42 U.S.C. § 7410 — State implementation plans for national

Page 7187 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410 § 7410. State implementation plans for national primary and secondary ambient air quality standards (a) Adoption of plan by State; submission to Ad- ministrator; content of plan; revision; new sources; indirect source review program; supplemental or intermittent control systems (1) Each State shall, after reasonable notice and public hearings, adopt and submit to the Ad- ministrator, within 3 years (or such shorter pe- riod as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof) under section 7409 of this title for any air pollut- ant, a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region (or portion thereof) within such State. In addition, such State shall adopt and submit to the Admin- istrator (either as a part of a plan submitted under the preceding sentence or separately) within 3 years (or such shorter period as the Ad- ministrator may prescribe) after the promulga- tion of a national ambient air quality secondary standard (or revision thereof), a plan which pro- vides for implementation, maintenance, and en- forcement 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 standard at the hearing required by the first sentence of this paragraph. (2) Each implementation plan submitted by a State under this chapter shall be adopted by the State after reasonable notice and public hear- ing. Each such plan shall— (A) include enforceable emission limitations and other control measures, means, or tech- niques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be nec- essary or appropriate to meet the applicable requirements of this chapter; (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 Administrator; (C) include a program to provide for the en- forcement of the measures described in sub- paragraph (A), and regulation of the modifica- tion and construction of any stationary source within the areas covered by the plan as nec- essary to assure that national 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 provi- sions of this subchapter, any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will— (I) contribute significantly to nonattain- ment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard, or (II) interfere with measures required to be included in the applicable implementa- tion plan for any other State under part C to prevent significant deterioration of air quality or to protect visibility, (ii) insuring compliance with the applica- ble requirements of sections 7426 and 7415 of this title (relating to interstate and inter- national pollution abatement); (E) provide (i) necessary assurances that the State (or, except where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by the State or general pur- pose local governments for such purpose) will have adequate personnel, funding, and author- ity 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 implementa- tion plan or portion thereof), (ii) requirements that the State comply with the requirements respecting State boards under section 7428 of this title, and (iii) necessary assurances that, where the State has relied on a local or re- gional government, agency, or instrumen- tality for the implementation of any plan pro- vision, the State has responsibility for ensur- ing adequate implementation of such plan pro- vision; (F) require, as may be prescribed by the Ad- ministrator— (i) the installation, maintenance, and re- placement of equipment, and the implemen- tation of other necessary steps, by owners or operators of stationary sources to monitor 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 chapter, which reports shall be available at reasonable times for public inspection; (G) provide for authority comparable to that in section 7603 of this title and adequate con- tingency plans to implement such authority; (H) provide for revision of such plan— (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved 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 available to the Admin- istrator that the plan is substantially inad- equate to attain the national ambient air quality standard which it implements or to otherwise comply with any additional re- quirements established under this chapter; (I) in the case of a plan or plan revision for an area designated as a nonattainment area, meet the applicable requirements of part D (relating to nonattainment areas); (J) meet the applicable requirements of sec- tion 7421 of this title (relating to consulta- Page 7188 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410 1 See References in Text note below. tion), section 7427 of this title (relating to pub- lic notification), and part C (relating to pre- vention of significant deterioration of air quality and visibility protection); (K) provide for— (i) the performance of such air quality modeling as the Administrator may pre- scribe for the purpose of predicting the ef- fect on ambient air quality of any emissions of any air pollutant for which the Adminis- trator 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 permit- ting authority, as a condition of any permit required under this chapter, a fee sufficient to cover— (i) the reasonable costs of reviewing and acting upon any application for such a per- mit, and (ii) if the owner or operator receives a per- mit 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 enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator’s approval of a fee program under subchapter V; and (M) provide for consultation and participa- tion by local political subdivisions affected by the plan. (3)(A) Repealed. Pub. L. 101–549, title I, § 