or engines (other than those referred to in subparagraph (A) or (B) of paragraph (1)) and take such other actions as are referred to in subparagraph (A) of this paragraph respecting such vehicles or engines if— (i) such standards and implementation and enforce ment are identical, for the period concerned, to the Cali fornia standards authorized by the Administrator under subparagraph (A), and (ii) California and such State adopt such standards at least 2 years before commencement of the period for which the standards take effect. The Administrator shall issue regulations to implement this subsection. [42 U.S.C. 7543] STATE GRANTS SEC. 210. The Administrator is authorized to make grants to appropriate State agencies in an amount up to two-thirds of the cost of developing and maintaining effective vehicle emission de vices and systems inspection and emission testing and control pro grams, except that— (1) no such grant shall be made for any part of any State vehicle inspection program which does not directly relate to the cost of the air pollution control aspects of such a program; (2) no such grant shall be made unless the Secretary of Transportation has certified to the Administrator that such program is consistent with any highway safety program devel oped pursuant to section 402 of title 23 of the United States Code; and (3) no such grant shall be made unless the program in cludes provisions designed to insure that emission control de vices and systems on vehicles in actual use have not been dis continued or rendered inoperative. Grants may be made under this section by way of reimbursement in any case in which amounts have been expended by the State before the date on which any such grant was made. [42 U.S.C. 7544] REGULATION OF FUELS SEC. 211. (a) The Administrator may by regulation designate any fuel or fuel additive (including any fuel or fuel additive used exclusively in nonroad engines or nonroad vehicles) and, after such date or dates as may be prescribed by him, no manufacturer or Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 257 Sec. 211CLEAN AIR ACT processor of any such fuel or additive may sell, offer for sale, or in troduce into commerce such fuel or additive unless the Adminis trator has registered such fuel or additive in accordance with sub section (b) of this section. (b)(1) For the purpose of registration of fuels and fuel addi tives, the Administrator shall require— (A) the manufacturer of any fuel to notify him as to the commercial identifying name and manufacturer of any additive contained in such fuel; the range of concentration of any addi tive in the fuel; and the purpose-in-use of any such additive; and (B) the manufacturer of any additive to notify him as to the chemical composition of such additive. (2) For the purpose of registration of fuels and fuel additives, the Administrator may also require the manufacturer of any fuel or fuel additive— (A) to conduct tests to determine potential public health ef fects of such fuel or additive (including, but not limited to, car cinogenic, teratogenic, or mutagenic effects), and (B) to furnish the description of any analytical technique that can be used to detect and measure any additive in such fuel, the recommended range of concentration of such additive, and the recommended purpose-in-use of such additive, and such other information as is reasonable and necessary to deter mine the emissions resulting from the use of the fuel or addi tive contained in such fuel, the effect of such fuel or additive on the emission control performance of any vehicle, vehicle en gine, nonroad engine or nonroad vehicle, or the extent to which such emissions affect the public health or welfare. Tests under subparagraph (A) shall be conducted in conformity with test procedures and protocols established by the Adminis trator. The results of such tests shall not be considered confiden tial. (3) Upon compliance with the provisions of this subsection, in cluding assurances that the Administrator will receive changes in the information required, the Administrator shall register such fuel or fuel additive. (c)(1) The Administrator may, from time to time on the basis of information obtained under subsection (b) of this section or other information available to him, by regulation, control or prohibit the manufacture, introduction into commerce, offering for sale, or sale of any fuel or fuel additive for use in a motor vehicle, motor vehicle engine, or nonroad engine or nonroad vehicle (A) if in the judgment of the Administrator any emission product of such fuel or fuel addi tive causes, or contributes, to air pollution which may reasonably be anticipated to endanger the public health or welfare, or (B) if emission products of such fuel or fuel additive will impair to a sig nificant degree the performance of any emission control device or system which is in general use, or which the Administrator finds has been developed to a point where in a reasonable time it would be in general use were such regulation to be promulgated. (2)(A) No fuel, class of fuels, or fuel additive may be controlled or prohibited by the Administrator pursuant to clause (A) of para graph (1) except after consideration of all relevant medical and sci Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 258Sec. 211 CLEAN AIR ACT entific evidence available to him, including consideration of other technologically or economically feasible means of achieving emis sion standards under section 202. (B) No fuel or fuel additive may be controlled or prohibited by the Administrator pursuant to clause (B) of paragraph (1) except after consideration of available scientific and economic data, includ ing a cost benefit analysis comparing emission control devices or systems which are or will be in general use and require the pro posed control or prohibition with emission control devices or sys tems which are or will be in general use and do not require the proposed control or prohibition. On request of a manufacturer of motor vehicles, motor vehicle engines, fuels, or fuel additives sub mitted within 10 days of notice of proposed rulemaking, the Admin istrator shall hold a public hearing and publish findings with re spect to any matter he is required to consider under this subpara graph. Such findings shall be published at the time of promulgation of final regulations. (C) No fuel or fuel additive may be prohibited by the Adminis trator under paragraph (1) unless he finds, and publishes such finding, that in his judgment such prohibition will not cause the use of any other fuel or fuel additive which will produce emissions which will endanger the public health or welfare to the same or greater degree than the use of the fuel or fuel additive proposed to be prohibited. (3)(A) For the purpose of obtaining evidence and data to carry out paragraph (2), the Administrator may require the manufac turer of any motor vehicle or motor vehicle engine to furnish any information which has been developed concerning the emissions from motor vehicles resulting from the use of any fuel or fuel addi tive, or the effect of such use on the performance of any emission control device or system. (B) In obtaining information under subparagraph (A), section 307 (a) (relating to subpenas) shall be applicable. (4)(A) Except as otherwise provided in subparagraph (B) or (C), no State (or political subdivision thereof) may prescribe or attempt to enforce, for the purposes of motor vehicle emission control, any control or prohibition respecting any characteristic or component of a fuel or fuel additive in a motor vehicle or motor vehicle engine— (i) if the Administrator has found that no control or prohi bition of the characteristic or component of a fuel or fuel addi tive under paragraph (1) is necessary and has published his finding in the Federal Register, or (ii) if the Administrator has prescribed under paragraph (1) a control or prohibition applicable to such characteristic or component of a fuel or fuel additive, unless State prohibition or control is identical to the prohibition or control prescribed by the Administrator. (B) Any State for which application of section 209(a) has at any time been waived under section 209(b) may at any time prescribe and enforce, for the purpose of motor vehicle emission control, a control or prohibition respecting any fuel or fuel additive. (C) A State may prescribe and enforce, for purposes of motor vehicle emission control, a control or prohibition respecting the use of a fuel or fuel additive in a motor vehicle or motor vehicle engine Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 259 Sec. 211CLEAN AIR ACT if an applicable implementation plan for such State under section 110 so provides. The Administrator may approve such provision in an implementation plan, or promulgate an implementation plan containing such a provision, only if he finds that the State control or prohibition is necessary to achieve the national primary or sec ondary ambient air quality standard which the plan implements. The Administrator may find that a State control or prohibition is necessary to achieve that standard if no other measures that would bring about timely attainment exist, or if other measures exist and are technically possible to implement, but are unreasonable or im practicable. The Administrator may make a finding of necessity under this subparagraph even if the plan for the area does not con tain an approved demonstration of timely attainment. (d) PENALTIES AND INJUNCTIONS.— (1) CIVIL PENALTIES.—Any person who violates subsection (a), (f), (g), (k), (l), (m), or (n) of this section or the regulations prescribed under subsection (c), (h), (i), (k), (l), (m), or (n) of this section or who fails to furnish any information or conduct any tests required by the Administrator under subsection (b) of this section shall be liable to the United States for a civil penalty of not more than the sum of $25,000 for every day of such violation and the amount of economic benefit or savings resulting from the violation. Any violation with respect to a regulation prescribed under subsection (c), (k), (l), or (m) of this section which establishes a regulatory standard based upon a multiday averaging period shall constitute a separate day of violation for each and every day in the averaging period. Civil penalties shall be assessed in accordance with subsections (b) and (c) of section 205. (2) INJUNCTIVE AUTHORITY.—The district courts of the United States shall have jurisdiction to restrain violations of subsections (a), (f), (g), (k), (l), (m), and (n) of this section and of the regulations prescribed under subsections (c), (h), (i), (k), (l), (m), and (n) of this section, to award other appropriate re lief, and to compel the furnishing of information and the con duct of tests required by the Administrator under subsection (b) of this section. Actions to restrain such violations and com pel such actions shall be brought by and in the name of the United States. In any such action, subpoenas for witnesses who are required to attend a district court in any district may run into any other district. (e)(1) Not later than one year after the date of enactment of this subsection and after notice and opportunity for a public hear ing, the Administrator shall promulgate regulations which imple ment the authority under subsection (b)(2) (A) and (B) with respect to each fuel or fuel additive which is registered on the date of pro mulgation of such regulations and with respect to each fuel or fuel additive for which an application for registration is filed thereafter. (2) Regulations under subsection (b) to carry out this sub section shall require that the requisite information be provided to the Administrator by each such manufacturer— (A) prior to registration, in the case of any fuel or fuel ad ditive which is not registered on the date of promulgation of such regulations; or Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 260Sec. 211 CLEAN AIR ACT (B) not later than three years after the date of promulga tion of such regulations, in the case of any fuel or fuel additive which is registered on such date. (3) In promulgating such regulations, the Administrator may— (A) exempt any small business (as defined in such regula tions) from or defer or modify the requirements of, such regula tions with respect to any such small business; (B) provide for cost-sharing with respect to the testing of any fuel or fuel additive which is manufactured or processed by two or more persons or otherwise provide for shared respon sibility to meet the requirements of this section without dupli cation; or (C) exempt any person from such regulations with respect to a particular fuel or fuel additive upon a finding that any ad ditional testing of such fuel or fuel additive would be duplica tive of adequate existing testing. (f)(1)(A) Effective upon March 31, 1977, it shall be unlawful for any manufacturer of any fuel or fuel additive to first introduce into commerce, or to increase the concentration in use of, any fuel or fuel additive for general use in light duty motor vehicles manufac tured after model year 1974 which is not substantially similar to any fuel or fuel additive utilized in the certification of any model year 1975, or subsequent model year, vehicle or engine under sec tion 206. (B) Effective upon the date of the enactment of the Clean Air Act Amendments of 1990, it shall be unlawful for any manufac turer of any fuel or fuel additive to first introduce into commerce, or to increase the concentration in use of, any fuel or fuel additive for use by any person in motor vehicles manufactured after model year 1974 which is not substantially similar to any fuel or fuel ad ditive utilized in the certification of any model year 1975, or subse quent model year, vehicle or engine under section 206. (2) Effective November 30, 1977, it shall be unlawful for any manufacturer of any fuel to introduce into commerce any gasoline which contains a concentration of manganese in excess of .0625 grams per gallon of fuel, except as otherwise provided pursuant to a waiver under paragraph (4). (3) Any manufacturer of any fuel or fuel additive which prior to March 31, 1977, and after January 1, 1974, first introduced into commerce or increased the concentration in use of a fuel or fuel ad ditive that would otherwise have been prohibited under paragraph (1)(A) if introduced on or after March 31, 1977 shall, not later than September 15, 1978, cease to distribute such fuel or fuel additive in commerce. During the period beginning 180 days after the date of the enactment of this subsection and before September 15, 1978, the Administrator shall prohibit, or restrict the concentration of any fuel additive which he determines will cause or contribute to the failure of an emission control device or system (over the useful life of any vehicle in which such device or system is used) to achieve compliance by the vehicle with the emission standards with respect to which it has been certified under section 206. (4) The Administrator, upon application of any manufacturer of any fuel or fuel additive, may waive the prohibitions established under paragraph (1) or (3) of this subsection or the limitation speci Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 261 Sec. 211CLEAN AIR ACT fied in paragraph (2) of this subsection, if he determines that the applicant has established that such fuel or fuel additive or a speci fied concentration thereof, and the emission products of such fuel or additive or specified concentration thereof, will not cause or con tribute to a failure of any emission control device or system (over the useful life of any vehicle in which such device or system is used) to achieve compliance by the vehicle with the emission stand ards with respect to which it has been certified pursuant to section 206. If the Administrator has not acted to grant or deny an applica tion under this paragraph within one hundred and eighty days of receipt of such application, the waiver authorized by this para graph shall be treated as granted. (5) No action of the Administrator under this section may be stayed by any court pending judicial review of such action. (g) MISFUELING.—(1) No person shall introduce, or cause or allow the introduction of, leaded gasoline into any motor vehicle which is labeled ‘‘unleaded gasoline only,’’ which is equipped with a gasoline tank filler inlet designed for the introduction of unleaded gasoline, which is a 1990 or later model year motor vehicle, or which such person knows or should know is a vehicle designed sole ly for the use of unleaded gasoline. (2) Beginning October 1, 1993, no person shall introduce or cause or allow the introduction into any motor vehicle of diesel fuel which such person knows or should know contains a concentration of sulfur in excess of 0.05 percent (by weight) or which fails to meet a cetane index minimum of 40 or such equivalent alternative aro matic level as prescribed by the Administrator under subsection (i)(2). (h) REID VAPOR PRESSURE REQUIREMENTS.— (1) PROHIBITION.—Not later than 6 months after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate regulations making it un lawful for any person during the high ozone season (as defined by the Administrator) to sell, offer for sale, dispense, supply, offer for supply, transport, or introduce into commerce gasoline with a Reid Vapor Pressure in excess of 9.0 pounds per square inch (psi). Such regulations shall also establish more stringent Reid Vapor Pressure standards in a nonattainment area as the Administrator finds necessary to generally achieve comparable evaporative emissions (on a per-vehicle basis) in nonattain ment areas, taking into consideration the enforceability of such standards, the need of an area for emission control, and eco nomic factors. (2) ATTAINMENT AREAS.—The regulations under this sub section shall not make it unlawful for any person to sell, offer for supply, transport, or introduce into commerce gasoline with a Reid Vapor Pressure of 9.0 pounds per square inch (psi) or lower in any area designated under section 107 as an attain ment area. Notwithstanding the preceding sentence, the Ad ministrator may impose a Reid vapor pressure requirement lower than 9.0 pounds per square inch (psi) in any area, for merly an ozone nonattainment area, which has been redesig nated as an attainment area. Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 262Sec. 211 CLEAN AIR ACT (3) EFFECTIVE DATE; ENFORCEMENT.—The regulations under this subsection shall provide that the requirements of this subsection shall take effect not later than the high ozone season for 1992, and shall include such provisions as the Ad ministrator determines are necessary to implement and enforce the requirements of this subsection. (4) ETHANOL WAIVER.—For fuel blends containing gasoline and 10 percent denatured anhydrous ethanol, the Reid vapor pressure limitation under this subsection shall be one pound per square inch (psi) greater than the applicable Reid vapor pressure limitations established under paragraph (1); Provided, however, That a distributor, blender, marketer, reseller, car rier, retailer, or wholesale purchaser-consumer shall be deemed to be in full compliance with the provisions of this sub section and the regulations promulgated thereunder if it can demonstrate (by showing receipt of a certification or other evi dence acceptable to the Administrator) that— (A) the gasoline portion of the blend complies with the Reid vapor pressure limitations promulgated pursuant to this subsection; (B) the ethanol portion of the blend does not exceed its waiver condition under subsection (f)(4); and (C) no additional alcohol or other additive has been added to increase the Reid Vapor Pressure of the ethanol portion of the blend. (5) AREAS COVERED.—The provisions of this subsection shall apply only to the 48 contiguous States and the District of Columbia. (i) SULFUR CONTENT REQUIREMENTS FOR DIESEL FUEL.—(1) Ef fective October 1, 1993, no person shall manufacture, sell, supply, offer for sale or supply, dispense, transport, or introduce into com merce motor vehicle diesel fuel which contains a concentration of sulfur in excess of 0.05 percent (by weight) or which fails to meet a cetane index minimum of 40. (2) Not later than 12 months after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate regulations to implement and enforce the requirements of paragraph (1). The Administrator may require manufacturers and importers of diesel fuel not intended for use in motor vehicles to dye such fuel in a particular manner in order to segregate it from motor vehicle diesel fuel. The Administrator may establish an equivalent alternative aromatic level to the cetane index specifica tion in paragraph (1). (3) The sulfur content of fuel required to be used in the certifi cation of 1991 through 1993 model year heavy-duty diesel vehicles and engines shall be 0.10 percent (by weight). The sulfur content and cetane index minimum of fuel required to be used in the cer tification of 1994 and later model year heavy-duty diesel vehicles and engines shall comply with the regulations promulgated under paragraph (2). (4) The States of Alaska and Hawaii may be exempted from the requirements of this subsection in the same manner as pro Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 263 Sec. 211CLEAN AIR ACT 1 So in original. Probably should refer to section ‘‘325’’. vided in section 324. 1 The Administrator shall take final action on any petition filed under section 324 1 or this paragraph for an ex emption from the requirements of this subsection, within 12 months from the date of the petition. (j) LEAD SUBSTITUTE GASOLINE ADDITIVES.—(1) After the date of the enactment of the Clean Air Act Amendments of 1990, any person proposing to register any gasoline additive under subsection (a) or to use any previously registered additive as a lead substitute may also elect to register the additive as a lead substitute gasoline additive for reducing valve seat wear by providing the Adminis trator with such relevant information regarding product identity and composition as the Administrator deems necessary for carrying out the responsibilities of paragraph (2) of this subsection (in addi tion to other information which may be required under subsection (b)). (2) In addition to the other testing which may be required under subsection (b), in the case of the lead substitute gasoline ad ditives referred to in paragraph (1), the Administrator shall de velop and publish a test procedure to determine the additives’ effec tiveness in reducing valve seat wear and the additives’ tendencies to produce engine deposits and other adverse side effects. The test procedures shall be developed in cooperation with the Secretary of Agriculture and with the input of additive manufacturers, engine and engine components manufacturers, and other interested per sons. The Administrator shall enter into arrangements with an independent laboratory to conduct tests of each additive using the test procedures developed and published pursuant to this para graph. The Administrator shall publish the results of the tests by company and additive name in the Federal Register along with, for comparison purposes, the results of applying the same test proce dures to gasoline containing 0.1 gram of lead per gallon in lieu of the lead substitute gasoline additive. The Administrator shall not rank or otherwise rate the lead substitute additives. Test proce dures shall be established within 1 year after the date of the enact ment of the Clean Air Act Amendments of 1990. Additives shall be tested within 18 months of the date of the enactment of the Clean Air Act Amendments of 1990 or 6 months after the lead substitute additives are identified to the Administrator, whichever is later. (3) The Administrator may impose a user fee to recover the costs of testing of any fuel additive referred to in this subsection. The fee shall be paid by the person proposing to register the fuel additive concerned. Such fee shall not exceed $20,000 for a single fuel additive. (4) There are authorized to be appropriated to the Adminis trator not more than $1,000,000 for the second full fiscal year after the date of the enactment of the Clean Air Act Amendments of 1990 to establish test procedures and conduct engine tests as pro vided in this subsection. Not more than $500,000 per year is au thorized to be appropriated for each of the 5 subsequent fiscal years. (5) Any fees collected under this subsection shall be deposited in a special fund in the United States Treasury for licensing and Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 264Sec. 211 CLEAN AIR ACT other services which thereafter shall be available for appropriation, to remain available until expended, to carry out the Agency’s ac tivities for which the fees were collected. (k) REFORMULATED GASOLINE FOR CONVENTIONAL VEHICLES.— (1) EPA REGULATIONS.—Within 1 year after the enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate regulations under this section establishing re quirements for reformulated gasoline to be used in gasoline fueled vehicles in specified nonattainment areas. Such regula tions shall require the greatest reduction in emissions of ozone forming volatile organic compounds (during the high ozone sea son) and emissions of toxic air pollutants (during the entire year) achievable through the reformulation of conventional gas oline, taking into consideration the cost of achieving such emis sion reductions, any nonair-quality and other air-quality re lated health and environmental impacts and energy require ments. (2) GENERAL REQUIREMENTS.—The regulations referred to in paragraph (1) shall require that reformulated gasoline com ply with paragraph (3) and with each of the following require ments (subject to paragraph (7)): (A) NOx EMISSIONS.—The emissions of oxides of nitro gen (NOx) from baseline vehicles when using the reformu lated gasoline shall be no greater than the level of such emissions from such vehicles when using baseline gasoline. If the Administrator determines that compliance with the limitation on emissions of oxides of nitrogen under the pre ceding sentence is technically infeasible, considering the other requirements applicable under this subsection to such gasoline, the Administrator may, as appropriate to ensure compliance with this subparagraph, adjust (or waive entirely), any other requirements of this paragraph (including the oxygen content requirement contained in subparagraph (B)) or any requirements applicable under paragraph (3)(A). (B) OXYGEN CONTENT.—The oxygen content of the gas oline shall equal or exceed 2.0 percent by weight (subject to a testing tolerance established by the Administrator) ex cept as otherwise required by this Act. The Administrator may waive, in whole or in part, the application of this sub paragraph for any ozone nonattainment area upon a deter mination by the Administrator that compliance with such requirement would prevent or interfere with the attain ment by the area of a national primary ambient air quality standard. (C) BENZENE CONTENT.—The benzene content of the gasoline shall not exceed 1.0 percent by volume. (D) HEAVY METALS.—The gasoline shall have no heavy metals, including lead or manganese. The Administrator may waive the prohibition contained in this subparagraph for a heavy metal (other than lead) if the Administrator determines that addition of the heavy metal to the gaso line will not increase, on an aggregate mass or cancer-risk basis, toxic air pollutant emissions from motor vehicles. Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 265 Sec. 211CLEAN AIR ACT (3) MORE STRINGENT OF FORMULA OR PERFORMANCE STAND ARDS.—The regulations referred to in paragraph (1) shall re quire compliance with the more stringent of either the require ments set forth in subparagraph (A) or the requirements of subparagraph (B) of this paragraph. For purposes of deter mining the more stringent provision, clause (i) and clause (ii) of subparagraph (B) shall be considered independently. (A) FORMULA.— (i) BENZENE.—The benzene content of the refor mulated gasoline shall not exceed 1.0 percent by vol ume. (ii) AROMATICS.—The aromatic hydrocarbon con tent of the reformulated gasoline shall not exceed 25 percent by volume. (iii) LEAD.—The reformulated gasoline shall have no lead content. (iv) DETERGENTS.—The reformulated gasoline shall contain additives to prevent the accumulation of deposits in engines or vehicle fuel supply systems. (v) OXYGEN CONTENT.—The oxygen content of the reformulated gasoline shall equal or exceed 2.0 per cent by weight (subject to a testing tolerance estab lished by the Administrator) except as otherwise re quired by this Act. (B) PERFORMANCE STANDARD.— (i) VOC EMISSIONS.—During the high ozone season (as defined by the Administrator), the aggregate emis sions of ozone forming volatile organic compounds from baseline vehicles when using the reformulated gasoline shall be 15 percent below the aggregate emis sions of ozone forming volatile organic compounds from such vehicles when using baseline gasoline. Ef fective in calendar year 2000 and thereafter, 25 per cent shall be substituted for 15 percent in applying this clause, except that the Administrator may adjust such 25 percent requirement to provide for a lesser or greater reduction based on technological feasibility, considering the cost of achieving such reductions in VOC emissions. No such adjustment shall provide for less than a 20 percent reduction below the aggregate emissions of such air pollutants from such vehicles when using baseline gasoline. The reductions required under this clause shall be on a mass basis. (ii) TOXICS.—During the entire year, the aggregate emissions of toxic air pollutants from baseline vehicles when using the reformulated gasoline shall be 15 per cent below the aggregate emissions of toxic air pollut ants from such vehicles when using baseline gasoline. Effective in calendar year 2000 and thereafter, 25 per cent shall be substituted for 15 percent in applying this clause, except that the Administrator may adjust such 25 percent requirement to provide for a lesser or greater reduction based on technological feasibility, considering the cost of achieving such reductions in Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 266Sec. 211 CLEAN AIR ACT toxic air pollutants. No such adjustment shall provide for less than a 20 percent reduction below the aggre gate emissions of such air pollutants from such vehi cles when using baseline gasoline. The reductions re quired under this clause shall be on a mass basis. Any reduction greater than a specific percentage reduction re quired under this subparagraph shall be treated as satisfying such percentage reduction requirement. (4) CERTIFICATION PROCEDURES.— (A) REGULATIONS.—The regulations under this sub section shall include procedures under which the Adminis trator shall certify reformulated gasoline as complying with the requirements established pursuant to this sub section. Under such regulations, the Administrator shall establish procedures for any person to petition the Admin istrator to certify a fuel formulation, or slate of fuel formu lations. Such procedures shall further require that the Ad ministrator shall approve or deny such petition within 180 days of receipt. If the Administrator fails to act within such 180-day period, the fuel shall be deemed certified until the Administrator completes action on the petition. (B) CERTIFICATION; EQUIVALENCY.—The Administrator shall certify a fuel formulation or slate of fuel formulations as complying with this subsection if such fuel or fuels— (i) comply with the requirements of paragraph (2), and (ii) achieve equivalent or greater reductions in emissions of ozone forming volatile organic compounds and emissions of toxic air pollutants than are achieved by a reformulated gasoline meeting the applicable re quirements of paragraph (3). (C) EPA DETERMINATION OF EMISSIONS LEVEL.—Within 1 year after the enactment of the Clean Air Act Amend ments of 1990, the Administrator shall determine the level of emissions of ozone forming volatile organic compounds and emissions of toxic air pollutants emitted by baseline vehicles when operating on baseline gasoline. For purposes of this subsection, within 1 year after the enactment of the Clean Air Act Amendments of 1990, the Administrator shall, by rule, determine appropriate measures of, and methodology for, ascertaining the emissions of air pollut ants (including calculations, equipment, and testing toler ances). (5) PROHIBITION.—Effective beginning January 1, 1995, each of the following shall be a violation of this subsection: (A) The sale or dispensing by any person of conven tional gasoline to ultimate consumers in any covered area. (B) The sale or dispensing by any refiner, blender, im porter, or marketer of conventional gasoline for resale in any covered area, without (i) segregating such gasoline from reformulated gasoline, and (ii) clearly marking such conventional gasoline as ‘‘conventional gasoline, not for sale to ultimate consumer in a covered area’’. Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 267 Sec. 211CLEAN AIR ACT Any refiner, blender, importer or marketer who purchases property segregated and marked conventional gasoline, and thereafter labels, represents, or wholesales such gasoline as re formulated gasoline shall also be in violation of this subsection. The Administrator may impose sampling, testing, and record keeping requirements upon any refiner, blender, importer, or marketer to prevent violations of this section. (6) OPT-IN AREAS.—(A) Upon the application of the Gov ernor of a State, the Administrator shall apply the prohibition set forth in paragraph (5) in any area in the State classified under subpart 2 of part D of title I as a Marginal, Moderate, Serious, or Severe Area (without regard to whether or not the 1980 population of the area exceeds 250,000). In any such case, the Administrator shall establish an effective date for such pro hibition as he deems appropriate, not later than January 1, 1995, or 1 year after such application is received, whichever is later. The Administrator shall publish such application in the Federal Register upon receipt. (B) If the Administrator determines, on the Administra tor’s own motion or on petition of any person, after consulta tion with the Secretary of Energy, that there is insufficient do mestic capacity to produce gasoline certified under this sub section, the Administrator shall, by rule, extend the effective date of such prohibition in Marginal, Moderate, Serious, or Se vere Areas referred to in subparagraph (A) for one additional year, and may, by rule, renew such extension for 2 additional one-year periods. The Administrator shall act on any petition submitted under this paragraph within 6 months after receipt of the petition. The Administrator shall issue such extensions for areas with a lower ozone classification before issuing any such extension for areas with a higher classification. (7) CREDITS.—(A) The regulations promulgated under this subsection shall provide for the granting of an appropriate amount of credits to a person who refines, blends, or imports and certifies a gasoline or slate of gasoline that— (i) has an oxygen content (by weight) that exceeds the minimum oxygen content specified in paragraph (2); (ii) has an aromatic hydrocarbon content (by volume) that is less than the maximum aromatic hydrocarbon con tent required to comply with paragraph (3); or (iii) has a benzene content (by volume) that is less than the maximum benzene content specified in paragraph (2). (B) The regulations described in subparagraph (A) shall also provide that a person who is granted credits may use such credits, or transfer all or a portion of such credits to another person for use within the same nonattainment area, for the purpose of complying with this subsection. (C) The regulations promulgated under subparagraphs (A) and (B) shall ensure the enforcement of the requirements for the issuance, application, and transfer of the credits. Such reg ulations shall prohibit the granting or transfer of such credits for use with respect to any gasoline in a nonattainment area, Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 268Sec. 211 CLEAN AIR ACT to the extent the use of such credits would result in any of the following: (i) An average gasoline aromatic hydrocarbon content (by volume) for the nonattainment (taking into account all gasoline sold for use in conventional gasoline-fueled vehi cles in the nonattainment area) higher than the average fuel aromatic hydrocarbon content (by volume) that would occur in the absence of using any such credits. (ii) An average gasoline oxygen content (by weight) for the nonattainment area (taking into account all gasoline sold for use in conventional gasoline-fueled vehicles in the nonattainment area) lower than the average gasoline oxy gen content (by weight) that would occur in the absence of using any such credits. (iii) An average benzene content (by volume) for the nonattainment area (taking into account all gasoline sold for use in conventional gasoline-fueled vehicles in the non attainment area) higher than the average benzene content (by volume) that would occur in the absence of using any such credits. (8) ANTI-DUMPING RULES.— (A) IN GENERAL.—Within 1 year after the enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate regulations applicable to each refiner, blender, or importer of gasoline ensuring that gasoline sold or introduced into commerce by such refiner, blender, or importer (other than reformulated gasoline subject to the requirements of paragraph (1)) does not result in average per gallon emissions (measured on a mass basis) of (i) volatile organic compounds, (ii) oxides of nitrogen, (iii) car bon monoxide, and (iv) toxic air pollutants in excess of such emissions of such pollutants attributable to gasoline sold or introduced into commerce in calendar year 1990 by that refiner, blender, or importer. Such regulations shall take effect beginning January 1, 1995. (B) ADJUSTMENTS.—In evaluating compliance with the requirements of subparagraph (A), the Administrator shall make appropriate adjustments to insure that no credit is provided for improvement in motor vehicle emissions con trol in motor vehicles sold after the calendar year 1990. (C) COMPLIANCE DETERMINED FOR EACH POLLUTANT INDEPENDENTLY.—In determining whether there is an in crease in emissions in violation of the prohibition con tained in subparagraph (A) the Administrator shall con sider an increase in each air pollutant referred to in clauses (i) through (iv) as a separate violation of such pro hibition, except that the Administrator shall promulgate regulations to provide that any increase in emissions of ox ides of nitrogen resulting from adding oxygenates to gaso line may be offset by an equivalent or greater reduction (on a mass basis) in emissions of volatile organic com pounds, carbon monoxide, or toxic air pollutants, or any combination of the foregoing. Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 269 Sec. 211CLEAN AIR ACT (D) COMPLIANCE PERIOD.—The Administrator shall promulgate an appropriate compliance period or appro priate compliance periods to be used for assessing compli ance with the prohibition contained in subparagraph (A). (E) BASELINE FOR DETERMINING COMPLIANCE.—If the Administrator determines that no adequate and reliable data exists regarding the composition of gasoline sold or introduced into commerce by a refiner, blender, or im porter in calendar year 1990, for such refiner, blender, or importer, baseline gasoline shall be substituted for such 1990 gasoline in determining compliance with subpara graph (A). (9) EMISSIONS FROM ENTIRE VEHICLE.—In applying the re quirements of this subsection, the Administrator shall take into account emissions from the entire motor vehicle, including evaporative, running, refueling, and exhaust emissions. (10) DEFINITIONS.—For purposes of this subsection— (A) BASELINE VEHICLES.—The term ‘‘baseline vehicles’’ mean representative model year 1990 vehicles. (B) BASELINE GASOLINE.— (i) SUMMERTIME.—The term ‘‘baseline gasoline’’ means in the case of gasoline sold during the high ozone period (as defined by the Administrator) a gaso line which meets the following specifications: BASELINE GASOLINE FUEL PROPERTIES API Gravity ........................................................... 57.4 Sulfur, ppm ........................................................... 339 Benzene, % ............................................................ 1.53 RVP, psi ................................................................. 8.7 Octane, R+M/2 ...................................................... 87.3 IBP, F .................................................................... 91 10%, F .................................................................... 128 50%, F .................................................................... 218 90%, F .................................................................... 330 End Point, F .......................................................... 415 Aromatics, % ......................................................... 32.0 Olefins, % .............................................................. 9.2 Saturates, % .......................................................... 58.8 (ii) WINTERTIME.—The Administrator shall estab lish the specifications of ‘‘baseline gasoline’’ for gaso line sold at times other than the high ozone period (as defined by the Administrator). Such specifications shall be the specifications of 1990 industry average gasoline sold during such period. (C) TOXIC AIR POLLUTANTS.—The term ‘‘toxic air pol lutants’’ means the aggregate emissions of the following: Benzene 1,3 Butadiene Polycyclic organic matter (POM) Acetaldehyde Formaldehyde. (D) COVERED AREA.—The 9 ozone nonattainment areas having a 1980 population in excess of 250,000 and having the highest ozone design value during the period 1987 through 1989 shall be ‘‘covered areas’’ for purposes of this subsection. Effective one year after the reclassification of Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 270Sec. 211 CLEAN AIR ACT 1 So in original. Subparagraphs (E) and (F) should be indented. any ozone nonattainment area as a Severe ozone non attainment area under section 181(b), such Severe area shall also be a ‘‘covered area’’ for purposes of this sub section. (E) 1 REFORMULATED GASOLINE.—The term ‘‘reformulated gasoline’’ means any gasoline which is certified by the Admin istrator under this section as complying with this subsection. (F) 1 CONVENTIONAL GASOLINE.—The term ‘‘conventional gasoline’’ means any gasoline which does not meet specifica tions set by a certification under this subsection. (l) DETERGENTS.—Effective beginning January 1, 1995, no per son may sell or dispense to an ultimate consumer in the United States, and no refiner or marketer may directly or indirectly sell or dispense to persons who sell or dispense to ultimate consumers in the United States any gasoline which does not contain additives to prevent the accumulation of deposits in engines or fuel supply systems. Not later than 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate a rule establishing specifications for such additives. (m) OXYGENATED FUELS.— (1) PLAN REVISIONS FOR CO NONATTAINMENT AREAS.—(A) Each State in which there is located all or part of an area which is designated under title I as a nonattainment area for carbon monoxide and which has a carbon monoxide design value of 9.5 parts per million (ppm) or above based on data for the 2-year period of 1988 and 1989 and calculated according to the most recent interpretation methodology issued by the Ad ministrator prior to the enactment of the Clean Air Act Amendments of 1990 shall submit to the Administrator a State implementation plan revision under section 110 and part D of title I for such area which shall contain the provisions specified under this subsection regarding oxygenated gasoline. (B) A plan revision which contains such provisions shall also be submitted by each State in which there is located any area which, for any 2-year period after 1989 has a carbon mon oxide design value of 9.5 ppm or above. The revision shall be submitted within 18 months after such 2-year period. (2) OXYGENATED GASOLINE IN CO NONATTAINMENT AREAS.— Each plan revision under this subsection shall contain provi sions to require that any gasoline sold, or dispensed, to the ul timate consumer in the carbon monoxide nonattainment area or sold or dispensed directly or indirectly by fuel refiners or marketers to persons who sell or dispense to ultimate con sumers, in the larger of— (A) the Consolidated Metropolitan Statistical Area (CMSA) in which the area is located, or (B) if the area is not located in a CMSA, the Metro politan Statistical Area in which the area is located, be blended, during the portion of the year in which the area is prone to high ambient concentrations of carbon monoxide to contain not less than 2.7 percent oxygen by weight (subject to a testing tolerance established by the Administrator). The por Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 271 Sec. 211CLEAN AIR ACT 1 Probably should add the word ‘‘as’’ before ‘‘of’’. tion of the year in which the area is prone to high ambient con centrations of carbon monoxide shall be as determined by the Administrator, but shall not be less than 4 months. At the re quest of a State with respect to any area designated as non attainment for carbon monoxide, the Administrator may reduce the period specified in the preceding sentence if the State can demonstrate that because of meteorological conditions, a re duced period will assure that there will be no exceedances of the carbon monoxide standard outside of such reduced period. For areas with a carbon monoxide design value of 9.5 ppm or more 1 of the date of enactment of the Clean Air Act Amend ments of 1990, the revision shall provide that such require ment shall take effect no later than November 1, 1992, (or at such other date during 1992 as the Administrator establishes under the preceding provisions of this paragraph). For other areas, the revision shall provide that such requirement shall take effect no later than November 1 of the third year after the last year of the applicable 2-year period referred to in para graph (1) (or at such other date during such third year as the Administrator establishes under the preceding provisions of this paragraph) and shall include a program for implementa tion and enforcement of the requirement consistent with guid ance to be issued by the Administrator. (3) WAIVERS.—(A) The Administrator shall waive, in whole or in part, the requirements of paragraph (2) upon a dem onstration by the State to the satisfaction of the Administrator that the use of oxygenated gasoline would prevent or interfere with the attainment by the area of a national primary ambient air quality standard (or a State or local ambient air quality standard) for any air pollutant other than carbon monoxide. (B) The Administrator shall, upon demonstration by the State satisfactory to the Administrator, waive the requirement of paragraph (2) where the Administrator determines that mo bile sources of carbon monoxide do not contribute significantly to carbon monoxide levels in an area. (C)(i) Any person may petition the Administrator to make a finding that there is, or is likely to be, for any area, an inad equate domestic supply of, or distribution capacity for, oxygenated gasoline meeting the requirements of paragraph (2) or fuel additives (oxygenates) necessary to meet such require ments. The Administrator shall act on such petition within 6 months after receipt of the petition. (ii) If the Administrator determines, in response to a peti tion under clause (i), that there is an inadequate supply or ca pacity described in clause (i), the Administrator shall delay the effective date of paragraph (2) for 1 year. Upon petition, the Administrator may extend such effective date for one addi tional year. No partial delay or lesser waiver may be granted under this clause. (iii) In granting waivers under this subparagraph the Ad ministrator shall consider distribution capacity separately from the adequacy of domestic supply and shall grant such waivers Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 272Sec. 211 CLEAN AIR ACT 1 Reference should probably be to section 216(2). See section 220 of Public Law 101–549. in such manner as will assure that, if supplies of oxygenated gasoline are limited, areas having the highest design value for carbon monoxide will have a priority in obtaining oxygenated gasoline which meets the requirements of paragraph (2). (iv) As used in this subparagraph, the term distribution capacity includes capacity for transportation, storage, and blending. (4) FUEL DISPENSING SYSTEMS.—Any person selling oxygenated gasoline at retail pursuant to this subsection shall be required under regulations promulgated by the Adminis trator to label the fuel dispensing system with a notice that the gasoline is oxygenated and will reduce the carbon monoxide emissions from the motor vehicle. (5) GUIDELINES FOR CREDIT.—The Administrator shall pro mulgate guidelines, within 9 months after the date of the en actment of the Clean Air Act Amendments of 1990, allowing the use of marketable oxygen credits from gasolines during that portion of the year specified in paragraph (2) with higher oxygen content than required to offset the sale or use of gaso line with a lower oxygen content than required. No credits may be transferred between nonattainment areas. (6) ATTAINMENT AREAS.—Nothing in this subsection shall be interpreted as requiring an oxygenated gasoline program in an area which is in attainment for carbon monoxide, except that in a carbon monoxide nonattainment area which is redes ignated as attainment for carbon monoxide, the requirements of this subsection shall remain in effect to the extent such pro gram is necessary to maintain such standard thereafter in the area. (7) FAILURE TO ATTAIN CO STANDARD.—If the Administrator determines under section 186(b)(2) that the national primary ambient air quality standard for carbon monoxide has not been attained in a Serious Area by the applicable attainment date, the State shall submit a plan revision for the area within 9 months after the date of such determination. The plan revision shall provide that the minimum oxygen content of gasoline re ferred to in paragraph (2) shall be 3.1 percent by weight unless such requirement is waived in accordance with the provisions of this subsection. (n) PROHIBITION ON LEADED GASOLINE FOR HIGHWAY USE.— After December 31, 1995, it shall be unlawful for any person to sell, offer for sale, supply, offer for supply, dispense, transport, or introduce into commerce, for use as fuel in any motor vehicle (as defined in section 219(2)) 1 any gasoline which contains lead or lead additives. (o) FUEL AND FUEL ADDITIVE IMPORTERS AND IMPORTATION.— For the purposes of this section, the term ‘‘manufacturer’’ includes an importer and the term ‘‘manufacture’’ includes importation. [42 U.S.C. 7545] øSection 212 repealed by P.L. 101–549, section 230(10)¿ Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 273 Sec. 213CLEAN AIR ACT SEC. 213. NONROAD ENGINES AND VEHICLES. (a) EMISSIONS STANDARDS.—(1) The Administrator shall con duct a study of emissions from nonroad engines and nonroad vehi cles (other than locomotives or engines used in locomotives) to de termine if such emissions cause, or significantly contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. Such study shall be completed within 12 months of the date of the enactment of the Clean Air Act Amendments of 1990. (2) After notice and opportunity for public hearing, the Admin istrator shall determine within 12 months after completion of the study under paragraph (1), based upon the results of such study, whether emissions of carbon monoxide, oxides of nitrogen, and volatile organic compounds from new and existing nonroad engines or nonroad vehicles (other than locomotives or engines used in loco motives) are significant contributors to ozone or carbon monoxide concentrations in more than 1 area which has failed to attain the national ambient air quality standards for ozone or carbon mon oxide. Such determination shall be included in the regulations under paragraph (3). (3) If the Administrator makes an affirmative determination under paragraph (2) the Administrator shall, within 12 months after completion of the study under paragraph (1), promulgate (and from time to time revise) regulations containing standards applica ble to emissions from those classes or categories of new nonroad en gines and new nonroad vehicles (other than locomotives or engines used in locomotives) which in the Administrator’s judgment cause, or contribute to, such air pollution. Such standards shall achieve the greatest degree of emission reduction achievable through the application of technology which the Administrator determines will be available for the engines or vehicles to which such standards apply, giving appropriate consideration to the cost of applying such technology within the period of time available to manufacturers and to noise, energy, and safety factors associated with the applica tion of such technology. In determining what degree of reduction will be available, the Administrator shall first consider standards equivalent in stringency to standards for comparable motor vehi cles or engines (if any) regulated under section 202, taking into ac count the technological feasibility, costs, safety, noise, and energy factors associated with achieving, as appropriate, standards of such stringency and lead time. The regulations shall apply to the useful life of the engines or vehicles (as determined by the Administrator). (4) If the Administrator determines that any emissions not re ferred to in paragraph (2) from new nonroad engines or vehicles significantly contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, the Administrator may promulgate (and from time to time revise) such regulations as the Administrator deems appropriate containing standards applica ble to emissions from those classes or categories of new nonroad en gines and new nonroad vehicles (other than locomotives or engines used in locomotives) which in the Administrator’s judgment cause, or contribute to, such air pollution, taking into account costs, noise, safety, and energy factors associated with the application of tech nology which the Administrator determines will be available for the Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 274Sec. 214 CLEAN AIR ACT engines and vehicles to which such standards apply. The regula tions shall apply to the useful life of the engines or vehicles (as de termined by the Administrator). (5) Within 5 years after the enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate regula tions containing standards applicable to emissions from new loco motives and new engines used in locomotives. Such standards shall achieve the greatest degree of emission reduction achievable through the application of technology which the Administrator de termines will be available for the locomotives or engines to which such standards apply, giving appropriate consideration to the cost of applying such technology within the period of time available to manufacturers and to noise, energy, and safety factors associated with the application of such technology. (b) EFFECTIVE DATE.—Standards under this section shall take effect at the earliest possible date considering the lead time nec essary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compli ance within such period and energy and safety. (c) SAFE CONTROLS.—Effective with respect to new engines or vehicles to which standards under this section apply, no emission control device, system, or element of design shall be used in such a new nonroad engine or new nonroad vehicle for purposes of com plying with such standards if such device, system, or element of de sign will cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation or function. In deter mining whether an unreasonable risk exists, the Administrator shall consider factors including those described in section 202(a)(4)(B). (d) ENFORCEMENT.—The standards under this section shall be subject to sections 206, 207, 208, and 209, with such modifications of the applicable regulations implementing such sections as the Ad ministrator deems appropriate, and shall be enforced in the same manner as standards prescribed under section 202. The Adminis trator shall revise or promulgate regulations as may be necessary to determine compliance with, and enforce, standards in effect under this section. [42 U.S.C. 7547] STUDY OF PARTICULATE EMISSIONS FROM MOTOR VEHICLES SEC. 214. (a)(1) The Administrator shall conduct a study con cerning the effects on health and welfare of particulate emissions from motor vehicles or motor vehicle engines to which section 202 applies. Such study shall characterize and quantify such emissions and analyze the relationship of such emissions to various fuels and fuel additives. (2) The study shall also include an analysis of particulate emis sions from mobile sources which are not related to engine emis sions (including, but not limited to tire debris, and asbestos from brake lining). (b) The Administrator shall report to the Congress the findings and results of the study conducted under subsection (a) not later than two years after the date of the enactment of the Clean Air Act Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 275 Sec. 215CLEAN AIR ACT Amendments of 1977. Such report shall also include recommenda tions for standards or methods to regulate particulate emissions de scribed in paragraph (2) of subsection (a). [42 U.S.C. 7548] HIGH ALTITUDE PERFORMANCE ADJUSTMENTS SEC. 215. (a)(1) Any action taken with respect to any element of design installed on or in a motor vehicle or motor vehicle engine in compliance with regulations under this title (including any alter ation or adjustment of such element), shall be treated as not in vio lation of section 203(a) if such action is performed in accordance with high altitude adjustment instructions provided by the manu facturer under subsection (b) and approved by the Administrator. (2) If the Administrator finds that adjustments or modifica tions made pursuant to instructions of the manufacturer under paragraph (1) will not insure emission control performance with re spect to each standard under section 202 at least equivalent to that which would result if no such adjustments or modifications were made, he shall disapprove such instructions. Such findings shall be based upon minimum engineering evaluations consistent with good engineering practice. (b)(1) Instructions respecting each class or category of vehicles or engines to which this title applies providing for such vehicle and engine adjustments and modifications as may be necessary to in sure emission control performance at different altitudes shall be submitted by the manufacturer to the Administrator pursuant to regulations promulgated by the Administrator. (2) Any knowing violation by a manufacturer of requirements of the Administrator under paragraph (1) shall be treated as a vio lation by such manufacturer of section 203(a)(3) for purposes of the penalties contained in section 205. (3) Such instruction shall provide, in addition to other adjust ments, for adjustments for vehicles moving from high altitude areas to low altitude areas after the initial registration of such ve hicles. (c) No instructions under this section respecting adjustments or modifications may require the use of any manufacturer parts (as defined in section 203(a)) unless the manufacturer demonstrates to the satisfaction of the Administrator that the use of such manufac turer parts is necessary to insure emission control performance. (d) Before January 1, 1981 the authority provided by this sec tion shall be available in any high altitude State (as determined under regulations of the Administrator under regulations promul gated before the date of the enactment of this Act) but after De cember 31, 1980, such authority shall be available only in any such State in which an inspection and maintenance program for the testing of motor vehicle emissions has been instituted for the por tions of the State where any national ambient air quality standard for auto-related pollutants has not been attained. (e) HIGH ALTITUDE TESTING.—(1) The Administrator shall promptly establish at least one testing center (in addition to the testing centers existing on the date of the enactment of the Clean Air Act Amendments of 1990) located at a site that represents high Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 276Sec. 216 CLEAN AIR ACT altitude conditions, to ascertain in a reasonable manner whether, when in actual use throughout their useful life (as determined under section 202(d)), each class or category of vehicle and engines to which regulations under section 202 apply conforms to the emis sions standards established by such regulations. For purposes of this subsection, the term ‘‘high altitude conditions’’ refers to high altitude as defined in regulations of the Administrator in effect as of the date of the enactment of the Clean Air Act Amendments of 1990. (2) The Administrator, in cooperation with the Secretary of En ergy and the Administrator of the Urban Mass Transportation Ad ministration, and such other agencies as the Administrator deems appropriate, shall establish a research and technology assessment center to provide for the development and evaluation of less-pol luting heavy-duty engines and fuels for use in buses, heavy-duty trucks, and non-road engines and vehicles, which shall be located at a high-altitude site that represents high-altitude conditions. In establishing and funding such a center, the Administrator shall give preference to proposals which provide for local cost-sharing of facilities and recovery of costs of operation through utilization of such facility for the purposes of this section. (3) The Administrator shall designate at least one center at high-altitude conditions to provide research on after-market emis sion components, dual-fueled vehicles and conversion kits, the ef fects of tampering on emissions equipment, testing of alternate fuels and conversion kits, and the development of curricula, train ing courses, and materials to maximize the effectiveness of inspec tion and maintenance programs as they relate to promoting effec tive control of vehicle emissions at high-altitude elevations. Pref erence shall be given to existing vehicle emissions testing and re search centers that have established reputations for vehicle emis sions research and development and training, and that possess in house Federal Test Procedure capacity. [42 U.S.C. 7549] DEFINITIONS FOR PART A SEC. 216. As used in this part— (1) The term ‘‘manufacturer’’ as used in sections 202, 203, 206, 207, and 208 means any person engaged in the manufac turing or assembling of new motor vehicles, new motor vehicle engines, new nonroad vehicles or new nonroad engines, or im porting such vehicles or engines for resale, or who acts for and is under the control of any such person in connection with the distribution of new motor vehicles, new motor vehicle engines, new nonroad vehicles or new nonroad engines, but shall not in clude any dealer with respect to new motor vehicles, new motor vehicle engines, new nonroad vehicles or new nonroad engines received by him in commerce. (2) The term ‘‘motor vehicle’’ means any self-propelled ve hicle designed for transporting persons or property on a street or highway. (3) Except with respect to vehicles or engines imported or offered for importation, the term ‘‘new motor vehicle’’ means a Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 277 Sec. 216CLEAN AIR ACT 1 ‘‘Light-duty vehicle’’ should have been set off in quotation marks. 2 So in original. Probably should be ‘‘(GVWR)’’. motor vehicle the equitable or legal title to which has never been transferred to an ultimate purchaser; and the term ‘‘new motor vehicle engine’’ means an engine in a new motor vehicle or a motor vehicle engine the equitable or legal title to which has never been transferred to the ultimate purchaser; and with respect to imported vehicles or engines, such terms mean a motor vehicle and engine, respectively, manufactured after the effective date of a regulation issued under section 202 which is applicable to such vehicle or engine (or which would be applica ble to such vehicle or engine had it been manufactured for im portation into the United States). (4) The term ‘‘dealer’’ means any person who is engaged in the sale or the distribution of new motor vehicles or new motor vehicle engines to the ultimate purchaser. (5) The term ‘‘ultimate purchaser’’ means, with respect to any new motor vehicle or new motor vehicle engine, the first person who in good faith purchases such new motor vehicle or new engine for purposes other than resale. (6) The term ‘‘commerce’’ means (A) commerce between any place in any State and any place outside thereof; and (B) commerce wholly within the District of Columbia. (7) VEHICLE CURB WEIGHT, GROSS VEHICLE WEIGHT RATING, LIGHT-DUTY TRUCK, LIGHT-DUTY VEHICLE, AND LOADED VEHICLE WEIGHT.—The terms ‘‘vehicle curb weight’’, ‘‘gross vehicle weight rating’’ (GVWR), ‘‘light-duty truck’’ (LDT), light-duty ve hicle, 1 and ‘‘loaded vehicle weight’’ (LVW) have the meaning provided in regulations promulgated by the Administrator and in effect as of the enactment of the Clean Air Act Amendments of 1990. The abbreviations in parentheses corresponding to any term referred to in this paragraph shall have the same mean ing as the corresponding term. (8) TEST WEIGHT.—The term ‘‘test weight’’ and the abbre viation ‘‘tw’’ mean the vehicle curb weight added to the gross vehicle weight rating (gvwr) 2 and divided by 2. (9) MOTOR VEHICLE OR ENGINE PART MANUFACTURER.—The term ‘‘motor vehicle or engine part manufacturer’’ as used in sections 207 and 208 means any person engaged in the manu facturing, assembling or rebuilding of any device, system, part, component or element of design which is installed in or on motor vehicles or motor vehicle engines. (10) NONROAD ENGINE.—The term ‘‘nonroad engine’’ means an internal combustion engine (including the fuel system) that is not used in a motor vehicle or a vehicle used solely for com petition, or that is not subject to standards promulgated under section 111 or section 202. (11) NONROAD VEHICLE.—The term ‘‘nonroad vehicle’’ means a vehicle that is powered by a nonroad engine and that is not a motor vehicle or a vehicle used solely for competition. [42 U.S.C. 7550] Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 278Sec. 217 CLEAN AIR ACT 1 So in original. Probably should have been ‘‘section’’. SEC. 217. MOTOR VEHICLE COMPLIANCE PROGRAM FEES. (a) FEE COLLECTION.—Consistent with section 9701 of title 31, United States Code, the Administrator may promulgate (and from time to time revise) regulations establishing fees to recover all rea sonable costs to the Administrator associated with— (1) new vehicle or engine certification under section 206(a) or part C, (2) new vehicle or engine compliance monitoring and test ing under section 206(b) or part C, and (3) in-use vehicle or engine compliance monitoring and testing under section 207(c) or part C. The Administrator may establish for all foreign and domestic man ufacturers a fee schedule based on such factors as the Adminis trator finds appropriate and equitable and nondiscriminatory, in cluding the number of vehicles or engines produced under a certifi cate of conformity. In the case of heavy-duty engine and vehicle manufacturers, such fees shall not exceed a reasonable amount to recover an appropriate portion of such reasonable costs. (b) SPECIAL TREASURY FUND.—Any fees collected under this section shall be deposited in a special fund in the United States Treasury for licensing and other services which thereafter shall be available for appropriation, to remain available until expended, to carry out the Agency’s activities for which the fees were collected. (c) LIMITATION ON FUND USE.—Moneys in the special fund re ferred to in subsection (b) shall not be used until after the first fis cal year commencing after the first July 1 when fees are paid into the fund. (d) ADMINISTRATOR’S TESTING AUTHORITY.—Nothing in this subsection shall be construed to limit the Administrator’s authority to require manufacturer or confirmatory testing as provided in this part. [42 U.S.C. 7552] SEC. 218. PROHIBITION ON PRODUCTION OF ENGINES REQUIRING LEADED GASOLINE. The Administrator shall promulgate regulations applicable to motor vehicle engines and nonroad engines manufactured after model year 1992 that prohibit the manufacture, sale, or introduc tion into commerce of any engine that requires leaded gasoline. [42 U.S.C. 7553] SEC. 219. URBAN BUS STANDARDS. (a) STANDARDS FOR MODEL YEARS AFTER 1993.—Not later than January 1, 1992, the Administrator shall promulgate regulations under section 202(a) applicable to urban buses for the model year 1994 and thereafter. Such standards shall be based on the best technology that can reasonably be anticipated to be available at the time such measures are to be implemented, taking costs, safety, en ergy, lead time, and other relevant factors into account. Such regu lations shall require that such urban buses comply with the provi sions of subsection (b) of this section (and subsection (c) of this sub section, 1 if applicable) in addition to compliance with the standards Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 279 Sec. 219CLEAN AIR ACT applicable under section 202(a) for heavy-duty vehicles of the same type and model year. (b) PM STANDARD.— (1) 50 PERCENT REDUCTION.—The standards under section 202(a) applicable to urban buses shall require that, effective for the model year 1994 and thereafter, emissions of particulate matter (PM) from urban buses shall not exceed 50 percent of the emissions of particulate matter (PM) allowed under the emission standard applicable under section 202(a) as of the date of the enactment of the Clean Air Act Amendments of 1990 for particulate matter (PM) in the case of heavy-duty die sel vehicles and engines manufactured in the model year 1994. (2) REVISED REDUCTION.—The Administrator shall increase the level of emissions of particulate matter allowed under the standard referred to in paragraph (1) if the Administrator de termines that the 50 percent reduction referred to in para graph (1) is not technologically achievable, taking into account durability, costs, lead time, safety, and other relevant factors. The Administrator may not increase such level of emissions above 70 percent of the emissions of particulate matter (PM) allowed under the emission standard applicable under section 202(a) as of the date of the enactment of the Clean Air Act Amendments of 1990 for particulate matter (PM) in the case of heavy-duty diesel vehicles and engines manufactured in the model year 1994. (3) DETERMINATION AS PART OF RULE.—As part of the rule making under subsection (a), the Administrator shall make a determination as to whether the 50 percent reduction referred to in paragraph (1) is technologically achievable, taking into account durability, costs, lead time, safety, and other relevant factors. (c) LOW-POLLUTING FUEL REQUIREMENT.— (1) ANNUAL TESTING.—Beginning with model year 1994 buses, the Administrator shall conduct annual tests of a rep resentative sample of operating urban buses subject to the par ticulate matter (PM) standard applicable pursuant to sub section (b) to determine whether such buses comply with such standard in use over their full useful life. (2) PROMULGATION OF ADDITIONAL LOW-POLLUTING FUEL REQUIREMENT.