42 U.S.C. § 7511c — Control of interstate ozone air pollution

Page 7302 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511c 1 So in original. Probably should not be capitalized. 2 So in original. Probably should be ‘‘this’’. rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. § 7511c. Control of interstate ozone air pollution (a) Ozone transport regions A single transport region for ozone (within the meaning of section 7506a(a) of this title), com- prised of the States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hamp- shire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and the Consolidated Metropolitan Statistical Area that includes the District of Columbia, is hereby established by operation of law. The provisions of section 7506a(a)(1) and (2) of this title shall apply with respect to the transport region established under this section and any other transport re- gion established for ozone, except to the extent inconsistent with the provisions of this section. The Administrator shall convene the commis- sion required (under section 7506a(b) of this title) as a result of the establishment of such re- gion within 6 months of November 15, 1990. (b) Plan provisions for States in ozone transport regions (1) In accordance with section 7410 of this title, not later than 2 years after November 15, 1990 (or 9 months after the subsequent inclusion of a State in a transport region established for ozone), each State included within a transport region established for ozone shall submit a State implementation plan or revision thereof to the Administrator which requires the following— (A) that each area in such State that is in an ozone transport region, and that is a metro- politan statistical area or part thereof with a population of 100,000 or more comply with the provisions of section 7511a(c)(2)(A) of this title (pertaining to enhanced vehicle inspection and maintenance programs); and (B) implementation of reasonably available control technology with respect to all sources of volatile organic compounds in the State covered by a control techniques guideline issued before or after November 15, 1990. (2) Within 3 years after November 15, 1990, the Administrator shall complete a study identi- fying control measures capable of achieving emission reductions comparable to those achiev- able through vehicle refueling controls con- tained in section 7511a(b)(3) of this title, 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 sta- tionary source that emits or has the potential to emit at least 50 tons per year of volatile organic compounds shall be considered a major sta- tionary source and subject to the requirements which would be applicable to major stationary sources if the area were classified as a Moderate nonattainment area. (c) Additional control measures (1) Recommendations Upon petition of any State within a trans- port region established for ozone, and based on a majority vote of the Governors on the Com- mission 1 (or their designees), the Commission 1 may, after notice and opportunity for public comment, develop recommendations for addi- tional control measures to be applied within all or a part of such transport 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 receives rec- ommendations prepared by a commission pur- suant to paragraph (1) (the date of receipt of which shall hereinafter in this section be re- ferred to as the ‘‘receipt date’’), the Adminis- trator shall— (A) immediately publish in the Federal Register a notice stating that the rec- ommendations are available and provide an opportunity for public hearing within 90 days beginning on the receipt date; and (B) commence a review of the rec- ommendations to determine whether the control measures in the recommendations are necessary to bring any area in such re- gion into attainment by the dates provided by this subpart and are otherwise consistent with this chapter. (3) Consultation In undertaking the review required under paragraph (2)(B), the Administrator shall con- sult with members of the commission of the affected States and shall take into account the data, views, and comments received pursu- ant to paragraph (2)(A). (4) Approval and disapproval Within 9 months after the receipt date, the Administrator shall (A) determine whether 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 Fed- eral Register. If the Administrator dis- approves or partially disapproves the rec- ommendations, the Administrator shall speci- fy— (i) why any disapproved additional control measures are not necessary to bring any area in such region into attainment by the dates provided by this subpart or are other- wise not consistent with the 2 chapter; and (ii) recommendations concerning equal or more effective actions that could be taken by the commission to conform the dis- approved 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 region and to which a requirement of the approved plan Page 7303 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511e applies, a finding under section 7410(k)(5) of this title that the implementation plan for such State is inadequate to meet the require- ments of section 7410(a)(2)(D) of this title. Such finding shall require each such State to revise its implementation plan to include the approved additional control measures within one year after the finding is issued. (d) Best available air quality monitoring and modeling For purposes of this section, not later than 6 months after November 15, 1990, the Adminis- trator shall promulgate criteria for purposes of determining the contribution of sources in one area to concentrations 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 making such determina- tions. (July 14, 1955, ch. 360, title I, § 184, as added Pub. L. 101–549, title I, § 103, Nov. 15, 1990, 104 Stat. 2448.) § 7511d. Enforcement for Severe and Extreme ozone nonattainment areas for failure to at- tain (a) General rule Each implementation plan revision required under section 7511a(d) and (e) of this title (relat- ing to the attainment plan for Severe and Ex- treme ozone nonattainment areas) shall provide that, if the area to which such plan revision ap- plies has failed to attain the national primary ambient air quality standard for ozone by the applicable attainment date, each major sta- tionary source of VOCs located in the area shall, except as otherwise provided 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 revision should include procedures for assess- ment and collection of such fees. (b) Computation of fee (1) Fee amount The fee shall equal $5,000, adjusted in accord- ance with paragraph (3), per ton of VOC emit- ted 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 pro- vide, as the lower of the amount of actual VOC emissions (‘‘actuals’’) or VOC emissions al- lowed 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 at- tainment year. Notwithstanding the preceding sentence, the Administrator may issue guid- ance authorizing the baseline amount to be de- termined in accordance with the lower of aver- age 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 paragraph (1) shall be adjusted annually, beginning in the year be- ginning after 1990, in accordance with section 7661a(b)(3)(B)(v) of this title (relating to infla- tion adjustment). (c) Exception Notwithstanding any provision of this section, no source shall be required to pay any fee under subsection (a) with respect to emissions during any year that is treated as an Extension Year under section 7511(a)(5) of this title. (d) Fee collection by Administrator If the Administrator has found that the fee provisions of the implementation plan do not meet the requirements of this section, or if the Administrator makes a finding that the State is not administering and enforcing the fee required under this section, the Administrator shall, in addition to any other action authorized under this subchapter, collect, in accordance with pro- cedures promulgated by the Administrator, the unpaid fees required under subsection (a). If the Administrator makes such a finding under sec- tion 7509(a)(4) of this title, the Administrator may collect fees for periods before the deter- mination, plus interest computed in accordance with section 6621(a)(2) of title 26 (relating to computation of interest on underpayment 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 sec- tion 7661a(b)(3)(C) of this title (relating to pen- alties and use of the funds, respectively) shall apply with respect to fees collected 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 applica- ble attainment date, no sanction under this sec- tion or under any other provision of this chapter shall apply if the area can demonstrate, con- sistent with guidance issued by the Adminis- trator, 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 require- ments and implemented all measures applicable to the area under this chapter. (July 14, 1955, ch. 360, title I, § 185, as added Pub. L. 101–549, title I, § 103, Nov. 15, 1990, 104 Stat. 2450.) § 7511e. Transitional areas If an area designated as an ozone nonattain- ment area as of November 15, 1990, has not vio- lated the national primary ambient air quality standard for ozone for the 36-month period com- mencing on January 1, 1987, and ending on De- cember 31, 1989, the Administrator shall suspend the application of the requirements of this sub- part to such area until December 31, 1991. By