101(d)(1), Nov. 15, 1990, 104 Stat. 2409. (B) As soon as practicable, the Administrator shall, consistent with the purposes of this chap- ter and the Energy Supply and Environmental Coordination Act of 1974 [15 U.S.C. 791 et seq.], review each State’s applicable implementation 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 at- tainment and maintenance of any national am- bient air quality standard within the period per- mitted in this section. If the Administrator de- termines that any such plan can be revised, he shall notify 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 Administrator shall ap- prove 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 im- plementation plan because one or more exemp- tions under section 7418 of this title (relating to Federal facilities), enforcement orders under section 7413(d) 1 of this title, suspensions under subsection (f) or (g) (relating to temporary en- ergy or economic authority), orders under sec- tion 7419 of this title (relating to primary non- ferrous smelters), or extensions of compliance in decrees entered under section 7413(e) 1 of this title (relating to iron- and steel-producing oper- ations) have been granted, if such plan would have met the requirements of this section if no such exemptions, orders, or extensions had been granted. (4) Repealed. Pub. L. 101–549, title I, § 101(d)(2), Nov. 15, 1990, 104 Stat. 2409. (5)(A)(i) Any State may include in a State im- plementation plan, but the Administrator may not require as a condition of approval of such plan under this section, any indirect source re- view program. The Administrator may approve and enforce, as part of an applicable implemen- tation plan, an indirect source review program which the State chooses to adopt and submit as part of its plan. (ii) Except as provided in subparagraph (B), no plan promulgated by the Administrator shall in- clude any indirect source review program for any air quality control region, or portion there- of. (iii) Any State may revise an applicable imple- mentation plan approved under this subsection to suspend or revoke any such program included in such plan, provided that such plan meets the requirements of this section. (B) The Administrator shall have the author- ity to promulgate, implement and enforce regu- lations under subsection (c) respecting indirect source review programs which apply only to fed- erally assisted highways, airports, and other major federally assisted indirect 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 sub- ject to any measure for management of parking supply (within the meaning of subsection (c)(2)(D)(ii)), including regulation of existing off- street parking but such term does not include new or existing on-street parking. Direct emis- sions sources or facilities at, within, or associ- ated 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 fa- cility-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 pol- lution concentrations— (i) exceeding any national primary ambient air quality standard for a mobile source-re- lated air pollutant after the primary standard attainment date, or (ii) preventing maintenance of any such standard after such date. Page 7189 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410 (E) For purposes of this paragraph and para- graph (2)(B), the term ‘‘transportation control measure’’ does not include any measure 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 con- trol system for purposes of meeting the require- ments of an order under section 7413(d) 1 of this title or section 7419 of this title (relating to pri- mary nonferrous smelter orders), the owner or operator of such source may not temporarily re- duce the pay of any employee by reason of the use of such supplemental or intermittent or other dispersion dependent control system. (b) Extension of period for submission of plans The Administrator may, wherever he deter- mines necessary, extend the period for submis- sion of any plan or portion thereof which imple- ments a national secondary ambient air quality standard for a period not to exceed 18 months from the date otherwise required for submission of such plan. (c) Preparation and publication by Adminis- trator of proposed regulations setting forth implementation plan; transportation regula- tions study and report; parking surcharge; suspension authority; plan implementation (1) The Administrator shall promulgate a Fed- eral implementation plan at any time within 2 years after the Administrator— (A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under subsection (k)(1)(A), or (B) disapproves a State implementation plan submission in whole or in part, unless the State corrects the deficiency, and the Administrator approves the plan or plan revi- sion, before the Administrator promulgates such Federal implementation plan. (2)(A) Repealed. Pub. L. 101–549, title I, § 101(d)(3)(A), Nov. 15, 1990, 104 Stat. 2409. (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 reg- ulations previously required by the Adminis- trator shall be void upon June 22, 1974. This sub- paragraph shall not prevent the Administrator from approving parking surcharges if they are adopted and submitted by a State as part of an applicable implementation plan. The Adminis- trator may not condition approval of any imple- mentation plan submitted by a State on such plan’s including a parking surcharge regulation. (C) Repealed. Pub. L. 101–549, title I, § 101(d)(3)(B), Nov. 15, 1990, 104 Stat. 2409. (D) For purposes of this paragraph— (i) The term ‘‘parking surcharge regulation’’ means a regulation imposing or requiring the imposition of any tax, surcharge, fee, or other charge on parking spaces, or