—(A) If the Administrator determines, based on the testing under paragraph (1), that urban buses subject to the particulate matter (PM) standard applicable pursuant to subsection (b) do not comply with such standard in use over their full useful life, he shall revise the standards applicable to such buses to require (in addition to compliance with the PM standard applicable pursuant to subsection (b)) that all new urban buses purchased or placed into service by owners or operators of urban buses in all metropolitan statistical areas or consolidated metropolitan statistical areas with a 1980 popu lation of 750,000 or more shall be capable of operating, and shall be exclusively operated, on low-polluting fuels. The Ad ministrator shall establish the pass-fail rate for purposes of testing under this subparagraph. Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 280Sec. 219 CLEAN AIR ACT (B) The Administrator shall promulgate a schedule phas ing in any low-polluting fuel requirement established pursuant to this paragraph to an increasing percentage of new urban buses purchased or placed into service in each of the first 5 model years commencing 3 years after the determination under subparagraph (A). Under such schedule 100 percent of new urban buses placed into service in the fifth model year com mencing 3 years after the determination under subparagraph (A) shall comply with the low-polluting fuel requirement estab lished pursuant to this paragraph. (C) The Administrator may extend the requirements of this paragraph to metropolitan statistical areas or consolidated metropolitan statistical areas with a 1980 population of less than 750,000, if the Administrator determines that a signifi cant benefit to public health could be expected to result from such extension. (d) RETROFIT REQUIREMENTS.—Not later than 12 months after the enactment of the Clean Air Act Amendments of 1990, the Ad ministrator shall promulgate regulations under section 202(a) re quiring that urban buses which— (1) are operating in areas referred to in subparagraph (A) of subsection (c)(2) (or subparagraph (C) of subsection (c)(2) if the Administrator has taken action under that subparagraph); (2) were not subject to standards in effect under the regu lations under subsection (a); and (3) have their engines replaced or rebuilt after January 1, 1995, shall comply with an emissions standard or emissions control tech nology requirement established by the Administrator in such regu lations. Such emissions standard or emissions control technology requirement shall reflect the best retrofit technology and mainte nance practices reasonably achievable. (e) PROCEDURES FOR ADMINISTRATION AND ENFORCEMENT.— The Administrator shall establish, within 18 months after the en actment of the Clean Air Act Amendments to 1990, and in accord ance with section 206(h), procedures for the administration and en forcement of standards for buses subject to standards under this section, testing procedures, sampling protocols, in-use compliance requirements, and criteria governing evaluation of buses. Proce dures for testing (including, but not limited to, certification testing) shall reflect actual operating conditions. (f) DEFINITIONS.—For purposes of this section— (1) URBAN BUS.—The term ‘‘urban bus’’ has the meaning provided under regulations of the Administrator promulgated under section 202(a). (2) LOW-POLLUTING FUEL.—The term ‘‘low-polluting fuel’’ means methanol, ethanol, propane, or natural gas, or any com parably low-polluting fuel. In determining whether a fuel is comparably low-polluting, the Administrator shall consider both the level of emissions of air pollutants from vehicles using the fuel and the contribution of such emissions to ambient lev els of air pollutants. For purposes of this paragraph, the term ‘‘methanol’’ includes any fuel which contains at least 85 per cent methanol unless the Administrator increases such per Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 281 Sec. 232CLEAN AIR ACT centage as he deems appropriate to protect public health and welfare. [42 U.S.C. 7554] PART B—AIRCRAFT EMISSION STANDARDS ESTABLISHMENT OF STANDARDS SEC. 231. (a)(1) Within 90 days after the date of enactment of the Clean Air Amendments of 1970, the Administrator shall com mence a study and investigation of emissions of air pollutants from aircraft in order to determine— (A) the extent to which such emissions affect air quality in air quality control regions throughout the United States, and (B) the technological feasibility of controlling such emis sions. (2)(A) The Administrator shall, from time to time, issue pro posed emission standards applicable to the emission of any air pol lutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reason ably be anticipated to endanger public health or welfare. (B)(i) The Administrator shall consult with the Administrator of the Federal Aviation Administration on aircraft engine emission standards. (ii) The Administrator shall not change the aircraft engine emission standards if such change would significantly increase noise and adversely affect safety. (3) The Administrator shall hold public hearings with respect to such proposed standards. Such hearings shall, to the extent practicable, be held in air quality control regions which are most seriously affected by aircraft emissions. Within 90 days after the issuance of such proposed regulations, he shall issue such regula tion with such modifications as he deems appropriate. Such regula tions may be revised from time to time. (b) Any regulation prescribed under this section (and any revi sion thereof) shall take effect after such period as the Adminis trator finds necessary (after consultation with the Secretary of Transportation) to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period. (c) Any regulations in effect under this section on date of en actment of the Clean Air Act Amendments of 1977 or proposed or promulgated thereafter, or amendments thereto, with respect to aircraft shall not apply if disapproved by the President, after notice and opportunity for public hearing, on the basis of a finding by the Secretary of Transportation that any such regulation would create a hazard to aircraft safety. Any such finding shall include a reason ably specific statement of the basis upon which the finding was made. [42 U.S.C. 7571] ENFORCEMENT OF STANDARDS SEC. 232. (a) The Secretary of Transportation, after consulta tion with the Administrator, shall prescribe regulations to insure Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 282Sec. 233 CLEAN AIR ACT 1 So in original. The comma probably should not appear. compliance with all standards prescribed under section 231 by the Administrator. The regulations of the Secretary of Transportation shall include provisions making such standards applicable in the issuance, amendment, modification, suspension, or revocation of any certificate authorized by the Federal Aviation Act or the De partment of Transportation Act. Such Secretary shall insure that all necessary inspections are accomplished, and,1 may execute any power or duty vested in him by any other provision of law in the execution of all powers and duties vested in him under this section. (b) In any action to amend, modify, suspend, or revoke a cer tificate in which violation of an emission standard prescribed under section 231 or of a regulation prescribed under subsection (a) is at issue, the certificate holder shall have the same notice and appeal rights as are prescribed for such holders in the Federal Aviation Act of 1958 or the Department of Transportation Act, except that in any appeal to the National Transportation Safety Board, the Board may amend, modify, or revoke the order of the Secretary of Transportation only if it finds no violation of such standard or reg ulation and that such amendment, modification, or revocation is consistent with safety in air transportation. [42 U.S.C. 7572] STATE STANDARDS AND CONTROLS SEC. 233. No State or political subdivision thereof may adopt or attempt to enforce any standard respecting emissions of any air pollutant from any aircraft or engine thereof unless such standard is identical to a standard applicable to such aircraft under this part. [42 U.S.C. 7573] DEFINITIONS SEC. 234. Terms used in this part (other than Administrator) shall have the same meaning as such terms have under section 101 of the Federal Aviation Act of 1958. [42 U.S.C. 7574] PART C—CLEAN FUEL VEHICLES SEC. 241. DEFINITIONS. For purposes of this part— (1) TERMS DEFINED IN PART A.—The definitions applicable to part A under section 216 shall also apply for purposes of this part. (2) CLEAN ALTERNATIVE FUEL.—The term ‘‘clean alter native fuel’’ means any fuel (including methanol, ethanol, or other alcohols (including any mixture thereof containing 85 percent or more by volume of such alcohol with gasoline or other fuels), reformulated gasoline, diesel, natural gas, lique fied petroleum gas, and hydrogen) or power source (including electricity) used in a clean-fuel vehicle that complies with the Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 283 Sec. 241CLEAN AIR ACT standards and requirements applicable to such vehicle under this title when using such fuel or power source. In the case of any flexible fuel vehicle or dual fuel vehicle, the term ‘‘clean alternative fuel’’ means only a fuel with respect to which such vehicle was certified as a clean-fuel vehicle meeting the stand ards applicable to clean-fuel vehicles under section 243(d)(2) when operating on clean alternative fuel (or any CARB stand ards which replaces such standards pursuant to section 243(e)). (3) NMOG.—The term nonmethane organic gas (‘‘NMOG’’) means the sum of nonoxygenated and oxygenated hydro carbons contained in a gas sample, including, at a minimum, all oxygenated organic gases containing 5 or fewer carbon atoms (i.e., aldehydes, ketones, alcohols, ethers, etc.), and all known alkanes, alkenes, alkynes, and aromatics containing 12 or fewer carbon atoms. To demonstrate compliance with a NMOG standard, NMOG emissions shall be measured in ac cordance with the ‘‘California Non-Methane Organic Gas Test Procedures’’. In the case of vehicles using fuels other than base gasoline, the level of NMOG emissions shall be adjusted based on the reactivity of the emissions relative to vehicles using base gasoline. (4) BASE GASOLINE.—The term ‘‘base gasoline’’ means gaso line which meets the following specifications: Specifications of Base Gasoline Used as Basis for Reactivity Re adjustment: API gravity ................................................................................. 57.8 Sulfur, ppm ................................................................................. 317 Color ............................................................................................ Purple Benzene, vol. % .......................................................................... 1.35 Reid vapor pressure ................................................................... 8.7 Drivability ................................................................................... 1195 Antiknock index ......................................................................... 87.3 Distillation, D–86 °F IBP .............................................................................................. 92 10% .............................................................................................. 126 50% .............................................................................................. 219 90% .............................................................................................. 327 EP ................................................................................................ 414 Hydrocarbon Type, Vol. % FIA: Aromatics .................................................................................... 30.9 Olefins ......................................................................................... 8.2 Saturates .................................................................................... 60.9 The Administrator shall modify the definitions of NMOG, base gasoline, and the methods for making reactivity adjustments, to conform to the definitions and method used in California under the Low-Emission Vehicle and Clean Fuel Regulations of the California Air Resources Board, so long as the California definitions are, in the aggregate, at least as protective of public health and welfare as the definitions in this section. (5) COVERED FLEET.—The term ‘‘covered fleet’’ means 10 or more motor vehicles which are owned or operated by a single person. In determining the number of vehicles owned or oper ated by a single person for purposes of this paragraph, all motor vehicles owned or operated, leased or otherwise con trolled by such person, by any person who controls such per son, by any person controlled by such person, and by any per son under common control with such person shall be treated as Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 284Sec. 242 CLEAN AIR ACT 1 So in original. Probably should be ‘‘GVWR’’. owned by such person. The term ‘‘covered fleet’’ shall not in clude motor vehicles held for lease or rental to the general pub lic, motor vehicles held for sale by motor vehicle dealers (in cluding demonstration vehicles), motor vehicles used for motor vehicle manufacturer product evaluations or tests, law enforce ment and other emergency vehicles, or nonroad vehicles (in cluding farm and construction vehicles). (6) COVERED FLEET VEHICLE.—The term ‘‘overed fleet vehi cle’’ means only a motor vehicle which is— (i) in a vehicle class for which standards are applicable under this part; and (ii) in a covered fleet which is centrally fueled (or ca pable of being centrally fueled). No vehicle which under normal operations is garaged at a per sonal residence at night shall be considered to be a vehicle which is capable of being centrally fueled within the meaning of this paragraph. (7) CLEAN-FUEL VEHICLE.—The term ‘‘clean-fuel vehicle’’ means a vehicle in a class or category of vehicles which has been certified to meet for any model year the clean-fuel vehicle standards applicable under this part for that model year to clean-fuel vehicles in that class or category. [42 U.S.C. 7581] SEC. 242. REQUIREMENTS APPLICABLE TO CLEAN FUEL VEHICLES. (a) PROMULGATION OF STANDARDS.—Not later than 24 months after the enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate regulations under this part con taining clean-fuel vehicle standards for the clean-fuel vehicles spec ified in this part. (b) OTHER REQUIREMENTS.—Clean-fuel vehicles of up to 8,500 gvwr 1 subject to standards set forth in this part shall comply with all motor vehicle requirements of this title (such as requirements relating to on-board diagnostics, evaporative emissions, etc.) which are applicable to conventional gasoline-fueled vehicles of the same category and model year, except as provided in section 244 with re spect to administration and enforcement, and except to the extent that any such requirement is in conflict with the provisions of this part. Clean-fuel vehicles of 8,500 gvwr 1 or greater subject to stand ards set forth in this part shall comply with all requirements of this title which are applicable in the case of conventional gasoline fueled or diesel fueled vehicles of the same category and model year, except as provided in section 244 with respect to administra tion and enforcement, and except to the extent that any such re quirement is in conflict with the provisions of this part. (c) IN-USE USEFUL LIFE AND TESTING.—(1) In the case of light duty vehicles and light-duty trucks up to 6,000 lbs gvwr, 1 the use ful life for purposes of determining in-use compliance with the standards under section 243 shall be— (A) a period of 5 years or 50,000 miles (or the equivalent) whichever first occurs, in the case of standards applicable for purposes of certification at 50,000 miles; and Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 285 Sec. 243CLEAN AIR ACT 1 So in original. Probably should be ‘‘GVWR’’. 2 So in original. Probably should be ‘‘LVW’’. (B) a period of 10 years or 100,000 miles (or the equiva lent) whichever first occurs, in the case of standards applicable for purposes of certification at 100,000 miles, except that in-use testing shall not be done for a period beyond 7 years or 75,000 miles (or the equivalent) whichever first occurs. (2) In the case of light-duty trucks of more than 6,000 lbs gvwr, 1 the useful life for purposes of determining in-use compli ance with the standards under section 243 shall be— (A) a period of 5 years or 50,000 miles (or the equivalent) whichever first occurs in the case of standards applicable for purposes of certification at 50,000 miles; and (B) a period of 11 years or 120,000 miles (or the equiva lent) whichever first occurs in the case of standards applicable for purposes of certification at 120,000 miles, except that in-use testing shall not be done for a period beyond 7 years or 90,000 miles (or the equivalent) whichever first occurs. [42 U.S.C. 7582] SEC. 243. STANDARDS FOR LIGHT-DUTY CLEAN FUEL VEHICLES. (a) EXHAUST STANDARDS FOR LIGHT-DUTY VEHICLES AND CER TAIN LIGHT-DUTY TRUCKS.—The standards set forth in this sub section shall apply in the case of clean-fuel vehicles which are light-duty trucks of up to 6,000 lbs. gross vehicle weight rating (gvwr) 1 (but not including light-duty trucks of more than 3,750 lbs. loaded vehicle weight (lvw)) 2 or light-duty vehicles: (1) PHASE I.—Beginning with model year 1996, for the air pollutants specified in the following table, the clean-fuel vehi cle standards under this section shall provide that vehicle ex haust emissions shall not exceed the levels specified in the fol lowing table: PHASE I CLEAN FUEL VEHICLE EMISSION STANDARDS FOR LIGHT DUTY TRUCKS OF UP TO 3,750 LBS. LVW AND UP TO 6,000 LBS. GVWR AND LIGHT-DUTY VEHICLES Pollutant NMOG CO NOx PM HCHO (formalde hyde) 50,000 mile standard ............................ 0.160 4.4 0.7 .......... 0.018 100,000 mile standard .......................... 0.200 5.5 0.9 0.08* 0.023 Standards are expressed in grams per mile (gpm). * Standards for particulates (PM) shall apply only to diesel-fueled vehicles. In the case of the 50,000 mile standards and the 100,000 mile standards, for purposes of cer tification, the applicable useful life shall be 50,000 miles or 100,000 miles, respectively. (2) PHASE II.—Beginning with model year 2001, for air pol lutants specified in the following table, the clean-fuel vehicle standards under this section shall provide that vehicle exhaust emissions shall not exceed the levels specified in the following table. Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 286Sec. 243 CLEAN AIR ACT 1 So in original. Probably should be ‘‘LVW’’. PHASE II CLEAN FUEL VEHICLE EMISSION STANDARDS FOR LIGHT DUTY TRUCKS OF UP TO 3,750 LBS. LVW AND UP TO 6,000 LBS. GVWR AND LIGHT-DUTY VEHICLES Pollutant NMOG CO NOx PM* HCHO (formalde hyde) 50,000 mile standard ............................ 0.075 3.4 0.2 0.015 100,000 mile standard .......................... 0.090 4.2 0.3 0.08 0.018 Standards are expressed in grams per mile (gpm). * Standards for particulates (PM) shall apply only to diesel-fueled vehicles. In the case of the 50,000 mile standards and the 100,000 mile standards, for purposes of cer tification, the applicable useful life shall be 50,000 miles or 100,000 miles, respectively. (b) EXHAUST STANDARDS FOR LIGHT-DUTY TRUCKS OF MORE THAN 3,750 LBS. LVW AND UP TO 5,750 LBS. LVW AND UP TO 6,000 LBS. GVWR.—The standards set forth in this paragraph shall apply in the case of clean-fuel vehicles which are light-duty trucks of more than 3,750 lbs. loaded vehicle weight (lvw) 1 but not more than 5,750 lbs. lvw 1 and not more than 6,000 lbs. gross weight rat ing (GVWR): (1) PHASE I.—Beginning with model year 1996, for the air pollutants specified in the following table, the clean-fuel vehi cle standards under this section shall provide that vehicle ex haust emissions shall not exceed the levels specified in the fol lowing table. PHASE I CLEAN FUEL VEHICLE EMISSION STANDARDS FOR LIGHT DUTY TRUCKS OF MORE THAN 3,750 LBS. AND UP TO 5,750 LBS. LVW AND UP TO 6,000 LBS. GVWR Pollutant NMOG CO NOx PM* HCHO (formalde hyde) 50,000 mile standard ............................ 0.160 4.4 0.7 0.018 100,000 mile standard .......................... 0.200 5.5 0.9 0.08 0.023 Standards are expressed in grams per mile (gpm). * Standards for particulates (PM) shall apply only to diesel-fueled vehicles. In the case of the 50,000 mile standards and the 100,000 mile standards, for purposes of cer tification, the applicable useful life shall be 50,000 miles or 100,000 miles, respectively. (2) PHASE II.—Beginning with model year 2001, for the air pollutants specified in the following table, the clean-fuel vehi cle standards under this section shall provide that vehicle ex haust emissions shall not exceed the levels specified in the fol lowing table. Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 287 Sec. 243CLEAN AIR ACT 1 Probably should be ‘‘LIGHT-DUTY’’. 2 So in original. Probably should be ‘‘TW’’. PHASE II CLEAN FUEL VEHICLE EMISSION STANDARDS FOR LIGHT DUTY TRUCKS OF MORE THAN 3,750 LBS. LVW AND UP TO 5,750 LBS. LVW AND UP TO 6,000 LBS. GVWR Pollutant NMOG CO NOx PM* HCHO (formalde hyde) 50,000 mile standard ............................ 0.100 4.4 0.4 0.018 100,000 mile standard .......................... 0.130 5.5 0.5 0.08 0.023 Standards are expressed in grams per mile (gpm). * Standards for particulates (PM) shall apply only to diesel-fueled vehicles. In the case of the 50,000 mile standards and the 100,000 mile standards, for purposes of cer tification, the applicable useful life shall be 50,000 miles or 100,000 miles, respectively. (c) EXHAUST STANDARDS FOR LIGHT-DUTY TRUCKS GREATER THAN 6,000 LBS. GVWR.—The standards set forth in this sub section shall apply in the case of clean-fuel vehicles which are light-duty trucks of more than 6,000 lbs. gross weight rating (GVWR) and less than or equal to 8,500 lbs. GVWR, beginning with model year 1998. For the air pollutants specified in the following table, the clean-fuel vehicle standards under this section shall pro vide that vehicle exhaust emissions of vehicles within the test weight categories specified in the following table shall not exceed the levels specified in such table. CLEAN FUEL VEHICLE EMISSION STANDARDS FOR LIGHT 1 DUTY TRUCKS GREATER THAN 6,000 LBS. GVWR Test Weight Category: Up to 3,750 lbs. tw 2 Pollutant NMOG CO NOx PM* HCHO (formalde hyde) 50,000 mile standard ........................ 0.125 3.4 0.4** 0.015 120,000 mile standard ...................... 0.180 5.0 0.6 0.08 0.022 Test Weight Category: Above 3,750 but not above 5,750 lbs. TW Pollutant NMOG CO NOx PM* HCHO (formalde hyde) 50,000 mile standard ........................ 0.160 4.4 0.7** 0.018 120,000 mile standard ...................... 0.230 6.4 1.0 0.10 0.027 Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 288Sec. 243 CLEAN AIR ACT 1 So in original. Probably should be ‘‘GVWR’’. 2 Probably should be ‘‘subsections’’. 3 Probably should have been capitalized. Test Weight Category: Above 5,750 TW but not above 8,500 lbs. GVWR Pollutant NMOG CO NOx PM* HCHO (formalde hyde) 50,000 mile standard ........................ 0.195 5.0 1.1** 0.022 120,000 mile standard ...................... 0.280 7.3 1.5 0.12 0.032 Standards are expressed in grams per mile (gpm). * Standards for particulates (PM) shall apply only to diesel-fueled vehicles. ** Standard not applicable to diesel-fueled vehicles. For the 50,000 mile standards and the 120,000 mile standards set forth in the table, the appli cable useful life for purposes of certification shall be 50,000 miles or 120,000 miles, respectively. (d) FLEXIBLE AND DUAL-FUEL VEHICLES.— (1) IN GENERAL.—The Administrator shall establish stand ards and requirements under this section for the model year 1996 and thereafter for vehicles weighing not more than 8,500 lbs. gvwr 1 which are capable of operating on more than one fuel. Such standards shall require that such vehicles meet the exhaust standards applicable under subsection 2 (a), (b), and (c) for CO, NOx, and HCHO, and if appropriate, PM for single-fuel vehicles of the same vehicle category and model year. (2) EXHAUST NMOG STANDARD FOR OPERATION ON CLEAN AL TERNATIVE FUEL.—In addition to standards for the pollutants referred to in paragraph (1), the standards established under paragraph (1) shall require that vehicle exhaust emissions of NMOG not exceed the levels (expressed in grams per mile) specified in the tables below when the vehicle is operated on the clean alternative fuel for which such vehicle is certified: NMOG STANDARDS FOR FLEXIBLE- AND DUAL-FUELED VEHICLES WHEN OPERATING ON CLEAN ALTERNATIVE FUEL Light-duty 3 Trucks up to 6,000 lbs. GVWR and Light-duty Vehicle Type Column A (50,000 mi.) Standard (gpm) Column B (100,000 mi.) Standard (gpm) Beginning MY 1996: LDT’s (0–3,750 lbs. LVW) and light-duty vehicles .. 0.125 0.156 LDT’s (3,751–5,750 lbs. LVW) ................................... 0.160 0.20 Beginning MY 2001: LDT’s (0–3,750 lbs. LVW) and light-duty vehicles .. 0.075 0.090 LDT’s (3,751–5,750 lbs. LVW) ................................... 0.100 0.130 For standards under column A, for purposes of certification under section 206, the applicable useful life shall be 50,000 miles. For standards under column B, for purposes of certification under section 206, the applicable useful life shall be 100,000 miles. Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 289 Sec. 243CLEAN AIR ACT 1 Probably should have been capitalized. Light-duty 1 Trucks More than 1 6,000 lbs. GVWR Vehicle Type Column A (50,000 mi.) Stand ard Column B (120,000 mi.) Stand ard Beginning MY 1998: LDT’s (0–3,750 lbs. TW) ....................................................... 0.125 0.180 LDT’s (3,751–5,750 lbs. TW) ................................................ 0.160 0.230 LDT’s (above 5,750 lbs. TW) ................................................ 0.195 0.280 For standards under column A, for purposes of certification under section 206, the applicable useful life shall be 50,000 miles. For standards under column B, for purposes of certification under section 206, the applicable useful life shall be 120,000 miles. (3) NMOG STANDARD FOR OPERATION ON CONVENTIONAL FUEL.—In addition to the standards referred to in paragraph (1), the standards established under paragraph (1) shall re quire that vehicle exhaust emissions of NMOG not exceed the levels (expressed in grams per mile) specified in the tables below: NMOG STANDARDS FOR FLEXIBLE- AND DUAL-FUELED VEHICLES WHEN OPERATING ON CONVENTIONAL FUEL Light-duty 1 Trucks of up to 6,000 lbs. GVWR and Light-duty 1 vehicles 1 Vehicle Type Column A (50,000 mi.) Standard (gpm) Column B (100,000 mi.) Standard (gpm) Beginning MY 1996: LDT’s (0–3,750 lbs. LVW) and light-duty vehicles .. 0.25 0.31 LDT’s (3,751–5,750 lbs. LVW) ................................... 0.32 0.40 Beginning MY 2001 LDT’s (0–3,750 lbs. LVW) and light-duty vehicles .. 0.125 0.156 LDT’s (3,751–5,750 lbs. LVW) ................................... 0.160 0.200 For standards under column A, for purposes of certification under section 206, the applicable useful life shall be 50,000 miles. For standards under column B, for purposes of certification under section 206, the applicable useful life shall be 100,000 miles. Light-duty 1 Trucks of up to 6,000 lbs. GVWR Vehicle Type Column A (50,000 mi.) Stand ard Column B (120,000 mi.) Stand ard Beginning MY 1998: LDT’s (0–3,750 lbs. TW) ....................................................... 0.25 0.36 LDT’s (3,751–5,750 lbs. TW) ................................................ 0.32 0.46 LDT’s (above 5,750 lbs. TW) ................................................ 0.39 0.56 For standards under column A, for purposes of certification under section 206, the applicable useful life shall be 50,000 miles. For standards under column B, for purposes of certification under section 206, the applicable useful life shall be 120,000 miles. Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 290Sec. 243 CLEAN AIR ACT (e) REPLACEMENT BY CARB STANDARDS.— (1) SINGLE SET OF CARB STANDARDS.—If the State of Cali fornia promulgates regulations establishing and implementing a single set of standards applicable in California pursuant to a waiver approved under section 209 to any category of vehi cles referred to in subsection (a), (b), (c), or (d) of this section and such set of standards is, in the aggregate, at least as pro tective of public health and welfare as the otherwise applicable standards set forth in section 242 and subsection (a), (b), (c), or (d) of this section, such set of California standards shall apply to clean-fuel vehicles in such category in lieu of the standards otherwise applicable under section 242 and sub section (a), (b), (c), or (d) of this section, as the case may be. (2) MULTIPLE SETS OF CARB STANDARDS.—If the State of California promulgates regulations establishing and imple menting several different sets of standards applicable in Cali fornia pursuant to a waiver approved under section 209 to any category of vehicles referred to in subsection (a), (b), (c), or (d) of this section and each of such sets of California standards is, in the aggregate, at least as protective of public health and welfare as the otherwise applicable standards set forth in sec tion 242 and subsection (a), (b), (c), or (d) of this section, such standards shall be treated as ‘‘qualifying California standards’’ for purposes of this paragraph. Where more than one set of qualifying standards are established and administered by the State of California, the least stringent set of qualifying Cali fornia standards shall apply to the clean-fuel vehicles con cerned in lieu of the standards otherwise applicable to such ve hicles under section 242 and this section. (f) LESS STRINGENT CARB STANDARDS.—If the Low-Emission Vehicle and Clean Fuels Regulations of the California Air Re sources Board applicable to any category of vehicles referred to in subsection (a), (b), (c), or (d) of this section are modified after the enactment of the Clean Air Act of 1990 to provide an emissions standard which is less stringent than the otherwise applicable standard set forth in subsection (a), (b), (c), or (d), or if any effec tive date contained in such regulations is delayed, such modified standards or such delay (or both, as the case may be) shall apply, for an interim period, in lieu of the standard or effective date other wise applicable under subsection (a), (b), (c), or (d) to any vehicles covered by such modified standard or delayed effective date. The interim period shall be a period of not more than 2 model years from the effective date otherwise applicable under subsection (a), (b), (c), or (d). After such interim period, the otherwise applicable standard set forth in subsection (a), (b), (c), or (d) shall take effect with respect to such vehicles (unless subsequently replaced under subsection (e)). (g) NOT APPLICABLE TO HEAVY-DUTY VEHICLES.—Notwith standing any provision of the Low-Emission Vehicle and Clean Fuels Regulations of the California Air Resources Board nothing in this section shall apply to heavy-duty engines in vehicles of more than 8,500 lbs. GVWR. [42 U.S.C. 7583] Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 291 Sec. 245CLEAN AIR ACT SEC. 244. ADMINISTRATION AND ENFORCEMENT AS PER CALIFORNIA STANDARDS. Where the numerical clean-fuel vehicle standards applicable under this part to vehicles of not more than 8,500 lbs. GVWR are the same as numerical emission standards applicable in California under the Low-Emission Vehicle and Clean Fuels Regulations of the California Air Resources Board (‘‘CARB’’), such standards shall be administered and enforced by the Administrator— (1) in the same manner and with the same flexibility as the State of California administers and enforces corresponding standards applicable under the Low-Emission Vehicle and Clean Fuels Regulations of the California Air Resources Board (‘‘CARB’’); and (2) subject to the same requirements, and utilizing the same interpretations and policy judgments, as are applicable in the case of such CARB standards, including, but not limited to, requirements regarding certification, production-line testing, and in-use compliance, unless the Administrator determines (in promulgating the rules es tablishing the clean fuel vehicle program under this section) that any such administration and enforcement would not meet the cri teria for a waiver under section 209. Nothing in this section shall apply in the case of standards under section 245 for heavy-duty ve hicles. [42 U.S.C. 7584] SEC. 245. STANDARDS FOR HEAVY-DUTY CLEAN-FUEL VEHICLES (GVWR ABOVE 8,500 UP TO 26,000 LBS). (a) MODEL YEARS AFTER 1997; COMBINED NOx AND NMHC STANDARD.—For classes or categories of heavy-duty vehicles or en gines manufactured for the model year 1998 or thereafter and hav ing a GVWR greater than 8,500 lbs. and up to 26,000 lbs. GVWR, the standards under this part for clean-fuel vehicles shall require that combined emissions of oxides of nitrogen (NOx) and non methane hydrocarbons (NMHC) shall not exceed 3.15 grams per brake horsepower hour (equivalent to 50 percent of the combined emission standards applicable under section 202 for such air pollut ants in the case of a conventional model year 1994 heavy-duty die sel-fueled vehicle or engine). No standard shall be promulgated as provided in this section for any heavy-duty vehicle of more than 26,000 lbs. GVWR. (b) REVISED STANDARDS THAT ARE LESS STRINGENT.—(1) The Administrator may promulgate a revised less stringent standard for the vehicles or engines referred to in subsection (a) if the Ad ministrator determines that the 50 percent reduction required under subsection (a) is not technologically feasible for clean diesel fueled vehicles and engines, taking into account durability, costs, lead time, safety, and other relevant factors. To provide adequate lead time the Administrator shall make a determination with re gard to the technological feasibility of such 50 percent reduction be fore December 31, 1993. (2) Any person may at any time petition the Administrator to make a determination under paragraph (1). The Administrator shall act on such a petition within 6 months after the petition is filed. Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 292Sec. 246 CLEAN AIR ACT (3) Any revised less stringent standards promulgated as pro vided in this subsection shall require at least a 30 percent reduc tion in lieu of the 50 percent reduction referred to in paragraph (1). [42 U.S.C. 7585] SEC. 246. CENTRALLY FUELED FLEETS (a) FLEET PROGRAM REQUIRED FOR CERTAIN NONATTAINMENT AREAS.— (1) SIP REVISION.—Each State in which there is located all or part of a covered area (as defined in paragraph (2)) shall submit, within 42 months after the enactment of the Clean Air Act Amendments of 1990, a State implementation plan revision under section 110 and part D of title I to establish a clean-fuel vehicle program for fleets under this section. (2) COVERED AREAS.—For purposes of this subsection, each of the following shall be a ‘‘covered area’’: (A) OZONE NONATTAINMENT AREAS.—Any ozone non attainment area with a 1980 population of 250,000 or more classified under subpart 2 of part D of title I of this Act as Serious, Severe, or Extreme based on data for the cal endar years 1987, 1988, and 1989. In determining the ozone nonattainment areas to be treated as covered areas pursuant to this subparagraph, the Administrator shall use the most recent interpretation methodology issued by the Administrator prior to the enactment of the Clean Air Act Amendments of 1990. (B) CARBON MONOXIDE NONATTAINMENT AREAS.—Any carbon monoxide nonattainment area with a 1980 popu lation of 250,000 or more and a carbon monoxide design value at or above 16.0 parts per million based on data for calendar years 1988 and 1989 (as calculated according to the most recent interpretation methodology issued prior to enactment of the Clean Air Act Amendments of 1990 by the United States Environmental Protection Agency), ex cluding those carbon monoxide nonattainment areas in which mobile sources do not contribute significantly to car bon monoxide exceedances. (3) PLAN REVISIONS FOR RECLASSIFIED AREAS.—In the case of ozone nonattainment areas reclassified as Serious, Severe, or Extreme under part D of title I with a 1980 population of 250,000 or more, the State shall submit a plan revision meet ing the requirements of this subsection within 1 year after re classification. Such plan revision shall implement the require ments applicable under this subsection at the time of reclassi fication and thereafter, except that the Administrator may ad just for a limited period the deadlines for compliance where compliance with such deadlines would be infeasible. (4) CONSULTATION; CONSIDERATION OF FACTORS.—Each State required to submit an implementation plan revision under this subsection shall develop such revision in consulta tion with fleet operators, vehicle manufacturers, fuel producers and distributors, motor vehicle fuel, and other interested par ties, taking into consideration operational range, specialty Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 293 Sec. 246CLEAN AIR ACT 1 Probably should be ‘‘light-duty’’. uses, vehicle and fuel availability, costs, safety, resale values of vehicles and equipment and other relevant factors. (b) PHASE-IN OF REQUIREMENTS.—The plan revision required under this section shall contain provisions requiring that at least a specified percentage of all new covered fleet vehicles in model year 1998 and thereafter purchased by each covered fleet operator in each covered area shall be clean-fuel vehicles and shall use clean alternative fuels when operating in the covered area. For the appli cable model years (MY) specified in the following table and there after, the specified percentage shall be as provided in the table for the vehicle types set forth in the table: CLEAN FUEL VEHICLE PHASE-IN REQUIREMENTS FOR FLEETS Vehicle Type MY1998 MY1999 MY2000 Light-duty trucks up to 6,000 lbs. GVWR and light-duty vehicles ............................................... 30% 50% 70% Heavy-duty trucks above 8,500 lbs. GVWR .......... 50% 50% 50% The term MY refers to model year. (c) ACCELERATED STANDARD FOR LIGHT-DUTY TRUCKS UP TO 6,000 LBS. GVWR AND LIGHT-DUTY VEHICLES.—Notwithstanding the model years for which clean-fuel vehicle standards are applica ble as provided in section 243, for purposes of this section, light 1 duty trucks of up to 6,000 lbs. GVWR and light-duty vehicles man ufactured in model years 1998 through model year 2000 shall be treated as clean-fuel vehicles only if such vehicles comply with the standards applicable under section 243 for vehicles in the same class for the model year 2001. The requirements of subsection (b) shall take effect on the earlier of the following: (1) The first model year after model year 1997 in which new light-duty trucks up to 6,000 lbs. GVWR and light-duty vehicles which comply with the model year 2001 standards under section 243 are offered for sale in California. (2) Model year 2001. Whenever the effective date of subsection (b) is delayed pursuant to paragraph (1) of this subsection, the phase-in schedule under subsection (b) shall be modified to commence with the model year referred to in paragraph (1) in lieu of model year 1998. (d) CHOICE OF VEHICLES AND FUEL.—The plan revision under this subsection shall provide that the choice of clean-fuel vehicles and clean alternative fuels shall be made by the covered fleet oper ator subject to the requirements of this subsection. (e) AVAILABILITY OF CLEAN ALTERNATIVE FUEL.—The plan revi sion shall require fuel providers to make clean alternative fuel available to covered fleet operators at locations at which covered fleet vehicles are centrally fueled. (f) CREDITS.— (1) ISSUANCE OF CREDITS.—The State plan revision re quired under this section shall provide for the issuance by the State of appropriate credits to a fleet operator for any of the following (or any combination thereof): Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 294Sec. 246 CLEAN AIR ACT 1 Probably should be ‘‘clean-fuel’’. 2 Probably should be ‘‘(‘ULEV’)’’ and ‘‘(‘ZEV’)’’. 3 Probably should be ‘‘clean-fuel’’. (A) The purchase of more clean-fuel vehicles than re quired under this section. (B) The purchase of clean 1 fuel vehicles which meet more stringent standards established by the Administrator pursuant to paragraph (4). (C) The purchase of vehicles in categories which are not covered by this section but which meet standards es tablished for such vehicles under paragraph (4). (2) USE OF CREDITS; LIMITATIONS BASED ON WEIGHT CLASS ES.— (A) USE OF CREDITS.—Credits under this subsection may be used by the person holding such credits to dem onstrate compliance with this section or may be traded or sold for use by any other person to demonstrate compli ance with other requirements applicable under this section in the same nonattainment area. Credits obtained at any time may be held or banked for use at any later time, and when so used, such credits shall maintain the same value as if used at an earlier date. (B) LIMITATIONS BASED ON WEIGHT CLASSES.—Credits issued with respect to the purchase of vehicles of up to 8,500 lbs. GVWR may not be used to demonstrate compli ance by any person with the requirements applicable under this subsection to vehicles of more than 8,500 lbs. GVWR. Credits issued with respect to the purchase of ve hicles of more than 8,500 lbs. GVWR may not be used to demonstrate compliance by any person with the require ments applicable under this subsection to vehicles weigh ing up to 8,500 lbs. GVWR. (C) WEIGHTING.—Credits issued for purchase of a clean fuel vehicle under this subsection shall be adjusted with appropriate weighting to reflect the level of emission reduction achieved by the vehicle. (3) REGULATIONS AND ADMINISTRATION.—Within 12 months after the enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate regulations for such credit program. The State shall administer the credit program estab lished under this subsection. (4) STANDARDS FOR ISSUING CREDITS FOR CLEANER VEHI CLES.—Solely for purposes of issuing credits under paragraph (1)(B), the Administrator shall establish under this paragraph standards for Ultra-Low Emission Vehicles (‘‘ULEV’s) 2 and Zero Emissions Vehicles (‘‘ZEV’s) 2 which shall be more strin gent than those otherwise applicable to clean-fuel vehicles under this part. The Administrator shall certify clean 3 fuel ve hicles as complying with such more stringent standards, and administer and enforce such more stringent standards, in the same manner as in the case of the otherwise applicable clean fuel vehicle standards established under this section. The standards established by the Administrator under this para graph for vehicles under 8,500 lbs. GVWR or greater shall con Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 295 Sec. 247CLEAN AIR ACT 1 Probably should be ‘‘sections’’. form as closely as possible to standards which are established by the State of California for ULEV and ZEV vehicles in the same class. For vehicles of 8,500 lbs. GVWR or more, the Ad ministrator shall promulgate comparable standards for pur poses of this subsection. (5) EARLY FLEET CREDITS.—The State plan revision shall provide credits under this subsection to fleet operators that purchase vehicles certified to meet clean-fuel vehicle standards under this part during any period after approval of the plan re vision and prior to the effective date of the fleet program under this section. (g) AVAILABILITY TO THE PUBLIC.—At any facility owned or op erated by a department, agency, or instrumentality of the United States where vehicles subject to this subsection are supplied with clean alternative fuel, such fuel shall be offered for sale to the pub lic for use in other vehicles during reasonable business times and subject to national security concerns, unless such fuel is commer cially available for vehicles in the vicinity of such Federal facilities. (h) TRANSPORTATION CONTROL MEASURES.—The Administrator shall by rule, within 1 year after the enactment of the Clean Air Act Amendments of 1990, ensure that certain transportation con trol measures including time-of-day or day-of-week restrictions, and other similar measures that restrict vehicle usage, do not apply to any clean-fuel vehicle that meets the requirements of this section. This subsection shall apply notwithstanding title I. [42 U.S.C. 7586] SEC. 247. VEHICLE CONVERSIONS. (a) CONVERSION OF EXISTING AND NEW CONVENTIONAL VEHI CLES TO CLEAN-FUEL VEHICLES.—The requirements of section 246 may be met through the conversion of existing or new gasoline or diesel-powered vehicles to clean-fuel vehicles which comply with the applicable requirements of that section. For purposes of such provisions the conversion of a vehicle to clean fuel vehicle shall be treated as the purchase of a clean fuel vehicle. Nothing in this part shall be construed to provide that any covered fleet operator sub ject to fleet vehicle purchase requirements under section 246 shall be required to convert existing or new gasoline or diesel-powered vehicles to clean-fuel vehicles or to purchase converted vehicles. (b) REGULATIONS.—The Administrator shall, within 24 months after the enactment of the Clean Air Act Amendments of 1990, con sistent with the requirements of this title applicable to new vehi cles, promulgate regulations governing conversions of conventional vehicles to clean-fuel vehicles. Such regulations shall establish cri teria for such conversions which will ensure that a converted vehi cle will comply with the standards applicable under this part to clean-fuel vehicles. Such regulations shall provide for the applica tion to such conversions of the same provisions of this title (includ ing provisions relating to administration enforcement) as are appli cable to standards under section 1 242, 243, 244, and 245, except that in the case of conversions the Administrator may modify the Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 296Sec. 248 CLEAN AIR ACT 1 Probably should be ‘‘clean-fuel’’. applicable regulations implementing such provisions as the Admin istrator deems necessary to implement this part. (c) ENFORCEMENT.—Any person who converts conventional ve hicles to clean 1 fuel vehicles pursuant to subsection (b), shall be considered a manufacturer for purposes of sections 206 and 207 and related enforcement provisions. Nothing in the preceding sen tence shall require a person who performs such conversions to war rant any part or operation of a vehicle other than as required under this part. Nothing in this paragraph shall limit the applica bility of any other warranty to unrelated parts or operations. (d) TAMPERING.—The conversion from a vehicle capable of oper ating on gasoline or diesel fuel only to a clean-fuel vehicle shall not be considered a violation of section 203(a)(3) if such conversion complies with the regulations promulgated under subsection (b). (e) SAFETY.—The Secretary of Transportation shall, if nec essary, promulgate rules under applicable motor vehicle laws re garding the safety of vehicles converted from existing and new ve hicles to clean-fuel vehicles. [42 U.S.C. 7587] SEC. 248. FEDERAL AGENCY FLEETS. (a) ADDITIONAL PROVISIONS APPLICABLE.—The provisions of this section shall apply, in addition to the other provisions of this part, in the case of covered fleet vehicles owned or operated by an agency, department, or instrumentality of the United States, except as otherwise provided in subsection (e). (b) COST OF VEHICLES TO FEDERAL AGENCY.—Notwithstanding the provisions of section 211 of the Federal Property and Adminis trative Services Act of 1949, the Administrator of General Services shall not include the incremental costs of clean-fuel vehicles in the amount to be reimbursed by Federal agencies if the Administrator of General Services determines that appropriations provided pursu ant to this paragraph are sufficient to provide for the incremental cost of such vehicles over the cost of comparable conventional vehi cles. (c) LIMITATIONS ON APPROPRIATIONS.—Funds appropriated pur suant to the authorization under this paragraph shall be applicable only— (1) to the portion of the cost of acquisition, maintenance and operation of vehicles acquired under this subparagraph which exceeds the cost of acquisition, maintenance and oper ation of comparable conventional vehicles; (2) to the portion of the costs of fuel storage and dis pensing equipment attributable to such vehicles which exceeds the costs for such purposes required for conventional vehicles; and (3) to the portion of the costs of acquisition of clean-fuel ve hicles which represents a reduction in revenue from the dis posal of such vehicles as compared to revenue resulting from the disposal of comparable conventional vehicles. (d) VEHICLE COSTS.—The incremental cost of vehicles acquired under this part over the cost of comparable conventional vehicles Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 297 Sec. 249CLEAN AIR ACT shall not be applied to any calculation with respect to a limitation under law on the maximum cost of individual vehicles which may be required by the United States. (e) EXEMPTIONS.—The requirements of this part shall not apply to vehicles with respect to which the Secretary of Defense has cer tified to the Administrator that an exemption is needed based on national security consideration. (f) ACQUISITION REQUIREMENT.—Federal agencies, to the extent practicable, shall obtain clean-fuel vehicles from original equipment manufacturers. (g) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated such sums as may be required to carry out the provisions of this section: Provided, That such sums as are appro priated for the Administrator of General Services pursuant to the authorization under this section shall be added to the General Sup ply Fund established in section 109 of the Federal Property and Administrative Services Act of 1949. [42 U.S.C. 7588] SEC. 249. CALIFORNIA PILOT TEST PROGRAM. (a) ESTABLISHMENT.—The Administrator shall establish a pilot program in the State of California to demonstrate the effectiveness of clean-fuel vehicles in controlling air pollution in ozone nonattain ment areas. (b) APPLICABILITY.—The provisions of this section shall only apply to light-duty trucks and light-duty vehicles, and such provi sions shall apply only in the State of California, except as provided in subsection (f). (c) PROGRAM REQUIREMENTS.—Not later than 24 months after the enactment of the Clean Air Act Amendments of 1990, the Ad ministrator shall promulgate regulations establishing requirements under this section applicable in the State of California. The regula tions shall provide the following: (1) CLEAN-FUEL VEHICLES.—Clean-fuel vehicles shall be produced, sold, and distributed (in accordance with normal business practices and applicable franchise agreements) to ulti mate purchasers in California (including owners of covered fleets referred to in section 246) in numbers that meet or ex ceed the following schedule: Model Years Number of Clean-Fuel Vehicles 1996, 1997, 1998 ............................................................................. 150,000 vehicles 1999 and thereafter ........................................................................ 300,000 vehicles (2) CLEAN ALTERNATIVE FUELS.—(A) Within 2 years after the enactment of the Clean Air Act Amendments of 1990, the State of California shall submit a revision of the applicable im plementation plan under part D of title I and section 110 con taining a clean fuel plan that requires that clean alternative fuels on which the clean-fuel vehicles required under this para graph can operate shall be produced and distributed by fuel suppliers and made available in California. At a minimum, suf Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 298Sec. 249 CLEAN AIR ACT ficient clean alternative fuels shall be produced, distributed and made available to assure that all clean-fuel vehicles re quired under this section can operate, to the maximum extent practicable, exclusively on such fuels in California. The State shall require that clean alternative fuels be made available and offered for sale at an adequate number of locations with sufficient geographic distribution to ensure convenient refuel ing with clean alternative fuels, considering the number of, and type of, such vehicles sold and the geographic distribution of such vehicles within the State. The State shall determine the clean alternative fuels to be produced, distributed, and made available based on motor vehicle manufacturers’ projec tions of future sales of such vehicles and consultations with the affected local governments and fuel suppliers. (B) The State may by regulation grant persons subject to the requirements prescribed under this paragraph an appro priate amount of credits for exceeding such requirements, and any person granted credits may transfer some or all of the credits for use by one or more persons in demonstrating com pliance with such requirements. The State may make the cred its available for use after consideration of enforceability, envi ronmental, and economic factors and upon such terms and con ditions as the State finds appropriate. (C) The State may also by regulation establish specifica tions for any clean alternative fuel produced and made avail able under this paragraph as the State finds necessary to re duce or eliminate an unreasonable risk to public health, wel fare, or safety associated with its use or to ensure acceptable vehicle maintenance and performance characteristics. (D) If a retail gasoline dispensing facility would have to re move or replace one or more motor vehicle fuel underground storage tanks and accompanying piping in order to comply with the provisions of this section, and it had removed and re placed such tank or tanks and accompanying piping in order to comply with subtitle I of the Solid Waste Disposal Act prior to the date of the enactment of the Clean Air Act Amendments of 1990, it shall not be required to comply with this subsection until a period of 7 years has passed from the date of the re moval and replacement of such tank or tanks. (E) Nothing in this section authorizes any State other than California to adopt provisions regarding clean alternative fuels. (F) If the State of California fails to adopt a clean fuel pro gram that meets the requirements of this paragraph, the Ad ministrator shall, within 4 years after the enactment of the Clean Air Act Amendments of 1990, establish a clean fuel pro gram for the State of California under this paragraph and sec tion 110(c) that meets the requirements of this paragraph. (d) CREDITS FOR MOTOR VEHICLE MANUFACTURERS.—(1) The Administrator may (by regulation) grant a motor vehicle manufac turer an appropriate amount of credits toward fulfillment of such manufacturer’s share of the requirements of subsection (c)(1) of this section for any of the following (or any combination thereof): (A) The sale of more clean-fuel vehicles than required under subsection (c)(1) of this section. Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 299 Sec. 249CLEAN AIR ACT 1 Probably should be ‘‘clean-fuel’’. 2 Probably should be ‘‘246(f)’’. 3 The words ‘‘Pilot Program’’ should be lowercase. (B) The sale of clean 1 fuel vehicles which meet standards established by the Administrator as provided in paragraph (3) which are more stringent than the clean-fuel vehicle standards otherwise applicable to such clean-fuel vehicle. A manufacturer granted credits under this paragraph may transfer some or all of the credits for use by one or more other manufacturers in demonstrating compliance with the requirements prescribed under this paragraph. The Administrator may make the cred its available for use after consideration of enforceability, envi ronmental, and economic factors and upon such terms and con ditions as he finds appropriate. The Administrator shall grant credits in accordance with this paragraph, notwithstanding any requirements of State law or any credits granted with respect to the same vehicles under any State law, rule, or regulation. (2) REGULATIONS AND ADMINISTRATION.—The Administrator shall administer the credit program established under this sub section. Within 12 months after the enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate regula tions for such credit program. (3) STANDARDS FOR ISSUING CREDITS FOR CLEANER VEHICLES.— The more stringent standards and other requirements (including requirements relating to the weighting of credits) established by the Administrator for purposes of the credit program under 245(e) 2 (relating to credits for clean 1 fuel vehicles in the fleets program) shall also apply for purposes of the credit program under this para graph. (e) PROGRAM EVALUATION.—(1) Not later than June 30, 1994 and again in connection with the report under paragraph (2), the Administrator shall provide a report to the Congress on the status of the California Air Resources Board Low-Emissions Vehicles and Clean Fuels Program. Such report shall examine the capability, from a technological standpoint, of motor vehicle manufacturers and motor vehicle fuel suppliers to comply with the requirements of such program and with the requirements of the California Pilot Program 3 under this section. (2) Not later than June 30, 1998, the Administrator shall com plete and submit a report to Congress on the effectiveness of the California pilot program under this section. The report shall evalu ate the level of emission reductions achieved under the program, the costs of the program, the advantages and disadvantages of ex tending the program to other nonattainment areas, and desirability of continuing or expanding the program in California. (3) The program under this section cannot be extended or ter minated by the Administrator except by Act of Congress enacted after the date of the Clean Air Act Amendments of 1990. Section 177 of this Act does not apply to the program under this section. (f) VOLUNTARY OPT-IN FOR OTHER STATES.— (1) EPA REGULATIONS.—Not later than 2 years after the enactment of the Clean Air Act Amendments of 1990, the Ad ministrator shall promulgate regulations establishing a vol Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 300Sec. 250 CLEAN AIR ACT 1 Probably should insert a comma. untary opt-in program under this subsection pursuant to which— (A) clean-fuel vehicles which are required to be pro duced, sold, and distributed in the State of California under this section, and (B) clean alternative fuels required to be produced and distributed under this section by fuel suppliers and made available in California 1 may also be sold and used in other States which submit plan revisions under paragraph (2). (2) PLAN REVISIONS.—Any State in which there is located all or part of an ozone nonattainment area classified under subpart D of title I as Serious, Severe, or Extreme may submit a revision of the applicable implementation plan under part D of title I and section 110 to provide incentives for the sale or use in such an area or State of clean-fuel vehicles which are required to be produced, sold, and distributed in the State of California, and for the use in such an area or State of clean alternative fuels required to be produced and distributed by fuel suppliers and made available in California. Such plan pro visions shall not take effect until 1 year after the State has provided notice of such provisions to motor vehicle manufactur ers and to fuel suppliers. (3) INCENTIVES.—The incentives referred to in paragraph (2) may include any or all of the following: (A) A State registration fee on new motor vehicles reg istered in the State which are not clean-fuel vehicles in the amount of at least 1 percent of the cost of the vehicle. The proceeds of such fee shall be used to provide financial in centives to purchasers of clean-fuel vehicles and to vehicle dealers who sell high volumes or high percentages of clean-fuel vehicles and to defray the administrative costs of the incentive program. (B) Provisions to exempt clean-fuel vehicles from high occupancy vehicle or trip reduction requirements. (C) Provisions to provide preference in the use of exist ing parking spaces for clean-fuel vehicles. The incentives under this paragraph shall not apply in the case of covered fleet vehicles. (4) NO SALES OR PRODUCTION MANDATE.—The regulations and plan revisions under paragraphs (1) and (2) shall not in clude any production or sales mandate for clean-fuel vehicles or clean alternative fuels. Such regulations and plan revisions shall also provide that vehicle manufacturers and fuel sup pliers may not be subject to penalties or sanctions for failing to produce or sell clean-fuel vehicles or clean alternative fuels. [42 U.S.C. 7589] SEC. 250. GENERAL PROVISIONS. (a) STATE REFUELING FACILITIES.—If any State adopts enforce able provisions in an implementation plan applicable to a non attainment area which provides that existing State refueling facili Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 301 Sec. 301CLEAN AIR ACT 1 Probably refers to part D of title I. ties will be made available to the public for the purchase of clean alternative fuels or that State-operated refueling facilities for such fuels will be constructed and operated by the State and made avail able to the public at reasonable times, taking into consideration safety, costs, and other relevant factors, in approving such plan under section 110 and part D, 1 the Administrator may credit a State with the emission reductions for purposes of part D 1 attrib utable to such actions. (b) NO PRODUCTION MANDATE.—The Administrator shall have no authority under this part to mandate the production of clean fuel vehicles except as provided in the California pilot test program or to specify as applicable the models, lines, or types of, or mar keting or price practices, policies, or strategies for, vehicles subject to this part. Nothing in this part shall be construed to give the Ad ministrator authority to mandate marketing or pricing practices, policies, or strategies for fuels. (c) TANK AND FUEL SYSTEM SAFETY.—The Secretary of Trans portation shall, in accordance with the National Motor Vehicle Traffic Safety Act of 1966, promulgate applicable regulations re garding the safety and use of fuel storage cylinders and fuel sys tems, including appropriate testing and retesting, in conversions of motor vehicles. (d) CONSULTATION WITH DEPARTMENT OF ENERGY AND DEPART MENT OF TRANSPORTATION.—The Administrator shall coordinate with the Secretaries of the Department of Energy and the Depart ment of Transportation in carrying out the Administrator’s duties under this part. [42 U.S.C. 7590] TITLE III—GENERAL ADMINISTRATION SEC. 301. (a)(1) The Administrator is authorized to prescribe such regulations as are necessary to carry out his functions under this Act. The Administrator may delegate to any officer or em ployee of the Environmental Protection Agency such of his powers and duties under this Act, except the making of regulations subject to section 307(d), as he may deem necessary or expedient. (2) Not later than one year after the date of enactment of this paragraph, the Administrator shall promulgate regulations estab lishing general applicable procedures and policies for regional offi cers and employees (including the Regional Administrator) to fol low in carrying out a delegation under paragraph (1), if any. Such regulations shall be designed— (A) to assure fairness and uniformity in the criteria, proce dures, and policies applied by the various regions in imple menting and enforcing the Act; (B) to assure at least an adequate quality audit of each State’s performance and adherence to the requirements of this Act in implementing and enforcing the Act, particularly in the review of new sources and in enforcement of the Act; and Q:\COMP\ENVIR1\CLEANAIR.002 February 24, 2004 302Sec. 302 CLEAN AIR ACT (C) to provide a mechanism for identifying and standard izing inconsistent or varying criteria, procedures, and policies being employed by such officers and employees in imple menting and enforcing the Act. (b) Upon the request of an air pollution control agency, per sonnel of the Environmental Protection Agency may be detailed to such agency for the purpose of carrying out the provisions of this Act. (c) Payments under grants made under this Act may be made in installments, and in advance or by way of reimbursement, as may be determined by the Administrator. (d) TRIBAL AUTHORITY.—(1) Subject to the provisions of para graph (2), the Administrator— (A) is authorized to treat Indian tribes as States under this Act, except for purposes of the requirement that makes available for application by each State no less than one-half of 1 percent of annual appropriations under section 105; and (B) may provide any such Indian tribe grant and contract assistance to carry out functions provided by this Act. (2) The Administrator shall promulgate regulations within 18 months after the date of the enactment of the Clean Air Act Amendments of 1990, specifying those provisions of this Act for which it is appropriate to treat Indian tribes as States. Such treat ment shall be authorized only if— (A) the Indian tribe has a governing body carrying out sub stantial governmental duties and powers; (B) the functions to be exercised by the Indian tribe per tain to the management and protection of air resources within the exterior boundaries of the reservation or other areas within the tribe’s jurisdiction; and (C) the Indian tribe is reasonably expected to be capable, in the judgment of the Administrator, of carrying out the func tions to be exercised in a manner consistent with the terms and purposes of this Act and all applicable regulations. (3) The Administrator may promulgate regulations which es tablish the elements of tribal implementation plans and procedures for approval or disapproval of tribal implementation plans and por tions thereof. (4) In any case in which the Administrator determines that the treatment of Indian tribes as identical to States is inappropriate or administratively infeasible, the Administrator may provide, by reg ulation, other means by which the Administrator will directly ad minister such provisions so as to achieve the appropriate purpose. (5) Until such time as the Administrator promulgates regula tions pursuant to this subsection, the Administrator may continue to provide financial assistance to eligible Indian tribes under sec tion 105. [42 U.S.C. 7601] DEFINITIONS SEC. 302. When used in this Act— (a) The term ‘‘Administrator’’ means the Administrator of the Environmental Protection Agency. Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 303 Sec. 302CLEAN AIR ACT (b) The term ‘‘air pollution control agency’’ means any of the following: (1) A single State agency designated by the Governor of that State as the official State air pollution control agency for purposes of this Act. (2) An agency established by two or more States and hav ing substantial powers or duties pertaining to the prevention and control of air pollution. (3) A city, county, or other local government health author ity, or, in the case of any city, county, or other local govern ment in which there is an agency other than the health au thority charged with responsibility for enforcing ordinances or laws relating to the prevention and control of air pollution, such other agency. (4) An agency of two or more municipalities located in the same State or in different States and having substantial pow ers or duties pertaining to the prevention and control of air pollution. (5) An agency of an Indian tribe. (c) The term ‘‘interstate air pollution control agency’’ means— (1) an air pollution control agency established by two or more States, or (2) an air pollution control agency of two or more munici palities located in different States. (d) The term ‘‘State’’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa and includes the Commonwealth of the Northern Mariana Islands. (e) The term ‘‘person’’ includes an individual, corporation, part nership, association, State, municipality, political subdivision of a State, and any agency, department, or instrumentality of the United States and any officer, agent, or employee thereof. (f) The term ‘‘municipality’’ means a city, town, borough, coun ty, parish, district, or other public body created by or pursuant to State law. (g) The term ‘‘air pollutant’’ means any air pollution agent or combination of such agents, including any physical, chemical, bio logical, radioactive (including source material, special nuclear ma terial, and byproduct material) substance or matter which is emit ted into or otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutant, to the extent the Administrator has identified such precursor or precursors for the particular purpose for which the term ‘‘air pollutant’’ is used. (h) All language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, man-made materials, animals, wildlife, weather, visibility, and climate, dam age to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being, whether caused by transformation, conversion, or com bination with other air pollutants. (i) The term ‘‘Federal land manager’’ means, with respect to any lands in the United States, the Secretary of the department with authority over such lands. Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 304Sec. 302 CLEAN AIR ACT 1 Section 302(e) of Public Law 101–549 (104 Stat. 2574) added a second period. (j) Except as otherwise expressly provided, the terms ‘‘major stationary source’’ and ‘‘major emitting facility’’ mean any sta tionary 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 fu gitive 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 relat ing to the operation or maintenance of a source to assure contin uous emission reduction, and any design, equipment, work practice or operational standard promulgated under this Act.. 1 (l) The term ‘‘standard of performance’’ means a requirement of continuous emission reduction, including any requirement relat ing to the operation or maintenance of a source to assure contin uous emission reduction. (m) The term ‘‘means of emission limitation’’ means a system of continuous emission reduction (including the use of specific tech nology or fuels with specified pollution characteristics). (n) The term ‘‘primary standard attainment date’’ means the date specified in the applicable implementation plan for the attain ment 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 imple mentation plan for compliance by such source with any require ment 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 limi tation, 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 promul gated or approved pursuant to regulations promulgated under sec tion 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, includ ing any Alaska Native village, which is Federally recognized as eli gible 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 mi crometers, as measured by such method as the Administrator may determine. Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 305 Sec. 303CLEAN AIR ACT (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 im plementation 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 implementation plan, and which includes enforceable emission limitations or other control measures, means or techniques (including economic incen tives, such as marketable permits or auctions of emissions allow ances), and provides for attainment of the relevant national ambi ent air quality standard. (z) STATIONARY SOURCE.—The term ‘‘stationary source’’ means generally any source of an air pollutant except those emissions re sulting directly from an internal combustion engine for transpor tation purposes or from a nonroad engine or nonroad vehicle as de fined 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 wel fare, or the environment, may bring suit on behalf of the United States in the appropriate United States district court to imme diately restrain any person causing or contributing to the alleged pollution to stop the emission of air pollutants causing or contrib uting to such pollution or to take such other action as may be nec essary. 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 at tempt to confirm the accuracy of the information on which the ac tion proposed to be taken is based. Any order issued by the Admin istrator 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 Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 306Sec. 304 CLEAN AIR ACT 1 Sections 1004 and 1005 of the Act entitled ‘‘An Act Making emergency supplemental appro priations for additional disaster assistance, for anti-terrorism initiatives, for assistance in the recovery from the tragedy that occurred at Oklahoma City, and making rescissions for the fiscal year ending September 30, 1995, and for other purposes’’ (109 Stat. 194; Public Law 104–19) provide as follows: ADMINISTRATIVE PROVISIONS SEC. 1004. None of the funds made available in any appropriations Act for fiscal year 1995 may be used by the Environmental Protection Agency to require any State to comply with the requirement of section 182 of the Clean Air Act by adopting or implementing a test-only or IM240 enhanced vehicle inspection and maintenance program, except that EPA may approve such a program if a State chooses to submit one to meet that requirement. SEC. 1005. None of the funds made available in any appropriations Act for fiscal year 1995 may be used by the Environmental Protection Agency to impose or enforce any requirement that a State implement trip reduction measures to reduce vehicular emissions. Section 304 of the Clean Air Act (42 U.S.C. 7604) shall not apply with respect to any such requirement during the period beginning on the date of the enactment of this Act and ending September 30, 1995. 2 Section 707(g) of Public Law 101–549 (104 Stat. 2683) added the language ‘‘to have violated (if there is evidence that the alleged violation has been repeated) or’’ immediately before ‘‘to be in violation’’ in paragraphs (1) and (3). The amendment takes effect with respect to actions brought after the date 2 years after the enactment of the Clean Air Act Amendments of 1990. longer period as may be authorized by the court in which such ac tion is brought. [42 U.S.C. 7603] CITIZEN SUITS SEC. 304. 1 (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 Constitu tion) who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or 2 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 fail ure 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 significant deterioration of air quality) or part D of title I (relating to non attainment) or who is alleged to have violated (if there is evi dence that the alleged violation has been repeated) or 2 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 ac tions 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 Dis trict Court within the circuit in which such action would be review able under sction 307(b). In any such action for unreasonble delay, Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 307 Sec. 304CLEAN AIR ACT 1 Period probably should be a comma. notice to the entities referred to in subsection (b)(1)(A) shall be pro vided 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. 1 (2) under subsection (a)(2) prior to 60 days after the plain tiff has given notice of such action to the Administrator, except that such action may be brought immediately after such no tification in the case of an action under this section respecting a violation of section 112(i)(3)(A) or (f)(4) or an order issued by the Administrator pursuant to section 113(a). Notice under this sub section 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 pro ceeding. 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 Gen eral 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 At torney General and the Administrator during which time the Gov ernment may submit its comments on the proposed consent judg ment 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 litiga tion (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 in junction is sought, require the filing of a bond or equivalent secu rity 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 Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 308Sec. 304 CLEAN AIR ACT 1 Amendment made by section 707(e) of Public Law 101–549 (104 Stat. 2683) resulted in dou ble commas. 2 Section 707(e) of Public Law 101–549 (104 Stat. 2683) amended section 304(f) by adding at the end a new paragraph (4). The new paragraph (4) probably should have been added after paragraph (3) as shown in the text and should not have ended with a period. 3 Period probably should be a comma. 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 judi cial remedy or sanction in any State or local court, or (2) bringing any administrative enforcement action or ob taining 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 (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),, 1 section 119 (re lating 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 protec tion), 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) 2 any other standard, limitation, or schedule established under any permit issued pursuant to title V or under any ap plicable 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. 3 which is in effect under this Act (including a requirement applica ble 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 author ized to be appropriated and shall remain available until expended, for use by the Administrator to finance air compliance and enforce Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 309 Sec. 306CLEAN AIR ACT 1 The words ‘‘this subsection’’ probably should be changed to ‘‘this section’’. ment 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 1 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 par ticipation by, attorneys appointed by the Administrator to the ex tent authorized by, the memorandum of understanding between the Department of Justice and the Environmental Protection Agen cy, dated June 13, 1977, respecting representation of the agency by the department in civil litigation. [42 U.S.C. 7605] FEDERAL PROCUREMENT 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 per form 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 sen tence shall continue until the Administrator certifies that the con dition giving rise to such a conviction has been corrected. For con victions 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 Presi dent shall, not more than 180 days after enactment of the Clean Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 310Sec. 307 CLEAN AIR ACT 1 Amendment made by section 703 of Public Law 101–549 (104 Stat. 2681) resulted in double commas. 2 Probably should read ‘‘this Act’’. 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 pol icy of this Act in such contracting or assistance activities, and (2) setting forth procedures, sanctions, penalties, and such other provi sions, as the President determines necessary to carry out such re quirement. (d) The President may exempt any contract, loan, or grant from all or part of the provisions of this section where he deter mines such exemption is necessary in the paramount interest of the United States and he shall notify the Congress of such exemp tion. (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 sec tion 110(f), or for purposes of obtaining information under section 202(b)(4) or 211(c)(3),, 1 any investigation, monitoring, reporting re quirement, entry, compliance inspection, or administrative enforce ment proceeding under the 2 Act (including but not limited to sec tion 113, section 114, section 120, section 129, section 167, section 205, section 206, section 208, section 303, or section 306), the Ad ministrator may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and doc uments, 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 par ticular part thereof, if made public, would divulge trade secrets or secret processes of such owner or operator, the Administrator shall consider such record, report, 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, em ployees, or authorized representatives of the United States con cerned with carrying out this Act, to persons carrying out the Na tional 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 Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 311 Sec. 307CLEAN AIR ACT 1 Public Law 95–95 inserted the additional comma after the words ‘‘under section 111’’. 2 Section 706(2) of Public Law 101–549 (104 Stat. 2682) inserted the additional comma after the words ‘‘under section 112,’’. such person to appear and give testimony before the Administrator to appear and produce papers, books, and documents before the Ad ministrator, 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 qual ity standard, any emission standard or requirement under section 112, any standard of performance or requirement under section 111,, 1 any standard under section 202 (other than a standard re quired 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 Adminis trator 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 imple mentation plan under section 110 or section 111(d), any order under section 111(j), under section 112,, 2 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 ac tion of the Administrator under this Act (including any denial or disapproval by the Administrator under title I) which is local or re gionally 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 sen tence 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 Ad ministrator 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 promul gation, 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 other wise 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 enforcement. Where a final decision by the Administrator defers performance of any nondiscretionary statutory action to a later time, any person may challenge the deferral pursuant to paragraph (1). Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 312Sec. 307 CLEAN AIR ACT 1 So in original. The word ‘‘to’’ probably should not appear. 2 Identical to subparagraph (S). 3 Should refer to ‘‘part C’’. (c) In any judicial proceeding in which review is sought of a de termination 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 satisfac tion of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evi dence 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 1 the court may deem proper. The Ad ministrator 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 per formance 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 per taining 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), 2 (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 3 of title I (relating to prevention of significant deterioration 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), (L) promulgation or revision of regulations for noncompli ance penalties under section 120, (M) promulgation or revision of any regulations promul gated under section 207 (relating to warranties and compliance by vehicles in actual use), Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 313 Sec. 307CLEAN AIR ACT 1 Section 302(h) of Public Law 101–549 added a new subparagraph (D) and ‘‘redesignated the succeeding subparagraphs accordingly’’. Section 110(5)(C) of Public Law 101–549 added new subparagraphs (N)–(T). Neither amendment gave reference to the other. 2 Identical to subparagraph (G). (N) action of the Administrator under section 126 (relating to interstate pollution abatement), (N) 1 the promulgation or revision of any regulation per taining to consumer and commercial products under section 183(e), (O) the promulgation or revision of any regulation per taining to field citations under section 113(d)(3), (P) the promulgation or revision of any regulation per taining 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 per taining 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), 2 (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 deter mine. 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 cir cumstance 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 rule making docket for such action (hereinafter in this subsection re ferred to as a ‘‘rule’’). Whenever a rule applies only within a par ticular 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, no tice of proposed rulemaking shall be published in the Federal Reg ister, 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 (herein after referred to as the ‘‘comment period’’). The notice of proposed rulemaking shall also state the docket number, the location or loca tions of the docket, and the times it will be open to public inspec tion. 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 ana lyzing 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 ref erence to any pertinent findings, recommendations, and comments Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 314Sec. 307 CLEAN AIR ACT by the 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 recommenda tions, 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 speci fied in the notice of proposed rulemaking. Any person may copy documents contained in the docket. The Administrator shall pro vide copying facilities which may be used at the expense of the per son 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 ex penses, including personnel costs to do the copying. (B)(i) Promptly upon receipt by the agency, all written com ments and documentary information on the proposed rule received from any person for inclusion in the docket during the comment pe riod shall be placed in the docket. The transcript of public hear ings, if any, on the proposed rule shall also be included in the dock et 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 Adminis trator to the Office of Management and Budget for any interagency review process prior to proposal of any such rule, all documents ac companying 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 sub mitted for such review process prior to promulgation and all such written comments thereon, all documents accompanying such drafts, and written responses thereto shall be placed in the docket no later than the date of promulgation. (5) In promulgating a rule to which this subsection applies (i) the Administrator shall allow any person to submit written com ments, data, or documentary information; (ii) the Administrator shall give interested persons an opportunity for the oral presen tation 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 pro ceeding 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. (B) The promulgated rule shall also be accompanied by a re sponse to each of the significant comments, criticisms, and new Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 315 Sec. 307CLEAN AIR ACT data submitted in written or oral presentations during the com ment 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 re view. If the person raising an objection can demonstrate to the Ad ministrator 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 re view) and if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding for recon sideration of the rule and provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed. If the Administrator 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 reconsideration, 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 pro vided 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 ac tion found to be— (A) arbitrary, capricious, an abuse of discretion, or other wise not in accordance with law; (B) contrary to constitutional right, power, privilege, or im munity; (C) in excess of statutory jurisdiction, authority, or limita tions, 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 capri cious, (ii) the requirement of paragraph (7)(B) has been met, and (iii) the condition of the last sentence of paragraph (8) is met. (10) Each statutory deadline for promulgation of rules to which this subsection applies which requires promulgation less than six months after date of proposal may be extended to not more than six months after date of proposal by the Administrator upon a de Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 316Sec. 308 CLEAN AIR ACT 1 Probably intended to refer to subchapter II of chapter 5 of title 5, United States Code. 2 Probably should be ‘‘sections’’. termination 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 appro priate. (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 be fore 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, 1 the Administrator in promulgating any regulation under this Act, including a regulation subject to a deadline, shall ensure a reason able period for public participation of at least 30 days, except as otherwise expressly provided in section 2 107(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 ap plication of the Administrator— (1) that— (A) in the implementation of the requirements of sec tion 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 ac complish 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 coun try, 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 condi tions as the court, after hearing, may determine. Such certification may be made to the district court for the district in which the per son owning the patent resides, does business, or is found. [42 U.S.C. 7608] Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 317 Sec. 311CLEAN AIR ACT POLICY REVIEW SEC. 309. (a) The Administrator shall review and comment in writing on the environmental impact of any matter relating to du ties and responsibilities granted pursuant to this Act or other pro visions 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 91–190 applies, and (3) pro posed 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 stand point 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 sec tion, 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 re cipient of the proceeds of such assistance, the total cost of the project or undertaking in connection with which such assistance 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. (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. (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 Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 318Sec. 212 CLEAN AIR ACT 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— (1) a criteria air pollutant subject to a standard issued under section 109; (2) a hazardous air pollutant listed under section 112, in cluding 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 diox ide or nitrogen oxides; (5) a limitation under title VI of this Act on the production of any ozone-depleting substance; and (6) any other section of this Act. (b) In describing the benefits of a standard described in sub section (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 as signed to such benefits unless supported by specific data. The Ad ministrator shall assess how benefits are measured in order to as sure 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 subsection (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 re port 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 there after, the Administrator, in consultation with the Secretary of Com merce, the Secretary of Labor, and the Council on Clean Air Com pliance Analysis, shall submit a report to the Congress that up dates 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 pur suant to this Act as listed in subsection (a). (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 Anal ysis of not less than nine members (hereafter in this section re Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 319 Sec. 316CLEAN AIR ACT ferred to as the ‘‘Council’’). In appointing such members, the Ad ministrator shall appoint recognized experts in the fields of the health and environmental effects of air pollution, economic anal ysis, environmental sciences, and such other fields that the Admin istrator 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 Adminis trator 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 sub section (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. 101–549, 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 deter mined 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—276a–5). The Secretary of Labor shall have, with respect to the labor standards specified in this sub section, the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (15 F.R. 3176; 64 Stat. 1267) and sec tion 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). (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— Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 320Sec. 317 CLEAN AIR ACT 1 Section 317 should be numbered 318. (1) such treatment works will not comply with applicable standards under section 111 or 112, (2) the State does not have in effect, or is not carrying out, a State implementation plan approved by the Administrator which expressly quantifies and provides for the increase in emissions of each air pollutant (from stationary and mobile sources in any area to which either part C or part D of title I applies for such pollutant) which increase may reasonably be anticipated to result directly or indirectly from the new sewage treatment capacity which would be created by such construc tion. (3) the construction of such treatment works would create new sewage treatment capacity which— (A) may reasonably be anticipated to cause or con tribute to, directly or indirectly, an increase in emissions of any air pollutant in excess of the increase provided for under the provisions referred to in paragraph (2) for any such area, or (B) would otherwise not be in conformity with the ap plicable implementation plan, or (4) such increase in emissions would interfere with, or be inconsistent with, the applicable implementation plan for any other State. In the case of construction of a treatment works which would re sult, directly or indirectly, in an increase in emissions of any air pollutant from stationary and mobile sources in an area to which part D of title I applies, the quantification of emissions referred to in paragraph (2) shall include the emissions of any such pollutant resulting directly or indirectly from areawide and nonmajor sta tionary source growth (mobile and stationary) for each such area. (c) Nothing in this section shall be construed to amend or alter any provision of the National Environmental Policy Act or to affect any determination as to whether or not the requirements of such Act have been met in the case of the construction of any sewage treatment works. [42 U.S.C. 7616] SHORT TITLE SEC. 317. This Act may be cited as the ‘‘Clean Air Act’’. [42 U.S.C. 7401 nt] ECONOMIC IMPACT ASSESSMENT SEC. 317. 1 (a) This section applies to action of the Adminis trator in promulgating or revising— (1) any new source standard of performance under section 111, (2) any regulation under section 111(d), (3) any regulation under part B of title I (relating to ozone and stratosphere protection), (4) any regulation under part C of title I (relating to pre vention of significant deterioration of air quality), Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 321 Sec. 317CLEAN AIR ACT (5) any regulation establishing emission standards under section 202 and any other regulation promulgated under that section, (6) any regulation controlling or prohibiting any fuel or fuel additive under section 211(c), and (7) any aircraft emission standard under section 231. Nothing in this section shall apply to any standard or regulation described in paragraphs (1) through (7) of this subsection unless the notice of proposed rulemaking in connection with such standard or regulation is published in the Federal Register after the date ninety days after the date of enactment of this section. In the case of revisions of such standards or regulations, this section shall apply only to revisions which the Administrator determines to be substantial revisions. (b) Before publication of notice of proposed rulemaking with re spect to any standard or regulation to which this section applies, the Administrator shall prepare an economic impact assessment re specting such standard or regulation. Such assessment shall be in cluded in the docket required under section 307(d)(2) and shall be available to the public as provided in section 307(d)(4). Notice of proposed rulemaking shall include notice of such availability to gether with an explanation of the extent and manner in which the Administrator has considered the analysis contained in such eco nomic impact assessment in proposing the action. The Adminis trator shall also provide such an explanation in his notice of pro mulgation of any regulation or standard referred to in subsection (a). Each such explanation shall be part of the statements of basis and purpose required under sections 307(d)(3) and 307(d)(6). (c) Subject to subsection (d), the assessment required under this section with respect to any standard or regulation shall con tain an analysis of— (1) the costs of compliance with any such standard or regu lation, including extent to which the costs of compliance will vary depending on (A) the effective date of the standard or reg ulation, and (B) the development of less expensive, more effi cient means or methods of compliance with the standard or regulation; (2) the potential inflationary or recessionary effects of the standard or regulation; (3) the effects on competition of the standard or regulation with respect to small business; (4) the effects of the standard or regulation on consumer costs; and (5) the effects of the standard or regulation on energy use. Nothing in this section shall be construed to provide that the anal ysis of the factors specified in this subsection affects or alters the factors which the Administrator is required to consider in taking any action referred to in subsection (a). (d) The assessment required under this section shall be as ex tensive as practicable, in the judgment of the Administrator taking into account the time and resources available to the Environmental Protection Agency and other duties and authorities which the Ad ministrator is required to carry out under this Act. (e) Nothing in this section shall be construed— Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 322Sec. 317 CLEAN AIR ACT (1) to alter the basis on which a standard or regulation is promulgated under this Act; (2) to preclude the Administrator from carrying out his re sponsibility under this Act to protect public health and welfare; or (3) to authorize or require any judicial review of any such standard or regulation, or any stay or injunction of the pro posal, promulgation, or effectiveness of such standard or regu lation on the basis of failure to comply with this section. (f) The requirements imposed on the Administrator under this section shall be treated as nondiscretionary duties for purposes of section 304(a)(2), relating to citizen suits. The sole method for en forcement of the Administrator’s duty under this section shall be by bringing a citizen suit under such section 304(a)(2) for a court order to compel the Administrator to perform such duty. Violation of any such order shall subject the Administrator to penalties for contempt of court. (g) In the case of any provision of this Act in which costs are expressly required to be taken into account, the adequacy or inad equacy of any assessment required under this section may be taken into consideration, but shall not be treated for purposes of judicial review of any such provision as conclusive with respect to compli ance or noncompliance with the requirement of such provision to take cost into account. [42 U.S.C. 7617] [Section 318 repealed by P.L. 101–549, section 108(q), 104 Stat. 2469.] AIR QUALITY MONITORING SEC. 319. Not later than one year after the date of enactment of the Clean Air Act Amendments of 1977 and after notice and op portunity for public hearing, the Administrator shall promulgate regulations establishing an air quality monitoring system through out the United States which— (1) utilizes uniform air quality monitoring criteria and methodology and measures such air quality according to a uni form air quality index, (2) provides for air quality monitoring stations in major urban areas and other appropriate areas throughout the United States to provide monitoring such as will supplement (but not duplicate) air quality monitoring carried out by the States required under any applicable implementation plan, (3) provides for daily analysis and reporting of air quality based upon such uniform air quality index, and (4) provides for recordkeeping with respect to such moni toring data and for periodic analysis and reporting to the gen eral public by the Administrator with respect to air quality based upon such data. The operation of such air quality monitoring system may be carried out by the Administrator or by such other departments, agencies, or entities of the Federal Government (including the National Weather Service) as the President may deem appropriate. Any air quality monitoring system required under any applicable imple mentation plan under section 110 shall, as soon as practicable fol Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 323 Sec. 321CLEAN AIR ACT lowing promulgation of regulations under this section, utilize the standard criteria and methodology, and measure air quality accord ing to the standard index, established under such regulations. [42 U.S.C. 7619] STANDARDIZED AIR QUALITY MODELING SEC. 320. (a) Not later than six months after the date of the enactment of the Clean Air Act Amendments of 1977, and at least every three years thereafter, the Administrator shall conduct a con ference on air quality modeling. In conducting such conference, spe cial attention shall be given to appropriate modeling necessary for carrying out part C of title I (relating to prevention of significant deterioration of air quality). (b) The conference conducted under this section shall provide for participation by the National Academy of Sciences, representa tives of State and local air pollution control agencies, and appro priate Federal agencies, including the National Science Foundation; the National Oceanic and Atmospheric Administration, and the Na tional Bureau of Standards. (c) Interested persons shall be permitted to submit written comments and a verbatim transcript of the conference proceedings shall be maintained. (d) The comments submitted and the transcript maintained pursuant to subsection (c) shall be included in the docket required to be established for purposes of promulgating or revising any regu lation relating to air quality modeling under part C of title I. [42 U.S.C. 7620] EMPLOYMENT EFFECTS SEC. 321. (a) The Administrator shall conduct continuing eval uations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of this Act and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employ ment allegedly resulting from such administration or enforcement. (b) Any employee, or any representative of such employee, who is discharged or laid off, threatened with discharge or layoff, or whose employment is otherwise adversely affected or threatened to be adversely affected because of the alleged results of any require ment imposed or proposed to be imposed under this Act, including any requirement applicable to Federal facilities and any require ment imposed by a State or political subdivision thereof, may re quest the Administrator to conduct a full investigation of the mat ter. Any such request shall be reduced to writing, shall set forth with reasonable particularity the grounds for the request, and shall be signed by the employee, or representative of such employee, making the request. The Administrator shall thereupon investigate the matter and, at the request of any party, shall hold public hear ings on not less than five days’ notice. At such hearings, the Ad ministrator shall require the parties, including the employer in volved, to present information relating to the actual or potential ef fect of such requirements on employment and the detailed reasons or justification therefor. If the Administrator determines that there Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 324Sec. 322 CLEAN AIR ACT are no reasonable grounds for conducting a public hearing he shall notify (in writing) the party requesting such hearing of such a de termination and the reasons therefor. If the Administrator does convene such a hearing, the hearing shall be on the record. Upon receiving the report of such investigation, the Administrator shall make findings of fact as to the effect of such requirements on em ployment and on the alleged actual or potential discharge, layoff, or other adverse effect on employment, and shall make such rec ommendations as he deems appropriate. Such report, findings, and recommendations shall be available to the public. (c) In connection with any investigation or public hearing con ducted under subsection (b) of this section or as authorized in sec tion 119 (relating to primary nonferrous smelter orders), the Ad ministrator may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books and docu ments, 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 par ticular part thereof, if made public, would divulge trade secrets or secret processes of such owner, or operator, the Administrator shall consider such record, report, 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 disclosed to other officers, em ployees, or authorized representatives of the United States con cerned with carrying out this Act, or when relevant in any pro ceeding 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. (d) Nothing in this section shall be construed to require or au thorize the Administrator, the States, or political subdivisions thereof, to modify or withdraw any requirement imposed or pro posed to be imposed under this Act. [42 U.S.C. 7621] EMPLOYEE PROTECTION SEC. 322. (a) No employer may discharge any employee or oth erwise discriminate against any employee with respect to his com pensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)— (1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this Act or a proceeding for the administration or enforcement of Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 325 Sec. 322CLEAN AIR ACT any requirement imposed under this Act or under any applica ble implementation plan, (2) testified or is about to testify in any such proceeding, or (3) assisted or participated or is about to assist or partici pate in any manner in such a proceeding or in any other action to carry out the purposes of this Act. (b)(1) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) may, within thirty days after such violation occurs, file (or have any person file on his behalf) a complaint with the Secretary of Labor (hereinafter in this subsection referred to as the ‘‘Secretary’’) alleging such discharge or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complaint. (2)(A) Upon receipt of a complaint filed under paragraph (1), the Secretary shall conduct an investigation of the violation alleged in the complaint. Within thirty days of the receipt of such com plaint, the Secretary shall complete such investigation and shall notify in writing the complainant (and any person acting in his be half) and the person alleged to have committed such violation of the results of the investigation conducted pursuant to this subpara graph. Within ninety days of the receipt of such complaint the Sec retary shall, unless the proceeding on the complaint is terminated by the Secretary on the basis of a settlement entered into by the Secretary and the person alleged to have committed such violation, issue an order either providing the relief prescribed by subpara graph (B) or denying the complaint. An order of the Secretary shall be made on the record after notice and opportunity for public hear ing. The Secretary may not enter into a settlement terminating a proceeding on a complaint without the participation and consent of the complainant. (B) If, in response to a complaint filed under paragraph (1), the Secretary determines that a violation of subsection (a) has oc curred, the Secretary shall order the person who committed such violation to (i) take affirmative action to abate the violation, and (ii) reinstate the complainant to his former position together with the compensation (including back pay), terms, conditions, and privileges of his employment, and the Secretary may order such person to provide compensatory damages to the complainant. If an order is issued under this paragraph, the Secretary, at the request of the complainant, shall assess against the person against whom the order is issued a sum equal to the aggregate amount of all costs and expenses (including attorneys’ and expert witness fees) reason ably incurred, as determined by the Secretary, by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued. (c)(1) Any person adversely affected or aggrieved by an order issued under subsection (b) may obtain review of the order in the United States court of appeals for the circuit in which the violation, with respect to which the order was issued, allegedly occurred. The petition for review must be filed within sixty days from the issuance of the Secretary’s order. Review shall conform to chapter 7 of title 5 of the United States Code. The commencement of pro Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 326Sec. 323 CLEAN AIR ACT ceedings under this subparagraph shall not, unless ordered by the court, operate as a stay of the Secretary’s order. (2) An order of the Secretary with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in any criminal or other civil proceeding. (d) Whenever a person has failed to comply with an order issued under subsection (b)(2), the Secretary may file a civil action in the United States district court for the district in which the vio lation was found to occur to enforce such order. In actions brought under this subsection, the district courts shall have jurisdiction to grant all appropriate relief including, but not limited to, injunctive relief, compensatory, and exemplary damages. (e)(1) Any person on whose behalf an order was issued under paragraph (2) of subsection (b) may commence a civil action against the person to whom such order was issued to require compliance with such order. The appropriate United States district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such order. (2) The court, in issuing any final order under this subsection, may award costs of litigation (including reasonable attorney and expert witness fees) to any party whenever the court determines such award is appropriate. (f) Any nondiscretionary duty imposed by this section shall be enforceable in a mandamus proceeding brought under section 1361 of title 28 of the United States Code. (g) Subsection (a) shall not apply with respect to any employee who, acting without direction from his employer (or the employer’s agent), deliberately causes a violation of any requirement of this Act. [42 U.S.C. 7622] COST OF EMISSION CONTROL FOR CERTAIN VAPOR RECOVERY TO BE BORNE BY OWNER OF RETAIL OUTLET SEC. 323. (a) The regulations under this Act applicable to vapor recovery with respect to mobile source fuels at retail outlets of such fuels shall provide that the cost of procurement and instal lation of such vapor recovery shall be borne by the owner of such outlet (as determined under such regulations). Except as provided in subsection (b), such regulations shall provide that no lease of a retail outlet by the owner thereof which is entered into or renewed after the date of enactment of the Clean Air Act Amendments of 1977 may provide for a payment by the lessee of the cost of pro curement and installation of vapor recovery equipment. Such regu lations shall also provide that the cost of procurement and installa tion of vapor recovery equipment may be recovered by the owner of such outlet by means of price increases in the cost of any product sold by such owner, notwithstanding any provision of law. (b) The regulations of the Administrator referred to in sub section (a) shall permit a lease of a retail outlet to provide for pay ment by the lessee of the cost of procurement and installation of vapor recovery requirement over a reasonable period (as deter mined in accordance with such regulations), if the owner of such Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 327 Sec. 324CLEAN AIR ACT 1 Probably should refer to section 323. outlet does not sell, trade in, or otherwise dispense any product at wholesale or retail at such outlet. [42 U.S.C. 7624] VAPOR RECOVERY FOR SMALL BUSINESS MARKETERS OF PETROLEUM PRODUCTS SEC. 324. (a) The regulations under this Act applicable to vapor recovery from fueling of motor vehicles at retail outlets of gasoline shall not apply to any outlet owned by an independent small business marketer of gasoline having monthly sales of less than 50,000 gallons. In the case of any other outlet owned by an independent small business marketer, such regulations shall pro vide, with respect to independent small business marketers of gaso line, for a three-year phase-in period for the installation of such vapor recovery equipment at such outlets under which such mar keters shall have— (1) 33 percent of such outlets in compliance at the end of the first year during which such regulations apply to such mar keters, (2) 66 percent at the end of such second year, and (3) 100 percent at the end of the third year. (b) Nothing in subsection (a) shall be construed to prohibit any State from adopting or enforcing, with respect to independent small business marketers of gasoline having monthly sales of less than 50,000 gallons, any vapor recovery requirements for mobile source fuels at retail outlets. Any vapor recovery requirement which is adopted by a State and submitted to the Administrator as part of its implementation plan may be approved and enforced by the Ad ministrator as part of the applicable implementation plan for that State. (c) For purposes of this section, an independent small business marketer of gasoline is a person engaged in the marketing of gaso line who would be required to pay for procurement and installation of vapor recovery equipment under section 3241 of this Act or under regulations of the Administrator, unless such person— (1)(A) is a refiner, or (B) controls, is controlled by, or is under common control with, a refiner. (C) is otherwise directly or indirectly affiliated (as deter mined under the regulations of the Administrator) with a re finer or with a person who controls, is controlled by, or is under a common control with a refiner (unless the sole affili ation referred to herein is by means of a supply contract or an agreement or contract to use a trademark, trade name, service mark, or other identifying symbol or name owned by such re finer or any such person), or (2) receives less than 50 percent of his annual income from refining or marketing of gasoline. For the purpose of this section, the term ‘‘refiner’’ shall not include any refiner whose total refinery capacity (including the refinery ca pacity of any person who controls, is controlled by, or is under com Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 328Sec. 325 CLEAN AIR ACT 1 So in original. Probably should be ‘‘Governor’’. 2 Section 806 of Public Law 101–549 (104 Stat. 2689) amended section 324(a)(1) by inserting ‘‘the Virgin Islands,’’ after ‘‘American Samoa,’’. The amendment probably should have been made to section 325(a)(1). mon control with, such refiner) does not exceed 65,000 barrels per day. For purposes of this section, ‘‘control’’ of a corporation means ownership of more than 50 percent of its stock. [42 U.S.C. 7625] EXEMPTIONS FOR CERTAIN TERRITORIES SEC. 325. (a)(1) Upon petition by the governor 1 of Guam, American Samoa, øthe Virgin Islands,¿ 2 or the Commonwealth of the Northern Mariana Islands, the Administrator is authorized to exempt any person or source or class of persons or sources in such territory from any requirement under this Act other than section 112 or any requirement under section 110 or part D necessary to attain or maintain a national primary ambient air quality stand ard. Such exemption may be granted if the Administrator finds that compliance with such requirement is not feasible or is unrea sonable due to unique geographical, meteorological, or economic factors of such territory, or such other local factors as the Adminis trator deems significant. Any such petition shall be considered in accordance with section 307(d) and any exemption under this sub section shall be considered final action by the Administrator for the purposes of section 307(b). (2) The Administrator shall promptly notify the Committees on Energy and Commerce and on Natural Resources of the House of Representatives and the Committees on Environment and Public Works and on Energy and Natural Resources of the Senate upon receipt of any petition under this subsection and of the approval or rejection of such petition and the basis for such action. (b) Notwithstanding any other provision of this Act, any fossil fuel fired steam electric power plant operating within Guam as of the date of enactment of this section is hereby exempted from: (1) any requirement of the new source performance stand ards relating to sulfur dioxide promulgated under section 111 as of such date of enactment; and (2) any regulation relating to sulfur dioxide standards or limitations contained in a State implementation plan approved under section 110 as of such date of enactment: Provided, That such exemption shall expire eighteen months after such date of enactment unless the Administrator determines that such plant is making all emissions reductions practicable to prevent exceedances of the national ambient air quality standards for sulfur dioxide. [42 U.S.C. 7625–1] CONSTRUCTION OF CERTAIN CLAUSES SEC. 326. The parenthetical cross references in any provision of this Act to other provisions of the Act, or other provisions of law, Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 329 Sec. 328CLEAN AIR ACT where the words ‘‘relating to’’ or ‘‘pertaining to’’ are used, are made only for convenience, and shall be given no legal effect. [42 U.S.C. 7625a] SEC. 327. AUTHORIZATION OF APPROPRIATIONS. (a) IN GENERAL.—There are authorized to be appropriated to carry out this Act such sums as may be necessary for the 7 fiscal years commencing after the enactment of the Clean Air Act Amendments of 1990. (b) GRANTS FOR PLANNING.—There are authorized to be appro priated (1) not more than $50,000,000 to carry out section 175 be ginning in fiscal year 1991, to be available until expended, to de velop plan revisions required by subpart 2, 3, or 4 of part D of title I, and (2) not more than $15,000,000 for each of the 7 fiscal years commencing after the enactment of the Clean Air Act Amendments of 1990 to make grants to the States to prepare implementation plans as required by subpart 2, 3, or 4 of part D of title I. [42 U.S.C. 7626] SEC. 328. AIR POLLUTION FROM OUTER CONTINENTAL SHELF AC TIVITIES. (a)(1) APPLICABLE REQUIREMENTS FOR CERTAIN AREAS.—Not later than 12 months after the enactment of the Clean Air Act Amendments of 1990, following consultation with the Secretary of the Interior and the Commandant of the United States Coast Guard, the Administrator, by rule, shall establish requirements to control air pollution from Outer Continental Shelf sources located offshore of the States along the Pacific, Arctic and Atlantic Coasts, and along the United States Gulf Coast off the State of Florida eastward of longitude 87 degrees and 30 minutes (‘‘OCS sources’’) to attain and maintain Federal and State ambient air quality standards and to comply with the provisions of part C of title I. For such sources located within 25 miles of the seaward boundary of such States, such requirements shall be the same as would be ap plicable if the source were located in the corresponding onshore area, and shall include, but not be limited to, State and local re quirements for emission controls, emission limitations, offsets, per mitting, monitoring, testing, and reporting. New OCS sources shall comply with such requirements on the date of promulgation and existing OCS sources shall comply on the date 24 months there after. The Administrator shall update such requirements as nec essary to maintain consistency with onshore regulations. The au thority of this subsection shall supersede section 5(a)(8) of the Outer Continental Shelf Lands Act but shall not repeal or modify any other Federal, State, or local authorities with respect to air quality. Each requirement established under this section shall be treated, for purposes of sections 113, 114, 116, 120, and 304, as a standard under section 111 and a violation of any such require ment shall be considered a violation of section 111(e). (2) EXEMPTIONS.—The Administrator may exempt an OCS source from a specific requirement in effect under regulations under this subsection if the Administrator finds that compliance with a pollution control technology requirement is technically infea sible or will cause an unreasonable threat to health and safety. The Administrator shall make written findings explaining the basis of Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 330Sec. 328 CLEAN AIR ACT any exemption issued pursuant to this subsection and shall impose another requirement equal to or as close in stringency to the origi nal requirement as possible. The Administrator shall ensure that any increase in emissions due to the granting of an exemption is offset by reductions in actual emissions, not otherwise required by this Act, from the same source or other sources in the area or in the corresponding onshore area. The Administrator shall establish procedures to provide for public notice and comment on exemptions proposed pursuant to this subsection. (3) STATE PROCEDURES.—Each State adjacent to an OCS source included under this subsection may promulgate and submit to the Administrator regulations for implementing and enforcing the requirements of this subsection. If the Administrator finds that the State regulations are adequate, the Administrator shall dele gate to that State any authority the Administrator has under this Act to implement and enforce such requirements. Nothing in this subsection shall prohibit the Administrator from enforcing any re quirement of this section. (4) DEFINITIONS.—For purposes of subsections (a) and (b)— (A) OUTER CONTINENTAL SHELF.—The term ‘‘Outer Conti nental Shelf’’ has the meaning provided by section 2 of the Outer Continental Shelf Lands Act (43 U.S.C. 1331). (B) CORRESPONDING ONSHORE AREA.—The term ‘‘cor responding onshore area’’ means, with respect to any OCS source, the onshore attainment or nonattainment area that is closest to the source, unless the Administrator determines that another area with more stringent requirements with respect to the control and abatement of air pollution may reasonably be expected to be affected by such emissions. Such determination shall be based on the potential for air pollutants from the OCS source to reach the other onshore area and the potential of such air pollutants to affect the efforts of the other onshore area to attain or maintain any Federal or State ambient air quality standard or to comply with the provisions of part C of title I. (C) OUTER CONTINENTAL SHELF SOURCE.—The terms ‘‘Outer Continental Shelf source’’ and ‘‘OCS source’’ include any equipment, activity, or facility which— (i) emits or has the potential to emit any air pollutant, (ii) is regulated or authorized under the Outer Conti nental Shelf Lands Act, and (iii) is located on the Outer Continental Shelf or in or on waters above the Outer Continental Shelf. Such activities include, but are not limited to, platform and drill ship exploration, construction, development, production, processing, and transportation. For purposes of this subsection, emissions from any vessel servicing or associated with an OCS source, including emissions while at the OCS source or en route to or from the OCS source within 25 miles of the OCS source, shall be considered direct emissions from the OCS source. (D) NEW AND EXISTING OCS SOURCES.—The term ‘‘new OCS source’’ means an OCS source which is a new source within the Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 331 Sec. 402CLEAN AIR ACT 1 Section 801 of Public Law 101–549 added this section. Reference to section 112(n) should probably be a reference to section 112(m). meaning of section 111(a). The term ‘‘existing OCS source’’ means any OCS source other than a new OCS source. (b) REQUIREMENTS FOR OTHER OFFSHORE AREAS.—For portions of the United States Gulf Coast Outer Continental Shelf that are adjacent to the States not covered by subsection (a) which are Texas, Louisiana, Mississippi, and Alabama, the Secretary shall consult with the Administrator to assure coordination of air pollu tion control regulation for Outer Continental Shelf emissions and emissions in adjacent onshore areas. Concurrently with this obliga tion, the Secretary shall complete within 3 years of enactment of this section a research study examining the impacts of emissions from Outer Continental Shelf activities in such areas that fail to meet the national ambient air quality standards for either ozone or nitrogen dioxide. Based on the results of this study, the Secretary shall consult with the Administrator and determine if any addi tional actions are necessary. There are authorized to be appro priated such sums as may be necessary to provide funding for the study required under this section. (c)(1) COASTAL WATERS.—The study report of section 112(n) 1 of the Clean Air Act shall apply to the coastal waters of the United States to the same extent and in the same manner as such require ments apply to the Great Lakes, the Chesapeake Bay, and their tributary waters. (2) The regulatory requirements of section 112(n) 1 of the Clean Air Act shall apply to the coastal waters of the States which are subject to subsection (a) of this section, to the same extent and in the same manner as such requirements apply to the Great Lakes, the Chesapeake Bay, and their tributary wa ters. [42 U.S.C. 7627] TITLE IV—NOISE POLLUTION SEC. 401. This title may be cited as the ‘‘Noise Pollution and Abatement Act of 1970’’. SEC. 402. (a) The Administrator shall establish within the the Environmental Protection Agency an Office of Noise Abatement and Control, and shall carry out through such Office a full and complete investigation and study of noise and its effect on the pub lic health and welfare in order to (1) identify and classify causes and sources of noise, and (2) determine— (A) effects at various levels; (B) projected growth of noise levels in urban areas through the year 2000; (C) the psychological and physiological effect on humans; (D) effects of sporadic extreme noise (such as jet noise near airports) as compared with constant noise; (E) effect on wildlife and property (including values); (F) effect of sonic booms on property (including values); and (G) such other matters as may be of interest in the public welfare. Q:\COMP\ENVIR1\CLEANAIR.003 February 24, 2004 332Sec. 401 CLEAN AIR ACT 1 Section 401 of Public Law 101–549 (104 Stat. 2584) added a second title IV without repealing existing title IV. Also, the typeface and size of the heading is incorrect. 2 The table of contents relating to this section does not conform to the section heading. See section 401 of Public Law 101–549 (104 Stat. 2584). (b) In conducting such investigation, the Administrator shall hold public hearings, conduct research, experiments, demonstra tions, and studies. The Administrator shall report the results of such investigation and study, together with his recommendations for legislation or other action, to the President and the Congress not later than one year after the date of enactment of this title. (c) In any case where any Federal department or a agency is carrying out or sponsoring any activity resulting in noise which the administrator determines amounts to a public nuisance or is other wise objectionable, such department or agency shall consult with the Administrator to determine possible means of abating such noise. SEC. 403. There is authorized to be appropriated such amount, not to exceed $30,000,000, as may be necessary for the purposes of this title. TITLE IV—ACID DEPOSITION CONTROL 1 Sec. 401. Findings and purpose. 2 Sec. 402. Definitions. Sec. 403. Sulfur dioxide allowance program for existing and new units. Sec. 404. Phase I sulfur dioxide requirements. Sec. 405. Phase II sulfur dioxide requirements. Sec. 406. Allowances for States with emissions rates at or below 0.80 lbs/mmBtu. Sec. 407. Nitrogen oxides emission reduction program. Sec. 408. Permits and compliance plans. Sec. 409. Repowered sources. Sec. 410. Election for additional sources. Sec. 411. Excess emissions penalty. Sec. 412. Monitoring, reporting, and recordkeeping requirements. Sec. 413. General compliance with other provisions. Sec. 414. Enforcement. Sec. 415. Clean coal technology regulatory incentives. Sec. 416. Contingency guarantee; auctions, reserve. SEC. 401. FINDINGS AND PURPOSES. (a) FINDINGS.—The Congress finds that— (1) the presence of acidic compounds and their precursors in the atmosphere and in deposition from the atmosphere rep resents a threat to natural resources, ecosystems, materials, visibility, and public health; (2) the principal sources of the acidic compounds and their precursors in the atmosphere are emissions of sulfur and nitro gen oxides from the combustion of fossil fuels; (3) the problem of acid deposition is of national and inter national significance; (4) strategies and technologies for the control of precursors to acid deposition exist now that are economically feasible, and improved methods are expected to become increasingly avail able over the next decade; (5) current and future generations of Americans will be ad versely affected by delaying measures to remedy the problem; (6) reduction of total atmospheric loading of sulfur dioxide and nitrogen oxides will enhance protection of the public health and welfare and the environment; and Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 333 Sec. 402CLEAN AIR ACT (7) control measures to reduce precursor emissions from steam-electric generating units should be initiated without delay. (b) PURPOSES.—The purpose of this title is to reduce the ad verse effects of acid deposition through reductions in annual emis sions of sulfur dioxide of ten million tons from 1980 emission lev els, and, in combination with other provisions of this Act, of nitro gen oxides emissions of approximately two million tons from 1980 emission levels, in the forty-eight contiguous States and the Dis trict of Columbia. It is the intent of this title to effectuate such re ductions by requiring compliance by affected sources with pre scribed emission limitations by specified deadlines, which limita tions may be met through alternative methods of compliance pro vided by an emission allocation and transfer system. It is also the purpose of this title to encourage energy conservation, use of re newable and clean alternative technologies, and pollution preven tion as a long-range strategy, consistent with the provisions of this title, for reducing air pollution and other adverse impacts of energy production and use. [42 U.S.C. 7651] SEC. 402. DEFINITIONS. As used in this title: (1) The term ‘‘affected source’’ means a source that in cludes one or more affected units. (2) The term ‘‘affected unit’’ means a unit that is subject to emission reduction requirements or limitations under this title. (3) The term ‘‘allowance’’ means an authorization, allo cated to an affected unit by the Administrator under this title, to emit, during or after a specified calendar year, one ton of sulfur dioxide. (4) The term ‘‘baseline’’ means the annual quantity of fossil fuel consumed by an affected unit, measured in millions of British Thermal Units (‘‘mmBtu’s’’), calculated as follows: (A) For each utility unit that was in commercial oper ation prior to January 1, 1985, the baseline shall be the annual average quantity of mmBtu’s consumed in fuel dur ing calendar years 1985, 1986, and 1987, as recorded by the Department of Energy pursuant to Form 767. For any utility unit for which such form was not filed, the baseline shall be the level specified for such unit in the 1985 Na tional Acid Precipitation Assessment Program (NAPAP) Emissions Inventory, Version 2, National Utility Reference File (NURF) or in a corrected data base as established by the Administrator pursuant to paragraph (3). 1 For non utility units, the baseline is the NAPAP Emissions Inven tory, Version 2. The Administrator, in the Administrator’s sole discretion, may exclude periods during which a unit is shutdown for a continuous period of four calendar months or longer, and make appropriate adjustments under this paragraph. Upon petition of the owner or operator of any unit, the Administrator may make appropriate baseline adjustments for accidents that caused prolonged outages. Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 334Sec. 402 CLEAN AIR ACT 1 Probably should be ‘‘subparagraph (C)’’. 2 Probably should be ‘‘this’’. (B) For any other nonutility unit that is not included in the NAPAP Emissions Inventory, Version 2, or a cor rected data base as established by the Administrator pur suant to paragraph (3), 1 the baseline shall be the annual average quantity, in mmBtu consumed in fuel by that unit, as calculated pursuant to a method which the adminis trator shall prescribe by regulation to be promulgated not later than eighteen months after enactment of the Clean Air Act Amendments of 1990. (C) The Administrator shall, upon application or on his own motion, by December 31, 1991, supplement data needed in support of this title and correct any factual er rors in data from which affected Phase II units’ baselines or actual 1985 emission rates have been calculated. Cor rected data shall be used for purposes of issuing allow ances under the 2 title. Such corrections shall not be sub ject to judicial review, nor shall the failure of the Adminis trator to correct an alleged factual error in such reports be subject to judicial review. (5) The term ‘‘capacity factor’’ means the ratio between the actual electric output from a unit and the potential electric output from that unit. (6) The term ‘‘compliance plan’’ means, for purposes of the requirements of this title, either— (A) a statement that the source will comply with all applicable requirements under this title, or (B) where applicable, a schedule and description of the method or methods for compliance and certification by the owner or operator that the source is in compliance with the requirements of this title. (7) The term ‘‘continuous emission monitoring system’’ (CEMS) means the equipment as required by section 412, used to sample, analyze, measure, and provide on a continuous basis a permanent record of emissions and flow (expressed in pounds per million British thermal units (lbs/mmBtu), pounds per hour (lbs/hr) or such other form as the Administrator may pre scribe by regulations under section 412). (8) The term ‘‘existing unit’’ means a unit (including units subject to section 111) that commenced commercial operation before the date of enactment of the Clean Air Act Amendments of 1990. Any unit that commenced commercial operation before the date of enactment of the Clean Air Act Amendments of 1990 which is modified, reconstructed, or repowered after the date of enactment of the Clean Air Act Amendments of 1990 shall continue to be an existing unit for the purposes of this title. For the purposes of this title, existing units shall not in clude simple combustion turbines, or units which serve a gen erator with a nameplate capacity of 25MWe or less. (9) The term ‘‘generator’’ means a device that produces electricity and which is reported as a generating unit pursuant to Department of Energy Form 860. Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 335 Sec. 402CLEAN AIR ACT 1 Probably refers to title V of this Act, relating to permits. (10) The term ‘‘new unit’’ means a unit that commences commercial operation on or after the date of enactment of the Clean Air Act Amendments of 1990. (11) The term ‘‘permitting authority’’ means the Adminis trator, or the State or local air pollution control agency, with an approved permitting program under part B of title III of the Act. 1 (12) The term ‘‘repowering’’ means replacement of an exist ing coal-fired boiler with one of the following clean coal tech nologies: atmospheric or pressurized fluidized bed combustion, integrated gasification combined cycle, magnetohydrodynamics, direct and indirect coal-fired turbines, integrated gasification fuel cells, or as determined by the Administrator, in consulta tion with the Secretary of Energy, a derivative of one or more of these technologies, and any other technology capable of con trolling multiple combustion emissions simultaneously with improved boiler or generation efficiency and with significantly greater waste reduction relative to the performance of tech nology in widespread commercial use as of the date of enact ment of the Clean Air Act Amendments of 1990. Notwith standing the provisions of section 409(a), for the purpose of this title, the term ‘‘repowering’’ shall also include any oil and/ or gas-fired unit which has been awarded clean coal technology demonstration funding as of January 1, 1991, by the Depart ment of Energy. (13) The term ‘‘reserve’’ means any bank of allowances es tablished by the Administrator under this title. (14) The term ‘‘State’’ means one of the 48 contiguous States and the District of Columbia. (15) The term ‘‘unit’’ means a fossil fuel-fired combustion device. (16) The term ‘‘actual 1985 emission rate’’, for electric util ity units means the annual sulfur dioxide or nitrogen oxides emission rate in pounds per million Btu as reported in the NAPAP Emissions Inventory, Version 2, National Utility Ref erence File. For nonutility units, the term ‘‘actual 1985 emis sion rate’’ means the annual sulfur dioxide or nitrogen oxides emission rate in pounds per million Btu as reported in the NAPAP Emission Inventory, Version 2. (17)(A) The term ‘‘utility unit’’ means— (i) a unit that serves a generator in any State that produces electricity for sale, or (ii) a unit that, during 1985, served a generator in any State that produced electricity for sale. (B) Notwithstanding subparagraph (A), a unit described in subparagraph (A) that— (i) was in commercial operation during 1985, but (ii) did not, during 1985, serve a generator in any State that produced electricity for sale shall not be a util ity unit for purposes of this title. (C) A unit that cogenerates steam and electricity is not a ‘‘utility unit’’ for purposes of this title unless the unit is con Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 336Sec. 402 CLEAN AIR ACT 1 Probably should be ‘‘section’’. 2 Probably should be ‘‘phase’’. 1 Probably should refer to ‘‘410(d)’’. structed for the purpose of supplying, or commences construc tion after the date of enactment of this title and supplies, more than one-third of its potential electric output capacity and more than 25 megawatts electrical output to any utility power distribution system for sale. (18) The term ‘‘allowable 1985 emissions rate’’ means a federally enforceable emissions limitation for sulfur dioxide or oxides of nitrogen, applicable to the unit in 1985 or the limita tion applicable in such other subsequent year as determined by the Administrator if such a limitation for 1985 does not exist. Where the emissions limitation for a unit is not expressed in pounds of emissions per million Btu, or the averaging period of that emissions limitation is not expressed on an annual basis, the Administrator shall calculate the annual equivalent of that emissions limitation in pounds per million Btu to estab lish the allowable 1985 emissions rate. (19) The term ‘‘qualifying phase I technology’’ means a technological system of continuous emission reduction which achieves a 90 percent reduction in emissions of sulfur dioxide from the emissions that would have resulted from the use of fuels which were not subject to treatment prior to combustion. (20) The term ‘‘alternative method of compliance’’ means a method of compliance in accordance with one or more of the following authorities: (A) a substitution plan submitted and approved in ac cordance with subsections 1 404 (b) and (c); (B) a Phase 2 I extension plan approved by the Admin istrator under section 404(d), using qualifying phase I technology as determined by the Administrator in accord ance with that section; or (C) repowering with a qualifying clean coal technology under section 409. (21) The term ‘‘commenced’’ as applied to construction of any new electric utility unit means that an owner or operator has undertaken a continuous program of construction or that an owner or operator has entered into a contractual obligation to undertake and complete, within a reasonable time, a contin uous program of construction. (22) The term ‘‘commenced commercial operation’’ means to have begun to generate electricity for sale. (23) The term ‘‘construction’’ means fabrication, erection, or installation of an affected unit. (24) The term ‘‘industrial source’’ means a unit that does not serve a generator that produces electricity, a ‘‘nonutility unit’’ as defined in this section, or a process source as defined in section 410(e). 1 (25) The term ‘‘nonutility unit’’ means a unit other than a utility unit. (26) The term ‘‘designated representative’’ means a respon sible person or official authorized by the owner or operator of a unit to represent the owner or operator in matters pertaining Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 337 Sec. 403CLEAN AIR ACT 2 ‘‘(1)’’ should probably be deleted. to the holding, transfer, or disposition of allowances allocated to a unit, and the submission of and compliance with permits, permit applications, and compliance plans for the unit. (27) The term ‘‘life-of-the-unit, firm power contractual ar rangement’’ means a unit participation power sales agreement under which a utility or industrial customer reserves, or is en titled to receive, a specified amount or percentage of capacity and associated energy generated by a specified generating unit (or units) and pays its proportional amount of such unit’s total costs, pursuant to a contract either— (A) for the life of the unit; (B) for a cumulative term of no less than 30 years, in cluding contracts that permit an election for early termi nation; or (C) for a period equal to or greater than 25 years or 70 percent of the economic useful life of the unit deter mined as of the time the unit was built, with option rights to purchase or re-lease some portion of the capacity and associated energy generated by the unit (or units) at the end of the period. (28) The term ‘‘basic Phase II allowance allocations’’ means: (A) For calendar years 2000 through 2009 inclusive, allocations of allowances made by the Administrator pur suant to section 403 and subsections (b)(1), (3), and (4); (c)(1), (2), (3), and (5); (d)(1), (2), (4), and (5); (e); (f); (g)(1), (2), (3), (4), and (5); (h)(1); (i) and (j) of section 405. (B) For each calendar year beginning in 2010, alloca tions of allowances made by the Administrator pursuant to section 403 and subsections (b)(1), (3), and (4); (c)(1), (2), (3), and (5); (d)(1), (2), (4) and (5); (e); (f); (g)(1), (2), (3), (4), and (5); (h)(1) and (3); (i) and (j) of section 405. (29) The term ‘‘Phase II bonus allowance allocations’’ means, for calendar year 2000 through 2009, inclusive, and only for such years, allocations made by the Administrator pur suant to section 403, subsections (a)(2), (b)(2), (c)(4), (d)(3) (ex cept as otherwise provided therein), and (h)(2) of section 405, and section 406. [42 U.S.C. 7651a] SEC. 403. SULFUR DIOXIDE ALLOWANCE PROGRAM FOR EXISTING AND NEW UNITS. (a) ALLOCATIONS OF ANNUAL ALLOWANCES FOR EXISTING AND NEW UNITS.