any other area used for the temporary storage of motor vehi- cles. (ii) The term ‘‘management of parking sup- ply’’ shall include any requirement providing that any new facility containing a given num- ber of parking spaces shall receive a permit or other prior approval, issuance of which is to be conditioned 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 pref- erential bus/carpool lanes shall be promulgated after June 22, 1974, by the Administrator pursu- ant 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 of- ficer of any general purpose unit of local govern- ment, if the Administrator determines 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. Noth- ing in this paragraph shall prevent the Adminis- trator from implementing or enforcing any ap- plicable provision of a plan promulgated under this subsection. (4) Repealed. Pub. L. 101–549, title I, § 101(d)(3)(C), Nov. 15, 1990, 104 Stat. 2409. (5)(A) Any measure in an applicable implemen- tation 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 Gov- ernor of the State, which application shall in- clude a certification by the Governor that he will revise such plan in accordance with sub- paragraph (B). (B) In the case of any applicable implementa- tion plan with respect to which a measure has been eliminated under subparagraph (A), such plan shall, not later than one year after August 7, 1977, be revised to include comprehensive measures to: (i) establish, expand, or improve public transportation measures to meet basic trans- portation needs, as expeditiously as is prac- ticable; and (ii) implement transportation control meas- ures necessary to attain and maintain na- tional ambient air quality standards, and such revised plan shall, for the purpose of implementing such comprehensive public trans- portation measures, include requirements to use (insofar as is necessary) Federal grants, State or local funds, or any combination of such grants and funds as may be consistent with the terms of the legislation providing such grants and funds. Such measures shall, as a substitute for the tolls or charges eliminated under subpara- graph (A), provide for emissions reductions equivalent to the reductions which may reason- ably be expected to be achieved through the use of the tolls or charges eliminated. Page 7190 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410 (C) Any revision of an implementation plan for purposes of meeting the requirements of sub- paragraph (B) shall be submitted in coordination with any plan revision required under part D. (d), (e) Repealed. Pub. L. 101–549, title I, § 101(d)(4), (5), Nov. 15, 1990, 104 Stat. 2409 (f) National or regional energy emergencies; de- termination by President (1) Upon application by the owner or operator of a fuel burning stationary source, and after no- tice and opportunity for public hearing, the Governor of the State in which such source is lo- cated 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 or of any requirement under section 7651j of this title (concerning excess emissions penalties or off- sets) 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 Presi- dent determines that a national or regional en- ergy emergency of such severity exists, a tem- porary emergency suspension of any part of an applicable implementation plan or of any re- quirement under section 7651j of this title (con- cerning excess emissions penalties or offsets) adopted by the State may be issued by the Gov- ernor of any State covered by the President’s determination under the condition specified in paragraph (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 involv- ing high levels of unemployment or loss of necessary energy supplies for residential dwellings; and (B) such unemployment or loss can be to- tally or partially alleviated by such emer- gency 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 re- main in effect for a maximum of four months or such lesser period as may be specified in a dis- approval order of the Administrator, if any. The Administrator may disapprove such suspension if he determines that it does not meet the re- quirements of paragraph (2). (4) This subsection shall not apply in the case of a plan provision or requirement promulgated by the Administrator under subsection (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 determinations and findings specified in paragraphs (1) and (2). (5) The Governor may include in any tem- porary 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 1857c–10 1 of this title, as in effect before August 7, 1977, or section 7413(d) 1 of this title, 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 suspen- sion was issued under this subsection. (g) Governor’s authority to issue temporary emergency suspensions (1) In the case of any State which has adopted and submitted 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 pollu- tion, and (ii) to prevent substantial 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 sus- pension of the part of the applicable implemen- tation plan for such State which is proposed to be revised with respect to such source. The de- termination under subparagraph (B) may not be made with respect to a source which would close without regard to whether or not the proposed plan revision is approved. (2) A temporary emergency suspension issued by a Governor under this subsection shall re- main in effect for a maximum of four months or such lesser period as may be specified in a dis- approval order of the Administrator. The Ad- ministrator 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 tem- porary 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 1857c–10 1 of this title