—(1) 2 For the emission limitation programs under this title, the Administrator shall allocate annual allowances for the unit, to be held or distributed by the designated representative of the owner or operator of each affected unit at an affected source in accordance with this title, in an amount equal to the annual ton nage emission limitation calculated under section 404, 405, 406, 409, or 410 except as otherwise specifically provided elsewhere in this title. Except as provided in sections 405(a)(2), 405(a)(3), 409 and 410, beginning January 1, 2000, the Administrator shall not allocate annual allowances to emit sulfur dioxide pursuant to sec Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 338Sec. 403 CLEAN AIR ACT 1 This subsection has no paragraphs (2) and (3). 2 See section 409. The reference to December 31, 2000, probably should refer to ‘‘December 31, 2003’’. tion 405 in such an amount as would result in total annual emis sions of sulfur dioxide from utility units in excess of 8.90 million tons except that the Administrator shall not take into account un used allowances carried forward by owners and operators of af fected units or by other persons holding such allowances, following the year for which they were allocated. If necessary to meeting the restrictions imposed in the preceding sentence, the Administrator shall reduce, pro rata, the basic Phase II allowance allocations for each unit subject to the requirements of section 405. Subject to the provisions of section 416, the Administrator shall allocate allow ances for each affected unit at an affected source annually, as pro vided in paragraphs (2) and (3) 1 and section 408. Except as pro vided in sections 409 and 410, the removal of an existing affected unit or source from commercial operation at any time after the date of the enactment of the Clean Air Act Amendments of 1990 (wheth er before or after January 1, 1995, or January 1, 2000) shall not terminate or otherwise affect the allocation of allowances pursuant to section 404 or 405 to which the unit is entitled. Allowances shall be allocated by the Administrator without cost to the recipient, ex cept for allowances sold by the Administrator pursuant to section 416. Not later than December 31, 1991, the Administrator shall publish a proposed list of the basic Phase II allowance allocations, the Phase II bonus allowance allocations and, if applicable, alloca tions pursuant to section 405(a)(3) for each unit subject to the emissions limitation requirements of section 405 for the year 2000 and the year 2010. After notice and opportunity for public com ment, but not later than December 31, 1992, the Administrator shall publish a final list of such allocations, subject to the provi sions of section 405(a)(2). Any owner or operator of an existing unit subject to the requirements of section 405(b) or (c) who is consid ering applying for an extension of the emission limitation require ment compliance deadline for that unit from January 1, 2000, until not later than December 31, 2000, 2 pursuant to section 409, shall notify the Administrator no later than March 31, 1991. Such notifi cation shall be used as the basis for estimating the basic Phase II allowances under this subsection. Prior to June 1, 1998, the Admin istrator shall publish a revised final statement of allowance alloca tions, subject to the provisions of section 405(a)(2) and taking into account the effect of any compliance date extensions granted pursu ant to section 409 on such allocations. Any person who may make an election concerning the amount of allowances to be allocated to a unit or units shall make such election and so inform the Adminis trator not later than March 31, 1991, in the case of an election under section 405 (or June 30, 1991, in the case of an election under section 406). If such person fails to make such election, the Administrator shall set forth for each unit owned or operated by such person, the amount of allowances reflecting the election that would, in the judgment of the Administrator, provide the greatest benefit for the owner or operator of the unit. If such person is a Governor who may make an election under section 406 and the Governor fails to make an election, the Administrator shall set Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 339 Sec. 403CLEAN AIR ACT forth for each unit in the State the amount of allowances reflecting the election that would, in the judgment of the Administrator, pro vide the greatest benefit for units in the State. (b) ALLOWANCE TRANSFER SYSTEM.—Allowances allocated under this title may be transferred among designated representa tives of the owners or operators of affected sources under this title and any other person who holds such allowances, as provided by the allowance system regulations to be promulgated by the Admin istrator not later than eighteen months after the date of enactment of the Clean Air Act Amendments of 1990. Such regulations shall establish the allowance system prescribed under this section, in cluding, but not limited to, requirements for the allocation, trans fer, and use of allowances under this title. Such regulations shall prohibit the use of any allowance prior to the calendar year for which the allowance was allocated, and shall provide, consistent with the purposes of this title, for the identification of unused al lowances, and for such unused allowances to be carried forward and added to allowances allocated in subsequent years, including allowances allocated to units subject to Phase I requirements (as described in section 404) which are applied to emissions limitations requirements in Phase II (as described in section 405). Transfers of allowances shall not be effective until written certification of the transfer, signed by a responsible official of each party to the trans fer, is received and recorded by the Administrator. Such regula tions shall permit the transfer of allowances prior to the issuance of such allowances. Recorded pre-allocation transfers shall be de ducted by the Administrator from the number of allowances which would otherwise be allocated to the transferor, and added to those allowances allocated to the transferee. Pre-allocation transfers shall not affect the prohibition contained in this subsection against the use of allowances prior to the year for which they are allocated. (c) INTERPOLLUTANT TRADING.—Not later than January 1, 1994, the Administrator shall furnish to the Congress a study eval uating the environmental and economic consequences of amending this title to permit trading sulfur dioxide allowances for nitrogen oxides allowances. (d) ALLOWANCE TRACKING SYSTEM.—(1) The Administrator shall promulgate, not later than 18 months after the date of enact ment of the Clean Air Act Amendments of 1990, a system for issuing, recording, and tracking allowances, which shall specify all necessary procedures and requirements for an orderly and competi tive functioning of the allowance system. All allowance allocations and transfers shall, upon recordation by the Administrator, be deemed a part of each unit’s permit requirements pursuant to sec tion 408, without any further permit review and revision. (2) In order to insure electric reliability, such regulations shall not prohibit or affect temporary increases and decreases in emis sions within utility systems, power pools, or utilities entering into allowance pool agreements, that result from their operations, in cluding emergencies and central dispatch, and such temporary emissions increases and decreases shall not require transfer of al lowances among units nor shall it require recordation. The owners or operators of such units shall act through a designated represent ative. Notwithstanding the preceding sentence, the total tonnage of Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 340Sec. 403 CLEAN AIR ACT emissions in any calendar year (calculated at the end thereof) from all units in such a utility system, power pool, or allowance pool agreements shall not exceed the total allowances for such units for the calendar year concerned. (e) NEW UTILITY UNITS.—After January 1, 2000, it shall be un lawful for a new utility unit to emit an annual tonnage of sulfur dioxide in excess of the number of allowances to emit held for the unit by the unit’s owner or operator. Such new utility units shall not be eligible for an allocation of sulfur dioxide allowances under subsection (a)(1), unless the unit is subject to the provisions of sub section (g)(2) or (3) of section 405. New utility units may obtain al lowances from any person, in accordance with this title. The owner or operator of any new utility unit in violation of this subsection shall be liable for fulfilling the obligations specified in section 411 of this title. (f) NATURE OF ALLOWANCES.—An allowance allocated under this title is a limited authorization to emit sulfur dioxide in accord ance with the provisions of this title. Such allowance does not con stitute a property right. Nothing in this title or in any other provi sion of law shall be construed to limit the authority of the United States to terminate or limit such authorization. Nothing in this sec tion relating to allowances shall be construed as affecting the appli cation of, or compliance with, any other provision of this Act to an affected unit or source, including the provisions related to applica ble National Ambient Air Quality Standards and State implemen tation plans. Nothing in this section shall be construed as requiring a change of any kind in any State law regulating electric utility rates and charges or affecting any State law regarding such State regulation or as limiting State regulation (including any prudency review) under such a State law. Nothing in this section shall be construed as modifying the Federal Power Act or as affecting the authority of the Federal Energy Regulatory Commission under that Act. Nothing in this title shall be construed to interfere with or im pair any program for competitive bidding for power supply in a State in which such program is established. Allowances, once allo cated to a person by the Administrator, may be received, held, and temporarily or permanently transferred in accordance with this title and the regulations of the Administrator without regard to whether or not a permit is in effect under title V or section 408 with respect to the unit for which such allowance was originally al located and recorded. Each permit under this title and each permit issued under title V for any affected unit shall provide that the af fected unit may not emit an annual tonnage of sulfur dioxide in ex cess of the allowances held for that unit. (g) PROHIBITION.—It shall be unlawful for any person to hold, use, or transfer any allowance allocated under this title, except in accordance with regulations promulgated by the Administrator. It shall be unlawful for any affected unit to emit sulfur dioxide in ex cess of the number of allowances held for that unit for that year by the owner or operator of the unit. Upon the allocation of allow ances under this title, the prohibition contained in the preceding sentence shall supersede any other emission limitation applicable under this title to the units for which such allowances are allo cated. Allowances may not be used prior to the calendar year for Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 341 Sec. 404CLEAN AIR ACT which they are allocated. Nothing in this section or in the allow ance system regulations shall relieve the Administrator of the Ad ministrator’s permitting, monitoring and enforcement obligations under this Act, nor relieve affected sources of their requirements and liabilities under this Act. (h) COMPETITIVE BIDDING FOR POWER SUPPLY.—Nothing in this title shall be construed to interfere with or impair any program for competitive bidding for power supply in a State in which such pro gram is established. (i) APPLICABILITY OF THE ANTITRUST LAWS.— (1) Nothing in this section affects— (A) the applicability of the antitrust laws to the trans fer, use, or sale of allowances, or (B) the authority of the Federal Energy Regulatory Commission under any provision of law respecting unfair methods of competition or anticompetitive acts or prac tices. (2) As used in this section, ‘‘antitrust laws’’ means those Acts set forth in section 1 of the Clayton Act (15 U.S.C. 12), as amended. (j) PUBLIC UTILITY HOLDING COMPANY ACT.—The acquisition or disposition of allowances pursuant to this title including the issuance of securities or the undertaking of any other financing transaction in connection with such allowances shall not be subject to the provisions of the Public Utility Holding Company Act of 1935. [42 U.S.C. 7651b] SEC. 404. PHASE I SULFUR DIOXIDE REQUIREMENTS. (a) EMISSION LIMITATIONS.—(1) After January 1, 1995, each source that includes one or more affected units listed in table A is an affected source under this section. After January 1, 1995, it shall be unlawful for any affected unit (other than an eligible phase I unit under section 404(d)(2)) to emit sulfur dioxide in excess of the tonnage limitation stated as a total number of allowances in table A for phase I, unless (A) the emissions reduction require ments applicable to such unit have been achieved pursuant to sub section (b) or (d), or (B) the owner or operator of such unit holds allowances to emit not less than the unit’s total annual emissions, except that, after January 1, 2000, the emissions limitations estab lished in this section shall be superseded by those established in section 405. The owner or operator of any unit in violation of this section shall be fully liable for such violation including, but not lim ited to, liability for fulfilling the obligations specified in section 411. (2) Not later than December 31, 1991, the Administrator shall determine the total tonnage of reductions in the emissions of sulfur dioxide from all utility units in calendar year 1995 that will occur as a result of compliance with the emissions limitation require ments of this section, and shall establish a reserve of allowances equal in amount to the number of tons determined thereby not to exceed a total of 3.50 million tons. In making such a determination, the Administrator shall compute for each unit subject to the emis sions limitation requirements of this section the difference be tween: Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 342Sec. 404 CLEAN AIR ACT 1 Probably should be ‘‘table’’. 2 Probably should be ‘‘State’’. 1 Probably should be ‘‘402(4)’’. (A) the product of its baseline multiplied by the lesser of each unit’s allowable 1985 emissions rate and its actual 1985 emissions rate, divided by 2,000, and (B) the product of each unit’s baseline multiplied by 2.50 lbs/mmBtu divided by 2,000, and sum the computations. The Administrator shall adjust the foregoing calculation to reflect projected calendar year 1995 utiliza tion of the units subject to the emissions limitations of this title that the Administrator finds would have occurred in the absence of the imposition of such requirements. Pursuant to subsection (d), the Administrator shall allocate allowances from the reserve estab lished hereinunder until the earlier of such time as all such allow ances in the reserve are allocated or December 31, 1999. (3) In addition to allowances allocated pursuant to paragraph (1), in each calendar year beginning in 1995 and ending in 1999, inclusive, the Administrator shall allocate for each unit on Table 1 A that is located in the States 2 of Illinois, Indiana, or Ohio (other than units at Kyger Creek, Clifty Creek and Joppa Steam), allowances in an amount equal to 200,000 multiplied by the unit’s pro rata share of the total number of allowances allocated for all units on Table 1 A in the 3 States (other than units at Kyger Creek, Clifty Creek, and Joppa Steam) pursuant to paragraph (1). Such al lowances shall be excluded from the calculation of the reserve under paragraph (2). (b) SUBSTITUTIONS.—The owner or operator of an affected unit under subsection (a) may include in its section 408 permit applica tion and proposed compliance plan a proposal to reassign, in whole or in part, the affected unit’s sulfur dioxide reduction requirements to any other unit(s) under the control of such owner or operator. Such proposal shall specify— (1) the designation of the substitute unit or units to which any part of the reduction obligations of subsection (a) shall be required, in addition to, or in lieu of, any original affected units designated under such subsection; (2) the original affected unit’s baseline, the actual and al lowable 1985 emissions rate for sulfur dioxide, and the author ized annual allowance allocation stated in table A; (3) calculation of the annual average tonnage for calendar years 1985, 1986, and 1987, emitted by the substitute unit or units, based on the baseline for each unit, as defined in section 402(d), 1 multiplied by the lesser of the unit’s actual or allow able 1985 emissions rate; (4) the emissions rates and tonnage limitations that would be applicable to the original and substitute affected units under the substitution proposal; (5) documentation, to the satisfaction of the Administrator, that the reassigned tonnage limits will, in total, achieve the same or greater emissions reduction than would have been achieved by the original affected unit and the substitute unit or units without such substitution; and Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 343 Sec. 404CLEAN AIR ACT 2 Should be ‘‘unit’s’’. (6) such other information as the Administrator may re quire. (c) ADMINISTRATOR’S ACTION ON SUBSTITUTION PROPOSALS.—(1) The Administrator shall take final action on such substitution pro posal in accordance with section 408(c) if the substitution proposal fulfills the requirements of this subsection. The Administrator may approve a substitution proposal in whole or in part and with such modifications or conditions as may be consistent with the orderly functioning of the allowance system and which will ensure the emissions reductions contemplated by this title. If a proposal does not meet the requirements of subsection (b), the Administrator shall disapprove it. The owner or operator of a unit listed in table A shall not substitute another unit or units without the prior ap proval of the Administrator. (2) Upon approval of a substitution proposal, each substitute unit, and each source with such unit, shall be deemed affected under this title, and the Administrator shall issue a permit to the original and substitute affected source and unit in accordance with the approved substitution plan and section 408. The Administrator shall allocate allowances for the original and substitute affected units in accordance with the approved substitution proposal pursu ant to section 403. It shall be unlawful for any source or unit that is allocated allowances pursuant to this section to emit sulfur diox ide in excess of the emissions limitation provided for in the ap proved substitution permit and plan unless the owner or operator of each unit governed by the permit and approved substitution plan holds allowances to emit not less than the units 2 total annual emissions. The owner or operator of any original or substitute af fected unit operated in violation of this subsection shall be fully lia ble for such violation, including liability for fulfilling the obliga tions specified in section 411 of this title. If a substitution proposal is disapproved, the Administrator shall allocate allowances to the original affected unit or units in accordance with subsection (a). (d) ELIGIBLE PHASE I EXTENSION UNITS.—(1) The owner or op erator of any affected unit subject to an emissions limitation re quirement under this section may petition the Administrator in its permit application under section 408 for an extension of 2 years of the deadline for meeting such requirement, provided that the owner or operator of any such unit holds allowances to emit not less than the unit’s total annual emissions for each of the 2 years of the period of extension. To qualify for such an extension, the af fected unit must either employ a qualifying phase I technology, or transfer its phase I emissions reduction obligation to a unit em ploying a qualifying phase I technology. Such transfer shall be ac complished in accordance with a compliance plan, submitted and approved under section 408, that shall govern operations at all units included in the transfer, and that specifies the emissions re duction requirements imposed pursuant to this title. (2) Such extension proposal shall— (A) specify the unit or units proposed for designation as an eligible phase I extension unit; Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 344Sec. 404 CLEAN AIR ACT 1 Probably should be ‘‘this’’. (B) provide a copy of an executed contract, which may be contingent upon the Administrator approving the proposal, for the design engineering, and construction of the qualifying phase I technology for the extension unit, or for the unit or units to which the extension unit’s emission reduction obliga tion is to be transferred; (C) specify the unit’s or units’ baseline, actual 1985 emis sions rate, allowable 1985 emissions rate, and projected utiliza tion for calendar years 1995 through 1999; (D) require CEMS on both the eligible phase I extension unit or units and the transfer unit or units beginning no later than January 1, 1995; and (E) specify the emission limitation and number of allow ances expected to be necessary for annual operation after the qualifying phase I technology has been installed. (3) The Administrator shall review and take final action on each extension proposal in order of receipt, consistent with section 408, and for an approved proposal shall designate the unit or units as an eligible phase I extension unit. The Administrator may ap prove an extension proposal in whole or in part, and with such modifications or conditions as may be necessary, consistent with the orderly functioning of the allowance system, and to ensure the emissions reductions contemplated by the 1 title. (4) In order to determine the number of proposals eligible for allocations from the reserve under subsection (a)(2) and the num ber of allowances remaining available after each proposal is acted upon, the Administrator shall reduce the total number of allow ances remaining available in the reserve by the number of allow ances calculated according to subparagraphs (A), (B) and (C) until either no allowances remain available in the reserve for further al location or all approved proposals have been acted upon. If no al lowances remain available in the reserve for further allocation be fore all proposals have been acted upon by the Administrator, any pending proposals shall be disapproved. The Administrator shall calculate allowances equal to— (A) the difference between the lesser of the average annual emissions in calendar years 1988 and 1989 or the projected emissions tonnage for calendar year 1995 of each eligible phase I extension unit, as designated under paragraph (3), and the product of the unit’s baseline multiplied by an emission rate of 2.50 lbs/mmBtu, divided by 2,000; (B) the difference between the lesser of the average annual emissions in calendar years 1988 and 1989 or the projected emissions tonnage for calendar year 1996 of each eligible phase I extension unit, as designated under paragraph (3), and the product of the unit’s baseline multiplied by an emission rate of 2.50 lbs/mmBtu, divided by 2,000; and (C) the amount by which (i) the product of each unit’s baseline multiplied by an emission rate of 1.20 lbs/mmBtu, di vided by 2,000, exceeds (ii) the tonnage level specified under subparagraph (E) of paragraph (2) of this subsection multiplied by a factor of 3. Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 345 Sec. 404CLEAN AIR ACT (5) Each eligible Phase I extension unit shall receive allow ances determined under subsection (a)(1) or (c) of this section. In addition, for calendar year 1995, the Administrator shall allocate to each eligible Phase I extension unit, from the allowance reserve created pursuant to subsection (a)(2), allowances equal to the dif ference between the lesser of the average annual emissions in cal endar years 1988 and 1989 or its projected emissions tonnage for calendar year 1995 and the product of the unit’s baseline multi plied by an emission rate of 2.50 lbs/mmBtu, divided by 2,000. In calendar year 1996, the Administrator shall allocate for each eligi ble unit, from the allowance reserve created pursuant to subsection (a)(2), allowances equal to the difference between the lesser of the average annual emissions in calendar years 1988 and 1989 or its projected emissions tonnage for calendar year 1996 and the product of the unit’s baseline multiplied by an emission rate of 2.50 lbs/ mmBtu, divided by 2,000. It shall be unlawful for any source or unit subject to an approved extension plan under this subsection to emit sulfur dioxide in excess of the emissions limitations provided for in the permit and approved extension plan, unless the owner or operator of each unit governed by the permit and approved plan holds allowances to emit not less than the unit’s total annual emis sions. (6) In addition to allowances specified in paragraph (5), the Ad ministrator shall allocate for each eligible Phase I extension unit employing qualifying Phase I technology, for calendar years 1997, 1998, and 1999, additional allowances, from any remaining allow ances in the reserve created pursuant to subsection (a)(2), following the reduction in the reserve provided for in paragraph (4), not to exceed the amount by which (A) the product of each eligible unit’s baseline times an emission rate of 1.20 lbs/mmBtu, divided by 2,000, exceeds (B) the tonnage level specified under subparagraph (E) of paragraph (2) of this subsection. (7) After January 1, 1997, in addition to any liability under this Act, including under section 411, if any eligible phase I exten sion unit employing qualifying phase I technology or any transfer unit under this subsection emits sulfur dioxide in excess of the an nual tonnage limitation specified in the extension plan, as ap proved in paragraph (3) of this subsection, the Administrator shall, in the calendar year following such excess, deduct allowances equal to the amount of such excess from such unit’s annual allowance al location. (e)(1) In the case of a unit that receives authorization from the Governor of the State in which such unit is located to make reduc tions in the emissions of sulfur dioxide prior to calendar year 1995 and that is part of a utility system that meets the following re quirements: (A) the total coal-fired generation within the utility system as a percentage of total system generation decreased by more than 20 percent between January 1, 1980, and December 31, 1985; and (B) the weighted capacity factor of all coal-fired units within the utility system averaged over the period from January 1, 1985, through December 31, 1987, was below 50 percent, the Ad ministrator shall allocate allowances under this paragraph for the unit pursuant to this subsection. The Administrator shall allocate allowances for a unit that is an affected unit pursuant to section Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 346Sec. 404 CLEAN AIR ACT 1 Probably should refer to paragraph (1). 2 Probably should refer to ‘‘this subsection’’. 3 Probably should be ‘‘impracticability’’. 405 (but is not also an affected unit under this section) and part of a utility system that includes 1 or more affected units under sec tion 405 for reductions in the emissions of sulfur dioxide made dur ing the period 1995–1999 if the unit meets the requirements of this subsection and the requirements of the preceding sentence, except that for the purposes of applying this subsection to any such unit, the prior year concerned as specified below, shall be any year after January 1, 1995 but prior to January 1, 2000. (2) In the case of an affected unit under this section described in subparagraph (A), 1 the allowances allocated under this sub section for early reductions in any prior year may not exceed the amount which (A) the product of the unit’s baseline multiplied by the unit’s 1985 actual sulfur dioxide emission rate (in lbs. per mmBtu), divided by 2,000, exceeds (B) the allowances specified for such unit in Table A. In the case of an affected unit under section 405 described in subparagraph (A), 1 the allowances awarded under this subsection for early reductions in any prior year may not ex ceed the amount by which (i) the product of the quantity of fossil fuel consumed by the unit (in mmBtu) in the prior year multiplied by the lesser of 2.50 or the most stringent emission rate (in lbs. per mmBtu) applicable to the unit under the applicable implementation plan, divided by 2,000, exceeds (ii) the unit’s actual tonnage of sul fur dioxide emission for the prior year concerned. Allowances allo cated under this subsection for units referred to in subparagraph (A) 1 may be allocated only for emission reductions achieved as a result of physical changes or changes in the method of operation made after the date of enactment of the Clean Air Act Amend ments of 1990, including changes in the type or quality of fossil fuel consumed. (3) In no event shall the provisions of this paragraph 2 be inter preted as an event of force majeur or a commercial impractibility 3 or in any other way as a basis for excused nonperformance by a utility system under a coal sales contract in effect before the date of enactment of the Clean Air Act Amendments of 1990. TABLE A.—AFFECTED SOURCES AND UNITS IN PHASE I AND THEIR SULFUR DIOXIDE ALLOWANCES (TONS) State Plant Name Generator Phase I Al-lowances Alabama ............................ Colbert 1 13,570 2 15,310 3 15,400 4 15,410 5 37,180 E.C. Gaston 1 18,100 2 18,540 3 18,310 4 19,280 5 59,840 Florida ............................... Big Bend 1 28,410 Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 347 Sec. 404CLEAN AIR ACT State Plant Name Generator Phase I Al-lowances 2 27,100 3 26,740 Crist 6 19,200 7 31,680 Georgia .............................. Bowen 1 56,320 2 54,770 3 71,750 4 71,740 Hammond 1 8,780 2 9,220 3 8,910 4 37,640 J. McDonough 1 19,910 2 20,600 Wansley 1 70,770 2 65,430 Yates 1 7,210 2 7,040 3 6,950 4 8,910 5 9,410 6 24,760 7 21,480 Illinois ................................ Baldwin 1 42,010 2 44,420 3 42,550 Coffeen 1 11,790 2 35,670 Grand Tower 4 5,910 Hennepin 2 18,410 Joppa Steam 1 12,590 2 10,770 3 12,270 4 11,360 5 11,420 6 10,620 Kincaid 1 31,530 2 33,810 Meredosia 3 13,890 Vermilion 2 8,880 Indiana .............................. Bailly 7 11,180 8 15,630 Breed 1 18,500 Cayuga 1 33,370 2 34,130 Clifty Creek 1 20,150 2 19,810 3 20,410 4 20,080 5 19,360 6 20,380 E. W. Stout 5 3,880 6 4,770 7 23,610 F. B. Culley 2 4,290 3 16,970 F. E. Ratts 1 8,330 2 8,480 Gibson 1 40,400 2 41,010 3 41,080 4 40,320 H. T. Pritchard 6 5,770 Michigan City 12 23,310 Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 348Sec. 404 CLEAN AIR ACT State Plant Name Generator Phase I Al-lowances Petersburg 1 16,430 2 32,380 R. Gallagher 1 6,490 2 7,280 3 6,530 4 7,650 Tanners Creek 4 24,820 Wabash River 1 4,000 2 2,860 3 3,750 5 3,670 6 12,280 Warrick 4 26,980 Iowa ................................... Burlington 1 10,710 Des Moines 7 2,320 George Neal 1 1,290 M.L. Kapp 2 13,800 Prairie Creek 4 8,180 Riverside 5 3,990 Kansas ............................... Quindaro 2 4,220 Kentucky ........................... Coleman 1 11,250 2 12,840 3 12,340 Cooper 1 7,450 2 15,320 E.W. Brown 1 7,110 2 10,910 3 26,100 Elmer Smith 1 6,520 2 14,410 Ghent 1 28,410 Green River 4 7,820 H.L. Spurlock 1 22,780 Henderson II 1 13,340 2 12,310 Paradise 3 59,170 Shawnee 10 10,170 Maryland ........................... Chalk Point 1 21,910 2 24,330 C. P. Crane 1 10,330 2 9,230 Morgantown 1 35,260 2 38,480 Michigan ............................ J. H. Campbell 1 19,280 2 23,060 Minnesota .......................... High Bridge 6 4,270 Mississippi ......................... Jack Watson 4 17,910 5 36,700 Missouri ............................. Asbury 1 16,190 James River 5 4,850 Labadie 1 40,110 2 37,710 3 40,310 4 35,940 Montrose 1 7,390 2 8,200 3 10,090 New Madrid 1 28,240 2 32,480 Sibley 3 15,580 Sioux 1 22,570 2 23,690 Thomas Hill 1 10,250 2 19,390 Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 349 Sec. 404CLEAN AIR ACT State Plant Name Generator Phase I Al-lowances New Hampshire ..................... Merrimack 1 10,190 2 22,000 New Jersey ........................ B.L. England 1 9,060 2 11,720 New York ........................... Dunkirk 3 12,600 4 14,060 Greenidge 4 7,540 Milliken 1 11,170 2 12,410 Northport 1 19,810 2 24,110 3 26,480 Port Jefferson 3 10,470 4 12,330 Ohio ................................... Ashtabula 5 16,740 Avon Lake 8 11,650 9 30,480 Cardinal 1 34,270 2 38,320 Conesville 1 4,210 2 4,890 3 5,500 4 48,770 Eastlake 1 7,800 2 8,640 3 10,020 4 14,510 5 34,070 Edgewater 4 5,050 Gen. J.M. Gavin 1 79,080 2 80,560 Kyger Creek 1 19,280 2 18,560 3 17,910 4 18,710 5 18,740 Miami Fort 5 760 6 11,380 7 38,510 Muskingum River 1 14,880 2 14,170 3 13,950 4 11,780 5 40,470 Niles 1 6,940 2 9,100 Picway 5 4,930 R.E. Burger 3 6,150 4 10,780 5 12,430 W.H. Sammis 5 24,170 6 39,930 7 43,220 W.C. Beckjord 5 8,950 6 23,020 Pennsylvania ..................... Armstrong 1 14,410 2 15,430 Brunner Island 1 27,760 2 31,100 3 53,820 Cheswick 1 39,170 Conemaugh 1 59,790 2 66,450 Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 350Sec. 404 CLEAN AIR ACT State Plant Name Generator Phase I Al-lowances Hatfield’s Ferry 1 37,830 2 37,320 3 40,270 Martins Creek 1 12,660 2 12,820 Portland 1 5,940 2 10,230 Shawville 1 10,320 2 10,320 3 14,220 4 14,070 Sunbury 3 8,760 4 11,450 Tennessee .......................... Allen 1 15,320 2 16,770 3 15,670 Cumberland 1 86,700 2 94,840 Gallatin 1 17,870 2 17,310 3 20,020 4 21,260 Johnsonville 1 7,790 2 8,040 3 8,410 4 7,990 5 8,240 6 7,890 7 8,980 8 8,700 9 7,080 10 7,550 West Virginia .................... Albright 3 12,000 Fort Martin 1 41,590 2 41,200 Harrison 1 48,620 2 46,150 3 41,500 Kammer 1 18,740 2 19,460 3 17,390 Mitchell 1 43,980 2 45,510 Mount Storm 1 43,720 2 35,580 3 42,430 Wisconsin .......................... Edgewater 4 24,750 La Crosse/Genoa 3 22,700 Nelson Dewey 1 6,010 2 6,680 N. Oak Creek 1 5,220 2 5,140 3 5,370 4 6,320 Pulliam 8 7,510 S. Oak Creek 5 9,670 6 12,040 7 16,180 8 15,790 (f) ENERGY CONSERVATION AND RENEWABLE ENERGY.— (1) DEFINITIONS.—As used in this subsection: (A) QUALIFIED ENERGY CONSERVATION MEASURE.—The term ‘‘qualified energy conservation measure’’ means a cost Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 351 Sec. 404CLEAN AIR ACT effective measure, as identified by the Administrator in consultation with the Secretary of Energy, that increases the efficiency of the use of electricity provided by an elec tric utility to its customers. (B) QUALIFIED RENEWABLE ENERGY.—The term ‘‘quali fied renewable energy’’ means energy derived from bio mass, solar, geothermal, or wind as identified by the Ad ministrator in consultation with the Secretary of Energy. (C) ELECTRIC UTILITY.—The term ‘‘electric utility’’ means any person, State agency, or Federal agency, which sells electric energy. (2) ALLOWANCES FOR EMISSIONS AVOIDED THROUGH ENERGY CONSERVATION AND RENEWABLE ENERGY.— (A) IN GENERAL.—The regulations under paragraph (4) of this subsection shall provide that for each ton of sulfur dioxide emissions avoided by an electric utility, during the applicable period, through the use of qualified energy con servation measures or qualified renewable energy, the Ad ministrator shall allocate a single allowance to such elec tric utility, on a first-come-first-served basis from the Con servation and Renewable Energy Reserve established under subsection (g), up to a total of 300,000 allowances for allocation from such Reserve. (B) REQUIREMENTS FOR ISSUANCE.—The Administrator shall allocate allowances to an electric utility under this subsection only if all of the following requirements are met: (i) Such electric utility is paying for the qualified energy conservation measures or qualified renewable energy directly or through purchase from another per son. (ii) The emissions of sulfur dioxide avoided through the use of qualified energy conservation meas ures or qualified renewable energy are quantified in accordance with regulations promulgated by the Ad ministrator under this subsection. (iii)(I) Such electric utility has adopted and is im plementing a least cost energy conservation and elec tric power plan which evaluates a range of resources, including new power supplies, energy conservation, and renewable energy resources, in order to meet ex pected future demand at the lowest system cost. (II) The qualified energy conservation measures or qualified renewable energy, or both, are consistent with that plan. (III) Electric utilities subject to the jurisdiction of a State regulatory authority must have such plan ap proved by such authority. For electric utilities not sub ject to the jurisdiction of a State regulatory authority such plan shall be approved by the entity with rate making authority for such utility. (iv) In the case of qualified energy conservation measures undertaken by a State regulated electric utility, the Secretary of Energy certifies that the State Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 352Sec. 404 CLEAN AIR ACT 1 Probably should be a semicolon instead of a comma. regulatory authority with jurisdiction over the electric rates of such electric utility has established rates and charges which ensure that the net income of such elec tric utility after implementation of specific cost effec tive energy conservation measures is at least as high as such net income would have been if the energy con servation measures had not been implemented. Upon the date of any such certification by the Secretary of Energy, all allowances which, but for this paragraph, would have been allocated under subparagraph (A) be fore such date, shall be allocated to the electric utility. This clause is not a requirement for qualified renew able energy. (v) Such utility or any subsidiary of the utility’s holding company owns or operates at least one af fected unit. (C) PERIOD OF APPLICABILITY.—Allowances under this subsection shall be allocated only with respect to kilowatt hours of electric energy saved by qualified energy con servation measures or generated by qualified renewable energy after January 1, 1992 and before the earlier of (i) December 31, 2000, or (ii) the date on which any electric utility steam generating unit owned or operated by the electric utility to which the allowances are allocated be comes subject to this title (including those sources that elect to become affected by this title, pursuant to section 410). (D) DETERMINATION OF AVOIDED EMISSIONS.— (i) APPLICATION.—In order to receive allowances under this subsection, an electric utility shall make an application which— (I) designates the qualified energy conserva tion measures implemented and the qualified re newable energy sources used for purposes of avoiding emissions, 1 (II) calculates, in accordance with subpara graphs (F) and (G), the number of tons of emis sions avoided by reason of the implementation of such measures or the use of such renewable en ergy sources; and (III) demonstrates that the requirements of subparagraph (B) have been met. Such application for allowances by a State-regulated electric utility shall require approval by the State reg ulatory authority with jurisdiction over such electric utility. The authority shall review the application for accuracy and compliance with this subsection and the rules under this subsection. Electric utilities whose re tail rates are not subject to the jurisdiction of a State regulatory authority shall apply directly to the Admin istrator for such approval. Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 353 Sec. 404CLEAN AIR ACT (E) AVOIDED EMISSIONS FROM QUALIFIED ENERGY CON SERVATION MEASURES.—For the purposes of this sub section, the emission tonnage deemed avoided by reason of the implementation of qualified energy conservation meas ures for any calendar year shall be a tonnage equal to the product of multiplying— (i) the kilowatt hours that would otherwise have been supplied by the utility during such year in the absence of such qualified energy conservation meas ures, by (ii) 0.004, and dividing by 2,000. (F) AVOIDED EMISSIONS FROM THE USE OF QUALIFIED RENEWABLE ENERGY.—The emissions tonnage deemed avoided by reason of the use of qualified renewable energy by an electric utility for any calendar year shall be a ton nage equal to the product of multiplying— (i) the actual kilowatt hours generated by, or pur chased from, qualified renewable energy, by (ii) 0.004, and dividing by 2,000. (G) PROHIBITIONS.—(i) No allowances shall be allo cated under this subsection for the implementation of pro grams that are exclusively informational or educational in nature. (ii) No allowances shall be allocated for energy con servation measures or renewable energy that were oper ational before January 1, 1992. (3) SAVINGS PROVISION.—Nothing in this subsection pre cludes a State or State regulatory authority from providing ad ditional incentives to utilities to encourage investment in de mand-side resources. (4) REGULATIONS.—Not later than 18 months after the date of the enactment of the Clean Air Act Amendments of 1990 and in conjunction with the regulations required to be promulgated under subsections (b) and (c), the Administrator shall, in consultation with the Secretary of Energy, promulgate regulations under this subsection. Such regulations shall list energy conservation measures and renewable energy sources which may be treated as qualified energy conservation meas ures and qualified renewable energy for purposes of this sub section. Allowances shall only be allocated if all requirements of this subsection and the rules promulgated to implement this subsection are complied with. The Administrator shall review the determinations of each State regulatory authority under this subsection to encourage consistency from electric utility to electric utility and from State to State in accordance with the Administrator’s rules. The Administrator shall publish the findings of this review no less than annually. (g) CONSERVATION AND RENEWABLE ENERGY RESERVE.—The Administrator shall establish a Conservation and Renewable En ergy Reserve under this subsection. Beginning on January 1, 1995, the Administrator may allocate from the Conservation and Renew able Energy Reserve an amount equal to a total of 300,000 allow Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 354Sec. 405 CLEAN AIR ACT 1 Probably should refer to ‘‘402(4)’’. ances for emissions of sulfur dioxide pursuant to section 403. In order to provide 300,000 allowances for such reserve, in each year beginning in calendar year 2000 and until calendar year 2009, in clusive, the Administrator shall reduce each unit’s basic Phase II allowance allocation on the basis of its pro rata share of 30,000 al lowances. If allowances remain in the reserve after January 2, 2010, the Administrator shall allocate such allowances for affected units under section 405 on a pro rata basis. For purposes of this subsection, for any unit subject to the emissions limitation require ments of section 405, the term ‘‘pro rata basis’’ refers to the ratio which the reductions made in such unit’s allowances in order to es tablish the reserve under this subsection bears to the total of such reductions for all such units. (h) ALTERNATIVE ALLOWANCE ALLOCATION FOR UNITS IN CER TAIN UTILITY SYSTEMS WITH OPTIONAL BASELINE.— (1) OPTIONAL BASELINE FOR UNITS IN CERTAIN SYSTEMS.— In the case of a unit subject to the emissions limitation re quirements of this section which (as of the date of the enact ment of the Clean Air Act Amendments of 1990)— (A) has an emission rate below 1.0 lbs/mmBtu, (B) has decreased its sulfur dioxide emissions rate by 60 percent or greater since 1980, and (C) is part of a utility system which has a weighted average sulfur dioxide emissions rate for all fossil fueled fired units below 1.0 lbs/mmBtu, at the election of the owner or operator of such unit, the unit’s baseline may be calculated (i) as provided under section 402(d), 1 or (ii) by utilizing the unit’s average annual fuel con sumption at a 60 percent capacity factor. Such election shall be made no later than March 1, 1991. (2) ALLOWANCE ALLOCATION.—Whenever a unit referred to in paragraph (1) elects to calculate its baseline as provided in clause (ii) of paragraph (1), the Administrator shall allocate al lowances for the unit pursuant to section 403(a)(1), this sec tion, and section 405 (as basic Phase II allowance allocations) in an amount equal to the baseline selected multiplied by the lower of the average annual emission rate for such unit in 1989, or 1.0 lbs./mmBtu. Such allowance allocation shall be in lieu of any allocation of allowances under this section and sec tion 405. [42 U.S.C. 7651c] SEC. 405. PHASE II SULFUR DIOXIDE REQUIREMENTS. (a) APPLICABILITY.—(1) After January 1, 2000, each existing utility unit as provided below is subject to the limitations or re quirements of this section. Each utility unit subject to an annual sulfur dioxide tonnage emission limitation under this section is an affected unit under this title. Each source that includes one or more affected units is an affected source. In the case of an existing unit that was not in operation during calendar year 1985, the emis sion rate for a calendar year after 1985, as determined by the Ad ministrator, shall be used in lieu of the 1985 rate. The owner or Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 355 Sec. 405CLEAN AIR ACT 1 So in original. Probably should be ‘‘State’’. operator of any unit operated in violation of this section shall be fully liable under this Act for fulfilling the obligations specified in section 411 of this title. (2) In addition to basic Phase II allowance allocations, in each year beginning in calendar year 2000 and ending in calendar year 2009, inclusive, the Administrator shall allocate up to 530,000 Phase II bonus allowances pursuant to subsections (b)(2), (c)(4), (d)(3)(A) and (B), and (h)(2) of this section and section 406. Not later than June 1, 1998, the Administrator shall calculate, for each unit granted an extension pursuant to section 409 the difference between (A) the number of allowances allocated for the unit in cal endar year 2000, and (B) the product of the unit’s baseline multi plied by 1.20 lbs/mmBtu, divided by 2000, and sum the computa tions. In each year, beginning in calendar year 2000 and ending in calendar year 2009, inclusive, the Administrator shall deduct from each unit’s basic Phase II allowance allocation its pro rata share of 10 percent of the sum calculated pursuant to the preceding sen tence. (3) In addition to basic Phase II allowance allocations and Phase II bonus allowance allocations, beginning January 1, 2000, the Administrator shall allocate for each unit listed on Table A in section 404 (other than units at Kyger Creek, Clifty Creek, and Joppa Steam) and located in the States 1 of Illinois, Indiana, Ohio, Georgia, Alabama, Missouri, Pennsylvania, West Virginia, Ken tucky, or Tennessee allowances in an amount equal to 50,000 mul tiplied by the unit’s pro rata share of the total number of basic al lowances allocated for all units listed on Table A (other than units at Kyger Creek, Clifty Creek, and Joppa Steam). Allowances allo cated pursuant to this paragraph shall not be subject to the 8,900,000 ton limitation in section 403(a). (b) UNITS EQUAL TO, OR ABOVE, 75 MWE AND 1.20 LBS/ MMBTU.—(1) Except as otherwise provided in paragraph (3), after January 1, 2000, it shall be unlawful for any existing utility unit that serves a generator with nameplate capacity equal to, or great er, than 75 MWe and an actual 1985 emission rate equal to or greater than 1.20 lbs/mmBtu to exceed an annual sulfur dioxide tonnage emission limitation equal to the product of the unit’s base line multiplied by an emission rate equal to 1.20 lbs/mmBtu, di vided by 2,000, unless the owner or operator of such unit holds al lowances to emit not less than the unit’s total annual emissions. (2) In addition to allowances allocated pursuant to paragraph (1) and section 403(a)(1) as basic Phase II allowance allocations, be ginning January 1, 2000, and for each calendar year thereafter until and including 2009, the Administrator shall allocate annually for each unit subject to the emissions limitation requirements of paragraph (1) with an actual 1985 emissions rate greater than 1.20 lbs/mmBtu and less than 2.50 lbs/mmBtu and a baseline capacity factor of less than 60 percent, allowances from the reserve created pursuant to subsection (a)(2) in an amount equal to 1.20 lbs/ mmBtu multiplied by 50 percent of the difference, on a Btu basis, between the unit’s baseline and the unit’s fuel consumption at a 60 percent capacity factor. Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 356Sec. 405 CLEAN AIR ACT (3) After January 1, 2000, it shall be unlawful for any existing utility unit with an actual 1985 emissions rate equal to or greater than 1.20 lbs/mmBtu whose annual average fuel consumption dur ing 1985, 1986, and 1987 on a Btu basis exceeded 90 percent in the form of lignite coal which is located in a State in which, as of July 1, 1989, no county or portion of a county was designated nonattain ment under section 107 of this Act for any pollutant subject to the requirements of section 109 of this Act to exceed an annual sulfur dioxide tonnage limitation equal to the product of the unit’s base line multiplied by the lesser of the unit’s actual 1985 emissions rate or its allowable 1985 emissions rate, divided by 2,000, unless the owner or operator of such unit holds allowances to emit not less than the unit’s total annual emissions. (4) After January 1, 2000, the Administrator shall allocate an nually for each unit, subject to the emissions limitation require ments of paragraph (1), which is located in a State with an in stalled electrical generating capacity of more than 30,000,000 kw in 1988 and for which was issued a prohibition order or a proposed prohibition order (from burning oil), which unit subsequently con verted to coal between January 1, 1980 and December 31, 1985, al lowances equal to the difference between (A) the product of the unit’s annual fuel consumption, on a Btu basis, at a 65 percent ca pacity factor multiplied by the lesser of its actual or allowable emissions rate during the first full calendar year after conversion, divided by 2,000, and (B) the number of allowances allocated for the unit pursuant to paragraph (1): Provided, That the number of allowances allocated pursuant to this paragraph shall not exceed an annual total of five thousand. If necessary to meeting the re striction imposed in the preceding sentence the Administrator shall reduce, pro rata, the annual allowances allocated for each unit under this paragraph. (c) COAL OR OIL-FIRED UNITS BELOW 75 MWE AND ABOVE 1.20 LBS/MMBTU.—(1) Except as otherwise provided in paragraph (3), after January 1, 2000, it shall be unlawful for a coal or oil-fired ex isting utility unit that serves a generator with nameplate capacity of less than 75 MWe and an actual 1985 emission rate equal to, or greater than, 1.20 lbs/mmBtu and which is a unit owned by a utility operating company whose aggregate nameplate fossil fuel steam-electric capacity is, as of December 31, 1989, equal to, or greater than, 250 MWe to exceed an annual sulfur dioxide emis sions limitation equal to the product of the unit’s baseline multi plied by an emission rate equal to 1.20 lbs/mmBtu, divided by 2,000, unless the owner or operator of such unit holds allowances to emit not less than the unit’s total annual emissions. (2) After January 1, 2000, it shall be unlawful for a coal or oil fired existing utility unit that serves a generator with nameplate capacity of less than 75 MWe and an actual 1985 emission rate equal to, or greater than, 1.20 lbs/mmBtu (excluding units subject to section 111 of the Act or to a federally enforceable emissions lim itation for sulfur dioxide equivalent to an annual rate of less than 1.20 lbs/mmBtu) and which is a unit owned by a utility operating company whose aggregate nameplate fossil fuel steam-electric ca pacity is, as of December 31, 1989, less than 250 MWe, to exceed an annual sulfur dioxide tonnage emissions limitation equal to the Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 357 Sec. 405CLEAN AIR ACT 1 Probably should be ‘‘unit’s‘‘. product of the unit’s baseline multiplied by the lesser of its actual 1985 emissions rate or its allowable 1985 emissions rate, divided by 2,000, unless the owner or operator of such unit holds allow ances to emit not less than the unit’s total annual emissions. (3) After January 1, 2000, it shall be unlawful for any existing utility unit with a nameplate capacity below 75 MWe and an actual 1985 emissions rate equal to, or greater than, 1.20 lbs/mmBtu which became operational on or before December 31, 1965, which is owned by a utility operating company with, as of December 31, 1989, a total fossil fuel steam-electric generating capacity greater than 250 MWe, and less than 450 MWe which serves fewer than 78,000 electrical customers as of the date of enactment of the Clean Air Act Amendments of 1990 to exceed an annual sulfur dioxide emissions tonnage limitation equal to the product of its baseline multiplied by the lesser of its actual or allowable 1985 emission rate, divided by 2,000, unless the owner or operator holds allow ances to emit not less than the units 1 total annual emissions. After January 1, 2010, it shall be unlawful for each unit subject to the emissions limitation requirements of this paragraph to exceed an annual emissions tonnage limitation equal to the product of its baseline multiplied by an emissions rate of 1.20 lbs/mmBtu, di vided by 2,000, unless the owner or operator holds allowances to emit not less than the unit’s total annual emissions. (4) In addition to allowances allocated pursuant to paragraph (1) and section 403(a)(1) as basic Phase II allowance allocations, be ginning January 1, 2000, and for each calendar year thereafter until and including 2009, inclusive, the Administrator shall allocate annually for each unit subject to the emissions limitation require ments of paragraph (1) with an actual 1985 emissions rate equal to, or greater than, 1.20 lbs/mmBtu and less than 2.50 lbs/mmBtu and a baseline capacity factor of less than 60 percent, allowances from the reserve created pursuant to subsection (a)(2) in an amount equal to 1.20 lbs/mmBtu multiplied by 50 percent of the difference, on a Btu basis, between the unit’s baseline and the unit’s fuel consumption at a 60 percent capacity factor. (5) After January 1, 2000, it shall be unlawful for any existing utility unit with a nameplate capacity below 75 MWe and an actual 1985 emissions rate equal to, or greater than, 1.20 lbs/mmBtu which is part of an electric utility system which, as of the date of the enactment of the Clean Air Act Amendments of 1990, (A) has at least 20 percent of its fossil-fuel capacity controlled by flue gas desulfurization devices, (B) has more than 10 percent of its fossil fuel capacity consisting of coal-fired units of less than 75 MWe, and (C) has large units (greater than 400 MWe) all of which have dif ficult or very difficult FGD Retrofit Cost Factors (according to the Emissions and the FGD Retrofit Feasibility at the 200 Top Emit ting Generating Stations, prepared for the United States Environ mental Protection Agency on January 10, 1986) to exceed an an nual sulfur dioxide emissions tonnage limitation equal to the prod uct of its baseline multiplied by an emissions rate of 2.5 lbs/ mmBtu, divided by 2,000, unless the owner or operator holds allow ances to emit not less than the unit’s total annual emissions. After Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 358Sec. 405 CLEAN AIR ACT January 1, 2010, it shall be unlawful for each unit subject to the emissions limitation requirements of this paragraph to exceed an annual emissions tonnage limitation equal to the product of its baseline multiplied by an emissions rate of 1.20 lbs/mmBtu, di vided by 2,000, unless the owner or operator holds for use allow ances to emit not less than the unit’s total annual emissions. (d) COAL-FIRED UNITS BELOW 1.20 LBS/MMBTU.—(1) After Jan uary 1, 2000, it shall be unlawful for any existing coal-fired utility unit the lesser of whose actual or allowable 1985 sulfur dioxide emissions rate is less than 0.60 lbs/mmBtu to exceed an annual sulfur dioxide tonnage emission limitation equal to the product of the unit’s baseline multiplied by (A) the lesser of 0.60 lbs/mmBtu or the unit’s allowable 1985 emissions rate, and (B) a numerical factor of 120 percent, divided by 2,000, unless the owner or oper ator of such unit holds allowances to emit not less than the unit’s total annual emissions. (2) After January 1, 2000, it shall be unlawful for any existing coal-fired utility unit the lesser of whose actual or allowable 1985 sulfur dioxide emissions rate is equal to, or greater than, 0.60 lbs/ mmBtu and less than 1.20 lbs/mmBtu to exceed an annual sulfur dioxide tonnage emissions limitation equal to the product of the unit’s baseline multiplied by (A) the lesser of its actual 1985 emis sions rate or its allowable 1985 emissions rate, and (B) a numerical factor of 120 percent, divided by 2,000, unless the owner or oper ator of such unit holds allowances to emit not less than the unit’s total annual emissions. (3)(A) In addition to allowances allocated pursuant to para graph (1) and section 403(a)(1) as basic Phase II allowance alloca tions, at the election of the designated representative of the oper ating company, beginning January 1, 2000, and for each calendar year thereafter until and including 2009, the Administrator shall allocate annually for each unit subject to the emissions limitation requirements of paragraph (1) allowances from the reserve created pursuant to subsection (a)(2) in an amount equal to the amount by which (i) the product of the lesser of 0.60 lbs/mmBtu or the unit’s allowable 1985 emissions rate multiplied by the unit’s baseline ad justed to reflect operation at a 60 percent capacity factor, divided by 2,000, exceeds (ii) the number of allowances allocated for the unit pursuant to paragraph (1) and section 403(a)(1) as basic Phase II allowance allocations. (B) In addition to allowances allocated pursuant to paragraph (2) and section 403(a)(1) as basic Phase II allowance allocations, at the election of the designated representative of the operating com pany, beginning January 1, 2000, and for each calendar year there after until and including 2009, the Administrator shall allocate an nually for each unit subject to the emissions limitation require ments of paragraph (2) allowances from the reserve created pursu ant to subsection (a)(2) in an amount equal to the amount by which (i) the product of the lesser of the unit’s actual 1985 emissions rate or its allowable 1985 emissions rate multiplied by the unit’s base line adjusted to reflect operation at a 60 percent capacity factor, di vided by 2,000, exceeds (ii) the number of allowances allocated for the unit pursuant to paragraph (2) and section 403(a)(1) as basic Phase II allowance allocations. Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 359 Sec. 405CLEAN AIR ACT 1 There is no paragraph (6) in this subsection. 2 Probably refers to ‘‘this Act’’. (C) An operating company with units subject to the emissions limitation requirements of this subsection may elect the allocation of allowances as provided under subparagraphs (A) and (B). Such election shall apply to the annual allowance allocation for each and every unit in the operating company subject to the emissions limi tation requirements of this subsection. The Administrator shall al locate allowances pursuant to subparagraphs (A) and (B) only in accordance with this subparagraph. (4) Notwithstanding any other provision of this section, at the election of the owner or operator, after January 1, 2000, the Ad ministrator shall allocate in lieu of allocation, pursuant to para graph (1), (2), (3), (5), or (6), 1 allowances for a unit subject to the emissions limitation requirements of this subsection which com menced commercial operation on or after January 1, 1981 and be fore December 31, 1985, which was subject to, and in compliance with, section 111 of the 2 Act in an amount equal to the unit’s an nual fuel consumption, on a Btu basis, at a 65 percent capacity fac tor multiplied by the unit’s allowable 1985 emissions rate, divided by 2,000. (5) For the purposes of this section, in the case of an oil- and gas-fired unit which has been awarded a clean coal technology demonstration grant as of January 1, 1991, by the United States Department of Energy, beginning January 1, 2000, the Adminis trator shall allocate for the unit allowances in an amount equal to the unit’s baseline multiplied by 1.20 lbs/mmBtu, divided by 2,000. (e) OIL AND GAS-FIRED UNITS EQUAL TO OR GREATER THAN 0.60 LBS/MMBTU AND LESS THAN 1.20 LBS/MMBTU.—After January 1, 2000, it shall be unlawful for any existing oil and gas-fired utility unit the lesser of whose actual or allowable 1985 sulfur dioxide emission rate is equal to, or greater than, 0.60 lbs/mmBtu, but less than 1.20 lbs/mmBtu to exceed an annual sulfur dioxide tonnage limitation equal to the product of the unit’s baseline multiplied by (A) the lesser of the unit’s allowable 1985 emissions rate or its ac tual 1985 emissions rate and (B) a numerical factor of 120 percent divided by 2,000, unless the owner or operator of such unit holds allowances to emit not less than the unit’s total annual emissions. (f) OIL AND GAS-FIRED UNITS LESS THAN 0.60 LBS/MMBTU.—(1) After January 1, 2000, it shall be unlawful for any oil and gas-fired existing utility unit the lesser of whose actual or allowable 1985 emission rate is less than 0.60 lbs/mmBtu and whose average an nual fuel consumption during the period 1980 through 1989 on a Btu basis was 90 percent or less in the form of natural gas to ex ceed an annual sulfur dioxide tonnage emissions limitation equal to the product of the unit’s baseline multiplied by (A) the lesser of 0.60 lbs/mmBtu or the unit’s allowable 1985 emissions, and (B) a numerical factor of 120 percent, divided by 2,000, unless the owner or operator of such unit holds allowances to emit not less than the unit’s total annual emissions. (2) In addition to allowances allocated pursuant to paragraph (1) as basic Phase II allowance allocations and section 403(a)(1), be ginning January 1, 2000, the Administrator shall, in the case of Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 360Sec. 405 CLEAN AIR ACT 1 The words ‘‘the Administrator shall’’ are duplicative. any unit operated by a utility that furnishes electricity, electric en ergy, steam, and natural gas within an area consisting of a city and 1 contiguous county, and in the case of any unit owned by a State authority, the output of which unit is furnished within that same area consisting of a city and 1 contiguous county, the Admin istrator shall 1 allocate for each unit in the utility its pro rata share of 7,000 allowances and for each unit in the State authority its pro rata share of 2,000 allowances. (g) UNITS THAT COMMENCE OPERATION BETWEEN 1986 AND DE CEMBER 31, 1995.—(1) After January 1, 2000, it shall be unlawful for any utility unit that has commenced commercial operation on or after January 1, 1986, but not later than September 30, 1990 to exceed an annual tonnage emission limitation equal to the prod uct of the unit’s annual fuel consumption, on a Btu basis, at a 65 percent capacity factor multiplied by the unit’s allowable 1985 sul fur dioxide emission rate (converted, if necessary, to pounds per mmBtu), divided by 2,000 unless the owner or operator of such unit holds allowances to emit not less than the unit’s total annual emis sions. (2) After January 1, 2000, the Administrator shall allocate al lowances pursuant to section 403 to each unit which is listed in table B of this paragraph in an annual amount equal to the amount specified in table B. TABLE B Unit Allowances Brandon Shores ............................................................................................... 8,907 Miller 4 ............................................................................................................ 9,197 TNP One 2 ....................................................................................................... 4,000 Zimmer 1 ......................................................................................................... 18,458 Spruce 1 ........................................................................................................... 7,647 Clover 1 ........................................................................................................... 2,796 Clover 2 ........................................................................................................... 2,796 Twin Oak 2 ...................................................................................................... 1,760 Twin Oak 1 ...................................................................................................... 9,158 Cross 1 ............................................................................................................. 6,401 Malakoff 1 ....................................................................................................... 1,759 Notwithstanding any other paragraph of this subsection, for units subject to this paragraph, the Administrator shall not allocate al lowances pursuant to any other paragraph of this subsection, Pro vided that the owner or operator of a unit listed on Table B may elect an allocation of allowances under another paragraph of this subsection in lieu of an allocation under this paragraph. (3) Beginning January 1, 2000, the Administrator shall allocate to the owner or operator of any utility unit that commences com mercial operation, or has commenced commercial operation, on or after October 1, 1990, but not later than December 31, 1992 allow ances in an amount equal to the product of the unit’s annual fuel consumption, on a Btu basis, at a 65 percent capacity factor multi plied by the lesser of 0.30 lbs/mmBtu or the unit’s allowable sulfur dioxide emission rate (converted, if necessary, to pounds per mmBtu), divided by 2,000. (4) Beginning January 1, 2000, the Administrator shall allocate to the owner or operator of any utility unit that has commenced Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 361 Sec. 405CLEAN AIR ACT 1 Probably should be ‘‘coal-fired’’. 2 Section 301(b) of the Powerplant and Industrial Fuel Use Act of 1987 was not repealed in 1987. A prior section 301(b) of Public Law 95–620 (92 Stat. 3305), formerly classified to 42 U.S.C. 8341(b), was repealed August 13, 1981, by section 1021(a) of Public Law 97–35 (95 Stat. 614). 3 There is no subparagraph (B) in paragraph (6). See section 401 of Public Law 101–549 (104 Stat. 2611). 4 A comma should have been included after ‘‘416’’ and before ‘‘except’’. 5 The reference to ‘‘clause (iii) of such definition’’ should probably be a reference to ‘‘subpara graph (C) of such definition’’. 6 The phrase ‘‘date of enactment’’ should read ‘‘date of enactment of Public Law 101–549 (104 Stat. 2399)’’. construction before December 31, 1990 and that commences com mercial operation between January 1, 1993 and December 31, 1995, allowances in an amount equal to the product of the unit’s annual fuel consumption, on a Btu basis, at a 65 percent capacity factor multiplied by the lesser of 0.30 lbs/mmBtu or the unit’s al lowable sulfur dioxide emission rate (converted, if necessary, to pounds per mmBtu), divided by 2,000. (5) After January 1, 2000, it shall be unlawful for any existing utility unit that has completed conversion from predominantly gas fired existing operation to coal fired 1 operation between January 1, 1985 and December 31, 1987, for which there has been allocated a proposed or final prohibition order pursuant to section 301(b) of the Powerplant and Industrial Fuel Use Act of 1978 (42 U.S.C. 8301 et seq, repealed 1987) 2 to exceed an annual sulfur dioxide tonnage emissions limitation equal to the product of the unit’s an nual fuel consumption, on a Btu basis, at a 65 percent capacity fac tor multiplied by the lesser of 1.20 lbs/mmBtu or the unit’s allow able 1987 sulfur dioxide emissions rate, divided by 2,000, unless the owner or operator of such unit has obtained allowances equal to its actual emissions. (6)(A) 3 Unless the Administrator has approved a designation of such facility under section 410, the provisions of this title shall not apply to a ‘‘qualifying small power production facility’’ or ‘‘quali fying cogeneration facility’’ (within the meaning of section 3(17)(C) or 3(18)(B) of the Federal Power Act) or to a ‘‘new independent power production facility’’ as defined in section 416 4 except that clause (iii) of such definition 5 in section 416 shall not apply for purposes of this paragraph if, as of the date of enactment, 6 (i) an applicable power sales agreement has been executed; (ii) the facility is the subject of a State regulatory author ity order requiring an electric utility to enter into a power sales agreement with, purchase capacity from, or (for purposes of establishing terms and conditions of the electric utility’s pur chase of power) enter into arbitration concerning, the facility; (iii) an electric utility has issued a letter of intent or simi lar instrument committing to purchase power from the facility at a previously offered or lower price and a power sales agree ment is executed within a reasonable period of time; or (iv) the facility has been selected as a winning bidder in a utility competitive bid solicitation. (h) OIL AND GAS-FIRED UNITS LESS THAN 10 PERCENT OIL CON SUMED.—(1) After January 1, 2000, it shall be unlawful for any oil and gas-fired utility unit whose average annual fuel consumption during the period 1980 through 1989 on a Btu basis exceeded 90 Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 362Sec. 405 CLEAN AIR ACT 1 ‘‘(A)’’ should be ‘‘(i)’’. 1 ‘‘(B)’’ should be ‘‘(ii)’’. percent in the form of natural gas to exceed an annual sulfur diox ide tonnage limitation equal to the product of the unit’s baseline multiplied by the unit’s actual 1985 emissions rate divided by 2,000 unless the owner or operator of such unit holds allowances to emit not less than the unit’s total annual emissions. (2) In addition to allowances allocated pursuant to paragraph (1) and section 403(a)(1) as basic Phase II allowance allocations, be ginning January 1, 2000, and for each calendar year thereafter until and including 2009, the Administrator shall allocate annually for each unit subject to the emissions limitation requirements of paragraph (1) allowances from the reserve created pursuant to sub section (a)(2) in an amount equal to the unit’s baseline multiplied by 0.050 lbs/mmBtu, divided by 2,000. (3) In addition to allowances allocated pursuant to paragraph (1) and section 403(a)(1), beginning January 1, 2010, the Adminis trator shall allocate annually for each unit subject to the emissions limitation requirements of paragraph (1) allowances in an amount equal to the unit’s baseline multiplied by 0.050 lbs/mmBtu, divided by 2,000. (i) UNITS IN HIGH GROWTH STATES.—(1) In addition to allow ances allocated pursuant to this section and section 403(a)(1) as basic Phase II allowance allocations, beginning January 1, 2000, the Administrator shall allocate annually allowances for each unit, subject to an emissions limitation requirement under this section, and located in a State that— (A) has experienced a growth in population in excess of 25 percent between 1980 and 1988 according to State Population and Household Estimates, With Age, Sex, and Components of Change: 1981–1988 allocated by the United States Department of Commerce, and (B) had an installed electrical generating capacity of more than 30,000,000 kw in 1988, in an amount equal to the difference between (A) 1 the number of allowances that would be allocated for the unit pursuant to the emissions limitation requirements of this section applicable to the unit adjusted to reflect the unit’s annual average fuel consumption on a Btu basis of any three consecutive calendar years between 1980 and 1989 (inclusive) as elected by the owner or operator and (B) 1 the number of allowances allocated for the unit pursuant to the emissions limitation requirements of this section: Provided, That the number of allowances allocated pursuant to this sub section shall not exceed an annual total of 40,000. If necessary to meeting the 40,000 allowance restriction imposed under this sub section the Administrator shall reduce, pro rata, the additional an nual allowances allocated to each unit under this subsection. (2) Beginning January 1, 2000, in addition to allowances allo cated pursuant to this section and section 403(a)(1) as basic Phase II allowance allocations, the Administrator shall allocate annually for each unit subject to the emissions limitation requirements of subsection (b)(1), (A) the lesser of whose actual or allowable 1980 emissions rate has declined by 50 percent or more as of the date Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 363 Sec. 406CLEAN AIR ACT 1Should refer to ‘‘subsection (a)’’. of enactment of the Clean Air Act Amendments of 1990, (B) whose actual emissions rate is less than 1.2 lbs/mmBtu as of January 1, 2000, (C) which commenced operation after January 1, 1970, (D) which is owned by a utility company whose combined commercial and industrial kilowatt-hour sales have increased by more than 20 percent between calendar year 1980 and the date of enactment of the Clean Air Act Amendments of 1990, and (E) whose company wide fossil-fuel sulfur dioxide emissions rate has declined 40 per centum or more from 1980 to 1988, allowances in an amount equal to the difference between (i) the number of allowances that would be allocated for the unit pursuant to the emissions limitation re quirements of subsection (b)(1) adjusted to reflect the unit’s annual average fuel consumption on a Btu basis for any three consecutive years between 1980 and 1989 (inclusive) as elected by the owner or operator and (ii) the number of allowances allocated for the unit pursuant to the emissions limitation requirements of subsection (b)(1): Provided, That the number of allowances allocated pursuant to this paragraph shall not exceed an annual total of 5,000. If nec essary to meeting the 5,000-allowance restriction imposed in the last clause of the preceding sentence the Administrator shall re duce, pro rata, the additional allowances allocated to each unit pur suant to this paragraph. (j) CERTAIN MUNICIPALLY OWNED POWER PLANTS.—Beginning January 1, 2000, in addition to allowances allocated pursuant to this section and section 403(a)(1) as basic Phase II allowance allo cations, the Administrator shall allocate annually for each existing municipally owned oil and gas-fired utility unit with nameplate ca pacity equal to, or less than, 40 MWe, the lesser of whose actual or allowable 1985 sulfur dioxide emission rate is less than 1.20 lbs/ mmBtu, allowances in an amount equal to the product of the unit’s annual fuel consumption on a Btu basis at a 60 percent capacity factor multiplied by the lesser of its allowable 1985 emission rate or its actual 1985 emission rate, divided by 2,000. [42 U.S.C. 7651d] SEC. 406. ALLOWANCES FOR STATES WITH EMISSIONS RATES AT OR BELOW 0.80 LBS/MMBTU. (a) ELECTION OF GOVERNOR.—In addition to basic Phase II al lowance allocations, upon the election of the Governor of any State, with a 1985 state-wide annual sulfur dioxide emissions rate equal to or less than, 0.80 lbs/mmBtu, averaged over all fossil fuel-fired utility steam generating units, beginning January 1, 2000, and for each calendar year thereafter until and including 2009, the Admin istrator shall allocate, in lieu of other Phase II bonus allowance al locations, allowances from the reserve created pursuant to section 405(a)(2) to all such units in the State in an amount equal to 125,000 multiplied by the unit’s pro rata share of electricity gen erated in calendar year 1985 at fossil fuel-fired utility steam units in all States eligible for the election. (b) NOTIFICATION OF ADMINISTRATOR.—Pursuant to section 403(a)(1), each Governor of a State eligible to make an election under paragraph (a) 1 shall notify the Administrator of such elec tion. In the event that the Governor of any such State fails to no Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 364Sec. 407 CLEAN AIR ACT 2 But see provisions of section 403(a) applicable to failure to make elections. 3 Should be followed by ‘‘or’’. tify the Administrator of the Governor’s elections, the Adminis trator shall allocate allowances pursuant to section 405. 2 (c) ALLOWANCES AFTER JANUARY 1, 2010.—After January 1, 2010, the Administrator shall allocate allowances to units subject to the provisions of this section pursuant to section 405. [42 U.S.C. 7651e] SEC. 407. NITROGEN OXIDES EMISSION REDUCTION PROGRAM. (a) APPLICABILITY.—On the date that a coal-fired utility unit becomes an affected unit pursuant to sections 404, 405, 3 409, or on the date a unit subject to the provisions of section 404(d) or 409(b), must meet the SO2 reduction requirements, each such unit shall become an affected unit for purposes of this section and shall be subject to the emission limitations for nitrogen oxides set forth herein. (b) EMISSION LIMITATIONS.—(1) Not later than eighteen months after enactment of the Clean Air Act Amendments of 1990, the Ad ministrator shall by regulation establish annual allowable emission limitations for nitrogen oxides for the types of utility boilers listed below, which limitations shall not exceed the rates listed below: Provided, That the Administrator may set a rate higher than that listed for any type of utility boiler if the Administrator finds that the maximum listed rate for that boiler type cannot be achieved using low NOx burner technology. The maximum allowable emis sion rates are as follows: (A) for tangentially fired boilers, 0.45 lb/mmBtu; (B) for dry bottom wall-fired boilers (other than units ap plying cell burner technology), 0.50 lb/mmBtu. After January 1, 1995, it shall be unlawful for any unit that is an affected unit on that date and is of the type listed in this para graph to emit nitrogen oxides in excess of the emission rates set by the Administrator pursuant to this paragraph. (2) Not later than January 1, 1997, the Administrator shall, by regulation, establish allowable emission limitations on a lb/mmBtu, annual average basis, for nitrogen oxides for the following types of utility boilers: (A) wet bottom wall-fired boilers; (B) cyclones; (C) units applying cell burner technology; (D) all other types of utility boilers. The Administrator shall base such rates on the degree of reduction achievable through the retrofit application of the best system of continuous emission reduction, taking into account available tech nology, costs and energy and environmental impacts; and which is comparable to the costs of nitrogen oxides controls set pursuant to subsection (b)(1). Not later than January 1, 1997, the Adminis trator may revise the applicable emission limitations for tangen tially fired and dry bottom, wall-fired boilers (other than cell burn ers) to be more stringent if the Administrator determines that more effective low NOx burner technology is available: Provided, That, no unit that is an affected unit pursuant to section 404 and that is Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 365 Sec. 407CLEAN AIR ACT 1 So in original. Probably should be designated as subparagraph (A). See section 401 of Public Law 101–549 (104 Stat. 2614). 2 So in original. Probably should be designated as subparagraph (B). See section 401 of Public Law 101–549 (104 Stat. 2614). 1 So in original. Probably should be designated as subparagraph (C). See section 401 of Public Law 101–549 (104 Stat. 2614). 2 So in original. Probably intended to refer to title V. subject to the requirements of subsection (b)(1), shall be subject to the revised emission limitations, if any. (c) REVISED PERFORMANCE STANDARDS.—(1) Not later than January 1, 1993, the Administrator shall propose revised standards of performance to section 111 for nitrogen oxides emissions from fossil-fuel fired steam generating units, including both electric util ity and nonutility units. Not later than January 1, 1994, the Ad ministrator shall promulgate such revised standards of perform ance. Such revised standards of performance shall reflect improve ments in methods for the reduction of emissions of oxides of nitro gen. (d) ALTERNATIVE EMISSION LIMITATIONS.—The permitting au thority shall, upon request of an owner or operator of a unit subject to this section, authorize an emission limitation less stringent than the applicable limitation established under subsection (b)(1) or (b)(2) upon a determination that— (1) a unit subject to subsection (b)(1) cannot meet the ap plicable limitation using low NOx burner technology; or (2) a unit subject to subsection (b)(2) cannot meet the ap plicable rate using the technology on which the Administrator based the applicable emission limitation. The permitting authority shall base such determination upon a showing satisfactory to the permitting authority, in accordance with regulations established by the Administrator not later than eighteen months after enactment of the Clean Air Act Amendments of 1990, that the owner or operator— (1) 1 has properly installed appropriate control equipment designed to meet the applicable emission rate; (2) 2 has properly operated such equipment for a period of fifteen months (or such other period of time as the Adminis trator determines through the regulations), and provides oper ating and monitoring data for such period demonstrating that the unit cannot meet the applicable emission rate; and (3) 1 has specified an emission rate that such unit can meet on an annual average basis. The permitting authority shall issue an operating permit for the unit in question, in accordance with section 408 and part B of title III 2— (i) that permits the unit during the demonstration period referred to in subparagraph (2) above, to emit at a rate in ex cess of the applicable emission rate; (ii) at the conclusion of the demonstration period to revise the operating permit to reflect the alternative emission rate demonstrated in paragraphs (2) and (3) above. Units subject to subsection (b)(1) for which an alternative emission limitation is established shall not be required to install any addi tional control technology beyond low NOx burners. Nothing in this section shall preclude an owner or operator from installing and op Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 366Sec. 408 CLEAN AIR ACT 3 So in original. Probably should be ‘‘subsection’’. 4 The semicolon probably should be omitted. 5 Probably should refer to title V. erating an alternative NOx control technology capable of achieving the applicable emission limitation. If the owner or operator of a unit subject to the emissions limitation requirements of subsection (b)(1) demonstrates to the satisfaction of the Administrator that the technology necessary to meet such requirements is not in adequate supply to enable its installation and operation at the unit, con sistent with system reliability, by January 1, 1995, then the Ad ministrator shall extend the deadline for compliance for the unit by a period of 15 months. Any owner or operator may petition the Ad ministrator to make a determination under the previous sentence. The Administrator shall grant or deny such petition within 3 months of submittal. (e) EMISSIONS AVERAGING.—In lieu of complying with the ap plicable emission limitations under subsection (b) (1), (2), or (d), the owner or operator of two or more units subject to one or more of the applicable emission limitations set pursuant to these sections, may petition the permitting authority for alternative contempora neous annual emission limitations for such units that ensure that (1) the actual annual emission rate in pounds of nitrogen oxides per million Btu averaged over the units in question is a rate that is less than or equal to (2) the Btu-weighted average annual emis sion rate for the same units if they had been operated, during the same period of time, in compliance with limitations set in accord ance with the applicable emission rates set pursuant to sub sections 3 (b) (1) and (2). If the permitting authority determines, in accordance with reg ulations issued by the Administrator not later than eighteen months after enactment of the Clean Air Act Amendments of 1990; 4 that the conditions in the paragraph above can be met, the permitting authority shall issue operating permits for such units, in accordance with section 408 and part B of title III, 5 that allow alternative contemporaneous annual emission limitations. Such emission limitations shall only remain in effect while both units continue operation under the conditions specified in their respec tive operating permits. [42 U.S.C. 7651f] SEC. 408. PERMITS AND COMPLIANCE PLANS. (a) PERMIT PROGRAM.—The provisions of this title shall be im plemented, subject to section 403, by permits issued to units sub ject to this title (and enforced) in accordance with the provisions of title V, as modified by this title. Any such permit issued by the Ad ministrator, or by a State with an approved permit program, shall prohibit— (1) annual emissions of sulfur dioxide in excess of the number of allowances to emit sulfur dioxide the owner or oper ator, or the designated representative of the owners or opera tors, of the unit hold for the unit, (2) exceedances of applicable emissions rates, (3) the use of any allowance prior to the year for which it was allocated, and Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 367 Sec. 408CLEAN AIR ACT 1 Probably should be followed by a comma. (4) contravention of any other provision of the permit. Permits issued to implement this title shall be issued for a period of 5 years, notwithstanding title V. No permit shall be issued that is inconsistent with the requirements of this title, and title V as applicable. (b) COMPLIANCE PLAN.—Each initial permit application shall be accompanied by a compliance plan for the source to comply with its requirements under this title. Where an affected source consists of more than one affected unit, such plan shall cover all such units, and for purposes of section 502(c), such source shall be considered a ‘‘facility’’. Nothing in this section regarding compliance plans or in title V shall be construed as affecting allowances. Except as pro vided under subsection (c)(1)(B), submission of a statement by the owner or operator, or the designated representative of the owners and operators, of a unit subject to the emissions limitation require ments of sections 404, 405, and 407, that the unit will meet the ap plicable emissions limitation requirements of such sections in a timely manner or that, in the case of the emissions limitation re quirements of sections 404 and 405, the owners and operators will hold allowances to emit not less than the total annual emissions of the unit, shall be deemed to meet the proposed and approved com pliance planning requirements of this section and title V, except that, for any unit that will meet the requirements of this title by means of an alternative method of compliance authorized under section 404 (b), (c), (d), or (f) 1 section 407 (d) or (e), section 409 and section 410, the proposed and approved compliance plan, permit application and permit shall include, pursuant to regulations pro mulgated by the Administrator, for each alternative method of com pliance a comprehensive description of the schedule and means by which the unit will rely on one or more alternative methods of com pliance in the manner and time authorized under this title. Rec ordation by the Administrator of transfers of allowances shall amend automatically all applicable proposed or approved permit applications, compliance plans and permits. The Administrator may also require— (1) for a source, a demonstration of attainment of national ambient air quality standards, and (2) from the owner or operator of two or more affected sources, an integrated compliance plan providing an overall plan for achieving compliance at the affected sources. (c) FIRST PHASE PERMITS.—The Administrator shall issue per mits to affected sources under sections 404 and 407. (1) PERMIT APPLICATION AND COMPLIANCE PLAN.—(A) Not later than 27 months after the date of the enactment of the Clean Air Act Amendments of 1990, the designated representa tive of the owners or operators, or the owner and operator, of each affected source under sections 404 and 407 shall submit a permit application and compliance plan for that source in ac cordance with regulations issued by the Administrator under paragraph (3). The permit application and the compliance plan shall be binding on the owner or operator or the designated representative of owners and operators for purposes of this Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 368Sec. 408 CLEAN AIR ACT 1 Section 402 does not have a subsection (a). title and section 402(a), 1 and shall be enforceable in lieu of a permit until a permit is issued by the Administrator for the source. (B) In the case of a compliance plan for an affected source under sections 404 and 407 for which the owner or operator proposes to meet the requirements of that section by reducing utilization of the unit as compared with its baseline or by shut ting down the unit, the owner or operator shall include in the proposed compliance plan a specification of the unit or units that will provide electrical generation to compensate for the re duced output at the affected source, or a demonstration that such reduced utilization will be accomplished through energy conservation or improved unit efficiency. The unit to be used for such compensating generation, which is not otherwise an affected unit under sections 404 and 407, shall be deemed an affected unit under section 404, subject to all of the require ments for such units under this title, except that allowances shall be allocated to such compensating unit in the amount of an annual limitation equal to the product of the unit’s baseline multiplied by the lesser of the unit’s actual 1985 emissions rate or its allowable 1985 emissions rate, divided by 2,000. (2) EPA ACTION ON COMPLIANCE PLANS.—The Adminis trator shall review each proposed compliance plan to determine whether it satisfies the requirements of this title, and shall ap prove or disapprove such plan within 6 months after receipt of a complete submission. If a plan is disapproved, it may be re submitted for approval with such changes as the Administrator shall require consistent with the requirements of this title and within such period as the Administrator prescribes as part of such disapproval. (3) REGULATIONS; ISSUANCE OF PERMITS.—Not later than 18 months after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate reg ulations, in accordance with title V, to implement a Federal permit program to issue permits for affected sources under this title. Following promulgation, the Administrator shall issue a permit to implement the requirements of section 404 and the allowances provided under section 403 to the owner or operator of each affected source under section 404. Such a permit shall supersede any permit application and compliance plan sub mitted under paragraph (1). (4) FEES.—During the years 1995 through 1999 inclusive, no fee shall be required to be paid under section 502(b)(3) or under section 110(a)(2)(L) with respect to emissions from any unit which is an affected unit under section 404. (d) SECOND PHASE PERMITS.—(1) To provide for permits for (A) new electric utility steam generating units required under section 403(e) to have allowances, (B) affected units or sources under sec tion 405, and (C) existing units subject to nitrogen oxide emission reductions under section 407, each State in which one or more such units or sources are located shall submit in accordance with title V, a permit program for approval as provided by that title. Upon Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 369 Sec. 408CLEAN AIR ACT approval of such program, for the units or sources subject to such approved program the Administrator shall suspend the issuance of permits as provided in title V. (2) The owner or operator or the designated representative of each affected source under section 405 shall submit a permit appli cation and compliance plan for that source to the permitting au thority, not later than January 1, 1996. (3) Not later than December 31, 1997, each State with an ap proved permit program shall issue permits to the owner or oper ator, or the designated representative of the owners and operators, of affected sources under section 405 that satisfy the requirements of title V and this title and that submitted to such State a permit application and compliance plan pursuant to paragraph (2). In the case of a State without an approved permit program by July 1, 1996, the Administrator shall, not later than January 1, 1998, issue a permit to the owner or operator or the designated rep resentative of each such affected source. In the case of affected sources for which applications and plans are timely received under paragraph (2), the permit application and the compliance plan, in cluding amendments thereto, shall be binding on the owner or op erator or the designated representative of the owners or operators and shall be enforceable as a permit for purposes of this title and title V until a permit is issued by the permitting authority for the affected source. The provisions of section 558(c) of title V of the United States Code (relating to renewals) shall apply to permits issued by a permitting authority under this title and title V. (4) The permit issued in accordance with this subsection for an affected source shall provide that the affected units at the affected source may not emit an annual tonnage of sulfur dioxide in excess of the number of allowances to emit sulfur dioxide the owner or op erator or designated representative hold for the unit. (e) NEW UNITS.—The owner or operator of each source that in cludes a new electric utility steam generating unit shall submit a permit application and compliance plan to the permitting authority not later than 24 months before the later of (1) January 1, 2000, or (2) the date on which the unit commences operation. The permit ting authority shall issue a permit to the owner or operator, or the designated representative thereof, of the unit that satisfies the re quirements of title V and this title. (f) UNITS SUBJECT TO CERTAIN OTHER LIMITS.—The owner or operator, or designated representative thereof, of any unit subject to an emission rate requirement under section 407 shall submit a permit application and compliance plan for such unit to the permit ting authority, not later than January 1, 1998. The permitting au thority shall issue a permit to the owner or operator that satisfies the requirements of title V and this title, including any appropriate monitoring and reporting requirements. (g) AMENDMENT OF APPLICATION AND COMPLIANCE PLAN.—At any time after the submission of an application and compliance plan under this section, the applicant may submit a revised appli cation and compliance plan, in accordance with the requirements of this section. In considering any permit application and compli ance plan under this title, the permitting authority shall ensure co Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 370Sec. 408 CLEAN AIR ACT ordination with the applicable electric ratemaking authority, in the case of regulated utilities, and with unregulated public utilities. (h) PROHIBITION.—(1) It shall be unlawful for an owner or oper ator, or designated representative, required to submit a permit ap plication or compliance plan under this title to fail to submit such application or plan in accordance with the deadlines specified in this section or to otherwise fail to comply with regulations imple menting this section. (2) It shall be unlawful for any person to operate any source subject to this title except in compliance with the terms and re quirements of a permit application and compliance plan (including amendments thereto) or permit issued by the Administrator or a State with an approved permit program. For purposes of this sub section, compliance, as provided in section 504(f), with a permit issued under title V which complies with this title for sources sub ject to this title shall be deemed compliance with this subsection as well as section 502(a). (3) In order to ensure reliability of electric power, nothing in this title or title V shall be construed as requiring termination of operations of an electric utility steam generating unit for failure to have an approved permit or compliance plan, except that any such unit may be subject to the applicable enforcement provisions of sec tion 113. (i) MULTIPLE OWNERS.—No permit shall be issued under this section to an affected unit until the designated representative of the owners or operators has filed a certificate of representation with regard to matters under this title, including the holding and distribution of allowances and the proceeds of transactions involv ing allowances. Where there are multiple holders of a legal or equi table title to, or a leasehold interest in, such a unit, or where a utility or industrial customer purchases power from an affected unit (or units) under life-of-the-unit, firm power contractual ar rangements, the certificate shall state (1) that allowances and the proceeds of transactions involving allowances will be deemed to be held or distributed in proportion to each holder’s legal, equitable, leasehold, or contractual reservation or entitlement, or (2) if such multiple holders have expressly provided for a different distribu tion of allowances by contract, that allowances and the proceeds of transactions involving allowances will be deemed to be held or dis tributed in accordance with the contract. A passive lessor, or a per son who has an equitable interest through such lessor, whose rent al payments are not based, either directly or indirectly, upon the revenues or income from the affected unit shall not be deemed to be a holder of a legal, equitable, leasehold, or contractual interest for the purpose of holding or distributing allowances as provided in this subsection, during either the term of such leasehold or there after, unless expressly provided for in the leasehold agreement. Ex cept as otherwise provided in this subsection, where all legal or eq uitable title to or interest in an affected unit is held by a single person, the certification shall state that all allowances received by the unit are deemed to be held for that person. [42 U.S.C. 7651g] Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 371 Sec. 409CLEAN AIR ACT 1 The word ‘‘and’’ was probably intended to be ‘‘or’’. 2 Probably intended to refer to section 402(12). SEC. 409. REPOWERED SOURCES. (a) AVAILABILITY.—Not later than December 31, 1997, the owner or operator of an existing unit subject to the emissions limi tation requirements of section 405 (b) and 1 (c) may demonstrate to the permitting authority that one or more units will be repowered with a qualifying clean coal technology to comply with the require ments under section 405. The owner or operator shall, as part of any such demonstration, provide, not later than January 1, 2000, satisfactory documentation of a preliminary design and engineering effort for such repowering and an executed and binding contract for the majority of the equipment to repower such unit and such other information as the Administrator may require by regulation. The replacement of an existing utility unit with a new utility unit using a repowering technology referred to in section 402(2) 2 which is lo cated at a different site, shall be treated as repowering of the exist ing unit for purposes of this title, if— (1) the replacement unit is designated by the owner or op erator to replace such existing unit, and (2) the existing unit is retired from service on or before the date on which the designated replacement unit enters commer cial operation. (b) EXTENSION.—(1) An owner or operator satisfying the re quirements of subsection (a) shall be granted an extension of the emission limitation requirement compliance date for that unit from January 1, 2000, to December 31, 2003. The extension shall be specified in the permit issued to the source under section 408, to gether with any compliance schedule and other requirements nec essary to meet second phase requirements by the extended date. Any unit that is granted an extension under this section shall not be eligible for a waiver under section 111(j) of this Act, and shall continue to be subject to requirements under this title as if it were a unit subject to section 405. (2) If (A) the owner or operator of an existing unit has been granted an extension under paragraph (1) in order to repower such unit with a clean coal unit, and (B) such owner or operator dem onstrates to the satisfaction of the Administrator that the repowering technology to be utilized by such unit has been properly constructed and tested on such unit, but nevertheless has been un able to achieve the emission reduction limitations and is economi cally or technologically infeasible, such existing unit may be retro fitted or repowered with equipment or facilities utilizing another clean coal technology or other available control technology. (c) ALLOWANCES.—(1) For the period of the extension under this section, the Administrator shall allocate to the owner or oper ator of the affected unit, annual allowances for sulfur dioxide equal to the affected unit’s baseline multiplied by the lesser of the unit’s federally approved State Implementation Plan emissions limitation or its actual emission rate for 1995 in lieu of any other allocation. Such allowances may not be transferred or used by any other source to meet emission requirements under this title. The source owner or operator shall notify the Administrator sixty days in ad Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 372Sec. 410 CLEAN AIR ACT 1 So in original. Probably should be ‘‘this Act’’. vance of the date on which the affected unit for which the exten sion has been granted is to be removed from operation to install the repowering technology. (2) Effective on that date, the unit shall be subject to the re quirements of section 405. Allowances for the year in which the unit is removed from operation to install the repowering technology shall be calculated as the product of the unit’s baseline multiplied by 1.20 lbs/mmBtu, divided by 2,000, and prorated accordingly, and are transferable. (3) Allowances for such existing utility units for calendar years after the year the repowering is complete shall be calculated as the product of the existing unit’s baseline multiplied by 1.20 lbs/ mmBtu, divided by 2,000. (4) Notwithstanding the provisions of section 403 (a) and (e), allowances shall be allocated under this section for a designated re placement unit which replaces an existing unit (as provided in the last sentence of subsection (a)) in lieu of any further allocations of allowances for the existing unit. (5) For the purpose of meeting the aggregate emissions limita tion requirement set forth in section 403(a)(1), the units with an extension under this subsection shall be treated in each calendar year during the extension period as holding allowances allocated under paragraph (3). (d) CONTROL REQUIREMENTS.—Any unit qualifying for an ex tension under this section that does not increase actual hourly emissions for any pollutant regulated under the 1 Act shall not be subject to any standard of performance under section 111 of this Act. Notwithstanding the provisions of this subsection, no new unit (1) designated as a replacement for an existing unit, (2) qualifying for the extension under subsection (b), and (3) located at a different site than the existing unit shall receive an exemption from the re quirements imposed under section 111. (e) EXPEDITED PERMITTING.—State permitting authorities and, where applicable, the Administrator, are encouraged to give expe dited consideration to permit applications under parts C and D of title I of this Act for any source qualifying for an extension under this section. (f) PROHIBITION.—It shall be unlawful for the owner or oper ator of a repowered source to fail to comply with the requirement of this section, or any regulations of permit requirements to imple ment this section, including the prohibition against emitting sulfur dioxide in excess of allowances held. [42 U.S.C. 7651h] SEC. 410. ELECTION FOR ADDITIONAL SOURCES. (a) APPLICABILITY.—The owner or operator of any unit that is not, nor will become, an affected unit under section 403(e), 404, or 405, or that is a process source under subsection (d), that emits sulfur dioxide, may elect to designate that unit or source to become an affected unit and to receive allowances under this title. An elec tion shall be submitted to the Administrator for approval, along with a permit application and proposed compliance plan in accord Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 373 Sec. 410CLEAN AIR ACT ance with section 408. The Administrator shall approve a designa tion that meets the requirements of this section, and such des ignated unit, or source, shall be allocated allowances, and be an af fected unit for purposes of this title. (b) ESTABLISHMENT OF BASELINE.—The baseline for a unit des ignated under this section shall be established by the Adminis trator by regulation, based on fuel consumption and operating data for the unit for calendar years 1985, 1986, and 1987, or if such data is not available, the Administrator may prescribe a baseline based on alternative representative data. (c) EMISSION LIMITATIONS.—Annual emissions limitations for sulfur dioxide shall be equal to the product of the baseline multi plied by the lesser of the unit’s 1985 actual or allowable emission rate in lbs/mmBtu, or, if the unit did not operate in 1985, by the lesser of the unit’s actual or allowable emission rate for a calendar year after 1985 (as determined by the Administrator), divided by 2,000. (d) PROCESS SOURCES.—Not later than 18 months after enact ment of the Clean Air Act Amendments of 1990, the Administrator shall establish a program under which the owner or operator of a process source that emits sulfur dioxide may elect to designate that source as an affected unit for the purpose of receiving allowances under this title. The Administrator shall, by regulation, define the sources that may be designated; specify the emissions limitation; specify the operating, emission baseline, and other data require ments; prescribe CEMS or other monitoring requirements; and pro mulgate permit, reporting, and any other requirements necessary to implement such a program. (e) ALLOWANCES AND PERMITS.—The Administrator shall issue allowances to an affected unit under this section in an amount equal to the emissions limitation calculated under subsection (c) or (d), in accordance with section 403. Such allowance may be used in accordance with, and shall be subject to, the provisions of section 403. Affected sources under this section shall be subject to the re quirements of sections 403, 408, 411, 412, 413, and 414. (f) LIMITATION.—Any unit designated under this section shall not transfer or bank allowances produced as a result of reduced utilization or shutdown, except that, such allowances may be trans ferred or carried forward for use in subsequent years to the extent that the reduced utilization or shutdown results from the replace ment of thermal energy from the unit designated under this sec tion, with thermal energy generated by any other unit or units sub ject to the requirements of this title, and the designated unit’s al lowances are transferred or carried forward for use at such other replacement unit or units. In no case may the Administrator allo cate to a source designated under this section allowances in an amount greater than the emissions resulting from operation of the source in full compliance with the requirements of this Act. No such allowances shall authorize operation of a unit in violation of any other requirements of this Act. (g) IMPLEMENTATION.—The Administrator shall issue regula tions to implement this section not later than eighteen months after enactment of the Clean Air Act Amendments of 1990. Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 374Sec. 411 CLEAN AIR ACT 1 Probably should be ‘‘section 211(i)’’. 1 Should refer to ‘‘section 211(i)’’. 2 Should be ‘‘section’’. (h) SMALL DIESEL REFINERIES.—The Administrator shall issue allowances to owners or operators of small diesel refineries who produce diesel fuel after October 1, 1993, meeting the requirements of subsection 1 211(i) of this Act. (1) ALLOWANCE PERIOD.—Allowances may be allocated under this subsection only for the period from October 1, 1993, through December 31, 1999. (2) ALLOWANCE DETERMINATION.—The number of allow ances allocated pursuant to this paragraph shall equal the an nual number of pounds of sulfur dioxide reduction attributable to desulfurization by a small refinery divided by 2,000. For the purposes of this calculation, the concentration of sulfur re moved from diesel fuel shall be the difference between 0.274 percent (by weight) and 0.050 percent (by weight). (3) REFINERY ELIGIBILITY.—As used in this subsection, the term ‘‘small refinery’’ shall mean a refinery or portion of a refinery— (A) which, as of the date of enactment of the Clean Air Act Amendments of 1990, has bona fide crude oil through put of less than 18,250,000 barrels per year, as reported to the Department of Energy, and (B) which, as of the date of enactment of the Clean Air Act Amendments of 1990, is owned or controlled by a re finer with a total combined bona fide crude oil throughput of less than 50,187,500 barrels per year, as reported to the Department of Energy. (4) LIMITATION PER REFINERY.—The maximum number of allowances that can be annually allocated to a small refinery pursuant to this subsection is one thousand and five hundred. (5) LIMITATION ON TOTAL.—In any given year, the total number of allowances allocated pursuant to this subsection shall not exceed thirty-five thousand. (6) REQUIRED CERTIFICATION.—The Administrator shall not allocate any allowances pursuant to this subsection unless the owner or operator of a small diesel refinery shall have cer tified, at a time and in a manner prescribed by the Adminis trator, that all motor diesel fuel produced by the refinery for which allowances are claimed, including motor diesel fuel for off-highway use, shall have met the requirements of sub section 1 211(i) of this Act. [42 U.S.C. 7651i] SEC. 411. EXCESS EMISSIONS PENALTY. (a) EXCESS EMISSIONS PENALTY.—The owner or operator of any unit or process source subject to the requirements of sections 2 403, 404, 405, 406, 407 or 409, or designated under section 410, that emits sulfur dioxide or nitrogen oxides for any calendar year in ex cess of the unit’s emissions limitation requirement or, in the case of sulfur dioxide, of the allowances the owner or operator holds for use for the unit for that calendar year shall be liable for the pay ment of an excess emissions penalty, except where such emissions Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 375 Sec. 412CLEAN AIR ACT 3 The Miscellaneous Receipts Act is not a recognized short title or popular name. See section 3302 of title 31 for provisions relating to deposits of moneys. 4 Public Law 101–549 (104 Stat. 2633) misspelled the word ‘‘occurred’’ as ‘‘occured’’. were authorized pursuant to section 110(f). That penalty shall be calculated on the basis of the number of tons emitted in excess of the unit’s emissions limitation requirement or, in the case of sulfur dioxide, of the allowances the operator holds for use for the unit for that year, multiplied by $2,000. Any such penalty shall be due and payable without demand to the Administrator as provided in regulations to be issued by the Administrator by no later than eighteen months after the date of enactment of the Clean Air Act Amendments of 1990. Any such payment shall be deposited in the United States Treasury pursuant to the Miscellaneous Receipts Act. 3 Any penalty due and payable under this section shall not di minish the liability of the unit’s owner or operator for any fine, penalty or assessment against the unit for the same violation under any other section of this Act. (b) EXCESS EMISSIONS OFFSET.—The owner or operator of any affected source that emits sulfur dioxide during any calendar year in excess of the unit’s emissions limitation requirement or of the allowances held for the unit for the calendar year, shall be liable to offset the excess emissions by an equal tonnage amount in the following calendar year, or such longer period as the Administrator may prescribe. The owner or operator of the source shall, within sixty days after the end of the year in which the excess emissions occured, 4 submit to the Administrator, and to the State in which the source is located, a proposed plan to achieve the required off sets. Upon approval of the proposed plan by the Administrator, as submitted, modified or conditioned, the plan shall be deemed at a condition of the operating permit for the unit without further re view or revision of the permit. The Administrator shall also deduct allowances equal to the excess tonnage from those allocated for the source for the calendar year, or succeeding years during which off sets are required, following the year in which the excess emissions occurred. (c) PENALTY ADJUSTMENT.—The Administrator shall, by regula tion, adjust the penalty specified in subsection (a) for inflation, based on the Consumer Price Index, on the date of enactment and annually thereafter. (d) PROHIBITION.—It shall be unlawful for the owner or oper ator of any source liable for a penalty and offset under this section to fail (1) to pay the penalty under subsection (a), (2) to provide, and thereafter comply with, a compliance plan as required by sub section (b), or (3) to offset excess emissions as required by sub section (b). (e) SAVINGS PROVISION.—Nothing in this title shall limit or otherwise affect the application of section 113, 114, 120, or 304 ex cept as otherwise explicitly provided in this title. [42 U.S.C. 7651j] SEC. 412. MONITORING, REPORTING, AND RECORDKEEPING RE QUIREMENTS. (a) APPLICABILITY.—The owner and operator of any source sub ject to this title shall be required to install and operate CEMS on Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 376Sec. 412 CLEAN AIR ACT each affected unit at the source, and to quality assure the data for sulfur dioxide, nitrogen oxides, opacity and volumetric flow at each such unit. The Administrator shall, by regulations issued not later than eighteen months after enactment of the Clean Air Act Amend ments of 1990, specify the requirements for CEMS, for any alter native monitoring system that is demonstrated as providing infor mation with the same precision, reliability, accessibility, and time liness as that provided by CEMS, and for recordkeeping and re porting of information from such systems. Such regulations may in clude limitations or the use of alternative compliance methods by units equipped with an alternative monitoring system as may be necessary to preserve the orderly functioning of the allowance sys tem, and which will ensure the emissions reductions contemplated by this title. Where 2 or more units utilize a single stack, a sepa rate CEMS shall not be required for each unit, and for such units the regulations shall require that the owner or operator collect suf ficient information to permit reliable compliance determinations for each such unit. (b) FIRST PHASE REQUIREMENTS.—Not later than thirty-six months after enactment of the Clean Air Act Amendments of 1990, the owner or operator of each affected unit under section 404, in cluding, but not limited to, units that become affected units pursu ant to subsections (b) and (c) and eligible units under subsection (d), shall install and operate CEMS, quality assure the data, and keep records and reports in accordance with the regulations issued under subsection (a). (c) SECOND PHASE REQUIREMENTS.—Not later than January 1, 1995, the owner or operator of each affected unit that has not pre viously met the requirements of subsections (a) and (b) shall install and operate CEMS, quality assure the data, and keep records and reports in accordance with the regulations issued under subsection (a). Upon commencement of commercial operation of each new util ity unit, the unit shall comply with the requirements of subsection (a). (d) UNAVAILABILITY OF EMISSIONS DATA.—If CEMS data or data from an alternative monitoring system approved by the Ad ministrator under subsection (a) is not available for any affected unit during any period of a calendar year in which such data is re quired under this title, and the owner or operator cannot provide information, satisfactory to the Administrator, on emissions during that period, the Administrator shall deem the unit to be operating in an uncontrolled manner during the entire period for which the data was not available and shall, by regulation which shall be issued not later than eighteen months after enactment of the Clean Air Act Amendments of 1990, prescribe means to calculate emis sions for that period. The owner or operator shall be liable for ex cess emissions fees and offsets under section 411 in accordance with such regulations. Any fee due and payable under this sub section shall not diminish the liability of the unit’s owner or oper ator for any fine, penalty, fee or assessment against the unit for the same violation under any other section of this Act. (e) PROHIBITION.—It shall be unlawful for the owner or oper ator of any source subject to this title to operate a source without Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 377 Sec. 415CLEAN AIR ACT complying with the requirements of this section, and any regula tions implementing this section. [42 U.S.C. 7651k] SEC. 413. GENERAL COMPLIANCE WITH OTHER PROVISIONS. Except as expressly provided, compliance with the require ments of this title shall not exempt or exclude the owner or oper ator of any source subject to this title from compliance with any other applicable requirements of this Act. [42 U.S.C. 7651l] SEC. 414. ENFORCEMENT. It shall be unlawful for any person subject to this title to vio late any prohibition of, requirement of, or regulation promulgated pursuant to this title shall be a violation of this Act. In addition to the other requirements and prohibitions provided for in this title, the operation of any affected unit to emit sulfur dioxide in ex cess of allowances held for such unit shall be deemed a violation, with each ton emitted in excess of allowances held constituting a separate violation. [42 U.S.C. 7651m] SEC. 415. CLEAN COAL TECHNOLOGY REGULATORY INCENTIVES. (a) DEFINITION.—For purposes of this section, ‘‘clean coal tech nology’’ means any technology, including technologies applied at the precombustion, combustion, or post combustion stage, at a new or existing facility which will achieve significant reductions in air emissions of sulfur dioxide or oxides of nitrogen associated with the utilization of coal in the generation of electricity, process steam, or industrial products, which is not in widespread use as of the date of enactment of this title. (b) REVISED REGULATIONS FOR CLEAN COAL TECHNOLOGY DEM ONSTRATIONS.— (1) APPLICABILITY.—This subsection applies to physical or operational changes to existing facilities for the sole purpose of installation, operation, cessation, or removal of a temporary or permanent clean coal technology demonstration project. For the purposes of this section, a clean coal technology demonstra tion project shall mean a project using funds appropriated under the heading ‘‘Department of Energy—Clean Coal Tech nology’’, up to a total amount of $2,500,000,000 for commercial demonstration of clean coal technology, or similar projects funded through appropriations for the Environmental Protec tion Agency. The Federal contribution for a qualifying project shall be at least 20 percent of the total cost of the demonstra tion project. (2) TEMPORARY PROJECTS.—Installation, operation, ces sation, or removal of a temporary clean coal technology dem onstration project that is operated for a period of five years or less, and which complies with the State implementation plans for the State in which the project is located and other require ments necessary to attain and maintain the national ambient air quality standards during and after the project is termi nated, shall not subject such facility to the requirements of sec tion 111 or part C or D of title I. Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 378Sec. 416 CLEAN AIR ACT (3) PERMANENT PROJECTS.—For permanent clean coal tech nology demonstration projects that constitute repowering as defined in section 402(l) of this title, any qualifying project shall not be subject to standards of performance under section 111 or to the review and permitting requirements of part C for any pollutant the potential emissions of which will not increase as a result of the demonstration project. (4) EPA REGULATIONS.—Not later than 12 months after the date of enactment, the Administrator shall promulgate regula tions or interpretive rulings to revise requirements under sec tion 111 and parts C and D, as appropriate, to facilitate projects consistent in this subsection. With respect to parts C and D, such regulations or rulings shall apply to all areas in which EPA is the permitting authority. In those instances in which the State is the permitting authority under part C or D, any State may adopt and submit to the Administrator for ap proval revisions to its implementation plan to apply the regula tions or rulings promulgated under this subsection. (c) EXEMPTION FOR REACTIVATION OF VERY CLEAN UNITS.— Physical changes or changes in the method of operation associated with the commencement of commercial operations by a coal-fired utility unit after a period of discontinued operation shall not sub ject the unit to the requirements of section 111 or part C of the Act where the unit (1) has not been in operation for the two-year period prior to the enactment of the Clean Air Act Amendments of 1990, and the emissions from such unit continue to be carried in the per mitting authority’s emissions inventory at the time of enactment, (2) was equipped prior to shut-down with a continuous system of emissions control that achieves a removal efficiency for sulfur diox ide of no less than 85 percent and a removal efficiency for particu lates of no less than 98 percent, (3) is equipped with low-NOx burn ers prior to the time of commencement, and (4) is otherwise in com pliance with the requirements of this Act. [42 U.S.C. 7651n] SEC. 416. CONTINGENCY GUARANTEE; AUCTIONS, RESERVE. (a) DEFINITIONS.—For purposes of this section— (1) The term ‘‘independent power producer’’ means any person who owns or operates, in whole or in part, one or more new independent power production facilities. (2) The term ‘‘new independent power production facility’’ means a facility that— (A) is used for the generation of electric energy, 80 percent or more of which is sold at wholesale; (B) is nonrecourse project-financed (as such term is de fined by the Secretary of Energy within 3 months of the date of the enactment of the Clean Air Act Amendments of 1990); (C) does not generate electric energy sold to any affil iate (as defined in section 2(a)(11) of the Public Utility Holding Company Act of 1935) of the facility’s owner or op erator unless the owner or operator of the facility dem onstrates that it cannot obtain allowances from the affil iate; and Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 379 Sec. 416CLEAN AIR ACT (D) is a new unit required to hold allowances under this title. (3) The term ‘‘required allowances’’ means the allowances required to operate such unit for so much of the unit’s useful life as occurs after January 1, 2000. (b) SPECIAL RESERVE OF ALLOWANCES.—Within 36 months after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate regulations estab lishing a Special Allowance Reserve containing allowances to be sold under this section. For purposes of establishing the Special Al lowance Reserve, the Administrator shall withhold— (1) 2.8 percent of the allocation of allowances for each year from 1995 through 1999 inclusive; and (2) 2.8 percent of the basic Phase II allowance allocation of allowances for each year beginning in the year 2000 which would (but for this subsection) be issued for each affected unit at an affected source. The Administrator shall record such withholding for purposes of transferring the proceeds of the allow ance sales under this subsection. The allowances so withheld shall be deposited in the Reserve under this section. (c) DIRECT SALE AT $1,500 PER TON.— (1) SUBACCOUNT FOR DIRECT SALES.—In accordance with regulations under this section, the Administrator shall estab lish a Direct Sale Subaccount in the Special Allowance Reserve established under this section. The Direct Sale Subaccount shall contain allowances in the amount of 50,000 tons per year for each year beginning in the year 2000. (2) SALES.—Allowances in the subaccount shall be offered for direct sale to any person at the times and in the amounts specified in table 1 at a price of $1,500 per allowance, adjusted by the Consumer Price Index in the same manner as provided in paragraph (3). Requests to purchase allowances from the Di rect Sale Subaccount established under paragraph (1) shall be approved in the order of receipt until no allowances remain in such subaccount, except that an opportunity to purchase such allowances shall be provided to the independent power pro ducers referred to in this subsection before such allowances are offered to any other person. Each applicant shall be required to pay 50 percent of the total purchase price of the allowances within 6 months after the approval of the request to purchase. The remainder shall be paid on or before the transfer of the allowances. TABLE 1—NUMBER OF ALLOWANCES AVAILABLE FOR SALE AT $1,500 PER TON Year of Sale Spot Sale (same year) Advance Sale 1993–1999 ........................................................................... .................. 25,000 2000 and after .................................................................... 25,000 25,000 Allowances sold in the spot sale in any year are allowances which may only be used in that year (unless banked for use in a later year). Allowances sold in the advance sale in any year Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 380Sec. 416 CLEAN AIR ACT are allowances which may only be used in the 7th year after the year in which they are first offered for sale (unless banked for use in a later year). (3) ENTITLEMENT TO WRITTEN GUARANTEE.—Any inde pendent power producer that submits an application to the Ad ministrator establishing that such independent power producer— (A) proposes to construct a new independent power production facility for which allowances are required under this title; (B) will apply for financing to construct such facility after January 1, 1990, and before the date of the first auc tion under this section; (C) has submitted to each owner or operator of an af fected unit listed in table A (in section 404) a written offer to purchase the required allowances for $750 per ton; and shall, within 30 days after submission of such application, be entitled to receive the Administrator’s written guarantee (sub ject to the eligibility requirements set forth in paragraph (4)) that such required allowances will be made available for pur chase from the Direct Sale Subaccount established under this subsection and at a guaranteed price. The guaranteed price at which such allowances shall be made available for purchase shall be $1,500 per ton, adjusted by the percentage, if any, by which the Consumer Price Index (as determined under section 502(b)(3)(B)(v)) for the year in which the allowance is pur chased exceeds the Consumer Price Index for the calendar year 1990. (4) ELIGIBILITY REQUIREMENTS.—The guarantee issued by the Administrator under paragraph (3) shall be subject to a demonstration by the independent power producer, satisfactory to the Administrator, that— (A) the independent power producer has— (i) made good faith efforts to purchase the re quired allowances from the owners or operators of af fected units to which allowances will be allocated, in cluding efforts to purchase at annual auctions under this section, and from industrial sources that have elected to become affected units pursuant to section 410; and (ii) such bids and efforts were unsuccessful in ob taining the required allowances; and (B) the independent power producer will continue to make good faith efforts to purchase the required allow ances from the owners or operators of affected units and from industrial sources. (5) ISSUANCE OF GUARANTEED ALLOWANCES FROM DIRECT SALE SUBACCOUNT UNDER THIS SECTION.—From the allowances available in the Direct Sale Subaccount established under this subsection, upon payment of the guaranteed price, the Admin istrator shall issue to any person exercising the right to pur chase allowances pursuant to a guarantee under this sub section the allowances covered by such guarantee. Persons to which guarantees under this subsection have been issued shall have the opportunity to purchase allowances pursuant to such Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 381 Sec. 416CLEAN AIR ACT guarantee from such subaccount before the allowances in such reserve are offered for sale to any other person. (6) PROCEEDS.—Notwithstanding section 3302 of title 31 of the United States Code or any other provision of law, the Ad ministrator shall require that the proceeds of any sale under this subsection be transferred, within 90 days after the sale, without charge, on a pro rata basis to the owners or operators of the affected units from whom the allowances were withheld under subsection (b) and that any unsold allowances be trans ferred to the Subaccount for Auction Sales established under subsection (d). No proceeds of any sale under this subsection shall be held by any officer or employee of the United States or treated for any purpose as revenue to the United States or to the Administrator. (7) TERMINATION OF SUBACCOUNT.—If the Administrator determines that, during any period of 2 consecutive calendar years, less than 20 percent of the allowances available in the subaccount for direct sales established under this subsection have been purchased under this paragraph, the Administrator shall terminate the subaccount and transfer such allowances to the Auction Subaccount under subsection (d). (d) AUCTION SALES.— (1) SUBACCOUNT FOR AUCTIONS.—The Administrator shall establish an Auction Subaccount in the Special Reserve estab lished under this section. The Auction Subaccount shall con tain allowances to be sold at auction under this section in the amount of 150,000 tons per year for each year from 1995 through 1999, inclusive and 250,000 tons per year for each year beginning in the calendar year 2000. (2) ANNUAL AUCTIONS.—Commencing in 1993 and in each year thereafter, the Administrator shall conduct auctions at which the allowances referred to in paragraph (1) shall be of fered for sale in accordance with regulations promulgated by the Administrator, in consultation with the Secretary of the Treasury, within 12 months of enactment of the Clean Air Act Amendments of 1990. The allowances referred to in paragraph (1) shall be offered for sale at auction in the amounts specified in table 2. The auction shall be open to any person. A person wishing to bid for such allowances shall submit (by a date set by the Administrator) to the Administrator (on a sealed bid schedule provided by the Administrator) offers to purchase specified numbers of allowances at specified prices. Such regu lations shall specify that the auctioned allowances shall be al located and sold on the basis of bid price, starting with the highest-priced bid and continuing until all allowances for sale at such auction have been allocated. The regulations shall not permit that a minimum price be set for the purchase of with held allowances. Allowances purchased at the auction may be used for any purpose and at any time after the auction, subject to the provisions of this title. Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 382Sec. 416 CLEAN AIR ACT TABLE 2—NUMBER OF ALLOWANCES AVAILABLE FOR AUCTION Year of Sale Spot Auc tion (same year) Advance Auc tion 1993 ............................................................................. 50,000* 100,000 1994 ............................................................................. 50,000* 100,000 1995 ............................................................................. 50,000* 100,000 1996 ............................................................................. 150,000 100,000 1997 ............................................................................. 150,000 100,000 1998 ............................................................................. 150,000 100,000 1999 ............................................................................. 150,000 100,000 2000 and after ............................................................ 100,000 100,000 Allowances sold in the spot sale in any year are allowances which may only be used in that year (unless banked for use in a later year), except as otherwise noted. Allowances sold in the advance auction in any year are allowances which may only be used in the 7th year after the year in which they are first offered for sale (unless banked for use in a later year). * Available for use only in 1995 (unless banked for use in a later year). (3) Proceeds.—(A) Notwithstanding section 3302 of title 31 of the United States Code or any other provision of law, within 90 days of receipt, the Administrator shall transfer the pro ceeds from the auction under this section, on a pro rata basis, to the owners or operators of the affected units at an affected source from whom allowances were withheld under subsection (b). No funds transferred from a purchaser to a seller of allow ances under this paragraph shall be held by any officer or em ployee of the United States or treated for any purpose as rev enue to the United States or the Administrator. (B) At the end of each year, any allowances offered for sale but not sold at the auction shall be returned without charge, on a pro rata basis, to the owner or operator of the affected units from whose allocation the allowances were withheld. (4) ADDITIONAL AUCTION PARTICIPANTS.—Any person hold ing allowances or to whom allowances are allocated by the Ad ministrator may submit those allowances to the Administrator to be offered for sale at auction under this subsection. The pro ceeds of any such sale shall be transferred at the time of sale by the purchaser to the person submitting such allowances for sale. The holder of allowances offered for sale under this para graph may specify a minimum sale price. Any person may pur chase allowances offered for auction under this paragraph. Such allowances shall be allocated and sold to purchasers on the basis of bid price after the auction under paragraph (2) is complete. No funds transferred from a purchaser to a seller of allowances under this paragraph shall be held by any officer or employee of the United States or treated for any purpose as revenue to the United States or the Administrator. (5) RECORDING BY EPA.—The Administrator shall record and publicly report the nature, prices and results of each auc tion under this subsection, including the prices of successful bids, and shall record the transfers of allowances as a result of each auction in accordance with the requirements of this section. The transfer of allowances at such auction shall be re corded in accordance with the regulations promulgated by the Administrator under this title. Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 383 Sec. 416CLEAN AIR ACT (e) CHANGES IN SALES, AUCTIONS, AND WITHHOLDING.—Pursu ant to rulemaking after public notice and comment the Adminis trator may at any time after the year 1998 (in the case of advance sales or advance auctions) and 2005 (in the case of spot sales or spot auctions) decrease the number of allowances withheld and sold under this section. (f) TERMINATION OF AUCTIONS.—The Administrator may termi nate the withholding of allowances and the auction sales under this section if the Administrator determines that, during any period of 3 consecutive calendar years after 2002, less than 20 percent of the allowances available in the auction subaccount have been pur chased. Pursuant to regulations under this section, the Adminis trator may by delegation or contract provide for the conduct of sales or auctions under the Administrator’s supervision by other departments or agencies of the United States Government or by nongovernmental agencies, groups, or organizations. [42 U.S.C. 7651o] Q:\COMP\ENVIR1\CLEANAIR.004 February 24, 2004 384Sec. 501 CLEAN AIR ACT 1 Should be ‘‘part’’. TITLE V—PERMITS Sec. 501. Definitions. Sec. 502. Permit programs. Sec. 503. Permit applications. Sec. 504. Permit requirements and conditions. Sec. 505. Notification to Administrator and contiguous States. Sec. 506. Other authorities. Sec. 507. Small business stationary source technical and environmental compliance assistance program. SEC. 501. DEFINITIONS. As used in this title— (1) AFFECTED SOURCE.—The term ‘‘affected source’’ shall have the meaning given such term in title IV. (2) MAJOR SOURCE.—The term ‘‘major source’’ means any stationary source (or any group of stationary sources located within a contiguous area and under common control) that is ei ther of the following: (A) A major source as defined in section 112. (B) A major stationary source as defined in section 302 or part D of title I. (3) SCHEDULE OF COMPLIANCE.—The term ‘‘schedule of compliance’’ means a schedule of remedial measures, including an enforceable sequence of actions or operations, leading to compliance with an applicable implementation plan, emission standard, emission limitation, or emission prohibition. (4) PERMITTING AUTHORITY.—The term ‘‘permitting author ity’’ means the Administrator or the air pollution control agen cy authorized by the Administrator to carry out a permit pro gram under this title. [42 U.S.C. 7661] SEC. 502. PERMIT PROGRAMS. (a) VIOLATIONS.—After the effective date of any permit pro gram approved or promulgated under this title, it shall be unlawful for any person to violate any requirement of a permit issued under this title, or to operate an affected source (as provided in title IV), a major source, any other source (including an area source) subject to standards or regulations under section 111 or 112, any other source required to have a permit under parts 1 C or D of title I, or any other stationary source in a category designated (in whole or in part) by regulations promulgated by the Administrator (after no tice and public comment) which shall include a finding setting forth the basis for such designation, except in compliance with a permit issued by a permitting authority under this title. (Nothing in this subsection shall be construed to alter the applicable requirements of this Act that a permit be obtained before construction or modi fication.) The Administrator may, in the Administrator’s discretion and consistent with the applicable provisions of this Act, promul gate regulations to exempt one or more source categories (in whole or in part) from the requirements of this subsection if the Adminis trator finds that compliance with such requirements is impracti cable, infeasible, or unnecessarily burdensome on such categories, Q:\COMP\ENVIR1\CLEANAIR.005 February 24, 2004 385 Sec. 502CLEAN AIR ACT except that the Administrator may not exempt any major source from such requirements. (b) REGULATIONS.—The Administrator shall promulgate within 12 months after the date of the enactment of the Clean Air Act Amendments of 1990 regulations establishing the minimum ele ments of a permit program to be administered by any air pollution control agency. These elements shall include each of the following: (1) Requirements for permit applications, including a standard application form and criteria for determining in a timely fashion the completeness of applications. (2) Monitoring and reporting requirements. (3)(A) A requirement under State or local law or interstate compact that the owner or operator of all sources subject to the requirement to obtain a permit under this title pay an annual fee, or the equivalent over some other period, sufficient to cover all reasonable (direct and indirect) costs required to de velop and administer the permit program requirements of this title, including section 507, including the reasonable costs of— (i) reviewing and acting upon any application for such a permit, (ii) if the owner or operator receives a permit for such source, whether before or after the date of the enactment of the Clean Air Act Amendments of 1990, implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), (iii) emissions and ambient monitoring, (iv) preparing generally applicable regulations, or guidance, (v) modeling, analyses, and demonstrations, and (vi) preparing inventories and tracking emissions. (B) The total amount of fees collected by the permitting authority shall conform to the following requirements: (i) The Administrator shall not approve a program as meeting the requirements of this paragraph unless the State demonstrates that, except as otherwise provided in subparagraphs (ii) through (v) of this subparagraph, the program will result in the collection, in the aggregate, from all sources subject to subparagraph (A), of an amount not less than $25 per ton of each regulated pollutant, or such other amount as the Administrator may determine adequately reflects the reasonable costs of the permit pro gram. (ii) As used in this subparagraph, the term ‘‘regulated pollutant’’ shall mean (I) a volatile organic compound; (II) each pollutant regulated under section 111 or 112; and (III) each pollutant for which a national primary ambient air quality standard has been promulgated (except that carbon monoxide shall be excluded from this reference). (iii) In determining the amount under clause (i), the permitting authority is not required to include any amount of regulated pollutant emitted by any source in excess of 4,000 tons per year of that regulated pollutant. Q:\COMP\ENVIR1\CLEANAIR.005 February 24, 2004 386Sec. 502 CLEAN AIR ACT (iv) The requirements of clause (i) shall not apply if the permitting authority demonstrates that collecting an amount less than the amount specified under clause (i) will meet the requirements of subparagraph (A). (v) The fee calculated under clause (i) shall be in creased (consistent with the need to cover the reasonable costs authorized by subparagraph (A)) in each year begin ning after the year of the enactment of the Clean Air Act Amendments of 1990 by the percentage, if any, by which the Consumer Price Index for the most recent calendar year ending before the beginning of such year exceeds the Consumer Price Index for the calendar year 1989. For pur poses of this clause— (I) the Consumer Price Index for any calendar year is the average of the Consumer Price Index for all-urban consumers published by the Department of Labor, as of the close of the 12-month period ending on August 31 of each calendar year, and (II) the revision of the Consumer Price Index which is most consistent with the Consumer Price Index for calendar year 1989 shall be used. (C)(i) If the Administrator determines, under subsection (d), that the fee provisions of the operating permit program do not meet the requirements of this paragraph, or if the Admin istrator makes a determination, under subsection (i), that the permitting authority is not adequately administering or enforc ing an approved fee program, the Administrator may, in addi tion to taking any other action authorized under this title, col lect reasonable fees from the sources identified under subpara graph (A). Such fees shall be designed solely to cover the Ad ministrator’s costs of administering the provisions of the per mit program promulgated by the Administrator. (ii) Any source that fails to pay fees lawfully imposed by the Administrator under this subparagraph shall pay a penalty of 50 percent of the fee amount, plus interest on the fee amount computed in accordance with section 6621(a)(2) of the Internal Revenue Code of 1986 (relating to computation of in terest on underpayment of Federal taxes). (iii) Any fees, penalties, and interest collected under this subparagraph shall be deposited in a special fund in the United States Treasury for licensing and other services, which thereafter shall be available for appropriation, to remain avail able until expended, subject to appropriation, to carry out the Agency’s activities for which the fees were collected. Any fee required to be collected by a State, local, or interstate agency under this subsection shall be utilized solely to cover all rea sonable (direct and indirect) costs required to support the per mit program as set forth in subparagraph (A). (4) Requirements for adequate personnel and funding to administer the program. (5) A requirement that the permitting authority have ade quate authority to: Q:\COMP\ENVIR1\CLEANAIR.005 February 24, 2004 387 Sec. 502CLEAN AIR ACT (A) issue permits and assure compliance by all sources required to have a permit under this title with each appli cable standard, regulation or requirement under this Act; (B) issue permits for a fixed term, not to exceed 5 years; (C) assure that upon issuance or renewal permits in corporate emission limitations and other requirements in an applicable implementation plan; (D) terminate, modify, or revoke and reissue permits for cause; (E) enforce permits, permit fee requirements, and the requirement to obtain a permit, including authority to re cover civil penalties in a maximum amount of not less than $10,000 per day for each violation, and provide appro priate criminal penalties; and (F) assure that no permit will be issued if the Admin istrator objects to its issuance in a timely manner under this title. (6) Adequate, streamlined, and reasonable procedures for expeditiously determining when applications are complete, for processing such applications, for public notice, including offer ing an opportunity for public comment and a hearing, and for expeditious review of permit actions, including applications, re newals, or revisions, and including an opportunity for judicial review in State court of the final permit action by the appli cant, any person who participated in the public comment proc ess, and any other person who could obtain judicial review of that action under applicable law. (7) To ensure against unreasonable delay by the permit ting authority, adequate authority and procedures to provide that a failure of such permitting authority to act on a permit application or permit renewal application (in accordance with the time periods specified in section 503 or, as appropriate, title IV) shall be treated as a final permit action solely for pur poses of obtaining judicial review in State court of an action brought by any person referred to in paragraph (6) to require that action be taken by the permitting authority on such appli cation without additional delay. (8) Authority, and reasonable procedures consistent with the need for expeditious action by the permitting authority on permit applications and related matters, to make available to the public any permit application, compliance plan, permit, and monitoring or compliance report under section 503(e), sub ject to the provisions of section 114(c) of this Act. (9) A requirement that the permitting authority, in the case of permits with a term of 3 or more years for major sources, shall require revisions to the permit to incorporate ap plicable standards and regulations promulgated under this Act after the issuance of such permit. Such revisions shall occur as expeditiously as practicable and consistent with the procedures established under paragraph (6) but not later than 18 months after the promulgation of such standards and regulations. No such revision shall be required if the effective date of the standards or regulations is a date after the expiration of the Q:\COMP\ENVIR1\CLEANAIR.005 February 24, 2004 388Sec. 502 CLEAN AIR ACT 1 Closing parenthesis was omitted in Public Law 101–549 (104 Stat. 2638). permit term. Such permit revision shall be treated as a permit renewal if it complies with the requirements of this title re garding renewals. (10) Provisions to allow changes within a permitted facility (or one operating pursuant to section 503(d)) without requiring a permit revision, if the changes are not modifications under any provision of title I and the changes do not exceed the emis sions allowable under the permit (whether expressed therein as a rate of emissions or in terms of total emissions: 1 Provided, That the facility provides the Administrator and the permitting authority with written notification in advance of the proposed changes which shall be a minimum of 7 days, unless the per mitting authority provides in its regulations a different time frame for emergencies. (c) SINGLE PERMIT.—A single permit may be issued for a facil ity with multiple sources. (d) SUBMISSION AND APPROVAL.—(1) Not later than 3 years after the date of the enactment of the Clean Air Act Amendments of 1990, the Governor of each State shall develop and submit to the Administrator a permit program under State or local law or under an interstate compact meeting the requirements of this title. In ad dition, the Governor shall submit a legal opinion from the attorney general (or the attorney for those State air pollution control agen cies that have independent legal counsel), or from the chief legal officer of an interstate agency, that the laws of the State, locality, or the interstate compact provide adequate authority to carry out the program. Not later than 1 year after receiving a program, and after notice and opportunity for public comment, the Administrator shall approve or disapprove such program, in whole or in part. The Administrator may approve a program to the extent that the pro gram meets the requirements of this Act, including the regulations issued under subsection (b). If the program is disapproved, in whole or in part, the Administrator shall notify the Governor of any revi sions or modifications necessary to obtain approval. The Governor shall revise and resubmit the program for review under this section within 180 days after receiving notification. (2)(A) If the Governor does not submit a program as required under paragraph (1) or if the Administrator disapproves a program submitted by the Governor under paragraph (1), in whole or in part, the Administrator may, prior to the expiration of the 18 month period referred to in subparagraph (B), in the Administra tor’s discretion, apply any of the sanctions specified in section 179(b). (B) If the Governor does not submit a program as required under paragraph (1), or if the Administrator disapproves any such program submitted by the Governor under paragraph (1), in whole or in part, 18 months after the date required for such submittal or the date of such disapproval, as the case may be, the Administrator shall apply sanctions under section 179(b) in the same manner and subject to the same deadlines and other conditions as are applica ble in the case of a determination, disapproval, or finding under section 179(a). Q:\COMP\ENVIR1\CLEANAIR.005 February 24, 2004 389 Sec. 502CLEAN AIR ACT (C) The sanctions under section 179(b)(2) shall not apply pur suant to this paragraph in any area unless the failure to submit or the disapproval referred to in subparagraph (A) or (B) relates to an air pollutant for which such area has been designated a non attainment area (as defined in part D of title I). (3) If a program meeting the requirements of this title has not been approved in whole for any State, the Administrator shall, 2 years after the date required for submission of such a program under paragraph (1), promulgate, administer, and enforce a pro gram under this title for that State. (e) SUSPENSION.—The Administrator shall suspend the issuance of permits promptly upon publication of notice of approval of a permit program under this section, but may, in such notice, retain jurisdiction over permits that have been federally issued, but for which the administrative or judicial review process is not com plete. The Administrator shall continue to administer and enforce federally issued permits under this title until they are replaced by a permit issued by a permitting program. Nothing in this sub section should be construed to limit the Administrator’s ability to enforce permits issued by a State. (f) PROHIBITION.—No partial permit program shall be approved unless, at a minimum, it applies, and ensures compliance with, this title and each of the following: (1) All requirements established under title IV applicable to ‘‘affected sources’’. (2) All requirements established under section 112 applica ble to ‘‘major sources’’, ‘‘area sources,’’ and ‘‘new sources’’. (3) All requirements of title I (other than section 112) ap plicable to sources required to have a permit under this title. Approval of a partial program shall not relieve the State of its obli gation to submit a complete program, nor from the application of any sanctions under this Act for failure to submit an approvable permit program. (g) INTERIM APPROVAL.—If a program (including a partial per mit program) submitted under this title substantially meets the re quirements of this title, but is not fully approvable, the Adminis trator may by rule grant the program interim approval. In the no tice of final rulemaking, the Administrator shall specify the changes that must be made before the program can receive full ap proval. An interim approval under this subsection shall expire on a date set by the Administrator not later than 2 years after such approval, and may not be renewed. For the period of any such in terim approval, the provisions of subsection (d)(2), and the obliga tion of the Administrator to promulgate a program under this title for the State pursuant to subsection (d)(3), shall be suspended. Such provisions and such obligation of the Administrator shall apply after the expiration of such interim approval. (h) EFFECTIVE DATE.—The effective date of a permit program, or partial or interim program, approved under this title, shall be the effective date of approval by the Administrator. The effective date of a permit program, or partial permit program, promulgated by the Administrator shall be the date of promulgation. (i) ADMINISTRATION AND ENFORCEMENT.—(1) Whenever the Ad ministrator makes a determination that a permitting authority is Q:\COMP\ENVIR1\CLEANAIR.005 February 24, 2004 390Sec. 503 CLEAN AIR ACT not adequately administering and enforcing a program, or portion thereof, in accordance with the requirements of this title, the Ad ministrator shall provide notice to the State and may, prior to the expiration of the 18-month period referred to in paragraph (2), in the Administrator’s discretion, apply any of the sanctions specified in section 179(b). (2) Whenever the Administrator makes a determination that a permitting authority is not adequately administering and enforcing a program, or portion thereof, in accordance with the requirements of this title, 18 months after the date of the notice under paragraph (1), the Administrator shall apply the sanctions under section 179(b) in the same manner and subject to the same deadlines and other conditions as are applicable in the case of a determination, disapproval, or finding under section 179(a). (3) The sanctions under section 179(b)(2) shall not apply pursu ant to this subsection in any area unless the failure to adequately enforce and administer the program relates to an air pollutant for which such area has been designated a nonattainment area. (4) Whenever the Administrator has made a finding under paragraph (1) with respect to any State, unless the State has cor rected such deficiency within 18 months after the date of such find ing, the Administrator shall, 2 years after the date of such finding, promulgate, administer, and enforce a program under this title for that State. Nothing in this paragraph shall be construed to affect the validity of a program which has been approved under this title or the authority of any permitting authority acting under such pro gram until such time as such program is promulgated by the Ad ministrator under this paragraph. [42 U.S.C. 7661a] SEC. 503. PERMIT APPLICATIONS. (a) APPLICABLE DATE.—Any source specified in section 502(a) shall become subject to a permit program, and required to have a permit, on the later of the following dates— (1) the effective date of a permit program or partial or in terim permit program applicable to the source; or (2) the date such source becomes subject to section 502(a). (b) COMPLIANCE PLAN.—(1) The regulations required by section 502(b) shall include a requirement that the applicant submit with the permit application a compliance plan describing how the source will comply with all applicable requirements under this Act. The compliance plan shall include a schedule of compliance, and a schedule under which the permittee will submit progress reports to the permitting authority no less frequently than every 6 months. (2) The regulations shall further require the permittee to peri odically (but no less frequently than annually) certify that the facil ity is in compliance with any applicable requirements of the per mit, and to promptly report any deviations from permit require ments to the permitting authority. (c) DEADLINE.—Any person required to have a permit shall, not later than 12 months after the date on which the source becomes subject to a permit program approved or promulgated under this title, or such earlier date as the permitting authority may estab lish, submit to the permitting authority a compliance plan and an Q:\COMP\ENVIR1\CLEANAIR.005 February 24, 2004 391 Sec. 504CLEAN AIR ACT application for a permit signed by a responsible official, who shall certify the accuracy of the information submitted. The permitting authority shall approve or disapprove a completed application (con sistent with the procedures established under this title for consid eration of such applications), and shall issue or deny the permit, within 18 months after the date of receipt thereof, except that the permitting authority shall establish a phased schedule for acting on permit applications submitted within the first full year after the effective date of a permit program (or a partial or interim pro gram). Any such schedule shall assure that at least one-third of such permits will be acted on by such authority annually over a pe riod of not to exceed 3 years after such effective date. Such author ity shall establish reasonable procedures to prioritize such approval or disapproval actions in the case of applications for construction or modification under the applicable requirements of this Act. (d) TIMELY AND COMPLETE APPLICATIONS.—Except for sources required to have a permit before construction or modification under the applicable requirements of this Act, if an applicant has sub mitted a timely and complete application for a permit required by this title (including renewals), but final action has not been taken on such application, the source’s failure to have a permit shall not be a violation of this Act, unless the delay in final action was due to the failure of the applicant timely to submit information re quired or requested to process the application. No source required to have a permit under this title shall be in violation of section 502(a) before the date on which the source is required to submit an application under subsection (c). (e) COPIES; AVAILABILITY.—A copy of each permit application, compliance plan (including the schedule of compliance), emissions or compliance monitoring report, certification, and each permit issued under this title, shall be available to the public. If an appli cant or permittee is required to submit information entitled to pro tection from disclosure under section 114(c) of this Act, the appli cant or permittee may submit such information separately. The re quirements of section 114(c) shall apply to such information. The contents of a permit shall not be entitled to protection under sec tion 114(c). [42 U.S.C. 7661b] SEC. 504. PERMIT REQUIREMENTS AND CONDITIONS. (a) CONDITIONS.—Each permit issued under this title shall in clude enforceable emission limitations and standards, a schedule of compliance, a requirement that the permittee submit to the permit ting authority, no less often than every 6 months, the results of any required monitoring, and such other conditions as are nec essary to assure compliance with applicable requirements of this Act, including the requirements of the applicable implementation plan. (b) MONITORING AND ANALYSIS.—The Administrator may by rule prescribe procedures and methods for determining compliance and for monitoring and analysis of pollutants regulated under this Act, but continuous emissions monitoring need not be required if alternative methods are available that provide sufficiently reliable and timely information for determining compliance. Nothing in this Q:\COMP\ENVIR1\CLEANAIR.005 February 24, 2004 392Sec. 505 CLEAN AIR ACT subsection shall be construed to affect any continuous emissions monitoring requirement of title IV, or where required elsewhere in this Act. (c) INSPECTION, ENTRY, MONITORING, CERTIFICATION, AND RE PORTING.—Each permit issued under this title shall set forth in spection, entry, monitoring, compliance certification, and reporting requirements to assure compliance with the permit terms and con ditions. Such monitoring and reporting requirements shall conform to any applicable regulation under subsection (b). Any report re quired to be submitted by a permit issued to a corporation under this title shall be signed by a responsible corporate official, who shall certify its accuracy. (d) GENERAL PERMITS.—The permitting authority may, after notice and opportunity for public hearing, issue a general permit covering numerous similar sources. Any general permit shall com ply with all requirements applicable to permits under this title. No source covered by a general permit shall thereby be relieved from the obligation to file an application under section 503. (e) TEMPORARY SOURCES.—The permitting authority may issue a single permit authorizing emissions from similar operations at multiple temporary locations. No such permit shall be issued un less it includes conditions that will assure compliance with all the requirements of this Act at all authorized locations, including, but not limited to, ambient standards and compliance with any applica ble increment or visibility requirements under part C of title I. Any such permit shall in addition require the owner or operator to no tify the permitting authority in advance of each change in location. The permitting authority may require a separate permit fee for op erations at each location. (f) PERMIT SHIELD.—Compliance with a permit issued in ac cordance with this title shall be deemed compliance with section 502. Except as otherwise provided by the Administrator by rule, the permit may also provide that compliance with the permit shall be deemed compliance with other applicable provisions of this Act that relate to the permittee if— (1) the permit includes the applicable requirements of such provisions, or (2) the permitting authority in acting on the permit appli cation makes a determination relating to the permittee that such other provisions (which shall be referred to in such deter mination) are not applicable and the permit includes the deter mination or a concise summary thereof. Nothing in the preceding sentence shall alter or affect the provi sions of section 303, including the authority of the Administrator under that section. [42 U.S.C. 7661c] SEC. 505. NOTIFICATION TO ADMINISTRATOR AND CONTIGUOUS STATES. (a) TRANSMISSION AND NOTICE.—(1) Each permitting authority— (A) shall transmit to the Administrator a copy of each per mit application (and any application for a permit modification or renewal) or such portion thereof, including any compliance Q:\COMP\ENVIR1\CLEANAIR.005 February 24, 2004 393 Sec. 505CLEAN AIR ACT plan, as the Administrator may require to effectively review the application and otherwise to carry out the Administrator’s responsibilities under this Act, and (B) shall provide to the Administrator a copy of each per mit proposed to be issued and issued as a final permit. (2) The permitting authority shall notify all States— (A) whose air quality may be affected and that are contig uous to the State in which the emission originates, or (B) that are within 50 miles of the source, of each permit application or proposed permit forwarded to the Ad ministrator under this section, and shall provide an opportunity for such States to submit written recommendations respecting the issuance of the permit and its terms and conditions. If any part of those recommendations are not accepted by the permitting author ity, such authority shall notify the State submitting the rec ommendations and the Administrator in writing of its failure to ac cept those recommendations and the reasons therefor. (b) OBJECTION BY EPA.—(1) If any permit contains provisions that are determined by the Administrator as not in compliance with the applicable requirements of this Act, including the require ments of an applicable implementation plan, the Administrator shall, in accordance with this subsection, object to its issuance. The permitting authority shall respond in writing if the Administrator (A) within 45 days after receiving a copy of the proposed permit under subsection (a)(1), or (B) within 45 days after receiving notifi cation under subsection (a)(2), objects in writing to its issuance as not in compliance with such requirements. With the objection, the Administrator shall provide a statement of the reasons for the ob jection. A copy of the objection and statement shall be provided to the applicant. (2) If the Administrator does not object in writing to the issuance of a permit pursuant to paragraph (1), any person may pe tition the Administrator within 60 days after the expiration of the 45-day review period specified in paragraph (1) to take such action. A copy of such petition shall be provided to the permitting author ity and the applicant by the petitioner. The petition shall be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the per mitting agency (unless the petitioner demonstrates in the petition to the Administrator that it was impracticable to raise such objec tions within such period or unless the grounds for such objection arose after such period). The petition shall identify all such objec tions. If the permit has been issued by the permitting agency, such petition shall not postpone the effectiveness of the permit. The Ad ministrator shall grant or deny such petition within 60 days after the petition is filed. The Administrator shall issue an objection within such period if the petitioner demonstrates to the Adminis trator that the permit is not in compliance with the requirements of this Act, including the requirements of the applicable implemen tation plan. Any denial of such petition shall be subject to judicial review under section 307. The Administrator shall include in regu lations under this title provisions to implement this paragraph. The Administrator may not delegate the requirements of this para graph. Q:\COMP\ENVIR1\CLEANAIR.005 February 24, 2004 394Sec. 506 CLEAN AIR ACT (3) Upon receipt of an objection by the Administrator under this subsection, the permitting authority may not issue the permit unless it is revised and issued in accordance with subsection (c). If the permitting authority has issued a permit prior to receipt of an objection by the Administrator under paragraph (2) of this sub section, the Administrator shall modify, terminate, or revoke such permit and the permitting authority may thereafter only issue a re vised permit in accordance with subsection (c). (c) ISSUANCE OR DENIAL.—If the permitting authority fails, within 90 days after the date of an objection under subsection (b), to submit a permit revised to meet the objection, the Administrator shall issue or deny the permit in accordance with the requirements of this title. No objection shall be subject to judicial review until the Administrator takes final action to issue or deny a permit under this subsection. (d) WAIVER OF NOTIFICATION REQUIREMENTS.—(1) The Admin istrator may waive the requirements of subsections (a) and (b) at the time of approval of a permit program under this title for any category (including any class, type, or size within such category) of sources covered by the program other than major sources. (2) The Administrator may, by regulation, establish categories of sources (including any class, type, or size within such category) to which the requirements of subsections (a) and (b) shall not apply. The preceding sentence shall not apply to major sources. (3) The Administrator may exclude from any waiver under this subsection notification under subsection (a)(2). Any waiver granted under this subsection may be revoked or modified by the Adminis trator by rule. (e) REFUSAL OF PERMITTING AUTHORITY TO TERMINATE, MOD IFY, OR REVOKE AND REISSUE.—If the Administrator finds that cause exists to terminate, modify, or revoke and reissue a permit under this title, the Administrator shall notify the permitting au thority and the source of the Administrator’s finding. The permit ting authority shall, within 90 days after receipt of such notifica tion, forward to the Administrator under this section a proposed determination of termination, modification, or revocation and reissuance, as appropriate. The Administrator may extend such 90 day period for an additional 90 days if the Administrator finds that a new or revised permit application is necessary, or that the per mitting authority must require the permittee to submit additional information. The Administrator may review such proposed deter mination under the provisions of subsections (a) and (b). If the per mitting authority fails to submit the required proposed determina tion, or if the Administrator objects and the permitting authority fails to resolve the objection within 90 days, the Administrator may, after notice and in accordance with fair and reasonable proce dures, terminate, modify, or revoke and reissue the permit. [42 U.S.C. 7661d] SEC. 506. OTHER AUTHORITIES. (a) IN GENERAL.—Nothing in this title shall prevent a State, or interstate permitting authority, from establishing additional per mitting requirements not inconsistent with this Act. Q:\COMP\ENVIR1\CLEANAIR.005 February 24, 2004 395 Sec. 507CLEAN AIR ACT (b) PERMITS IMPLEMENTING ACID RAIN PROVISIONS.—The provi sions of this title, including provisions regarding schedules for sub mission and approval or disapproval of permit applications, shall apply to permits implementing the requirements of title IV except as modified by that title. [42 U.S.C. 7661e] SEC. 507. SMALL BUSINESS STATIONARY SOURCE TECHNICAL AND EN VIRONMENTAL COMPLIANCE ASSISTANCE PROGRAM. (a) PLAN REVISIONS.—Consistent with sections 110 and 112, each State shall, after reasonable notice and public hearings, adopt and submit to the Administrator as part of the State implementa tion plan for such State or as a revision to such State implementa tion plan under section 110, plans for establishing a small business stationary source technical and environmental compliance assist ance program. Such submission shall be made within 24 months after the date of the enactment of the Clean Air Act Amendments of 1990. The Administrator shall approve such program if it in cludes each of the following: (1) Adequate mechanisms for developing, collecting, and coordinating information concerning compliance methods and technologies for small business stationary sources, and pro grams to encourage lawful cooperation among such sources and other persons to further compliance with this Act. (2) Adequate mechanisms for assisting small business sta tionary sources with pollution prevention and accidental re lease detection and prevention, including providing information concerning alternative technologies, process changes, products, and methods of operation that help reduce air pollution. (3) A designated State office within the relevant State agency to serve as ombudsman for small business stationary sources in connection with the implementation of this Act. (4) A compliance assistance program for small business stationary sources which assists small business stationary sources in determining applicable requirements and in receiv ing permits under this Act in a timely and efficient manner. (5) Adequate mechanisms to assure that small business stationary sources receive notice of their rights under this Act in such manner and form as to assure reasonably adequate time for such sources to evaluate compliance methods and any relevant or applicable proposed or final regulation or standard issued under this Act. (6) Adequate mechanisms for informing small business sta tionary sources of their obligations under this Act, including mechanisms for referring such sources to qualified auditors or, at the option of the State, for providing audits of the oper ations of such sources to determine compliance with this Act. (7) Procedures for consideration of requests from a small business stationary source for modification of— (A) any work practice or technological method of com pliance, or (B) the schedule of milestones for implementing such work practice or method of compliance preceding any ap plicable compliance date, Q:\COMP\ENVIR1\CLEANAIR.005 February 24, 2004 396Sec. 507 CLEAN AIR ACT 1 Should be ‘‘subparagraph’’. based on the technological and financial capability of any such small business stationary source. No such modification may be granted unless it is in compliance with the applicable require ments of this Act, including the requirements of the applicable implementation plan. Where such applicable requirements are set forth in Federal regulations, only modifications authorized in such regulations may be allowed. (b) PROGRAM.—The Administrator shall establish within 9 months after the date of the enactment of the Clean Air Act Amendments of 1990 a small business stationary source technical and environmental compliance assistance program. Such program shall— (1) assist the States in the development of the program re quired under subsection (a) (relating to assistance for small business stationary sources); (2) issue guidance for the use of the States in the imple mentation of these programs that includes alternative control technologies and pollution prevention methods applicable to small business stationary sources; and (3) provide for implementation of the program provisions required under subsection (a)(4) in any State that fails to sub mit such a program under that subsection. (c) ELIGIBILITY.—(1) Except as provided in paragraphs (2) and (3), for purposes of this section, the term ‘‘small business stationary source’’ means a stationary source that— (A) is owned or operated by a person that employs 100 or fewer individuals, (B) is a small business concern as defined in the Small Business Act; (C) is not a major stationary source; (D) does not emit 50 tons or more per year of any regu lated pollutant; and (E) emits less than 75 tons per year of all regulated pollut ants. (2) Upon petition by a source, the State may, after notice and opportunity for public comment, include as a small business sta tionary source for purposes of this section any stationary source which does not meet the criteria of subparagraphs 1 (C), (D), or (E) of paragraph (1) but which does not emit more than 100 tons per year of all regulated pollutants. (3)(A) The Administrator, in consultation with the Adminis trator of the Small Business Administration and after providing no tice and opportunity for public comment, may exclude from the small business stationary source definition under this section any category or subcategory of sources that the Administrator deter mines to have sufficient technical and financial capabilities to meet the requirements of this Act without the application of this sub section. (B) The State, in consultation with the Administrator and the Administrator of the Small Business Administration and after pro viding notice and opportunity for public hearing, may exclude from the small business stationary source definition under this section Q:\COMP\ENVIR1\CLEANAIR.005 February 24, 2004 397 Sec. 507CLEAN AIR ACT 1 Probably should be ‘‘Small Business Stationary Source Technical and Environmental Compli ance Assistance Program’’. any category or subcategory of sources that the State determines to have sufficient technical and financial capabilities to meet the requirements of this Act without the application of this subsection. (d) MONITORING.—The Administrator shall direct the Agency’s Office of Small and Disadvantaged Business Utilization through the Small Business Ombudsman (hereinafter in this section re ferred to as the ‘‘Ombudsman’’) to monitor the small business sta tionary source technical and environmental compliance assistance program under this section. In carrying out such monitoring activi ties, the Ombudsman shall— (1) render advisory opinions on the overall effectiveness of the Small Business Stationary Source Technical and Environ mental Compliance Assistance Program, difficulties encoun tered, and degree and severity of enforcement; (2) make periodic reports to the Congress on the compli ance of the Small Business Stationary Source Technical and Environmental Compliance Assistance Program with the re quirements of the Paperwork Reduction Act, the Regulatory Flexibility Act, and the Equal Access to Justice Act; (3) review information to be issued by the Small Business Stationary Source Technical and Environmental Compliance Assistance Program for small business stationary sources to ensure that the information is understandable by the layperson; and (4) have the Small Business Stationary Source Technical and Environmental Compliance Assistance Program serve as the secretariat for the development and dissemination of such reports and advisory opinions. (e) COMPLIANCE ADVISORY PANEL.—(1) There shall be created a Compliance Advisory Panel (hereinafter referred to as the ‘‘Panel’’) on the State level of not less than 7 individuals. This Panel shall— (A) render advisory opinions concerning the effectiveness of the small business stationary source technical and environ mental compliance assistance program, 1 difficulties encoun tered, and degree and severity of enforcement; (B) make periodic reports to the Administrator concerning the compliance of the State Small Business Stationary Source Technical and Environmental Compliance Assistance Program with the requirements of the Paperwork Reduction Act, the Regulatory Flexibility Act, and the Equal Access to Justice Act; (C) review information for small business stationary sources to assure such information is understandable by the layperson; and (D) have the Small Business Stationary Source Technical and Environmental Compliance Assistance Program serve as the secretariat for the development and dissemination of such reports and advisory opinions. (2) The Panel shall consist of— Q:\COMP\ENVIR1\CLEANAIR.005 February 24, 2004 398Sec. 507 CLEAN AIR ACT 1 So in original. Does not conform to section heading as noted in brackets. (A) 2 members, who are not owners, or representatives of owners, of small business stationary sources, selected by the Governor to represent the general public; (B) 2 members selected by the State legislature who are owners, or who represent owners, of small business stationary sources (1 member each by the majority and minority leader ship of the lower house, or in the case of a unicameral State legislature, 2 members each shall be selected by the majority leadership and the minority leadership, respectively, of such legislature, and subparagraph (C) shall not apply); (C) 2 members selected by the State legislature who are owners, or who represent owners, of small business stationary sources (1 member each by the majority and minority leader ship of the upper house, or the equivalent State entity); and (D) 1 member selected by the head of the department or agency of the State responsible for air pollution permit pro grams to represent that agency. (f) FEES.—The State (or the Administrator) may reduce any fee required under this Act to take into account the financial resources of small business stationary sources. (g) CONTINUOUS EMISSION MONITORS.—In developing regula tions and CTGs under this Act that contain continuous emission monitoring requirements, the Administrator, consistent with the requirements of this Act, before applying such requirements to small business stationary sources, shall consider the necessity and appropriateness of such requirements for such sources. Nothing in this subsection shall affect the applicability of title IV provisions relating to continuous emissions monitoring. (h) CONTROL TECHNIQUE GUIDELINES.—The Administrator shall consider, consistent with the requirements of this Act, the size, type, and technical capabilities of small business stationary sources (and sources which are eligible under subsection (c)(2) to be treated as small business stationary sources) in developing CTGs applicable to such sources under this Act. [42 U.S.C. 7661f] TITLE VI—STRATOSPHERIC OZONE PROTECTION TABLE OF CONTENTS Sec. 601. Definitions. Sec. 602. Listing of class I and class II substances. Sec. 603. Monitoring and reporting requirements. Sec. 604. Phase-out of production and consumption of class I substances. Sec. 605. Phase-out of production and consumption of class II substances. Sec. 606. Accelerated schedule. Sec. 607. Exchanges. [Exchange authority.] 1 Sec. 608. National recycling and emission reduction program. Sec. 609. Servicing of motor vehicle air conditioners. Sec. 610. Nonessential products containing chlorofluorocarbons. Sec. 611. Labeling. Sec. 612. Safe alternatives policy. Sec. 613. Federal procurement. Q:\COMP\ENVIR1\CLEANAIR.005 February 24, 2004 399 Sec. 601CLEAN AIR ACT 1 So in original. Does not conform to section heading as noted in brackets. Sec. 614. Relationship to other law. Sec. 615. Authority of Administrator. Sec. 616. Transfers among Parties to [the] 1 Montreal Protocol. Sec. 617. International cooperation. Sec. 618. Miscellaneous [provisions]. 1 SEC. 601. DEFINITIONS. As used in this title— (1) APPLIANCE.—The term ‘‘appliance’’ means any device which contains and uses a class I or class II substance as a re frigerant and which is used for household or commercial pur poses, including any air conditioner, refrigerator, chiller, or freezer. (2) BASELINE YEAR.—The term ‘‘baseline year’’ means— (A) the calendar year 1986, in the case of any class I substance listed in Group I or II under section 602(a), (B) the calendar year 1989, in the case of any class I substance listed in Group III, IV, or V under section 602(a), and (C) a representative calendar year selected by the Ad ministrator, in the case of— (i) any substance added to the list of class I sub stances after the publication of the initial list under section 602(a), and (ii) any class II substance. (3) CLASS I SUBSTANCE.—The term ‘‘class I substance’’ means each of the substances listed as provided in section 602(a). (4) CLASS II SUBSTANCE.—The term ‘‘class II substance’’ means each of the substances listed as provided in section 602(b). (5) COMMISSIONER.—The term ‘‘Commissioner’’ means the Commissioner of the Food and Drug Administration. (6) CONSUMPTION.—The term ‘‘consumption’’ means, with respect to any substance, the amount of that substance pro duced in the United States, plus the amount imported, minus the amount exported to Parties to the Montreal Protocol. Such term shall be construed in a manner consistent with the Mon treal Protocol. (7) IMPORT.—The term ‘‘import’’ means to land on, bring into, or introduce into, or attempt to land on, bring into, or in troduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States. (8) MEDICAL DEVICE.—The term ‘‘medical device’’ means any device (as defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321)), diagnostic product, drug (as defined in the Federal Food, Drug, and Cosmetic Act), and drug delivery system— (A) if such device, product, drug, or drug delivery sys tem utilizes a class I or class II substance for which no safe and effective alternative has been developed, and where necessary, approved by the Commissioner; and Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 400Sec. 601 CLEAN AIR ACT (B) if such device, product, drug, or drug delivery sys tem, has, after notice and opportunity for public comment, been approved and determined to be essential by the Com missioner in consultation with the Administrator. (9) MONTREAL PROTOCOL.—The terms ‘‘Montreal Protocol’’ and ‘‘the Protocol’’ mean the Montreal Protocol on Substances that Deplete the Ozone Layer, a protocol to the Vienna Con vention for the Protection of the Ozone Layer, including adjust ments adopted by Parties thereto and amendments that have entered into force. (10) OZONE-DEPLETION POTENTIAL.—The term ‘‘ozone-de pletion potential’’ means a factor established by the Adminis trator to reflect the ozone-depletion potential of a substance, on a mass per kilogram basis, as compared to chlorofluorocarbon 11 (CFC–11). Such factor shall be based upon the substance’s atmospheric lifetime, the molecular weight of bromine and chlorine, and the substance’s ability to be photolytically dis associated, and upon other factors determined to be an accu rate measure of relative ozone-depletion potential. (11) PRODUCE, PRODUCED, AND PRODUCTION.—The terms ‘‘produce’’, ‘‘produced’’, and ‘‘production’’, refer to the manufac ture of a substance from any raw material or feedstock chem ical, but such terms do not include— (A) the manufacture of a substance that is used and entirely consumed (except for trace quantities) in the man ufacture of other chemicals, or (B) the reuse or recycling of a substance. [42 U.S.C. 7671] SEC. 602. LISTING OF CLASS I AND CLASS II SUBSTANCES. (a) LIST OF CLASS I SUBSTANCES.—Within 60 days after enact ment of the Clean Air Act Amendments of 1990, the Administrator shall publish an initial list of class I substances, which list shall contain the following substances: Group I chlorofluorocarbon-11 (CFC–11) chlorofluorocarbon-12 (CFC–12) chlorofluorocarbon-113 (CFC–113) chlorofluorocarbon-114 (CFC–114) chlorofluorocarbon-115 (CFC–115) Group II halon-1211 halon-1301 halon-2402 Group III chlorofluorocarbon-13 (CFC–13) chlorofluorocarbon-111 (CFC–111) chlorofluorocarbon-112 (CFC–112) chlorofluorocarbon-211 (CFC–211) chlorofluorocarbon-212 (CFC–212) chlorofluorocarbon-213 (CFC–213) chlorofluorocarbon-214 (CFC–214) chlorofluorocarbon-215 (CFC–215) chlorofluorocarbon-216 (CFC–216) chlorofluorocarbon-217 (CFC–217) Group IV Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 401 Sec. 602CLEAN AIR ACT carbon tetrachloride Group V methyl chloroform The initial list under this subsection shall also include the isomers of the substances listed above, other than 1,1,2-trichloroethane (an isomer of methyl chloroform). Pursuant to subsection (c), the Ad ministrator shall add to the list of class I substances any other sub stance that the Administrator finds causes or contributes signifi cantly to harmful effects on the stratospheric ozone layer. The Ad ministrator shall, pursuant to subsection (c), add to such list all substances that the Administrator determines have an ozone deple tion potential of 0.2 or greater. (b) LIST OF CLASS II SUBSTANCES.—Simultaneously with publi cation of the initial list of class I substances, the Administrator shall publish an initial list of class II substances, which shall con tain the following substances: hydrochlorofluorocarbon-21 (HCFC–21) hydrochlorofluorocarbon-22 (HCFC–22) hydrochlorofluorocarbon-31 (HCFC–31) hydrochlorofluorocarbon-121 (HCFC–121) hydrochlorofluorocarbon-122 (HCFC–122) hydrochlorofluorocarbon-123 (HCFC–123) hydrochlorofluorocarbon-124 (HCFC–124) hydrochlorofluorocarbon-131 (HCFC–131) hydrochlorofluorocarbon-132 (HCFC–132) hydrochlorofluorocarbon-133 (HCFC–133) hydrochlorofluorocarbon-141 (HCFC–141) hydrochlorofluorocarbon-142 (HCFC–142) hydrochlorofluorocarbon-221 (HCFC–221) hydrochlorofluorocarbon-222 (HCFC–222) hydrochlorofluorocarbon-223 (HCFC–223) hydrochlorofluorocarbon-224 (HCFC–224) hydrochlorofluorocarbon-225 (HCFC–225) hydrochlorofluorocarbon-226 (HCFC–226) hydrochlorofluorocarbon-231 (HCFC–231) hydrochlorofluorocarbon-232 (HCFC–232) hydrochlorofluorocarbon-233 (HCFC–233) hydrochlorofluorocarbon-234 (HCFC–234) hydrochlorofluorocarbon-235 (HCFC–235) hydrochlorofluorocarbon-241 (HCFC–241) hydrochlorofluorocarbon-242 (HCFC–242) hydrochlorofluorocarbon-243 (HCFC–243) hydrochlorofluorocarbon-244 (HCFC–244) hydrochlorofluorocarbon-251 (HCFC–251) hydrochlorofluorocarbon-252 (HCFC–252) hydrochlorofluorocarbon-253 (HCFC–253) hydrochlorofluorocarbon-261 (HCFC–261) hydrochlorofluorocarbon-262 (HCFC–262) hydrochlorofluorocarbon-271 (HCFC–271) The initial list under this subsection shall also include the isomers of the substances listed above. Pursuant to subsection (c), the Ad ministrator shall add to the list of class II substances any other substance that the Administrator finds is known or may reasonably be anticipated to cause or contribute to harmful effects on the stratospheric ozone layer. (c) ADDITIONS TO THE LISTS.—(1) The Administrator may add, by rule, in accordance with the criteria set forth in subsection (a) or (b), as the case may be, any substance to the list of class I or class II substances under subsection (a) or (b). For purposes of ex Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 402Sec. 602 CLEAN AIR ACT 1 Probably should be section 607. changes under section 507, 1 whenever a substance is added to the list of class I substances the Administrator shall, to the extent con sistent with the Montreal Protocol, assign such substance to exist ing Group I, II, III, IV, or V or place such substance in a new Group. (2) Periodically, but not less frequently than every 3 years after the enactment of the Clean Air Act Amendments of 1990, the Administrator shall list, by rule, as additional class I or class II substances those substances which the Administrator finds meet the criteria of subsection (a) or (b), as the case may be. (3) At any time, any person may petition the Administrator to add a substance to the list of class I or class II substances. Pursu ant to the criteria set forth in subsection (a) or (b) as the case may be, within 180 days after receiving such a petition, the Adminis trator shall either propose to add the substance to such list or pub lish an explanation of the petition denial. In any case where the Administrator proposes to add a substance to such list, the Admin istrator shall add, by rule, (or make a final determination not to add) such substance to such list within 1 year after receiving such petition. Any petition under this paragraph shall include a showing by the petitioner that there are data on the substance adequate to support the petition. If the Administrator determines that informa tion on the substance is not sufficient to make a determination under this paragraph, the Administrator shall use any authority available to the Administrator, under any law administered by the Administrator, to acquire such information. (4) Only a class II substance which is added to the list of class I substances may be removed from the list of class II substances. No substance referred to in subsection (a), including methyl chloro form, may be removed from the list of class I substances. (d) NEW LISTED SUBSTANCES.—In the case of any substance added to the list of class I or class II substances after publication of the initial list of such substances under this section, the Admin istrator may extend any schedule or compliance deadline contained in section 604 or 605 to a later date than specified in such sections if such schedule or deadline is unattainable, considering when such substance is added to the list. No extension under this subsection may extend the date for termination of production of any class I substance to a date more than 7 years after January 1 of the year after the year in which the substance is added to the list of class I substances. No extension under this subsection may extend the date for termination of production of any class II substance to a date more than 10 years after January 1 of the year after the year in which the substance is added to the list of class II substances. (e) OZONE-DEPLETION AND GLOBAL WARMING POTENTIAL.—Si multaneously with publication of the lists under this section and si multaneously with any addition to either of such lists, the Adminis trator shall assign to each listed substance a numerical value rep resenting the substance’s ozone-depletion potential. In addition, the Administrator shall publish the chlorine and bromine loading po tential and the atmospheric lifetime of each listed substance. One year after enactment of the Clean Air Act Amendments of 1990 Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 403 Sec. 603CLEAN AIR ACT (one year after the addition of a substance to either of such lists in the case of a substance added after the publication of the initial lists of such substances), and after notice and opportunity for pub lic comment, the Administrator shall publish the global warming potential of each listed substance. The preceding sentence shall not be construed to be the basis of any additional regulation under this Act. In the case of the substances referred to in table 1, the ozone depletion potential shall be as specified in table 1, unless the Ad ministrator adjusts the substance’s ozone-depletion potential based on criteria referred to in section 601(10): TABLE 1 Substance Ozone-depletionpotential chlorofluorocarbon-11 (CFC–11) ......................................................... 1.0 chlorofluorocarbon-12 (CFC–12) ......................................................... 1.0 chlorofluorocarbon-13 (CFC–13) ......................................................... 1.0 chlorofluorocarbon-111 (CFC–111) ..................................................... 1.0 chlorofluorocarbon-112 (CFC–112) ..................................................... 1.0 chlorofluorocarbon-113 (CFC–113) ..................................................... 0.8 chlorofluorocarbon-114 (CFC–114) ..................................................... 1.0 chlorofluorocarbon-115 (CFC–115) ..................................................... 0.6 chlorofluorocarbon-211 (CFC–211) ..................................................... 1.0 chlorofluorocarbon-212 (CFC–212) ..................................................... 1.0 chlorofluorocarbon-213 (CFC–213) ..................................................... 1.0 chlorofluorocarbon-214 (CFC–214) ..................................................... 1.0 chlorofluorocarbon-215 (CFC–215) ..................................................... 1.0 chlorofluorocarbon-216 (CFC–216) ..................................................... 1.0 chlorofluorocarbon-217 (CFC–217) ..................................................... 1.0 halon-1211 ............................................................................................ 3.0 halon-1301 ............................................................................................ 10.0 halon-2402 ............................................................................................ 6.0 carbon tetrachloride ............................................................................ 1.1 methyl chloroform ............................................................................... 0.1 hydrochlorofluorocarbon-22 (HCFC–22) ............................................ 0.05 hydrochlorofluorocarbon-123 (HCFC–123) ........................................ 0.02 hydrochlorofluorocarbon-124 (HCFC–124) ........................................ 0.02 hydrochlorofluorocarbon-141(b) (HCFC–141(b)) ............................... 0.1 hydrochlorofluorocarbon-142(b) (HCFC–142(b)) ............................... 0.06 Where the ozone-depletion potential of a substance is specified in the Montreal Protocol, the ozone-depletion potential specified for that substance under this section shall be consistent with the Mon treal Protocol. [42 U.S.C. 7671a] SEC. 603. MONITORING AND REPORTING REQUIREMENTS. (a) REGULATIONS.—Within 270 days after the enactment of the Clean Air Act Amendments of 1990, the Administrator shall amend the regulations of the Administrator in effect on such date regard ing monitoring and reporting of class I and class II substances. Such amendments shall conform to the requirements of this sec tion. The amended regulations shall include requirements with re spect to the time and manner of monitoring and reporting as re quired under this section. (b) PRODUCTION, IMPORT, AND EXPORT LEVEL REPORTS.—On a quarterly basis, or such other basis (not less than annually) as de termined by the Administrator, each person who produced, im Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 404Sec. 603 CLEAN AIR ACT ported, or exported a class I or class II substance shall file a report with the Administrator setting forth the amount of the substance that such person produced, imported, and exported during the pre ceding reporting period. Each such report shall be signed and at tested by a responsible officer. No such report shall be required from a person after April 1 of the calendar year after such person permanently ceases production, importation, and exportation of the substance and so notifies the Administrator in writing. (c) BASELINE REPORTS FOR CLASS I SUBSTANCES.—Unless such information has previously been reported to the Administrator, on the date on which the first report under subsection (b) is required to be filed, each person who produced, imported, or exported a class I substance (other than a substance added to the list of class I sub stances after the publication of the initial list of such substances under this section) shall file a report with the Administrator set ting forth the amount of such substance that such person produced, imported, and exported during the baseline year. In the case of a substance added to the list of class I substances after publication of the initial list of such substances under this section, the regula tions shall require that each person who produced, imported, or ex ported such substance shall file a report with the Administrator within 180 days after the date on which such substance is added to the list, setting forth the amount of the substance that such per son produced, imported, and exported in the baseline year. (d) MONITORING AND REPORTS TO CONGRESS.—(1) The Adminis trator shall monitor and, not less often than every 3 years following enactment of the Clean Air Act Amendments of 1990, submit a re port to Congress on the production, use and consumption of class I and class II substances. Such report shall include data on domes tic production, use and consumption, and an estimate of worldwide production, use and consumption of such substances. Not less fre quently than every 6 years the Administrator shall report to Con gress on the environmental and economic effects of any strato spheric ozone depletion. (2) The Administrators of the National Aeronautics and Space Administration and the National Oceanic and Atmospheric Admin istration shall monitor, and not less often than every 3 years fol lowing enactment of the Clean Air Act Amendments of 1990, sub mit a report to Congress on the current average tropospheric con centration of chlorine and bromine and on the level of stratospheric ozone depletion. Such reports shall include updated projections of— (A) peak chlorine loading; (B) the rate at which the atmospheric abundance of chlo rine is projected to decrease after the year 2000; and (C) the date by which the atmospheric abundance of chlo rine is projected to return to a level of two parts per billion. Such updated projections shall be made on the basis of current international and domestic controls on substances covered by this title as well as on the basis of such controls supplemented by a year 2000 global phase out of all halocarbon emissions (the base case). It is the purpose of the Congress through the provisions of this section to monitor closely the production and consumption of class II substances to assure that the production and consumption of such substances will not: Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 405 Sec. 604CLEAN AIR ACT (i) increase significantly the peak chlorine loading that is projected to occur under the base case established for purposes of this section; (ii) reduce significantly the rate at which the atmospheric abundance of chlorine is projected to decrease under the base case; or (iii) delay the date by which the average atmospheric con centration of chlorine is projected under the base case to return to a level of two parts per billion. (e) TECHNOLOGY STATUS REPORT IN 2015.—The Administrator shall review, on a periodic basis, the progress being made in the development of alternative systems or products necessary to manu facture and operate appliances without class II substances. If the Administrator finds, after notice and opportunity for public com ment, that as a result of technological development problems, the development of such alternative systems or products will not occur within the time necessary to provide for the manufacture of such equipment without such substances prior to the applicable dead lines under section 605, the Administrator shall, not later than January 1, 2015, so inform the Congress. (f) EMERGENCY REPORT.—If, in consultation with the Adminis trators of the National Aeronautics and Space Administration and the National Oceanic and Atmospheric Administration, and after notice and opportunity for public comment, the Administrator de termines that the global production, consumption, and use of class II substances are projected to contribute to an atmospheric chlorine loading in excess of the base case projections by more than 5⁄10ths parts per billion, the Administrator shall so inform the Congress immediately. The determination referred to in the preceding sen tence shall be based on the monitoring under subsection (d) and updated not less often than every 3 years. [42 U.S.C. 7671b] SEC. 604. PHASE-OUT OF PRODUCTION AND CONSUMPTION OF CLASS I SUBSTANCES. (a) PRODUCTION PHASE-OUT.—Effective on January 1 of each year specified in Table 2, it shall be unlawful for any person to produce any class I substance in an annual quantity greater than the relevant percentage specified in Table 2. The percentages in Table 2 refer to a maximum allowable production as a percentage of the quantity of the substance produced by the person concerned in the baseline year. Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 406Sec. 604 CLEAN AIR ACT TABLE 2 Date Carbon tetrachloride Methyl chloro-form Other class I sub stances 1991 ..................... 100% ............................ 100% .................. 85% 1992 ..................... 90% ............................ 100% .................. 80% 1993 ..................... 80% ............................ 90% .................. 75% 1994 ..................... 70% ............................ 85% .................. 65% 1995 ..................... 15% ............................ 70% .................. 50% 1996 ..................... 15% ............................ 50% .................. 40% 1997 ..................... 15% ............................ 50% .................. 15% 1998 ..................... 15% ............................ 50% .................. 15% 1999 ..................... 15% ............................ 50% .................. 15% 2000 ..................... ....................................... 20% .................. 2001 ..................... ....................................... 20% .................. (b) TERMINATION OF PRODUCTION OF CLASS I SUBSTANCES.—Ef fective January 1, 2000 (January 1, 2002 in the case of methyl chloroform), it shall be unlawful for any person to produce any amount of a class I substance. (c) REGULATIONS REGARDING PRODUCTION AND CONSUMPTION OF CLASS I SUBSTANCES.—The Administrator shall promulgate reg ulations within 10 months after the enactment of the Clean Air Act Amendments of 1990 phasing out the production of class I sub stances in accordance with this section and other applicable provi sions of this title. The Administrator shall also promulgate regula tions to insure that the consumption of class I substances in the United States is phased out and terminated in accordance with the same schedule (subject to the same exceptions and other provi sions) as is applicable to the phase-out and termination of produc tion of class I substances under this title. (d) EXCEPTIONS FOR ESSENTIAL USES OF METHYL CHLOROFORM, MEDICAL DEVICES, AND AVIATION SAFETY.— (1) ESSENTIAL USES OF METHYL CHLOROFORM.—Notwith standing the termination of production required by subsection (b), during the period beginning on January 1, 2002, and end ing on January 1, 2005, the Administrator, after notice and op portunity for public comment, may, to the extent such action is consistent with the Montreal Protocol, authorize the produc tion of limited quantities of methyl chloroform solely for use in essential applications (such as nondestructive testing for metal fatigue and corrosion of existing airplane engines and airplane parts susceptible to metal fatigue) for which no safe and effec tive substitute is available. Notwithstanding this paragraph, the authority to produce methyl chloroform for use in medical devices shall be provided in accordance with paragraph (2). (2) MEDICAL DEVICES.—Notwithstanding the termination of production required by subsection (b), the Administrator, after notice and opportunity for public comment, shall, to the extent such action is consistent with the Montreal Protocol, authorize the production of limited quantities of class I substances solely for use in medical devices if such authorization is determined by the Commissioner, in consultation with the Administrator, to be necessary for use in medical devices. (3) AVIATION SAFETY.—(A) Notwithstanding the termi nation of production required by subsection (b), the Adminis Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 407 Sec. 604CLEAN AIR ACT trator, after notice and opportunity for public comment, may, to the extent such action is consistent with the Montreal Pro tocol, authorize the production of limited quantities of halon 1211 (bromochlorodifluoromethane), halon-1301 (bromotrifluoromethane), and halon-2402 (dibromotetrafluoroethane) solely for purposes of aviation safe ty if the Administrator of the Federal Aviation Administration, in consultation with the Administrator, determines that no safe and effective substitute has been developed and that such authorization is necessary for aviation safety purposes. (B) The Administrator of the Federal Aviation Administra tion shall, in consultation with the Administrator, examine whether safe and effective substitutes for methyl chloroform or alternative techniques will be available for nondestructive test ing for metal fatigue and corrosion of existing airplane engines and airplane parts susceptible to metal fatigue and whether an exception for such uses of methyl chloroform under this para graph will be necessary for purposes of airline safety after Jan uary 1, 2005 and provide a report to Congress in 1998. (4) CAP ON CERTAIN EXCEPTIONS.—Under no circumstances may the authority set forth in paragraphs (1), (2), and (3) of subsection (d) be applied to authorize any person to produce a class I substance in annual quantities greater than 10 percent of that produced by such person during the baseline year. (5) SANITATION AND FOOD PROTECTION.—To the extent con sistent with the Montreal Protocol’s quarantine and preshipment provisions, the Administrator shall exempt the production, importation, and consumption of methyl bromide to fumigate commodities entering or leaving the United States or any State (or political subdivision thereof) for purposes of com pliance with Animal and Plant Health Inspection Service re quirements or with any international, Federal, State, or local sanitation or food protection standard. (6) CRITICAL USES.—To the extent consistent with the Montreal Protocol, the Administrator, after notice and the op portunity for public comment, and after consultation with other departments or instrumentalities of the Federal Govern ment having regulatory authority related to methyl bromide, including the Secretary of Agriculture, may exempt the produc tion, importation, and consumption of methyl bromide for crit ical uses. (e) DEVELOPING COUNTRIES.— (1) EXCEPTION.—Notwithstanding the phase-out and termi nation of production required under subsections (a) and (b), the Administrator, after notice and opportunity for public com ment, may, consistent with the Montreal Protocol, authorize the production of limited quantities of a class I substance in excess of the amounts otherwise allowable under subsection (a) or (b), or both, solely for export to, and use in, developing coun tries that are Parties to the Montreal Protocol and are oper ating under article 5 of such Protocol. Any production author ized under this paragraph shall be solely for purposes of satis fying the basic domestic needs of such countries. Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 408Sec. 604 CLEAN AIR ACT (2) CAP ON EXCEPTION.—(A) Under no circumstances may the authority set forth in paragraph (1) be applied to authorize any person to produce a class I substance in any year for which a production percentage is specified in Table 2 of subsection (a) in an annual quantity greater than the specified percentage, plus an amount equal to 10 percent of the amount produced by such person in the baseline year. (B) Under no circumstances may the authority set forth in paragraph (1) be applied to authorize any person to produce a class I substance in the applicable termination year referred to in subsection (b), or in any year thereafter, in an annual quan tity greater than 15 percent of the baseline quantity of such substance produced by such person. (C) An exception authorized under this subsection shall terminate no later than January 1, 2010 (2012 in the case of methyl chloroform). (3) METHYL BROMIDE.—Notwithstanding the phaseout and termination of production of methyl bromide pursuant to sec tion 604(h), the Administrator may, consistent with the Mon treal Protocol, authorize the production of limited quantities of methyl bromide, solely for use in developing countries that are Parties to the Copenhagen Amendments to the Montreal Pro tocol. (f) NATIONAL SECURITY.—The President may, to the extent such action is consistent with the Montreal Protocol, issue such or ders regarding production and use of CFC–114 (chlorofluorocarbon 114), halon-1211, halon-1301, and halon-2402, at any specified site or facility or on any vessel as may be necessary to protect the na tional security interests of the United States if the President finds that adequate substitutes are not available and that the production and use of such substance are necessary to protect such national security interest. Such orders may include, where necessary to pro tect such interests, an exemption from any prohibition or require ment contained in this title. The President shall notify the Con gress within 30 days of the issuance of an order under this para graph providing for any such exemption. Such notification shall in clude a statement of the reasons for the granting of the exemption. An exemption under this paragraph shall be for a specified period which may not exceed one year. Additional exemptions may be granted, each upon the President’s issuance of a new order under this paragraph. Each such additional exemption shall be for a spec ified period which may not exceed one year. No exemption shall be granted under this paragraph due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. (g) FIRE SUPPRESSION AND EXPLOSION PREVENTION.—(1) Not withstanding the production phase-out set forth in subsection (a), the Administrator, after notice and opportunity for public comment, may, to the extent such action is consistent with the Montreal Pro tocol, authorize the production of limited quantities of halon-1211, halon-1301, and halon-2402 in excess of the amount otherwise per mitted pursuant to the schedule under subsection (a) solely for pur poses of fire suppression or explosion prevention if the Adminis Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 409 Sec. 605CLEAN AIR ACT trator, in consultation with the Administrator of the United States Fire Administration, determines that no safe and effective sub stitute has been developed and that such authorization is necessary for fire suppression or explosion prevention purposes. The Adminis trator shall not authorize production under this paragraph for pur poses of fire safety or explosion prevention training or testing of fire suppression or explosion prevention equipment. In no event shall the Administrator grant an exception under this paragraph that permits production after December 31, 1999. (2) The Administrator shall periodically monitor and assess the status of efforts to obtain substitutes for the substances referred to in paragraph (1) for purposes of fire suppression or explosion pre vention and the probability of such substitutes being available by December 31, 1999. The Administrator, as part of such assessment, shall consider any relevant assessments under the Montreal Pro tocol and the actions of the Parties pursuant to Article 2B of the Montreal Protocol in identifying essential uses and in permitting a level of production or consumption that is necessary to satisfy such uses for which no adequate alternatives are available after Decem ber 31, 1999. The Administrator shall report to Congress the re sults of such assessment in 1994 and again in 1998. (3) Notwithstanding the termination of production set forth in subsection (b), the Administrator, after notice and opportunity for public comment, may, to the extent consistent with the Montreal Protocol, authorize the production of limited quantities of halon 1211, halon-1301, and halon-2402 in the period after December 31, 1999, and before December 31, 2004, solely for purposes of fire sup pression or explosion prevention in association with domestic pro duction of crude oil and natural gas energy supplies on the North Slope of Alaska, if the Administrator, in consultation with the Ad ministrator of the United States Fire Administration, determines that no safe and effective substitute has been developed and that such authorization is necessary for fire suppression and explosion prevention purposes. The Administrator shall not authorize produc tion under the paragraph for purposes of fire safety or explosion prevention training or testing of fire suppression or explosion pre vention equipment. In no event shall the Administrator authorize under this paragraph any person to produce any such halon in an amount greater than 3 percent of that produced by such person during the baseline year. (h) METHYL BROMIDE.—Notwithstanding subsection (d) and section 604(b), the Administrator shall not terminate production of methyl bromide prior to January 1, 2005. The Administrator shall promulgate rules for reductions in, and terminate the production, importation, and consumption of, methyl bromide under a schedule that is in accordance with, but not more stringent than, the phase out schedule of the Montreal Protocol Treaty as in effect on the date of the enactment of this subsection. [42 U.S.C. 7671c] SEC. 605. PHASE-OUT OF PRODUCTION AND CONSUMPTION OF CLASS II SUBSTANCES. (a) RESTRICTION OF USE OF CLASS II SUBSTANCES.—Effective January 1, 2015, it shall be unlawful for any person to introduce Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 410Sec. 605 CLEAN AIR ACT into interstate commerce or use any class II substance unless such substance— (1) has been used, recovered, and recycled; (2) is used and entirely consumed (except for trace quan tities) in the production of other chemicals; or (3) is used as a refrigerant in appliances manufactured prior to January 1, 2020. As used in this subsection, the term ‘‘refrigerant’’ means any class II substance used for heat transfer in a refrigerating system. (b) PRODUCTION PHASE-OUT.—(1) Effective January 1, 2015, it shall be unlawful for any person to produce any class II substance in an annual quantity greater than the quantity of such substance produced by such person during the baseline year. (2) Effective January 1, 2030, it shall be unlawful for any per son to produce any class II substance. (c) REGULATIONS REGARDING PRODUCTION AND CONSUMPTION OF CLASS II SUBSTANCES.—By December 31, 1999, the Adminis trator shall promulgate regulations phasing out the production, and restricting the use, of class II substances in accordance with this section, subject to any acceleration of the phase-out of produc tion under section 606. The Administrator shall also promulgate regulations to insure that the consumption of class II substances in the United States is phased out and terminated in accordance with the same schedule (subject to the same exceptions and other provisions) as is applicable to the phase-out and termination of pro duction of class II substances under this title. (d) EXCEPTIONS.— (1) MEDICAL DEVICES.— (A) IN GENERAL.—Notwithstanding the termination of production required under subsection (b)(2) and the re striction on use referred to in subsection (a), the Adminis trator, after notice and opportunity for public comment, shall, to the extent such action is consistent with the Mon treal Protocol, authorize the production and use of limited quantities of class II substances solely for purposes of use in medical devices if such authorization is determined by the Commissioner, in consultation with the Administrator, to be necessary for use in medical devices. (B) CAP ON EXCEPTION.—Under no circumstances may the authority set forth in subparagraph (A) be applied to authorize any person to produce a class II substance in an nual quantities greater than 10 percent of that produced by such person during the baseline year. (2) DEVELOPING COUNTRIES.— (A) IN GENERAL.—Notwithstanding the provisions of subsection (a) or (b), the Administrator, after notice and opportunity for public comment, may authorize the produc tion of limited quantities of a class II substance in excess of the quantities otherwise permitted under such provi sions solely for export to and use in developing countries that are Parties to the Montreal Protocol, as determined by the Administrator. Any production authorized under this subsection shall be solely for purposes of satisfying the basic domestic needs of such countries. Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 411 Sec. 606CLEAN AIR ACT (B) CAP ON EXCEPTION.—(i) Under no circumstances may the authority set forth in subparagraph (A) be applied to authorize any person to produce a class II substance in any year following the effective date of subsection (b)(1) and before the year 2030 in annual quantities greater than 110 percent of the quantity of such substance produced by such person during the baseline year. (ii) Under no circumstances may the authority set forth in subparagraph (A) be applied to authorize any per son to produce a class II substance in the year 2030, or any year thereafter, in an annual quantity greater than 15 percent of the quantity of such substance produced by such person during the baseline year. (iii) Each exception authorized under this paragraph shall terminate no later than January 1, 2040. [42 U.S.C. 7671d] SEC. 606. ACCELERATED SCHEDULE. (a) IN GENERAL.—The Administrator shall promulgate regula tions, after notice and opportunity for public comment, which es tablish a schedule for phasing out the production and consumption of class I and class II substances (or use of class II substances) that is more stringent than set forth in section 604 or 605, or both, if— (1) based on an assessment of credible current scientific in formation (including any assessment under the Montreal Pro tocol) regarding harmful effects on the stratospheric ozone layer associated with a class I or class II substance, the Ad ministrator determines that such more stringent schedule may be necessary to protect human health and the environment against such effects, (2) based on the availability of substitutes for listed sub stances, the Administrator determines that such more strin gent schedule is practicable, taking into account technological achievability, safety, and other relevant factors, or (3) the Montreal Protocol is modified to include a schedule to control or reduce production, consumption, or use of any substance more rapidly than the applicable schedule under this title. In making any determination under paragraphs (1) and (2), the Ad ministrator shall consider the status of the period remaining under the applicable schedule under this title. (b) PETITION.—Any person may petition the Administrator to promulgate regulations under this section. The Administrator shall grant or deny the petition within 180 days after receipt of any such petition. If the Administrator denies the petition, the Adminis trator shall publish an explanation of why the petition was denied. If the Administrator grants such petition, such final regulations shall be promulgated within 1 year. Any petition under this sub section shall include a showing by the petitioner that there are data adequate to support the petition. If the Administrator deter mines that information is not sufficient to make a determination under this subsection, the Administrator shall use any authority Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 412Sec. 607 CLEAN AIR ACT available to the Administrator, under any law administered by the Administrator, to acquire such information. [42 U.S.C. 7671e] SEC. 607. EXCHANGE AUTHORITY. (a) TRANSFERS.—The Administrator shall, within 10 months after the enactment of the Clean Air Act Amendments of 1990, pro mulgate rules under this title providing for the issuance of allow ances for the production of class I and II substances in accordance with the requirements of this title and governing the transfer of such allowances. Such rules shall insure that the transactions under the authority of this section will result in greater total re ductions in the production in each year of class I and class II sub stances than would occur in that year in the absence of such trans actions. (b) INTERPOLLUTANT TRANSFERS.—(1) The rules under this sec tion shall permit a production allowance for a substance for any year to be transferred for a production allowance for another sub stance for the same year on an ozone depletion weighted basis. (2) Allowances for substances in each group of class I sub stances (as listed pursuant to section 602) may only be transferred for allowances for other substances in the same Group. (3) The Administrator shall, as appropriate, establish groups of class II substances for trading purposes and assign class II sub stances to such groups. In the case of class II substances, allow ances may only be transferred for allowances for other class II sub stances that are in the same Group. (c) TRADES WITH OTHER PERSONS.—The rules under this sec tion shall permit 2 or more persons to transfer production allow ances (including interpollutant transfers which meet the require ments of subsections (a) and (b)) if the transferor of such allow ances will be subject, under such rules, to an enforceable and quan tifiable reduction in annual production which— (1) exceeds the reduction otherwise applicable to the trans feror under this title, (2) exceeds the production allowances transferred to the transferee, and (3) would not have occurred in the absence of such trans action. (d) CONSUMPTION.—The rules under this section shall also pro vide for the issuance of consumption allowances in accordance with the requirements of this title and for the trading of such allow ances in the same manner as is applicable under this section to the trading of production allowances under this section. [42 U.S.C. 7671f] SEC. 608. NATIONAL RECYCLING AND EMISSION REDUCTION PRO GRAM. (a) IN GENERAL.—(1) The Administrator shall, by not later than January 1, 1992, promulgate regulations establishing stand ards and requirements regarding the use and disposal of class I substances during the service, repair, or disposal of appliances and industrial process refrigeration. Such standards and requirements shall become effective not later than July 1, 1992. Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 413 Sec. 608CLEAN AIR ACT (2) The Administrator shall, within 4 years after the enact ment of the Clean Air Act Amendments of 1990, promulgate regu lations establishing standards and requirements regarding use and disposal of class I and II substances not covered by paragraph (1), including the use and disposal of class II substances during service, repair, or disposal of appliances and industrial process refrigera tion. Such standards and requirements shall become effective not later than 12 months after promulgation of the regulations. (3) The regulations under this subsection shall include require ments that— (A) reduce the use and emission of such substances to the lowest achievable level, and (B) maximize the recapture and recycling of such sub stances. Such regulations may include requirements to use alternative sub stances (including substances which are not class I or class II sub stances) or to minimize use of class I or class II substances, or to promote the use of safe alternatives pursuant to section 612 or any combination of the foregoing. (b) SAFE DISPOSAL.—The regulations under subsection (a) shall establish standards and requirements for the safe disposal of class I and II substances. Such regulations shall include each of the following— (1) Requirements that class I or class II substances con tained in bulk in appliances, machines or other goods shall be removed from each such appliance, machine or other good prior to the disposal of such items or their delivery for recycling. (2) Requirements that any appliance, machine or other good containing a class I or class II substance in bulk shall not be manufactured, sold, or distributed in interstate commerce or offered for sale or distribution in interstate commerce unless it is equipped with a servicing aperture or an equally effective design feature which will facilitate the recapture of such sub stance during service and repair or disposal of such item. (3) Requirements that any product in which a class I or class II substance is incorporated so as to constitute an inher ent element of such product shall be disposed of in a manner that reduces, to the maximum extent practicable, the release of such substance into the environment. If the Administrator determines that the application of this paragraph to any prod uct would result in producing only insignificant environmental benefits, the Administrator shall include in such regulations an exception for such product. (c) PROHIBITIONS.—(1) Effective July 1, 1992, it shall be unlaw ful for any person, in the course of maintaining, servicing, repair ing, or disposing of an appliance or industrial process refrigeration, to knowingly vent or otherwise knowingly release or dispose of any class I or class II substance used as a refrigerant in such appliance (or industrial process refrigeration) in a manner which permits such substance to enter the environment. De minimis releases as sociated with good faith attempts to recapture and recycle or safely dispose of any such substance shall not be subject to the prohibi tion set forth in the preceding sentence. Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 414Sec. 609 CLEAN AIR ACT (2) Effective 5 years after the enactment of the Clean Air Act Amendments of 1990, paragraph (1) shall also apply to the venting, release, or disposal of any substitute substance for a class I or class II substance by any person maintaining, servicing, repairing, or disposing of an appliance or industrial process refrigeration which contains and uses as a refrigerant any such substance, unless the Administrator determines that venting, releasing, or disposing of such substance does not pose a threat to the environment. For pur poses of this paragraph, the term ‘‘appliance’’ includes any device which contains and uses as a refrigerant a substitute substance and which is used for household or commercial purposes, including any air conditioner, refrigerator, chiller, or freezer. [42 U.S.C. 7671g] SEC. 609. SERVICING OF MOTOR VEHICLE AIR CONDITIONERS. (a) REGULATIONS.—Within 1 year after the enactment of the Clean Air Act Amendments of 1990, the Administrator shall pro mulgate regulations in accordance with this section establishing standards and requirements regarding the servicing of motor vehi cle air conditioners. (b) DEFINITIONS.—As used in this section— (1) The term ‘‘refrigerant’’ means any class I or class II substance used in a motor vehicle air conditioner. Effective 5 years after the enactment of the Clean Air Act Amendments of 1990, the term ‘‘refrigerant’’ shall also include any substitute substance. (2)(A) The term ‘‘approved refrigerant recycling equip ment’’ means equipment certified by the Administrator (or an independent standards testing organization approved by the Administrator) to meet the standards established by the Ad ministrator and applicable to equipment for the extraction and reclamation of refrigerant from motor vehicle air conditioners. Such standards shall, at a minimum, be at least as stringent as the standards of the Society of Automotive Engineers in ef fect as of the date of the enactment of the Clean Air Act Amendments of 1990 and applicable to such equipment (SAE standard J–1990). (B) Equipment purchased before the proposal of regula tions under this section shall be considered certified if it is sub stantially identical to equipment certified as provided in sub paragraph (A). (3) The term ‘‘properly using’’ means, with respect to ap proved refrigerant recycling equipment, using such equipment in conformity with standards established by the Administrator and applicable to the use of such equipment. Such standards shall, at a minimum, be at least as stringent as the standards of the Society of Automotive Engineers in effect as of the date of the enactment of the Clean Air Act Amendments of 1990 and applicable to the use of such equipment (SAE standard J– 1989). (4) The term ‘‘properly trained and certified’’ means train ing and certification in the proper use of approved refrigerant recycling equipment for motor vehicle air conditioners in con formity with standards established by the Administrator and Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 415 Sec. 609CLEAN AIR ACT applicable to the performance of service on motor vehicle air conditioners. Such standards shall, at a minimum, be at least as stringent as specified, as of the date of the enactment of the Clean Air Act Amendments of 1990, in SAE standard J–1989 under the certification program of the National Institute for Automotive Service Excellence (ASE) or under a similar pro gram such as the training and certification program of the Mo bile Air Conditioning Society (MACS). (c) SERVICING MOTOR VEHICLE AIR CONDITIONERS.—Effective January 1, 1992, no person repairing or servicing motor vehicles for consideration may perform any service on a motor vehicle air condi tioner involving the refrigerant for such air conditioner without properly using approved refrigerant recycling equipment and no such person may perform such service unless such person has been properly trained and certified. The requirements of the previous sentence shall not apply until January 1, 1993 in the case of a per son repairing or servicing motor vehicles for consideration at an en tity which performed service on fewer than 100 motor vehicle air conditioners during calendar year 1990 and if such person so cer tifies, pursuant to subsection (d)(2), to the Administrator by Janu ary 1, 1992. (d) CERTIFICATION.—(1) Effective 2 years after the enactment of the Clean Air Act Amendments of 1990, each person performing service on motor vehicle air conditioners for consideration shall cer tify to the Administrator either— (A) that such person has acquired, and is properly using, approved refrigerant recycling equipment in service on motor vehicle air conditioners involving refrigerant and that each in dividual authorized by such person to perform such service is properly trained and certified; or (B) that such person is performing such service at an enti ty which serviced fewer than 100 motor vehicle air conditioners in 1991. (2) Effective January 1, 1993, each person who certified under paragraph (1)(B) shall submit a certification under paragraph (1)(A). (3) Each certification under this subsection shall contain the name and address of the person certifying under this subsection and the serial number of each unit of approved recycling equipment acquired by such person and shall be signed and attested by the owner or another responsible officer. Certifications under para graph (1)(A) may be made by submitting the required information to the Administrator on a standard form provided by the manufac turer of certified refrigerant recycling equipment. (e) SMALL CONTAINERS OF CLASS I OR CLASS II SUBSTANCES.— Effective 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, it shall be unlawful for any person to sell or distribute, or offer for sale or distribution, in interstate com merce to any person (other than a person performing service for consideration on motor vehicle air-conditioning systems in compli ance with this section) any class I or class II substance that is suit able for use as a refrigerant in a motor vehicle air-conditioning sys Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 416Sec. 610 CLEAN AIR ACT tem and that is in a container which contains less than 20 pounds of such refrigerant. [42 U.S.C. 7671h] SEC. 610. NONESSENTIAL PRODUCTS CONTAINING CHLOROFLUOROCARBONS. (a) REGULATIONS.—The Administrator shall promulgate regula tions to carry out the requirements of this section within 1 year after the enactment of the Clean Air Act Amendments of 1990. (b) NONESSENTIAL PRODUCTS.—The regulations under this sec tion shall identify nonessential products that release class I sub stances into the environment (including any release occurring dur ing manufacture, use, storage, or disposal) and prohibit any person from selling or distributing any such product, or offering any such product for sale or distribution, in interstate commerce. At a min imum, such prohibition shall apply to— (1) chlorofluorocarbon-propelled plastic party streamers and noise horns, (2) chlorofluorocarbon-containing cleaning fluids for non commercial electronic and photographic equipment, and (3) other consumer products that are determined by the Administrator— (A) to release class I substances into the environment (including any release occurring during manufacture, use, storage, or disposal), and (B) to be nonessential. In determining whether a product is nonessential, the Adminis trator shall consider the purpose or intended use of the product, the technological availability of substitutes for such product and for such class I substance, safety, health, and other relevant factors. (c) EFFECTIVE DATE.—Effective 24 months after the enactment of the Clean Air Act Amendments of 1990, it shall be unlawful for any person to sell or distribute, or offer for sale or distribution, in interstate commerce any nonessential product to which regulations under subsection (a) implementing subsection (b) are applicable. (d) OTHER PRODUCTS.—(1) Effective January 1, 1994, it shall be unlawful for any person to sell or distribute, or offer for sale or distribution, in interstate commerce— (A) any aerosol product or other pressurized dispenser which contains a class II substance; or (B) any plastic foam product which contains, or is manu factured with, a class II substance. (2) The Administrator is authorized to grant exceptions from the prohibition under subparagraph (A) of paragraph (1) where— (A) the use of the aerosol product or pressurized dispenser is determined by the Administrator to be essential as a result of flammability or worker safety concerns, and (B) the only available alternative to use of a class II sub stance is use of a class I substance which legally could be sub stituted for such class II substance. (3) Subparagraph (B) of paragraph (1) shall not apply to— (A) a foam insulation product, or (B) an integral skin, rigid, or semi-rigid foam utilized to provide for motor vehicle safety in accordance with Federal Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 417 Sec. 611CLEAN AIR ACT Motor Vehicle Safety Standards where no adequate substitute substance (other than a class I or class II substance) is prac ticable for effectively meeting such Standards. (e) MEDICAL DEVICES.—Nothing in this section shall apply to any medical device as defined in section 601(8). [42 U.S.C. 7671i] SEC. 611. LABELING. (a) REGULATIONS.—The Administrator shall promulgate regula tions to implement the labeling requirements of this section within 18 months after enactment of the Clean Air Act Amendments of 1990, after notice and opportunity for public comment. (b) CONTAINERS CONTAINING CLASS I OR CLASS II SUBSTANCES AND PRODUCTS CONTAINING CLASS I SUBSTANCES.—Effective 30 months after the enactment of the Clean Air Act Amendments of 1990, no container in which a class I or class II substance is stored or transported, and no product containing a class I substance, shall be introduced into interstate commerce unless it bears a clearly legible and conspicuous label stating: ‘‘Warning: Contains [insert name of substance], a sub stance which harms public health and environment by destroy ing ozone in the upper atmosphere’’. (c) PRODUCTS CONTAINING CLASS II SUBSTANCES.—(1) After 30 months after the enactment of the Clean Air Act Amendments of 1990, and before January 1, 2015, no product containing a class II substance shall be introduced into interstate commerce unless it bears the label referred to in subsection (b) if the Administrator de termines, after notice and opportunity for public comment, that there are substitute products or manufacturing processes (A) that do not rely on the use of such class II substance, (B) that reduce the overall risk to human health and the environment, and (C) that are currently or potentially available. (2) Effective January 1, 2015, the requirements of subsection (b) shall apply to all products containing a class II substance. (d) PRODUCTS MANUFACTURED WITH CLASS I AND CLASS II SUBSTANCES.—(1) In the case of a class II substance, after 30 months after the enactment of the Clean Air Act Amendments of 1990, and before January 1, 2015, if the Administrator, after notice and opportunity for public comment, makes the determination re ferred to in subsection (c) with respect to a product manufactured with a process that uses such class II substance, no such product shall be introduced into interstate commerce unless it bears a clearly legible and conspicuous label stating: ‘‘Warning: Manufactured with [insert name of substance], a substance which harms public health and environment by de stroying ozone in the upper atmosphere’’ (2) In the case of a class I substance, effective 30 months after the enactment of the Clean Air Act Amendments of 1990, and be fore January 1, 2015, the labeling requirements of this subsection shall apply to all products manufactured with a process that uses such class I substance unless the Administrator determines that there are no substitute products or manufacturing processes that (A) do not rely on the use of such class I substance, (B) reduce the Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 418Sec. 612 CLEAN AIR ACT 1 Should be ‘‘paragraph’’. overall risk to human health and the environment, and (C) are cur rently or potentially available. (e) PETITIONS.—(1) Any person may, at any time after 18 months after the enactment of the Clean Air Act Amendments of 1990, petition the Administrator to apply the requirements of this section to a product containing a class II substance or a product manufactured with a class I or II substance which is not otherwise subject to such requirements. Within 180 days after receiving such petition, the Administrator shall, pursuant to the criteria set forth in subsection (c), either propose to apply the requirements of this section to such product or publish an explanation of the petition de nial. If the Administrator proposes to apply such requirements to such product, the Administrator shall, by rule, render a final deter mination pursuant to such criteria within 1 year after receiving such petition. (2) Any petition under this paragaph 1 shall include a showing by the petitioner that there are data on the product adequate to support the petition. (3) If the Administrator determines that information on the product is not sufficient to make the required determination the Administrator shall use any authority available to the Adminis trator under any law administered by the Administrator to acquire such information. (4) In the case of a product determined by the Administrator, upon petition or on the Administrator’s own motion, to be subject to the requirements of this section, the Administrator shall estab lish an effective date for such requirements. The effective date shall be 1 year after such determination or 30 months after the en actment of the Clean Air Act Amendments of 1990, whichever is later. (5) Effective January 1, 2015, the labeling requirements of this subsection shall apply to all products manufactured with a process that uses a class I or class II substance. (f) RELATIONSHIP TO OTHER LAW.—(1) The labeling require ments of this section shall not constitute, in whole or part, a de fense to liability or a cause for reduction in damages in any suit, whether civil or criminal, brought under any law, whether Federal or State, other than a suit for failure to comply with the labeling requirements of this section. (2) No other approval of such label by the Administrator under any other law administered by the Administrator shall be required with respect to the labeling requirements of this section. [42 U.S.C. 7671j] SEC. 612. SAFE ALTERNATIVES POLICY. (a) POLICY.—To the maximum extent practicable, class I and class II substances shall be replaced by chemicals, product sub stitutes, or alternative manufacturing processes that reduce overall risks to human health and the environment. (b) REVIEWS AND REPORTS.—The Administrator shall— (1) in consultation and coordination with interested mem bers of the public and the heads of relevant Federal agencies Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 419 Sec. 612CLEAN AIR ACT and departments, recommend Federal research programs and other activities to assist in identifying alternatives to the use of class I and class II substances as refrigerants, solvents, fire retardants, foam blowing agents, and other commercial appli cations and in achieving a transition to such alternatives, and, where appropriate, seek to maximize the use of Federal re search facilities and resources to assist users of class I and class II substances in identifying and developing alternatives to the use of such substances as refrigerants, solvents, fire retardants, foam blowing agents, and other commercial appli cations; (2) examine in consultation and coordination with the Sec retary of Defense and the heads of other relevant Federal agencies and departments, including the General Services Ad ministration, Federal procurement practices with respect to class I and class II substances and recommend measures to promote the transition by the Federal Government, as expedi tiously as possible, to the use of safe substitutes; (3) specify initiatives, including appropriate intergovern mental, international, and commercial information and tech nology transfers, to promote the development and use of safe substitutes for class I and class II substances, including alter native chemicals, product substitutes, and alternative manu facturing processes; and (4) maintain a public clearinghouse of alternative chemi cals, product substitutes, and alternative manufacturing proc esses that are available for products and manufacturing proc esses which use class I and class II substances. (c) ALTERNATIVES FOR CLASS I OR II SUBSTANCES.—Within 2 years after enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate rules under this section pro viding that it shall be unlawful to replace any class I or class II substance with any substitute substance which the Administrator determines may present adverse effects to human health or the en vironment, where the Administrator has identified an alternative to such replacement that— (1) reduces the overall risk to human health and the envi ronment; and (2) is currently or potentially available. The Administrator shall publish a list of (A) the substitutes prohib ited under this subsection for specific uses and (B) the safe alter natives identified under this subsection for specific uses. (d) RIGHT TO PETITION.—Any person may petition the Admin istrator to add a substance to the lists under subsection (c) or to remove a substance from either of such lists. The Administrator shall grant or deny the petition within 90 days after receipt of any such petition. If the Administrator denies the petition, the Admin istrator shall publish an explanation of why the petition was de nied. If the Administrator grants such petition the Administrator shall publish such revised list within 6 months thereafter. Any pe tition under this subsection shall include a showing by the peti tioner that there are data on the substance adequate to support the petition. If the Administrator determines that information on the substance is not sufficient to make a determination under this sub Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 420Sec. 613 CLEAN AIR ACT section, the Administrator shall use any authority available to the Administrator, under any law administered by the Administrator, to acquire such information. (e) STUDIES AND NOTIFICATION.—The Administrator shall re quire any person who produces a chemical substitute for a class I substance to provide the Administrator with such person’s unpub lished health and safety studies on such substitute and require pro ducers to notify the Administrator not less than 90 days before new or existing chemicals are introduced into interstate commerce for significant new uses as substitutes for a class I substance. This subsection shall be subject to section 114(c). [42 U.S.C. 7671k] SEC. 613. FEDERAL PROCUREMENT. Not later than 18 months after the enactment of the Clean Air Act Amendments of 1990, the Administrator, in consultation with the Administrator of the General Services Administration and the Secretary of Defense, shall promulgate regulations requiring each department, agency, and instrumentality of the United States to conform its procurement regulations to the policies and require ments of this title and to maximize the substitution of safe alter natives identified under section 612 for class I and class II sub stances. Not later than 30 months after the enactment of the Clean Air Act Amendments of 1990, each department, agency, and instru mentality of the United States shall so conform its procurement regulations and certify to the President that its regulations have been modified in accordance with this section. [42 U.S.C. 7671l] SEC. 614. RELATIONSHIP TO OTHER LAWS. (a) STATE LAWS.—Notwithstanding section 116, during the 2 year period beginning on the enactment of the Clean Air Act Amendments of 1990, no State or local government may enforce any requirement concerning the design of any new or recalled ap pliance for the purpose of protecting the stratospheric ozone layer. (b) MONTREAL PROTOCOL.—This title as added by the Clean Air Act Amendments of 1990 shall be construed, interpreted, and ap plied as a supplement to the terms and conditions of the Montreal Protocol, as provided in Article 2, paragraph 11 thereof, and shall not be construed, interpreted, or applied to abrogate the respon sibilities or obligations of the United States to implement fully the provisions of the Montreal Protocol. In the case of conflict between any provision of this title and any provision of the Montreal Pro tocol, the more stringent provision shall govern. Nothing in this title shall be construed, interpreted, or applied to affect the author ity or responsibility of the Administrator to implement Article 4 of the Montreal Protocol with other appropriate agencies. (c) TECHNOLOGY EXPORT AND OVERSEAS INVESTMENT.—Upon enactment of this title, the President shall— (1) prohibit the export of technologies used to produce a class I substance; (2) prohibit direct or indirect investments by any person in facilities designed to produce a class I or class II substance in nations that are not parties to the Montreal Protocol; and Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 421 Sec. 616CLEAN AIR ACT (3) direct that no agency of the government provide bilat eral or multilateral subsidies, aids, credits, guarantees, or in surance programs, for the purpose of producing any class I substance. [42 U.S.C. 7671m] SEC. 615. AUTHORITY OF ADMINISTRATOR. If, in the Administrator’s judgment, any substance, practice, process, or activity may reasonably be anticipated to affect the stratosphere, especially ozone in the stratosphere, and such effect may reasonably be anticipated to endanger public health or wel fare, the Administrator shall promptly promulgate regulations re specting the control of such substance, practice, process, or activity, and shall submit notice of the proposal and promulgation of such regulation to the Congress. [42 U.S.C. 7671n] SEC. 616. TRANSFERS AMONG PARTIES TO MONTREAL PROTOCOL. (a) IN GENERAL.—Consistent with the Montreal Protocol, the United States may engage in transfers with other Parties to the Protocol under the following conditions: (1) The United States may transfer production allowances to another Party if, at the time of such transfer, the Adminis trator establishes revised production limits for the United States such that the aggregate national United States produc tion permitted under the revised production limits equals the lesser of (A) the maximum production level permitted for the substance or substances concerned in the transfer year under the Protocol minus the production allowances transferred, (B) the maximum production level permitted for the substance or substances concerned in the transfer year under applicable do mestic law minus the production allowances transferred, or (C) the average of the actual national production level of the sub stance or substances concerned for the 3 years prior to the transfer minus the production allowances transferred. (2) The United States may acquire production allowances from another Party if, at the time of such transfer, the Admin istrator finds that the other Party has revised its domestic pro duction limits in the same manner as provided with respect to transfers by the United States in subsection (a). (b) EFFECT OF TRANSFERS ON PRODUCTION LIMITS.—The Ad ministrator is authorized to reduce the production limits estab lished under this Act as required as a prerequisite to transfers under paragraph (1) of subsection (a) or to increase production lim its established under this Act to reflect production allowances ac quired under a transfer under paragraph (2) of subsection (a). (c) REGULATIONS.—The Administrator shall promulgate, within 2 years after the date of enactment of the Clean Air Act Amend ments of 1990, regulations to implement this section. (d) DEFINITION.—In the case of the United States, the term ‘‘applicable domestic law’’ means this Act. [42 U.S.C. 7671o] Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 422Sec. 617 CLEAN AIR ACT SEC. 617. INTERNATIONAL COOPERATION. (a) IN GENERAL.—The President shall undertake to enter into international agreements to foster cooperative research which com plements studies and research authorized by this title, and to de velop standards and regulations which protect the stratosphere consistent with regulations applicable within the United States. For these purposes the President through the Secretary of State and the Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs, shall negotiate multilateral treaties, conventions, resolutions, or other agreements, and formu late, present, or support proposals at the United Nations and other appropriate international forums and shall report to the Congress periodically on efforts to arrive at such agreements. (b) ASSISTANCE TO DEVELOPING COUNTRIES.—The Adminis trator, in consultation with the Secretary of State, shall support global participation in the Montreal Protocol by providing technical and financial assistance to developing countries that are Parties to the Montreal Protocol and operating under article 5 of the Protocol. There are authorized to be appropriated not more than $30,000,000 to carry out this section in fiscal years 1991, 1992 and 1993 and such sums as may be necessary in fiscal years 1994 and 1995. If China and India become Parties to the Montreal Protocol, there are authorized to be appropriated not more than an additional $30,000,000 to carry out this section in fiscal years 1991, 1992, and 1993. [42 U.S.C. 7671p] Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 423 Sec. 618CLEAN AIR ACT SEC. 618. MISCELLANEOUS PROVISIONS. For purposes of section 116, requirements concerning the areas addressed by this title for the protection of the stratosphere against ozone layer depletion shall be treated as requirements for the con trol and abatement of air pollution. For purposes of section 118, the requirements of this title and corresponding State, interstate, and local requirements, administrative authority, and process, and sanctions respecting the protection of the stratospheric ozone layer shall be treated as requirements for the control and abatement of air pollution within the meaning of section 118. [42 U.S.C. 7671q] Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 Q:\COMP\ENVIR1\CLEANAIR.006 February 24, 2004 425 A P P E N D I X Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 427 PROVISIONS OF THE CLEAN AIR ACT AMENDMENTS OF 1977 (PUBLIC LAW 95–95) THAT DID NOT AMEND THE CLEAN AIR ACT * * * * * * * TRAINING SEC. 101. (a) * * * * * * * * * * (c) The Administrator of the Environmental Protection Agency shall consult with the House Committee on Science and Technology on the environmental and atmospheric research, development, and demonstration aspects of this Act. In addition, the reports and studies required by this Act that relate to research, development, and demonstration issues shall be transmitted to the Committee on Science and Technology at the same time they are made available to other committees of the Congress. * * * * * * * COMPLIANCE ORDERS (INCLUDING COAL CONVERSION) SEC. 112. (a) * * * * * * * * * * (b)(1) Section 119 of such Act is hereby repealed. All references to such section 119 or subsections thereof in section 2 of the Energy Supply and Environmental Coordination Act of 1974 (Public Law 93–319) or any amendment thereto, or any subsequent enactment which supersedes such Act, shall be construed to refer to section 113(d) of the Clean Air Act and to paragraph (5) thereof in par ticular. Any certification or notification required to be given by the Administrator of the Environmental Protection Agency under sec tion 2 of the Energy Supply and Environmental Coordination Act of 1974 or any amendment thereto, or any subsequent enactment which supersedes such Act, shall be given only when the Governor of the State in which is located the source to which the proposed order under section 113(d)(5) of the Clean Air Act is to be issued gives his prior written concurrence. (2) In the case of any major stationary source to which any re quirement is applicable under section 113(d)(5)(B) of the Clean Air Act and for which certification is required under section 2 of the Energy Supply and Environmental Coordination Act of 1974 or any amendment thereto, or any subsequent enactment which super sedes such Act, the Administrator of the Environmental Protection Agency shall certify the date which he determines is the earliest date that such source will be able to comply with all such require ments. In the case of any plant or installation which the Adminis trator of the Environmental Protection Agency determines (after Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 428Sec. 120 APPENDIX consultation with the State) will not be subject to an order under section 113(d) of the Clean Air Act and for which certification is re quired under section 2 of the Energy Supply and Environmental Coordination Act of 1974 or any amendment thereto, or any subse quent enactment which supersedes such Act, the Administrator of the Environmental Protection Agency shall certify the date which he determines is the earliest date that such plant or installation will be able to burn coal in compliance with all applicable emission limitations under the implementation plan. (3) Any certification required under section 2 of the Energy Supply and Environmental Coordination Act of 1974 or any amend ment thereto, or any subsequent enactment which supersedes such Act, or under this subsection may be provided in an order under section 113(d) of the Clean Air Act. * * * * * * * UNREGULATED POLLUTANTS SEC. 120. (a) * * * * * * * * * * (b) The Administrator of the Environmental Protection Agency shall conduct a study, in conjunction with other appropriate agen cies, concerning the effect on the public health and welfare of sul fates, radioactive pollutants, cadmium, arsenic, and polycyclic or ganic matter which are present or may reasonably be anticipated to occur in the ambient air. Such study shall include a thorough investigation of how sulfates are formed and how to protect public health and welfare from the injurious effects, if any, of sulfates, cadmium, arsenic, and polycyclic organic matter. * * * * * * * PREVENTION OF SIGNIFICANT DETERIORATION SEC. 127. (a) * * * * * * * * * * (b) Within one year from the date of enactment of this Act the Administrator shall report to the Congress on the consequences of that portion of the definition of ‘‘major emitting facility’’ under the amendment made by subsection (a) which applies to facilities with the potential to emit two hundred and fifty tons per year or more. Such study shall examine the type of facilities covered, the air quality benefits of including such facilities, and the administrative aspect of regulating such facilities. (c) Not later than one year after the date of enactment of this Act, the Administrator shall publish a guidance document to assist the States in carrying out their functions under part C of title I of the Clean Air Act (relating to prevention of significant deteriora tion of air quality) with respect to pollutants, other than sulfur ox ides and particulates, for which national ambient air quality stand ards are promulgated. Such guidance document shall include rec ommended strategies for controlling photochemical oxidants on a regional or multistate basis for the purpose of implementing part C and section 110 of such Act. Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 429 Sec. 129APPENDIX (d) Not later than two years after the date of enactment of this Act, the Administrator shall complete a study and report to the Congress on the progress made in carrying out part C of title I of the Clean Air Act (relating to significant deterioration of air qual ity) and the problems associated with carrying out such section, in cluding recommendations for legislative changes necessary to im plement strategies for controlling photochemical oxidants on a re gional or multistate basis. * * * * * * * NONATTAINMENT AREAS SEC. 129. (a)(1) Before July 1, 1979, the interpretative regula tion of the Administrator of the Environmental Protection Agency published in 41 Federal Register 55524–30, December 21, 1976, as may be modified by rule of the Administrator, shall apply except that the baseline to be used for determination of appropriate emis sion offsets under such regulation shall be the applicable imple mentation plan of the State in effect at the time of application for a permit by a proposed major stationary source (within the mean ing of section 302 of the Clean Air Act). (2) Before July 1, 1979, the requirements of the regulation re ferred to in paragraph (1) shall be waived by the Administrator with respect to any pollutant if he determines that the State has— (A) an inventory of emissions of the applicable pollutant for each nonattainment area (as defined in section 171 of the Clean Air Act) that identifies the type, quantity, and source of such pollutant so as to provide information sufficient to dem onstrate that the requirements of subparagraph (C) are being met; (B) an enforceable permit program which— (i) requires new or modified major stationary sources to meet emission limitations at least as stringent as re quired under the permit requirements referred to in para graphs (2) and (3) of section 173 of the Clean Air Act (re lating to lowest achievable emission rate and compliance by other sources) and which assures compliance with the annual reduction requirements of subparagraph (C); and (ii) requires existing sources to achieve such reduction in emissions in the area as may be obtained through the adoption, at a minimum of reasonably available control technology, and (C) a program which requires reductions in total allowable emissions in the area prior to July 1, 1979, so as to provide for the same level of emission reduction as would result from the application of the regulation referred to in paragraph (1). The Administrator shall terminate such waiver if in his judgment the reduction in emissions actually being attained is less than the reduction on which the waiver was conditioned pursuant to sub paragraph (C), or if the Administrator determines that the State is no longer in compliance with any requirement of this paragraph. Upon application by the State, the Administrator may reinstate a waiver terminated under the preceding sentence if he is satisfied Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 430Sec. 202 APPENDIX that such State is in compliance with all requirements of this sub section. (3) Operating permits may be issued to those applicants who were properly granted construction permits, in accordance with the law and applicable regulations in effect at the time granted, for construction of a new or modified source in areas exceeding na tional primary air quality standards on or before the date of the enactment of this Act if such construction permits were granted prior to the date of the enactment of this Act and the person issued any such permit is able to demonstrate that the emissions from the source will be within the limitations set forth in such construction permit. * * * * * * * (c) Notwithstanding the requirements of section 406(d)(2) (re lating to date required for submission of certain implementation plan revisions), for purposes of section 110(a)(2) of the Clean Air Act each State in which there is any nonattainment area (as de fined in part D of title I of the Clean Air Act) shall adopt and sub mit an implementation plan revision which meets the requirements of section 110(a)(2)(I) and part D of title I of the Clean Air Act not later than January 1, 1979. In the case of any State for which a plan revision adopted and submitted before such date has made the demonstration required under section 172(a)(2) of the Clean Air Act (respecting impossibility of attainment before 1983), such State shall adopt and submit to the Administrator a plan revision before July 1, 1982, which meets the requirements of section 172 (b) and (c) of such Act. * * * * * * * STUDIES AND RESEARCH OBJECTIVES FOR OXIDES OF NITROGEN SEC. 202. (a) The Administrator of the Environmental Protec tion Agency shall conduct a study of the public health implications of attaining an emission standard on oxides of nitrogen from light duty vehicles of 0.4 gram per vehicle mile, the cost and techno logical capability of attaining such standard, and the need for such a standard to protect public health or welfare. The Administrator shall submit a report of such study to the Congress, together with recommendations not later than July 1, 1980. * * * * * * * STUDY AND REPORT OF FUEL CONSUMPTION SEC. 203. Following each motor vehicle model year, the Admin istrator of the Environmental Protection Agency shall report to the Congress respecting the motor vehicle fuel consumption associated with the standards applicable for the immediately preceding model year. * * * * * * * Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 431 Sec. 402APPENDIX CARBON MONOXIDE INTRUSION INTO SUSTAINED USE VEHICLES SEC. 226. (a) The Administrator, in conjunction with the Sec retary of Transportation, shall study the problem of carbon mon oxide intrusion into the passenger area of sustained-use motor ve hicles. Such study shall include an analysis of the sources and lev els of carbon monoxide in the passenger area of such vehicles and a determination of the effects of carbon monoxide upon the pas sengers. The study shall also review available methods of moni toring and testing for the presence of carbon monoxide and shall analyze the cost and effectiveness of alternative methods of moni toring and testing. The study shall analyze the cost and effective ness of alternative strategies for attaining and maintaining accept able levels of carbon monoxide in the passenger area of such vehi cles. Within one year the Administrator shall report to the Con gress respecting the results of such study. (b) For the purpose of this section, the term ‘‘sustained-use motor vehicle’’ means any diesel or gasoline fueled motor vehicle (whether light or heavy duty) which, as determined by the Admin istrator (in conjunction with the Secretary), is normally used and occupied for a sustained, continuous, or extensive period of time, including buses, taxicabs, and police vehicles. * * * * * * * INTERAGENCY COOPERATION ON PREVENTION OF ENVIRONMENTAL CANCER AND HEART AND LUNG DISEASE SEC. 402. (a) Not later than three months after the date of en actment of this section, there shall be established a Task Force on Environmental Cancer and Heart and Lung Disease (hereinafter referred to as the ‘‘Task Force’’). The Task Force shall include rep resentatives of the Environmental Protection Agency, the National Cancer Institute, the National Heart, Lung, and Blood Institute, the National Institute of Occupational Safety and Health, and the National Institute on Environmental Health Sciences, and shall be chaired by the Administrator (or his delegate). (b) The Task Force shall— (1) recommend a comprehensive research program to de termine and quantify the relationship between environmental pollution and human cancer and heart and lung disease; (2) recommend comprehensive strategies to reduce or eliminate the risks of cancer or such other diseases associated with environmental pollution; (3) recommend research and such other measures as may be appropriate to prevent or reduce the incidence of environ mentally related cancer and heart and lung diseases; (4) coordinate research by, and stimulate cooperation be tween, the Environmental Protection Agency, the Department of Health, Education, and Welfare, and such other agencies as may be appropriate to prevent environmentally related cancer and heart and lung diseases; and (5) report to Congress, not later than one year after the date of enactment of this section and annually thereafter, on the problems and progress in carrying out this section. Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 432Sec. 403 APPENDIX STUDIES SEC. 403. (a) Not later than eighteen months after the date of the enactment of this Act, the Administrator of the Environmental Protection Agency, in cooperation with the National Academy of Sciences, shall study and report to Congress on (1) the relationship between the size, weight, and chemical composition of suspended particulate matter and the nature and degree of the endangerment to public health or welfare presented by such particulate matter (especially with respect to fine particulate matter) and (2) the availability of technology for controlling such particulate matter. (b) The Administrator of the Environmental Protection Agency shall conduct a study and report to the Congress not later than January 1, 1979, on the effects on public health and welfare of odors or odorous emissions, the sources of such emissions, the tech nology or other measures available for control of such emissions and the costs of such technology or measures, and the costs and benefits of alternative measures or strategies to abate such emis sions. Such report shall include an evaluation of whether air qual ity criteria or national ambient air quality standards should be published under the Clean Air Act for odors, and what other strate gies or authorities under the Clean Air Act are available or appro priate for abating such emissions. (c)(1) Not later than twelve months after the date of enactment of this Act the Administrator of the Environmental Protection Agency shall publish throughout the United States a list of all known chemical contaminants resulting from environmental pollu tion which have been found in human tissue including blood, urine, breast milk, and all other human tissue. Such list shall be pre pared for the United States and shall indicate the approximate number of cases, the range of levels found, and the mean levels found. (2) Not later than eighteen months after the date of enactment of this Act the Administrator shall publish in the same manner an explanation of what is known about the manner in which the chemicals described in paragraph (1) entered the environment and thereafter human tissue. (3) The Administrator, in consultation with National Institutes of Health, the National Center for Health Statistics, and the Na tional Center for Health Services Research and Development, shall, if feasible, conduct an epidemiological study to demonstrate the re lationship between levels of chemicals in the environment and in human tissue. Such study shall be made in appropriate regions or areas of the United States in order to determine any different re sults in such regions or areas. The results of such study shall, as soon as practicable, be reported to the appropriate committee of the Congress. (d) The Administrator of the Environmental Protection Agency shall conduct a study of air quality in various areas throughout the country including the gulf coast region. Such study shall include analysis of liquid and solid aerosols and other fine particulate mat ter and the contribution of such substances to visibility and public health problems in such areas. For the purposes of this study, the Administrator shall use environmental health experts from the Na Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 433 Sec. 404APPENDIX tional Institutes of Health and other outside agencies and organiza tions. (e)(1) The Secretary of Labor, in consultation with the Admin istrator, shall conduct a study of potential dislocation of employees due to implementation of laws administered by the Administrator. Such study shall estimate the number of employees so affected, identify existing sources of assistance available to such employees, assess the adequacy of such assistance, and recommend additional adjustment measures, if justified. (2) The Secretary shall submit to Congress the results of the study conducted under paragraph (1) not more than one year after the date of enactment of this section. (f) The Administrator of the Environmental Protection Agency shall undertake to enter into appropriate arrangements with the National Academy of Sciences to conduct continuing comprehensive studies and investigations of the effects on public health and wel fare of emissions subject to section 202(a) of the Clean Air Act (in cluding sulfur compounds) and the technological feasibility of meet ing emission standards required to be prescribed by the Adminis trator by section 202(b) of such Act. The Administrator shall report to the Congress within six months of the date of enactment of this section and each year thereafter regarding the status of the con tractual arrangements and conditions necessary to implement this paragraph. (g) The Administrator of the Environmental Protection Agency shall conduct a study and report to Congress by the date one year after the date of the enactment of this section, on the emission of sulfur-bearing compounds from motor vehicles and motor vehicle engines and aircraft engines. Such study and report shall include but not be limited to a review of the effects of such emissions on public health and welfare and an analysis of the costs and benefits of alternatives to reduce or eliminate such emissions (including desulfurization of fuel, short-term allocation of low sulfur crude oil, technological devices used in conjunction with current engine tech nologies, alternative engine technologies, and other methods) as may be required to achieve any proposed or promulgated emission standards for sulfur compounds. RAILROAD EMISSION STUDY SEC. 404. (a) The Administrator of the Environmental Protec tion Agency shall conduct a study and investigation of emissions of air pollutants from railroad locomotives, locomotive engines, and secondary power sources on railroad rolling stock, in order to determine— (1) the extent to which such emissions affect air quality in air quality control regions throughout the United States, (2) the technological feasibility and the current state of technology for controlling such emissions, and (3) the status and effect of current and proposed State and local regulations affecting such emissions. (b) Within one hundred and eighty days after commencing such study and investigation, the Administrator shall submit a report of such study and investigation, together with recommendations for Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 434Sec. 405 APPENDIX appropriate legislation, to the Senate Committee on Environment and Public Works and the House Committee on Interstate and For eign Commerce. STUDY AND REPORT CONCERNING ECONOMIC APPROACHES TO CONTROLLING AIR POLLUTION SEC. 405. (a) The Administrator, in conjunction with the Coun cil of Economic Advisors (hereinafter in this section referred to as ‘‘the Council’’), shall undertake a study and assessment of economic measures for the control of air pollution which could— (1) strengthen the effectiveness of existing methods of con trolling air pollution, (2) provide incentives to abate air pollution to a greater de gree than is required by existing provisions of the Clean Air Act (and regulations thereunder), and (3) serve as the primary incentive for controlling air pollu tion problems not addressed by any provision of the Clean Air Act (or any regulation thereunder). (b) The study of measures referred to in paragraph (1) of sub section (a) shall concentrate on (1) identification of air pollution problems for which existing methods of control are not effective be cause of economic incentives to delay compliance and (2) formula tion of economic measures which could be taken with respect to each such air pollution problem which would provide an incentive to comply without interfering with such existing methods of con trol. (c) The study of measures referred to in paragraph (2) of sub section (a) shall concentrate on (1) identification of air pollution problems for which existing methods of control may not be suffi ciently extensive to achieve all desired environmental goals and (2) formulation of economic measures for each such air pollution prob lem which would provide additional incentives to reduce air pollu tion without— (A) interfering with the effectiveness of existing methods of control, or (B) creating problems similar to those which prevent alter native regulatory methods from being used to reach such envi ronmental goals. (d) The study of the measures referred to in paragraph (3) of subsection (a) shall concentrate on (1) identification of air pollution problems for which no existing methods of control exist, (2) formu lation of economic measures to reduce such pollution, and (3) com parison of the environmental and economic impacts of the economic measures with those of any alternative regulatory methods which can be identified. (e) In conducting the study under this section, a preliminary screening should be made of the problems referred to in sub sections (b)(1), (c)(1), and (d)(1) and economic measures should be formulated under subsections (b)(2), (c)(2), and (d)(2) in the most promising cases, giving special attention to structural and adminis trative problems. In formulating any such measure which provides for a charge, the appropriate level of the charge should be deter Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 435 Sec. 406APPENDIX mined, if possible, and the environmental and economic impacts should be identified. (f) Within one year after the date of enactment of this Act, the Administrator shall complete a study and report to the Congress on the advantages and disadvantages (including an analysis of the feasibility) of establishing a system of penalties for stationary sources on emissions of oxides of nitrogen and make recommenda tions regarding the establishment of such a system. Such study shall determine if such a system will effectively encourage the de velopment of more effective systems and technologies for control of emissions of oxides of nitrogen for new major emitting facilities, or existing major emitting facilities, or both. In any case in which a proposed penalty system is recommended by the Administrator, the report should include— (1) a recommendation respecting the appropriate period during which such system of penalties should apply, and the appropriate termination date or dates for such system, if any, taking into account— (A) the time at which adequate technology may rea sonably be anticipated to be available to control oxides of nitrogen for that category of facilities, (B) the degree to which such technology can be ex pected to be used on such facilities, and (C) the Administrator’s authorities to require the use of such technology, and (2) recommendations respecting the compilation of records by facilities subject to such penalties for purposes of deter mining the applicability and amount of such penalty. (g) Not later than two years after the date of the enactment of this section, the Administrator and the Council shall conclude the study and assessment under this section and submit a report containing the results thereof to the President and to the Congress. Interim reports on specific pollution problems and solutions rec ommended shall be made available to the President and the Con gress by the Administrator whenever available. SAVING PROVISION; EFFECTIVE DATES SEC. 406. (a) No suit, action, or other proceeding lawfully com menced by or against the Administrator or any other officer or em ployee of the United States in his official capacity or in relation to the discharge of his official duties under the Clean Air Act, as in effect immediately prior to the date of enactment of this Act shall abate by reason of the taking effect of the amendments made by this Act. The court may, on its own motion or that of any party made at any time within twelve months after such taking effect, allow the same to be maintained by or against the Administrator or such officer or employee. (b) All rules, regulations, orders, determinations, contracts, cer tifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursuant to the Clean Air Act as in effect im mediately prior to the date of enactment of this Act, and pertaining to any functions, powers, requirements, and duties under the Clean Air Act, as in effect immediately prior to the date of enactment of Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 436Sec. 406 APPENDIX this Act, and not suspended by the Administrator or the courts, shall continue in full force and effect after the date of enactment of this Act until modified or rescinded in accordance with the Clean Air Act as amended by this Act. (c) Nothing in this Act nor any action taken pursuant to this Act shall in any way affect any requirement of an approved imple mentation plan in effect under section 110 of the Clean Air Act or any other provision of the Act in effect under the Clean Air Act be fore the date of enactment of this section until modified or re scinded in accordance with the Clean Air Act as amended by this Act. (d)(1) Except as otherwise expressly provided, the amendments made by this Act shall be effective on date of enactment. (2) Except as otherwise expressly provided, each State required to revise its applicable implementation plan by reason of any amendment made by this Act shall adopt and submit to the Admin istrator of the Environmental Protection Administration such plan revision before the later of the date— (A) one year after the date of enactment of this Act, or (B) nine months after the date of promulgation by the Ad ministrator of the Environmental Protection Administration of any regulations under an amendment made by this Act which are necessary for the approval of such plan revision. Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 437 PROVISIONS OF THE ENERGY SECURITY ACT (PUBLIC LAW 96–294) RELATED TO THE CLEAN AIR ACT * * * * * * * TITLE VII—ACID PRECIPITATION PROGRAM AND CARBON DIOXIDE STUDY SUBTITLE A—ACID PRECIPITATION SHORT TITLE SEC. 701. This title may be cited as the ‘‘Acid Precipitation Act of 1980’’. STATEMENT OF FINDINGS AND PURPOSE SEC. 702. (a) The Congress finds and declares that acid precipi tation resulting from other than natural sources— (1) could contribute to the increasing pollution of natural and man-made water systems; (2) could adversely affect agricultural and forest crops; (3) could adversely affect fish and wildlife and natural eco systems generally; (4) could contribute to corrosion of metals, wood, paint, and masonry used in construction and ornamentation of build ings and public monuments; (5) could adversely affect public health and welfare; and (6) could affect areas distant from sources and thus involve issues of national and international policy. (b) The Congress declares that it is the purpose of this subtitle— (1) to identify the causes and sources of acid precipitation; (2) to evaluate the environmental, social, and economic ef fects of acid precipitation; and (3) based on the results of the research program estab lished by this subtitle and to the extent consistent with exist ing law, to take action to the extent necessary and practicable (A) to limit or eliminate the identified emissions which are sources of acid precipitation, and (B) to remedy or otherwise ameliorate the harmful effects which may result from acid pre cipitation. (c) For purposes of this subtitle the term ‘‘acid precipitation’’ means the wet or dry deposition from the atmosphere of acid chem ical compounds. INTERAGENCY TASK FORCE; COMPREHENSIVE PROGRAM SEC. 703. (a) There is hereby established a comprehensive ten year program to carry out the provisions of this subtitle; and to im Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 438Sec. 704 APPENDIX plement this program there shall be formed an Acid Precipitation Task Force (hereafter in this subtitle referred to as the ‘‘Task Force’’), of which the Secretary of Agriculture, the Administrator of the Environmental Protection Agency, and the Administrator of the National Oceanic and Atmospheric Administration shall be joint chairmen. The remaining membership of the Task Force shall con sist of— (1) one representative each from the Department of the In terior, the Department of Health and Human Services, the De partment of Commerce, the Department of Energy, the Depart ment of State, the National Aeronautics and Space Administra tion, the Council on Environmental Quality, the National Science Foundation, and the Tennessee Valley Authority; (2) the director of the Argonne National Laboratory, the di rector of the Brookhaven National Laboratory, the director of the Oak Ridge National Laboratory, and the director of the Pa cific Northwest National Laboratory; and (3) four additional members to be appointed by the Presi dent. (b) The four National Laboratories (referred to in subsection (a)(2)) shall constitute a research management consortium having the responsibilities described in section 704(b)(13) as well as the general responsibilities required by their representation on the Task Force. In carrying out these responsibilities the consortium shall report to, and act pursuant to direction from, the joint chair men of the Task Force. (c) The Administrator of the National Oceanic and Atmospheric Administration shall serve as the director of the research program established by this subtitle. COMPREHENSIVE RESEARCH PLAN SEC. 704. (a) The Task Force shall prepare a comprehensive re search plan for the ten-year program (hereafter in this subtitle re ferred to as the ‘‘comprehensive plan’’), setting forth a coordinated program (1) to identify the causes and effects of acid precipitation and (2) to identify actions to limit or ameliorate the harmful effects of acid precipitation. (b) The comprehensive plan shall include programs for— (1) identifying the sources of atmospheric emissions con tributing to acid precipitation; (2) establishing and operating a nationwide long-term monitoring network to detect and measure levels of acid pre cipitation; (3) research in atmospheric physics and chemistry to facili tate understanding of the processes by which atmospheric emissions are transformed into acid precipitation; (4) development and application of atmospheric transport models to enable prediction of long-range transport of sub stances causing acid precipitation; (5) defining geographic areas of impact through deposition monitoring, identification of sensitive areas, and identification of areas at risk; Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 439 Sec. 704APPENDIX (6) broadening of impact data bases through collection of existing data on water and soil chemistry and through tem poral trend analysis; (7) development of dose-response functions with respect to soils, soil organisms, aquatic and amphibious organisms, crop plants, and forest plants; (8) establishing and carrying out system studies with re spect to plant physiology, aquatic ecosystems, soil chemistry systems, soil microbial systems, and forest ecosystems; (9) economic assessments of (A) the environmental impacts caused by acid precipitation on crops, forests, fisheries, and recreational and aesthetic resources and structures, and (B) al ternative technologies to remedy or otherwise ameliorate the harmful effects which may result from acid precipitation; (10) documenting all current Federal activities related to research on acid precipitation and ensuring that such activities are coordinated in ways that prevent needless duplication and waste of financial and technical resources; (11) effecting cooperation in acid precipitation research and development programs, ongoing and planned, with the af fected and contributing States and with other sovereign na tions having a commonality of interest; (12) subject to subsection (f)(1), management by the Task Force of financial resources committed to Federal acid precipi tation research and development; (13) subject to subsection (f)(2), management of the tech nical aspects of Federal acid precipitation research and devel opment programs, including but not limited to (A) the planning and management of research and development programs and projects, (B) the selection of contractors and grantees to carry out such programs and projects, and (C) the establishment of peer review procedures to assure the quality of research and development programs and their products; and (14) analyzing the information available regarding acid precipitation in order to formulate and present periodic rec ommendations to the Congress and the appropriate agencies about actions to be taken by these bodies to alleviate acid pre cipitation and its effects. (c) The comprehensive plan— (1) shall be submitted in draft form to the Congress, and for public review, within six months after the date of the enact ment of this Act; (2) shall be available for public comment for a period of sixty days after its submission in draft form under paragraph (1); (3) shall be submitted in final form, incorporating such needed revisions as arise from comments received during the review period, to the President and the Congress within forty five days after the close of the period allowed for comments on the draft comprehensive plan under paragraph (2); and (4) shall constitute the basis on which requests for author izations and appropriations are to be made for the nine fiscal years following the fiscal year in which the comprehensive plan is submitted in final form under paragraph (3). Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 440Sec. 705 APPENDIX (d) The Task Force shall convene as necessary, but no less than twice during each fiscal year of the ten-year period covered by the comprehensive plan. (e) The Task Force shall submit to the President and the Con gress by January 15 of each year an annual report which shall de tail the progress of the research program under this subtitle and which shall contain such recommendations as are developed under subsection (b)(14). (f)(1) Subsection (b)(12) shall not be construed as modifying, or as authorizing the Task Force or the comprehensive plan to modify, any provision of an appropriation Act (or any other provision of law relating to the use of appropriated funds) which specifies (A) the department or agency to which funds are appropriated, or (B) the obligations of such department or agency with respect to the use of such funds. (2) Subsection (b)(13) shall not be construed as modifying, or as authorizing the Task Force or the comprehensive plan to modify, any provision of law (relating to or involving a department or agen cy) which specifies (A) procurement practices for the selection, award, or management of contracts or grants by such department or agency, or (B) program activities, limitations, obligations, or re sponsibilities of such department or agency. IMPLEMENTATION OF COMPREHENSIVE PLAN SEC. 705. (a) The comprehensive plan shall be carried out dur ing the nine fiscal years following the fiscal year in which the com prehensive plan is submitted in its final form under section 704(c)(3); and— (1) shall be carried out in accord with, and meet the pro gram objectives specified in, paragraphs (1) through (11) of sec tion 704(b); (2) shall be managed in accord with paragraphs (12) through (14) of such section; and (3) shall be funded by annual appropriations, subject to an nual authorizations which shall be made for each fiscal year of the program (as provided in section 706) after the submission of the Task Force progress report which under section 704(e) is required to be submitted by January 15 of the calendar year in which such fiscal year begins. (b) Nothing in this subtitle shall be deemed to grant any new regulatory authority or to limit, expand, or otherwise modify any regulatory authority under existing law, or to establish new cri teria, standards, or requirements for regulation under existing law. AUTHORIZATION OF APPROPRIATIONS SEC. 706. (a) For the purpose of establishing the Task Force and developing the comprehensive plan under section 704 there is authorized to be appropriated to the National Oceanic and Atmos pheric Administration for fiscal year 1981 the sum of $5,000,000, to remain available until expended. (b) Authorizations of appropriations for the nine fiscal years following the fiscal year in which the comprehensive plan is sub mitted in final form under section 704(c)(3), for purposes of car Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 441 Sec. 711APPENDIX rying out the comprehensive ten-year program established by sec tion 703(a) and implementing the comprehensive plan under sec tions 704 and 705, shall be provided on an annual basis in author ization Acts hereafter enacted; but the total sum of dollars author ized for such purposes for such nine fiscal years shall not exceed $45,000,000 except as may be specifically provided by reference to this paragraph in the authorization Acts involved. SUBTITLE B—CARBON DIOXIDE STUDY SEC. 711. (a)(1) The Director of the Office of Science and Tech nology Policy shall enter into an agreement with the National Academy of Sciences to carry out a comprehensive study of the pro jected impact, on the level of carbon dioxide in the atmosphere, of fossil fuel combustion, coal-conversion and related synthetic fuels activities authorized in this Act, and other sources. Such study should also include an assessment of the economic, physical, cli matic, and social effects of such impacts. In conducting such study the Office and the Academy are encouraged to work with domestic and foreign governmental and non-governmental entities, and international entities, so as to develop an international, worldwide assessment of the problems involved and to suggest such original research on any aspect of such problems as the Academy deems necessary. (2) The President shall report to the Congress within six months after the date of the enactment of this Act regarding the status of the Office’s negotiations to implement the study required under this section. (b) A report including the major findings and recommendations resulting from this study required under this section shall be sub mitted to the Congress by the Office and the Academy not later than three years after the date of the enactment of this Act. The Academy contribution to such report shall not be subject to any prior clearance or review, nor shall any prior clearance or condi tions be imposed on the Academy as part of the agreement made by the Office with the Academy under this section. Such report shall in any event include recommendations regarding— (1) how a long-term program of domestic and international research, monitoring, modeling, and assessment of the causes and effects of varying levels of atmospheric carbon dioxide should be structured, including comments by the Office on the interagency requirements of such a program and comments by the Secretary of State on the international agreements re quired to carry out such a program; (2) how the United States can best play a role in the devel opment of such a long-term program on an international basis; (3) what domestic resources should be made available to such a program; (4) how the ongoing United States Government carbon di oxide assessment program should be modified so as to be of in creased utility in providing information and recommendations of the highest possible value to government policy makers; and Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 442Sec. 712 APPENDIX (5) the need for periodic reports to the Congress in con junction with any long-term program the Office and the Acad emy may recommend under this section. (c) The Secretary of Energy, the Secretary of Commerce, the Administrator of the Environmental Protection Agency, and the Di rector of the National Science Foundation shall furnish to the Of fice or the Academy upon request any information which the Office or the Academy determines to be necessary for purposes of con ducting the study required by this section. (d) The Office shall provide a separate assessment of the inter agency requirements to implement a comprehensive program of the type described in the third sentence of subsection (b). AUTHORIZATION OF APPROPRIATIONS SEC. 712. For the expenses of carrying out the carbon dioxide study authorized by section 711 (as determined by the Office of Science and Technology Policy) there are authorized to be appro priated such sums, not exceeding $3,000,000 in the aggregate, as may be necessary. At least 80 percent of any amounts appropriated pursuant to the preceding sentence shall be provided to the Na tional Academy of Sciences. Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 443 PROVISIONS OF THE CLEAN AIR ACT AMENDMENTS OF 1990 (PUBLIC LAW 101–549) THAT DID NOT AMEND THE CLEAN AIR ACT * * * * * * * PART B—OTHER PROVISIONS SEC. 231. ETHANOL SUBSTITUTE FOR DIESEL. Within one year after the enactment of the Clean Air Act Amendments of 1990, the Administrator shall contract with a lab oratory which has done research on alcohol esters of rapeseed oil to evaluate the feasibility, engine performance, emissions, and pro duction capability associated with an alternative to diesel fuel com posed of ethanol and high erucic rapeseed oil. The Administrator shall submit a report on the results of this research to Congress within 3 years of the issuance of such contract. * * * * * * * SEC. 233. STATES AUTHORITY TO REGULATE. (a) STUDY.—The Administrator of the Environmental Protec tion Agency and the Secretary of Transportation, in consultation with the Secretary of Defense, shall commence a study and inves tigation of the testing of uninstalled aircraft engines in enclosed test cells that shall address at a minimum the following issues and such other issues as they shall deem appropriate— (1) whether technologies exist to control some or all emis sions of oxides of nitrogen from test cells; (2) the effectiveness of such technologies; (3) the cost of implementing such technologies; (4) whether such technologies affect the safety, design, structure, operation, or performance of aircraft engines; (5) whether such technologies impair the effectiveness and accuracy of aircraft engine safety design, and performance tests conducted in test cells; and (6) the impact of not controlling such oxides of nitrogen in the applicable nonattainment areas and on other sources, sta tionary and mobile, on oxides of nitrogen in such areas. (b) REPORT, AUTHORITY TO REGULATE.—Not later than 24 months after enactment of the Clean Air Act Amendments of 1990, the Administrator of the Environmental Protection Agency and the Secretary of Transportation shall submit to Congress a report of the study conducted under this section. Following the completion of such study, any of the States may adopt or enforce any standard for emissions of oxides of nitrogen from test cells only after issuing a public notice stating whether such standards are in accordance with the findings of the study. Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 444Sec. 234 APPENDIX SEC. 234. FUGITIVE DUST. (a) Prior to any use of the Industrial Source Complex (ISC) Model using AP–42 Compilation of Air Pollutant Emission Factors to determine the effect on air quality of fugitive particulate emis sions from surface coal mines, for purposes of new source review or for purposes of demonstrating compliance with national ambient air quality standards for particulate matter applicable to periods of 24 hours or less, under section 110 or parts C or D of title I of the Clean Air Act, the Administrator shall analyze the accuracy of such model and emission factors and make revisions as may be nec essary to eliminate any significant over-prediction of air quality ef fect of fugitive particulate emissions from such sources. Such revi sions shall be completed not later than 3 years after the date of en actment of the Clean Air Act Amendments of 1990. Until such time as the Administrator develops a revised model for surface mine fu gitive emissions, the State may use alternative empirical based modeling approaches pursuant to guidelines issued by the Adminis trator.’’. * * * * * * * SEC. 303. RISK ASSESSMENT AND MANAGEMENT COMMISSION. (a) ESTABLISHMENT.—There is hereby established a Risk As sessment and Management Commission (hereafter referred to in this section as the ‘‘Commission’’), which shall commence pro ceedings not later than 18 months after the date of enactment of the Clean Air Act Amendments of 1990 and which shall make a full investigation of the policy implications and appropriate uses of risk assessment and risk management in regulatory programs under various Federal laws to prevent cancer and other chronic human health effects which may result from exposure to hazardous substances. (b) CHARGE.—The Commission shall consider— (1) the report of the National Academy of Sciences author ized by section 112(o) of the Clean Air Act, the use and limita tions of risk assessment in establishing emission or effluent standards, ambient standards, exposure standards, acceptable concentration levels, tolerances or other environmental criteria for hazardous substances that present a risk of carcinogenic ef fects or other chronic health effects and the suitability of risk assessment for such purposes; (2) the most appropriate methods for measuring and de scribing cancer risks or risks of other chronic health effects from exposure to hazardous substances considering such alter native approaches as the lifetime risk of cancer or other effects to the individual or individuals most exposed to emissions from a source or sources on both an actual and worst case basis, the range of such risks, the total number of health effects avoided by exposure reductions, effluent standards, ambient standards, exposures standards, acceptable concentration levels, toler ances and other environmental criteria, reductions in the num ber of persons exposed at various levels of risk, the incidence of cancer, and other public health factors; (3) methods to reflect uncertainties in measurement and estimation techniques, the existence of synergistic or antago Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 445 Sec. 303APPENDIX nistic effects among hazardous substances, the accuracy of ex trapolating human health risks from animal exposure data, and the existence of unquantified direct or indirect effects on human health in risk assessment studies; (4) risk management policy issues including the use of life time cancer risks to individuals most exposed, incidence of can cer, the cost and technical feasibility of exposure reduction measures and the use of site-specific actual exposure informa tion in setting emissions standards and other limitations appli cable to sources of exposure to hazardous substances; and (5) and comment on the degree to which it is possible or desirable to develop a consistent risk assessment methodology, or a consistent standard of acceptable risk, among various Fed eral programs. (c) MEMBERSHIP.—Such Commission shall be composed of ten members who shall have knowledge or experience in fields of risk assessment or risk management, including three members to be ap pointed by the President, two members to be appointed by the Speaker of the House of Representatives, one member to be ap pointed by the Minority Leader of the House of Representatives, two members to be appointed by the Majority Leader of the Senate, one member to be appointed by the Minority Leader of the Senate, and one member to be appointed by the President of the National Academy of Sciences. Appointments shall be made not later than 18 months after the date of enactment of the Clean Air Act Amend ments of 1990. (d) ASSISTANCE FROM AGENCIES.—The Administrator of the En vironmental Protection Agency and the heads of all other depart ments, agencies, and instrumentalities of the executive branch of the Federal Government shall, to the maximum extent practicable, assist the Commission in gathering such information as the Com mission deems necessary to carry out this section subject to other provisions of law. (e) STAFF AND CONTRACTS.— (1) In the conduct of the study required by this section, the Commission is authorized to contract (in accordance with Fed eral contract law) with nongovernmental entities that are com petent to perform research or investigations within the Com mission’s mandate, and to hold public hearings, forums, and workshops to enable full public participation. (2) The Commission may appoint and fix the pay of such staff as it deems necessary in accordance with the provisions of title 5, United States Code. The Commission may request the temporary assignment of personnel from the Environ mental Protection Agency or other Federal agencies. (3) The members of the Commission who are not officers or employees of the United States, while attending conferences or meetings of the Commission or while otherwise serving at the request of the Chair, shall be entitled to receive compensa tion at a rate not in excess of the maximum rate of pay for Grade GS–18, as provided in the General Schedule under sec tion 5332 of title 5 of the United States Code, including travel time, and while away from their homes or regular places of business they may be allowed travel expenses, including per Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 446Sec. 304 APPENDIX diem in lieu of subsistence as authorized by law for persons in the Government service employed intermittently. (f) REPORT.—A report containing the results of all Commission studies and investigations under this section, together with any ap propriate legislative recommendations or administrative rec ommendations, shall be made available to the public for comment not later than 42 months after the date of enactment of the Clean Air Act Amendments of 1990 and shall be submitted to the Presi dent and to the Congress not later than 48 months after such date of enactment. In the report, the Commission shall make rec ommendations with respect to the appropriate use of risk assess ment and risk management in Federal regulatory programs to pre vent cancer or other chronic health effects which may result from exposure to hazardous substances. The Commission shall cease to exist upon the date determined by the Commission, but not later than 9 months after the submission of such report. (g) AUTHORIZATION.—There are authorized to be appropriated such sums as are necessary to carry out the activities of the Com mission established by this section. SEC. 304. CHEMICAL PROCESS SAFETY MANAGEMENT. (a) CHEMICAL PROCESS SAFETY STANDARD.—The Secretary of Labor shall act under the Occupational Safety and Health Act of 1970 (29 U.S.C. 653) to prevent accidental releases of chemicals which could pose a threat to employees. Not later than 12 months after the date of enactment of the Clean Air Act Amendments of 1990, the Secretary of Labor, in coordination with the Adminis trator of the Environmental Protection Agency, shall promulgate, pursuant to the Occupational Safety and Health Act, a chemical process safety standard designed to protect employees from haz ards associated with accidental releases of highly hazardous chemi cals in the workplace. (b) LIST OF HIGHLY HAZARDOUS CHEMICALS.—The Secretary shall include as part of such standard a list of highly hazardous chemicals, which include toxic, flammable, highly reactive and ex plosive substances. The list of such chemicals may include those chemicals listed by the Administrator under section 302 of the Emergency Planning and Community Right to Know Act of 1986. The Secretary may make additions to such list when a substance is found to pose a threat of serious injury or fatality in the event of an accidental release in the workplace. (c) ELEMENTS OF SAFETY STANDARD.—Such standard shall, at minimum, require employers to— (1) develop and maintain written safety information identi fying workplace chemical and process hazards, equipment used in the processes, and technology used in the processes; (2) perform a workplace hazard assessment, including, as appropriate, identification of potential sources of accidental re leases, an identification of any previous release within the fa cility which had a likely potential for catastrophic con sequences in the workplace, estimation of workplace effects of a range of releases, estimation of the health and safety effects of such range on employees; Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 447 Sec. 305APPENDIX (3) consult with employees and their representatives on the development and conduct of hazard assessments and the development of chemical accident prevention plans and provide access to these and other records required under the standard; (4) establish a system to respond to the workplace hazard assessment findings, which shall address prevention, mitiga tion, and emergency responses; (5) periodically review the workplace hazard assessment and response system; (6) develop and implement written operating procedures for the chemical process including procedures for each oper ating phase, operating limitations, and safety and health con siderations; (7) provide written safety and operating information to em ployees and train employees in operating procedures, empha sizing hazards and safe practices; (8) ensure contractors and contract employees are provided appropriate information and training; (9) train and educate employees and contractors in emer gency response in a manner as comprehensive and effective as that required by the regulation promulgated pursuant to sec tion 126(d) of the Superfund Amendments and Reauthorization Act; (10) establish a quality assurance program to ensure that initial process related equipment, maintenance materials, and spare parts are fabricated and installed consistent with design specifications; (11) establish maintenance systems for critical process re lated equipment including written procedures, employee train ing, appropriate inspections, and testing of such equipment to ensure ongoing mechanical integrity; (12) conduct pre-start-up safety reviews of all newly in stalled or modified equipment; (13) establish and implement written procedures to man age change to process chemicals, technology, equipment and fa cilities; and (14) investigate every incident which results in or could have resulted in a major accident in the workplace, with any findings to be reviewed by operating personnel and modifica tions made if appropriate. (d) STATE AUTHORITY.—Nothing in this section may be con strued to diminish the authority of the States and political subdivi sions thereof as described in section 112(r)(11) of the Clean Air Act. * * * * * * * SEC. 305. SOLID WASTE COMBUSTION. * * * * * * * (c) REVIEW OF ACID GAS SCRUBBING REQUIREMENTS.—Prior to the promulgation of any performance standard for solid waste in cineration units combusting municipal waste under section 111 or section 129 of the Clean Air Act, the Administrator shall review the availability of acid gas scrubbers as a pollution control tech nology for small new units and for existing units (as defined in 54 Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 448Sec. 306 APPENDIX Federal Register 52190 (December 20, 1989), taking into account the provisions of subsection (a)(2) of section 129 of the Clean Air Act. SEC. 306. ASH MANAGEMENT AND DISPOSAL. For a period of 2 years after the date of enactment of the Clean Air Act Amendments of 1990, ash from solid waste incineration units burning municipal waste shall not be regulated by the Ad ministrator of the Environmental Protection Agency pursuant to section 3001 of the Solid Waste Disposal Act. Such reference and limitation shall not be construed to prejudice, endorse or otherwise affect any activity by the Administrator following the 2-year period from the date of enactment of the Clean Air Act Amendments of 1990. * * * * * * * SEC. 402. FOSSIL FUEL USE. (a) CONTRACTS FOR HYDROELECTRIC ENERGY.—Any person who, after the date of the enactment of the Clean Air Act Amend ments of 1990, enters into a contract under which such person re ceives hydroelectric energy in return for the provision of electric en ergy by such person shall use allowances held by such person as necessary to satisfy such person’s obligations under such contract. (b) FEDERAL POWER MARKETING ADMINISTRATION.—A Federal Power Marketing Administration shall not be subject to the provi sions and requirements of this title with respect to electric energy generated by hydroelectric facilities and marketed by such Power Marketing Administration. Any person who sells or provides elec tric energy to a Federal Power Marketing Administration shall comply with the provisions and requirements of this title. SEC. 403. REPEAL OF PERCENT REDUCTION. (a) * * * (b) REVISED REGULATIONS.—Not later than three years after the date of enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate revised regulations for stand ards of performance for new fossil fuel fired electric utility units commencing construction after the date on which such regulations are proposed that, at a minimum, require any source subject to such revised standards to emit sulfur dioxide at a rate not greater than would have resulted from compliance by such source with the applicable standards of performance under this section prior to such revision. (c) APPLICABILITY.—The provisions of subsections (a) and (b) apply only so long as the provisions of section 403(e) of the Clean Air Act remain in effect. * * * * * * * SEC. 404. ACID DEPOSITION STANDARDS. Not later than 36 months after the date of enactment of this Act, the Administrator of the Environmental Protection Agency shall transmit to the Committee on Environment and Public Works of the Senate and the Committee on Energy and Commerce of the House of Representatives a report on the feasibility and effective ness of an acid deposition standard or standards to protect sen Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 449 Sec. 406APPENDIX 1 Probably intended to refer to section 405(g)(6). sitive and critically sensitive aquatic and terrestrial resources. The study required by this section shall include, but not be limited to, consideration of the following matters: (1) identification of the sensitive and critically sensitive aquatic and terrestrial resources in the United States and Can ada which may be affected by the deposition of acidic com pounds; (2) description of the nature and numerical value of a dep osition standard or standards that would be sufficient to pro tect such resources; (3) description of the use of such standard or standards in other Nations or by any of the several States in acid deposition control programs; (4) description of the measures that would need to be taken to integrate such standard or standards with the control program required by title IV of the Clean Air Act; (5) description of the state of knowledge with respect to source-receptor relationships necessary to develop a control program on such standard or standards and the additional re search that is on-going or would be needed to make such a con trol program feasible; and (6) description of the impediments to implementation of such control program and the cost-effectiveness of deposition standards compared to other control strategies including ambi ent air quality standards, new source performance standards and the requirements of title IV of the Clean Air Act. SEC. 405. NATIONAL ACID LAKES REGISTRY. The Administrator of the Environmental Protection Agency shall create a National Acid Lakes Registry that shall list, to the extent practical, all lakes that are known to be acidified due to acid deposition, and shall publish such list within one year of the enact ment of this Act. Lakes shall be added to the registry as they be come acidic or as data becomes available to show they are acidic. Lakes shall be deleted from the registry as they become nonacidic. SEC. 406. INDUSTRIAL SO2 EMISSIONS. (a) REPORT.—Not later than January 1, 1995 and every 5 years thereafter, the Administrator of the Environmental Protection Agency shall transmit to the Congress a report containing an in ventory of national annual sulfur dioxide emissions from industrial sources (as defined in title IV of the Act), including units subject to section 405(g)(6) of the Clean Air Act, for all years for which data are available, as well as the likely trend in such emissions over the following twenty-year period. The reports shall also con tain estimates of the actual emission reduction in each year result ing from promulgation of the diesel fuel desulfurization regulations under section 214. (b) 5.60 MILLION TON CAP.—Whenever the inventory required by this section indicates that sulfur dioxide emissions from indus trial sources, including units subject to section 405(g)(5) 1 of the Clean Air Act, may reasonably be expected to reach levels greater Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 450Sec. 407 APPENDIX 1 Probably intended to refer to section 405(g)(6). 2 Probably intended to refer to section 403(b). than 5.60 million tons per year, the Administrator of the Environ mental Protection Agency shall take such actions under the Clean Air Act as may be appropriate to ensure that such emissions do not exceed 5.60 million tons per year. Such actions may include the promulgation of new and revised standards of performance for new sources, including units subject to section 405(g)(5) 1 of the Clean Air Act, under section 111(b) of the Clean Air Act, as well as pro mulgation of standards of performance for existing sources, includ ing units subject to section 405(g)(5) of the Clean Air Act, under authority of this section. For an existing source regulated under this section, ‘‘standard of performance’’ means a standard which the Administrator determines is applicable to that source and which reflects the degree of emission reduction achievable through the application of the best system of continuous emission reduction which (taking into consideration the cost of achieving such emis sion reduction, and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated for that category of sources. (c) ELECTION.—Regulations promulgated under section 405(b) 2 of the Clean Air Act shall not prohibit a source from electing to be come an affected unit under section 410 of the Clean Air Act. SEC. 407. SENSE OF THE CONGRESS ON EMISSION REDUCTIONS COSTS. It is the sense of the Congress that the Clean Air Act Amend ments of 1990, through the allowance program, allocates the costs of achieving the required reductions in emissions of sulfur dioxide and oxides of nitrogen among sources in the United States. Broad based taxes and emissions fees that would provide for payment of the costs of achieving required emissions reductions by any party or parties other than the sources required to achieve the reductions are undesirable. SEC. 408. MONITOR ACID RAIN PROGRAM IN CANADA. (a) REPORTS TO CONGRESS.—The Administrator of the Environ mental Protection Agency, in consultation with the Secretary of State, the Secretary of Energy, and other persons the Adminis trator deems appropriate, shall prepare and submit a report to Congress on January 1, 1994, January 1, 1999, and January 1, 2005. (b) CONTENTS.—The report to Congress shall analyze the cur rent emission levels of sulfur dioxide and nitrogen oxides in each of the provinces participating in Canada’s acid rain control pro gram, the amount of emission reductions of sulfur dioxide and ox ides of nitrogen achieved by each province, the methods utilized by each province in making those reductions, the costs to each prov ince and the employment impacts in each province of making and maintaining those reductions. (c) COMPLIANCE.—Beginning on January 1, 1999, the reports shall also assess the degree to which each province is complying with its stated emissions cap. Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 451 Sec. 413APPENDIX SEC. 409. REPORT ON CLEAN COAL TECHNOLOGIES EXPORT PRO GRAMS. The Secretary of Energy in consultation with the Secretary of Commerce shall provide a report to the Congress within one year of enactment of this legislation which will identify, inventory and analyze clean coal technologies export programs within United States Government agencies including the Departments of State, Commerce, and Energy and at the Export-Import Bank and the Overseas Private Investment Corporation. The study shall address the effectiveness of interagency coordination of export promotion and determine the feasibility of establishing an interagency com mission for the purpose of promoting the export and use of clean coal technologies. SEC. 410. ACID DEPOSITION RESEARCH BY THE UNITED STATES FISH AND WILDLIFE SERVICE. There are authorized to be appropriated to the United States Fish and Wildlife Service of the Department of the Interior an amount equal to $500,000 to fund research related to acid deposi tion and the monitoring of high altitude mountain lakes in the Wind River Reservation, Wyoming, to be conducted through the Management Assistance Office of the United States Fish and Wild life Service located in Lander, Wyoming and the University of Wyo ming. SEC. 411. STUDY OF BUFFERING AND NEUTRALIZING AGENTS. There are authorized to be appropriated to the United States Fish and Wildlife Service of the Department of the Interior an amount equal to $250,000 to fund a study to be conducted in con junction with the University of Wyoming of the effectiveness of var ious buffering and neutralizing agents used to restore lakes and streams damaged by acid deposition. * * * * * * * SEC. 413. SPECIAL CLEAN COAL TECHNOLOGY PROJECT. (a) DEMONSTRATION PROJECT.—The Secretary of Energy shall, subject to appropriation, as part of the Secretary’s activities with respect to fossil energy research and development under the De partment of Energy Organization Act (Public Law 95–91) consider funding at least 50 percent of the cost of a demonstration project to design, construct, and test a technology system for a cyclone boil er that will serve as a model for sulfur dioxide and nitrogen oxide reduction technology at a combustion unit required to meet the emissions reductions prescribed in this bill. The Secretary shall ex pedite approval and funding to enable such project to be completed no later than January 1, 1995. The unit selected for this project shall be in a utility plant that (1) is among the top 10 emitters of sulfur dioxide as identified on Table A of section 404; (2) has 3 or more units, 2 of which are cy clone boiler units; and (3) has no existing scrubbers. (b) AUTHORIZATION.—There are authorized to be appropriated such sums as may be necessary to carry out this section, to remain available until expended. * * * * * * * Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 452Sec. 603 APPENDIX SEC. 603. METHANE STUDIES. (a) ECONOMICALLY JUSTIFIED ACTIONS.—Not later than 2 years after enactment of this Act, the Administrator shall prepare and submit a report to the Congress that identifies activities, sub stances, processes, or combinations thereof that could reduce meth ane emissions and that are economically and technologically justi fied with and without consideration of environmental benefit. (b) DOMESTIC METHANE SOURCE INVENTORY AND CONTROL.— Not later than 2 years after the enactment of this Act, the Admin istrator, in consultation and coordination with the Secretary of En ergy and the Secretary of Agriculture, shall prepare and submit to the Congress reports on each of the following: (1) Methane emissions associated with natural gas extrac tion, transportation, distribution, storage, and use. Such report shall include an inventory of methane emissions associated with such activities within the United States. Such emissions include, but are not limited to, accidental and intentional re leases from natural gas and oil wells, pipelines, processing fa cilities, and gas burners. The report shall also include an in ventory of methane generation with such activities. (2) Methane emissions associated with coal extraction, transportation, distribution, storage, and use. Such report shall include an inventory of methane emissions associated with such activities within the United States. Such emissions in clude, but are not limited to, accidental and intentional re leases from mining shafts, degasification wells, gas recovery wells and equipment, and from the processing and use of coal. The report shall also include an inventory of methane genera tion with such activities. (3) Methane emissions associated with management of solid waste. Such report shall include an inventory of methane emissions associated with all forms of waste management in the United States, including storage, treatment, and disposal. (4) Methane emissions associated with agriculture. Such report shall include an inventory of methane emissions associ ated with rice and livestock production in the United States. (5) Methane emissions associated with biomass burning. Such report shall include an inventory of methane emissions associated with the intentional burning of agricultural wastes, wood, grasslands, and forests. (6) Other methane emissions associated with human ac tivities. Such report shall identify and inventory other domes tic sources of methane emissions that are deemed by the Ad ministrator and other such agencies to be significant. (c) INTERNATIONAL STUDIES.— (1) METHANE EMISSIONS.—Not later than 2 years after the enactment of this Act, the Administrator shall prepare and submit to the Congress a report on methane emissions from countries other than the United States. Such report shall in clude inventories of methane emissions associated with the ac tivities listed in subsection (b). (2) PREVENTING INCREASES IN METHANE CONCENTRA TIONS.—Not later than 2 years after the enactment of this Act, the Administrator shall prepare and submit to the Congress a Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 453 Sec. 603APPENDIX report that analyzes the potential for preventing an increase in atmospheric concentrations of methane from activities and sources in other countries. Such report shall identify and evaluate the technical options for reducing methane emission from each of the activities listed in subsection (b), as well as other activities or sources that are deemed by the Adminis trator in consultation with other relevant Federal agencies and departments to be significant and shall include an evaluation of costs. The report shall identify the emissions reductions that would need to be achieved to prevent increasing atmospheric concentrations of methane. The report shall also identify tech nology transfer programs that could promote methane emis sions reductions in lesser developed countries. (d) NATURAL SOURCES.—Not later than 2 years after the enact ment of this Act, the Administrator shall prepare and submit to the Congress a report on— (1) methane emissions from biogenic sources such as (A) tropical, temperate, and subarctic forests, (B) tundra, and (C) freshwater and saltwater wetlands; and (2) the changes in methane emissions from biogenic sources that may occur as a result of potential increases in temperatures and atmospheric concentrations of carbon diox ide. (e) STUDY OF MEASURES TO LIMIT GROWTH IN METHANE CON CENTRATIONS.—Not later than 2 years after the completion of the studies in subsections (b), (c), and (d), the Administrator shall pre pare and submit to the Congress a report that presents options out lining measures that could be implemented to stop or reduce the growth in atmospheric concentrations of methane from sources within the United States referred to in paragraphs (1) through (6) of subsection (b). This study shall identify and evaluate the tech nical options for reducing methane emissions from each of the ac tivities listed in subsection (b), as well as other activities or sources deemed by such agencies to be significant, and shall include an evaluation of costs, technology, safety, energy, and other factors. The study shall be based on the other studies under this section. The study shall also identify programs of the United States and international lending agencies that could be used to induce lesser developed countries to undertake measures that will reduce meth ane emissions and the resource needs of such programs. (f) INFORMATION GATHERING.—In carrying out the studies under this section, the provisions and requirements of section 114 of the Clean Air Act shall be available for purposes of obtaining in formation to carry out such studies. (g) CONSULTATION AND COORDINATION.—In preparing the stud ies under this section the Administrator shall consult and coordi nate with the Secretary of Energy, the Administrators of the Na tional Aeronautics and Space Administration and the National Oce anic and Atmospheric Administration, and the heads of other rel evant Federal agencies and departments. In the case of the studies under subsections (a), (b), and (e), such consultation and coordina tion shall include the Secretary of Agriculture. * * * * * * * Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 454Sec. 711 APPENDIX SEC. 711. SAVINGS PROVISIONS AND EFFECTIVE DATES. (a) SAVINGS PROVISIONS.—Except as otherwise expressly pro vided in this Act, no suit, action, or other proceeding lawfully com menced by the Administrator or any other officer or employee of the United States in his official capacity or in relation to the dis charge of his official duties under the Clean Air Act, as in effect immediately prior to the date of enactment of this Act, shall abate by reason of the taking effect of the amendments made by this Act. (b) EFFECTIVE DATES.—(1) Except as otherwise expressly pro vided, the amendments made by this Act shall be effective on the date of enactment of this Act. (2) The Administrator’s authority to assess civil penalties under section 205(c) of the Clean Air Act, as amended by this Act, shall apply to violations that occur or continue on or after the date of enactment of this Act. Civil penalties for violations that occur prior to such date and do not continue after such date shall be as sessed in accordance with the provisions of the Clean Air Act in ef fect immediately prior to the date of enactment of this Act. (3) The civil penalties prescribed under sections 205(a) and 211(d)(1) of the Clean Air Act, as amended by this Act, shall apply to violations that occur on or after the date of enactment of this Act. Violations that occur prior to such date shall be subject to the civil penalty provisions prescribed in sections 205(a) and 211(d) of the Clean Air Act in effect immediately prior to the enactment of this Act. The injunctive authority prescribed under section 211(d)(2) of the Clean Air Act, as amended by this Act, shall apply to violations that occur or continue on or after the date of enact ment of this Act. (4) For purposes of paragraphs (2) and (3), where the date of a violation cannot be determined it will be assumed to be the date on which the violation is discovered. * * * * * * * SEC. 807. HYDROGEN FUEL CELL VEHICLE STUDY AND TEST PRO GRAM. The Administrator of the Environmental Protection Agency, in conjunction with the National Aeronautics and Space Administra tion and the Department of Energy, shall conduct a study and test program on the development of a hydrogen fuel cell electric vehicle. The study and test program shall determine how best to transfer existing NASA hydrogen fuel cell technology into the form of a mass-producible, cost effective hydrogen fuel cell vehicle. Such study and test program shall include at a minimum a feasibility design study, the construction of a prototype, and a demonstration. This study and test program should be completed and a report sub mitted to Congress within 3 years after the enactment of the Clean Air Act Amendments of 1990. This study and test program should be performed in the university or universities which are best exhib iting the facilities and expertise to develop such a fuel cell vehicle. SEC. 808. RENEWABLE ENERGY AND ENERGY CONSERVATION INCEN TIVES. (a) DEFINITION.—For purposes of this section, ‘‘renewable en ergy’’ means energy from photovoltaic, solar thermal, wind, geo thermal, and biomass energy production technologies. Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 455 Sec. 811APPENDIX (b) RATE INCENTIVES STUDY.—Within 18 months after enact ment, the Federal Energy Regulatory Commission, in consultation with the Environmental Protection Agency, shall complete a study which calculates the net environmental benefits of renewable en ergy, compared to nonrenewable energy, and assigns numerical val ues to them. The study shall include, but not be limited to, environ mental impacts on air, water, land use, water use, human health, and waste disposal. (c) MODEL REGULATIONS.—In conjunction with the study in subsection (b), the Commission shall propose one or more models for incorporating the net environmental benefits into the regulatory treatment of renewable energy in order to provide economic com pensation for those benefits. (d) REPORT.—The Commission shall transmit the study and the model regulations to Congress, along with any recommendations on the best ways to reward renewable energy technologies for their en vironmental benefits, in a report no later than 24 months after en actment. SEC. 809. CLEAN AIR STUDY OF SOUTHWESTERN NEW MEXICO. The Administrator shall conduct a study of the causes of de graded visibility in southwestern New Mexico. The Administrator, in consultation with the Secretary of State, is encouraged to cooper ate with the Government of Mexico, other Federal agencies, and any other appropriate organizations in conducting the study. Noth ing in this section shall be construed as contravening or super seding the provisions of any international agreement in force for the United States as of the date of enactment of this section, or any relevant Federal statute. SEC. 810. IMPACT ON SMALL COMMUNITIES. Before implementing a provision of this Act, the Administrator of the Environmental Protection Agency shall consult with the Small Communities Coordinator of the Environmental Protection Agency to determine the impact of such provision on small commu nities, including the estimated cost of compliance with such provi sion. SEC. 811. EQUIVALENT AIR QUALITY CONTROLS AMONG TRADING NA TIONS. (a) FINDINGS.—The Congress finds that— (1) all nations have the responsibility to adopt and enforce effective air quality standards and requirements and the United States, in enacting this Act, is carrying out its responsi bility in this regard; (2) as a result of complying with this Act, businesses in the United States will make significant capital investments and incur incremental costs in implementing control technology standards; (3) such compliance may impair the competitiveness of cer tain United States jobs, production, processes, and products if foreign goods are produced under less costly environmental standards and requirements than are United States goods; and (4) mechanisms should be sought through which the United States and its trading partners can agree to eliminate or reduce competitive disadvantages. Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 456Sec. 813 APPENDIX (b) ACTION BY THE PRESIDENT.— (1) IN GENERAL.—Within 18 months after the date of the enactment of the Clean Air Act Amendments of 1990, the President shall submit to the Congress a report— (A) identifying and evaluating the economic effects of— (i) the significant air quality standards and con trols required under this Act, and (ii) the differences between the significant stand ards and controls required under this Act and similar standards and controls adopted and enforced by the major trading partners of the United States, on the international competitiveness of United States man ufacturers; and (B) containing a strategy for addressing such economic effects through trade consultations and negotiations. (2) ADDITIONAL REPORTING REQUIREMENTS.—(A) The eval uation required under paragraph (1)(A) shall examine the ex tent to which the significant air quality standards and controls required under this Act are comparable to existing internation ally-agreed norms. (B) The strategy required to be developed under paragraph (1)(B) shall include recommended options (such as the harmo nization of standards and trade adjustment measures) for re ducing or eliminating competitive disadvantages caused by dif ferences in standards and controls between the United States and each of its major trading partners. (3) PUBLIC COMMENT.—Interested parties shall be given an opportunity to submit comments regarding the evaluations and strategy required in the report under paragraph (1). The Presi dent shall take any such comment into account in preparing the report. (4) INTERIM REPORT.—Within 9 months after the date of the enactment of the Clean Air Act Amendments of 1990, the President shall submit to the Congress an interim report on the progress being made in complying with paragraph (1). * * * * * * * SEC. 813. COMBUSTION OF CONTAMINATED USED OIL IN SHIPS. Within 2 years after the enactment of the Clean Air Act Amendments of 1990, the Administrator of the Environmental Pro tection Agency shall complete a study and submit a report to Con gress evaluating the health and environmental impacts of the com bustion of contaminated used oil in ships, the reasons for using such oil for such purposes, the alternatives to such use, the costs of such alternatives, and other relevant factors and impacts. In pre paring such study, the Administrator shall obtain the view and comments of all interested persons and shall consult with the Sec retary of Transportation and the Secretary of the department in which the Coast Guard is operating. SEC. 814. AMERICAN MADE PRODUCTS. It is the sense of the Congress that— Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 457 Sec. 815APPENDIX (1) existing equipment and machinery retrofitted to comply with the Clean Air Act’s ‘‘Best Available Control Technology’’ language and all other specifications within the Act be pro duced in the United States and purchased from American man ufacturers. (2) The construction of new industrial and utility facilities comply to the Act’s specifications through the incorporation of American made equipment and technology. (3) Individuals, groups, and organizations in the public sector strive to purchase and produce American made products that improve our nation’s air quality. SEC. 815. ESTABLISHMENT OF PROGRAM TO MONITOR AND IMPROVE AIR QUALITY IN REGIONS ALONG THE BORDER BETWEEN THE UNITED STATES AND MEXICO. (a) IN GENERAL.—The Administrator of the Environmental Protection Agency (hereinafter referred to as the ‘‘Administrator’’) is authorized, in cooperation with the Department of State and the affected States, to negotiate with representatives of Mexico to au thorize a program to monitor and improve air quality in regions along the border between the United States and Mexico. The pro gram established under this section shall not extend beyond July 1, 1995. (b) MONITORING AND REMEDIATION.— (1) MONITORING.—The monitoring component of the pro gram conducted under this section shall identify and determine sources of pollutants for which national ambient air quality standards (hereinafter referred to as ‘‘NAAQS’’) and other air quality goals have been established in regions along the border between the United States and Mexico. Any such monitoring component of the program shall include, but not be limited to, the collection of meteorological data, the measurement of air quality, the compilation of an emissions inventory, and shall be sufficient to the extent necessary to successfully support the use of a state-of-the-art mathematical air modeling analysis. Any such monitoring component of the program shall collect and produce data projecting the level of emission reductions necessary in both Mexico and the United States to bring about attainment of both primary and secondary NAAQS, and other air quality goals, in regions along the border in the United States. Any such monitoring component of the program shall include to the extent possible, data from monitoring programs undertaken by other parties. (2) REMEDIATION.—The Administrator is authorized to ne gotiate with appropriate representatives of Mexico to develop joint remediation measures to reduce the level of airborne pol lutants to achieve and maintain primary and secondary NAAQS, and other air quality goals, in regions along the bor der between the United States and Mexico. Such joint remedi ation measures may include, but not be limited to measures in cluded in the Environmental Protection Agency’s Control Tech niques and Control Technology documents. Any such remedi ation program shall also identify those control measures imple mentation of which in Mexico would be expedited by the use of material and financial assistance of the United States. Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 458Sec. 817 APPENDIX (c) ANNUAL REPORTS.—The Administrator shall, each year the program authorized in this section is in operation, report to Con gress on the progress of the program in bringing nonattainment areas along the border of the United States into attainment with primary and secondary NAAQS. The report issued by the Adminis trator under this paragraph shall include recommendations on funding mechanisms to assist in implementation of monitoring and remediation efforts. (d) FUNDING AND PERSONNEL.—The Administrator may, where appropriate, make available, subject to the appropriations, such funds, personnel, and equipment as may be necessary to implement the provisions of this section. In those cases where direct financial assistance of the United States is provided to implement moni toring and remediation programs in Mexico, the Administrator shall develop grant agreements with appropriate representatives of Mexico to assure the accuracy and completeness of monitoring data and the performance of remediation measures which are financed by the United States. With respect to any control measures within Mexico funded by the United States, the Administrator shall, to the maximum extent practicable, utilize resources of Mexico where such utilization would reduce costs to the United States. Such funding agreements shall include authorization for the Adminis trator to— (1) review and agree to plans for monitoring and remedi ation; (2) inspect premises, equipment and records to insure com pliance with the agreements established under and the pur poses set forth in this section; and (3) where necessary, develop grant agreements with af fected States to carry out the provisions of this section. * * * * * * * SEC. 817. ROLE OF SECONDARY STANDARDS (a) REPORT.—The Administrator shall request the National Academy of Sciences to prepare a report to the Congress on the role of national secondary ambient air quality standards in pro tecting welfare and the environment. The report shall: (1) include information on the effects on welfare and the environment which are caused by ambient concentrations of pollutants listed pursuant to section 108 and other pollutants which may be listed; (2) estimate welfare and environmental costs incurred as a result of such effects; (3) examine the role of secondary standards and the State implementation planning process in preventing such effects; (4) determine ambient concentrations of each such pollut ant which would be adequate to protect welfare and the envi ronment from such effects; (5) estimate the costs and other impacts of meeting sec ondary standards; and (6) consider other means consistent with the goals and ob jectives of the Clean Air Act which may be more effective than secondary standards in preventing or mitigating such effects. Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 459 Sec. 821APPENDIX 1 References to section 511 probably intended to refer to section 412. References to title V probably intended to refer to title IV, relating to acid deposition. (b) SUBMISSION TO CONGRESS; COMMENTS; AUTHORIZATION.— (1) The report shall be transmitted to the Congress not later than 3 years after the date of enactment of the Clean Air Act Amend ments of 1990. (2) At least 90 days before issuing a report the Administrator shall provide an opportunity for public comment on the proposed report. The Administrator shall include in the final report a sum mary of the comments received on the proposed report. (3) There are authorized to be appropriated such sums as are necessary to carry out this section. * * * * * * * SEC. 819. EXEMPTIONS FOR STRIPPER WELLS. Notwithstanding any other provision of law, the amendments to the Clean Air Act made by section 103 of the Clean Air Act Amendments of 1990 (relating to additional provisions for ozone nonattainment areas), by section 104 of such amendments (relating to additional provisions for carbon monoxide nonattainment areas), by section 105 of such amendments (relating to additional provi sions for PM–10 nonattainment areas), and by section 106 of such amendments (relating to additional provisions for areas designated as nonattainment for sulfur oxides, nitrogen dioxide, and lead) shall not apply with respect to the production of and equipment used in the exploration, production, development, storage or proc essing of— (1) oil from a stripper well property, within the meaning of the June 1979 energy regulations (within the meaning of section 4996(b)(7) of the Internal Revenue Code of 1986, as in effect before the repeal of such section); and (2) stripper well natural gas, as defined in section 108(b) of the Natural Gas Policy Act of 1978 (15 U.S.C. 3318(b)). except to the extent that provisions of such amendments cover areas designated as Serious pursuant to part D of title I of the Clean Air Act and having a population of 350,000 or more, or areas designated as Severe or Extreme pursuant to such part D. SEC. 820. EPA REPORT ON MAGNETIC LEVITATION. The Administrator of the Environmental Protection Agency shall, not later than 6 months after the date of enactment of this Act, submit to the Congress and the President a report of the Ad ministrator’s activities under any agreement with the Department of Transportation entered into prior to such date of enactment pro viding for an analysis of the health and environmental aspects of magnetic levitation technology. SEC. 821. INFORMATION GATHERING ON GREENHOUSE GASES CON TRIBUTING TO GLOBAL CLIMATE CHANGE. (a) MONITORING.—The Administrator of the Environmental Protection Agency shall promulgate regulations within 18 months after the enactment of the Clean Air Act Amendments of 1990 to require that all affected sources subject to title V 1 of the Clean Air Act shall also monitor carbon dioxide emissions according to the same timetable as in section 511 1 (b) and (c). The regulations shall Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 460Sec. 901 APPENDIX 1 The comma after ‘‘forests’’ should have been omitted. require that such data be reported to the Administrator. The provi sions of section 511 1(e) of title V 1 of the Clean Air Act shall apply for purposes of this section in the same manner and to the same extent as such provision applies to the monitoring and data re ferred to in section 511. 1 (b) PUBLIC AVAILABILITY OF CARBON DIOXIDE INFORMATION.— For each unit required to monitor and provide carbon dioxide data under subsection (a), the Administrator shall compute the unit’s aggregate annual total carbon dioxide emissions, incorporate such data into a computer data base, and make such aggregate annual data available to the public. * * * * * * * SEC. 901. CLEAN AIR RESEARCH. (a) * * * * * * * * * * (e) ASSESSMENT OF INTERNATIONAL AIR POLLUTION CONTROL TECHNOLOGIES.—The Administrator of the Environmental Protec tion Agency shall conduct a study that compares international air pollution control technologies of selected industrialized countries to determine if there exist air pollution control technologies in coun tries outside the United States that may have beneficial applica tions to this Nation’s air pollution control efforts. With respect to each country studied, the study shall include the topics of urban air quality, motor vehicle emissions, toxic air emissions, and acid depo sition. The Administrator shall, within 2 years after the date of en actment of this Act, submit to the Congress a report detailing the results of such study. (f) ADIRONDACK EFFECTS ASSESSMENT.—The Administrator of the Environmental Protection Agency shall establish a program to research the effects of acid deposition on waters where acid deposi tion has been most acute. The Administrator shall enter into a multi-year contract for such purposes with an independent univer sity which has a year-round field analytical laboratory on a body of water of not less than 25,000 acres nor greater than 75,000 acres, which lies within a geographic region designated as a Bio sphere Reserve by the Department of State. The facility must have demonstrated the capability to analyze relevant data on said body of water over a period of 20 years as well as extensive ecosystem modeling capabilities. There are authorized to be appropriated to carry out this subsection not less than $6,000,000. (g) WESTERN STATES ACID DEPOSITION RESEARCH.—(1) The Ad ministrator of the Environmental Protection Agency shall sponsor monitoring and research and submit to Congress annual and peri odic assessment reports on— (A) the occurrence and effects of acid deposition on surface waters located in that part of the United States west of the Mississippi River; (B) the occurrence and effects of acid deposition on high elevation ecosystems (including forests, 1 and surface waters); and Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 461 Sec. 1001APPENDIX (C) the occurrence and effects of episodic acidification, par ticularly with respect to high elevation watersheds. (2) The Administrator of the Environmental Protection Agency shall analyze data generated from the studies conducted under paragraph (1), data from the Western Lakes Survey, and other ap propriate research and utilize predictive modeling techniques that take into account the unique geographic, climatological, and atmos pheric conditions which exist in the western United States to deter mine the potential occurrence and effects of acid deposition due to any projected increases in the emission of sulfur dioxide and nitro gen oxides in that part of the United States located west of the Mississippi River. The Administrator shall include the results of the project conducted under this paragraph in the reports issued to Congress under paragraph (1). (h)(1) In carrying out the provisions of section 103(f) of the Clean Air Act, the Secretary of Energy is authorized to enter into contracts and cooperative agreements with, and make grants to, nonprofit entities affiliated with the University of Nevada and the University of Wyoming. (2) Agreements, contracts, and grants described in paragraph (1) shall provide that such nonprofit entities— (A) may provide basic technical and management per sonnel; and (B) shall make available permanent research support fa cilities owned by the nonprofit entities. (3) The nonprofit entities described in paragraphs (1) and (2) shall be authorized to make grants, accept contributions, and enter into agreements with other entities to carry out the provisions of this subsection. (4) There are authorized to be appropriated to the Department of Energy $3,000,000 for fiscal year 1991 and such sums as may be necessary for each fiscal year thereafter to carry out the provi sions of paragraph (1). Such amounts shall remain available until expended. TITLE X—DISADVANTAGED BUSINESS CONCERNS Sec. 1001. Disadvantaged business concerns. Sec. 1002. Use of quotas prohibited. SEC. 1001. DISADVANTAGED BUSINESS CONCERNS. (a) IN GENERAL.—In providing for any research relating to the requirements of the amendments made by the Clean Air Act Amendments of 1990 which uses funds of the Environmental Pro tection Agency, the Administrator of the Environmental Protection Agency shall, to the extent practicable, require that not less than 10 percent of total Federal funding for such research will be made available to disadvantaged business concerns. (b) DEFINITION.— (1)(A) For purposes of subsection (a), the term ‘‘disadvan taged business concern’’ means a concern— (i) which is at least 51 percent owned by one or more socially and economically disadvantaged individuals or, in Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 462Sec. 1002 APPENDIX the case of a publicly traded company, at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals; and (ii) the management and daily business operations of which are controlled by such individuals. (B)(i) A for-profit business concern is presumed to be a dis advantaged business concern for purposes of subsection (a) if it is at least 51 percent owned by, or in the case of a concern which is a publicly traded company at least 51 percent of the stock of the company is owned by, one or more individuals who are members of the following groups: (I) Black Americans. (II) Hispanic Americans. (III) Native Americans. (IV) Asian Americans. (V) Women. (VI) Disabled Americans. (ii) The presumption established by clause (i) may be re butted with respect to a particular business concern if it is rea sonably established that the individual or individuals referred to in that clause with respect to that business concern are not experiencing impediments to establishing or developing such concern as a result of the individual’s identification as a mem ber of a group specified in that clause. (C) The following institutions are presumed to be dis advantaged business concerns for purposes of subsection (a): (i) Historically black colleges and universities, and col leges and universities having a student body in which 40 percent of the students are Hispanic. (ii) Minority institutions (as that term is defined by the Secretary of Education pursuant to the General Edu cation Provision Act (20 U.S.C. 1221 et seq.)). (iii) Private and voluntary organizations controlled by individuals who are socially and economically disadvan taged. (D) A joint venture may be considered to be a disadvan taged business concern under subsection (a), notwithstanding the size of such joint venture, if— (i) a party to the joint venture is a disadvantaged busi ness concern; and (ii) that party owns at least 51 percent of the joint venture. A person who is not an economically disadvantaged individual or a disadvantaged business concern, as a party to a joint ven ture, may not be a party to more than 2 awarded contracts in a fiscal year solely by reason of this subparagraph. (E) Nothing in this paragraph shall prohibit any member of a racial or ethnic group that is not listed in subparagraph (B)(i) from establishing that they have been impeded in estab lishing or developing a business concern as a result of racial or ethnic discrimination. SEC. 1002. USE OF QUOTAS PROHIBITED.—Nothing in this title shall permit or require the use of quotas or a requirement that has the effect of a quota in determining eligibility under section 1001. Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 463 SECTION 348 OF THE NATIONAL HIGHWAY SYSTEM DESIGNATION ACT OF 1995 (PUBLIC LAW 104–59) SEC. 348. MORATORIUM ON CERTAIN EMISSIONS TESTING REQUIRE MENTS. (a) IN GENERAL.—The Administrator of the Environmental Protection Agency (hereinafter in this section referred to as the ‘‘Administrator’’) shall not require adoption or implementation by a State of a test-only I/M240 enhanced vehicle inspection and main tenance program as a means of compliance with section 182 or 187 of the Clean Air Act (42 U.S.C. 7511a; 7512a), but the Adminis trator may approve such a program if a State chooses to adopt the program as a means of compliance with such section. (b) LIMITATION ON PLAN DISAPPROVAL.—The Administrator shall not disapprove or apply an automatic discount to a State im plementation plan revision under section 182 or 187 of the Clean Air Act (42 U.S.C. 7511a; 7512a) on the basis of a policy, regula tion, or guidance providing for a discount of emissions credits be cause the inspection and maintenance program in such plan revi sion is decentralized or a test-and-repair program. (c) EMISSIONS REDUCTION CREDITS.— (1) STATE PLAN REVISION; APPROVAL.—Within 120 days of the date of the enactment of this subsection, a State may sub mit an implementation plan revision proposing an interim in spection and maintenance program under section 182 or 187 of the Clean Air Act (42 U.S.C. 7511a; 7512a). The Administrator shall approve the program based on the full amount of credits proposed by the State for each element of the program if the proposed credits reflect good faith estimates by the State and the revision is otherwise in compliance with such Act. If, with in such 120-day period, the State submits to the Administrator proposed revisions to the implementation plan, has all of the statutory authority necessary to implement the revisions, and has proposed a regulation to make the revisions, the Adminis trator may approve the revisions without regard to whether or not such regulation has been issued as a final regulation by the State. (2) EXPIRATION OF INTERIM APPROVAL.—The interim ap proval shall expire on the earlier of (A) the last day of the 18 month period beginning on the date of the interim approval, or (B) the date of final approval. The interim approval may not be extended. (3) FINAL APPROVAL.—The Administrator shall grant final approval of the revision based on the credits proposed by the State during or after the period of interim approval if data col lected on the operation of the State program demonstrates that the credits are appropriate and the revision is otherwise in compliance with the Clean Air Act. Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004 464Sec. 348 APPENDIX (4) BASIS OF APPROVAL; NO AUTOMATIC DISCOUNT.—Any de termination with respect to interim or full approval shall be based on the elements of the program and shall not apply any automatic discount because the program is decentralized or a test-and-repair program. Q:\COMP\ENVIR1\CLEANAIR.APP February 24, 2004