as in effect before August 7, 1977, or under section 7413(d) 1 of this title 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) Publication of comprehensive document for each State setting forth requirements of ap- plicable implementation plan (1) Not later than 5 years after November 15, 1990, and every 3 years thereafter, the Adminis- trator 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 subsection. (i) Modification of requirements prohibited Except for a primary nonferrous smelter order under section 7419 of this title, a suspension under subsection (f) or (g) (relating to emer- Page 7191 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410 gency suspensions), an exemption under section 7418 of this title (relating to certain Federal fa- cilities), an order under section 7413(d) 1 of this title (relating to compliance orders), a plan pro- mulgation under subsection (c), or a plan revi- sion under subsection (a)(3); no order, suspen- sion, plan revision, or other action modifying any requirement of an applicable implementa- tion plan may be taken with respect to any sta- tionary source by the State or by the Adminis- trator. (j) Technological systems of continuous emission reduction on new or modified stationary sources; compliance with performance stand- ards As a condition for issuance of any permit re- quired under this subchapter, the owner or oper- ator of each new or modified stationary source which is required to obtain such a permit must show to the satisfaction of the permitting au- thority that the technological system of contin- uous emission reduction which is to be used at such source will enable it to comply with the standards of performance which are to apply to such source and that the construction or modi- fication and operation of such source will be in compliance with all other requirements of this chapter. (k) Environmental Protection Agency action on plan submissions (1) Completeness of plan submissions (A) Completeness criteria Within 9 months after November 15, 1990, the Administrator shall promulgate min- imum criteria that any plan submission must meet before the Administrator is re- quired to act on such submission under this subsection. The criteria shall be limited to the information necessary to enable the Ad- ministrator to determine whether the plan submission complies with the provisions of this chapter. (B) Completeness finding Within 60 days of the Administrator’s re- ceipt 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 Administrator shall deter- mine whether the minimum criteria estab- lished pursuant to subparagraph (A) have been met. Any plan or plan revision that a State submits to the Administrator, and that has not been determined by the Admin- istrator (by the date 6 months after receipt of the submission) to have failed to meet the minimum criteria established pursuant to subparagraph (A), shall on that date be deemed by operation of law to meet such minimum criteria. (C) Effect of finding of incompleteness Where the Administrator determines that a plan submission (or part thereof) does not meet the minimum criteria established pur- suant to subparagraph (A), the State shall be treated as not having made the submission (or, in the Administrator’s discretion, part thereof). (2) Deadline for action Within 12 months of a determination by the Administrator (or a determination deemed by operation of law) under paragraph (1) that a State has submitted a plan or plan revision (or, in the Administrator’s discretion, part thereof) that meets the minimum criteria es- tablished pursuant to paragraph (1), if applica- ble (or, if those criteria are not applicable, within 12 months of submission of the plan or revision), the Administrator shall act on the submission in accordance with paragraph (3). (3) Full and partial approval and disapproval In the case of any submittal on which the Administrator is required to act under para- graph (2), the Administrator shall approve such submittal as a whole if it meets all of the applicable requirements of this chapter. If a portion of the plan revision meets all the ap- plicable requirements of this chapter, the Ad- ministrator 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 chapter until the Administrator approves the entire plan revi- sion as complying with the applicable require- ments of this chapter. (4) Conditional approval The Administrator may approve a plan revi- sion 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 revision. 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 Administrator finds that the applicable implementation plan for any area is substantially inadequate to attain or main- tain the relevant national ambient air quality standard, to mitigate adequately the inter- state pollutant transport described in section 7506a of this title or section 7511c of this title, or to otherwise comply with any requirement of this chapter, the Administrator shall re- quire the State to revise the plan as necessary to correct such inadequacies. The Adminis- trator shall notify the State of the inadequa- cies, and may establish reasonable deadlines (not to exceed 18 months after the date of such notice) for the submission of such plan revi- sions. 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 chapter to which the State was subject when it developed and submitted the plan for which such finding was made, except that the Ad- ministrator may adjust any dates applicable under such requirements as appropriate (ex- cept that the Administrator may not adjust any attainment date prescribed under part D, unless such date has elapsed). (6) Corrections Whenever the Administrator determines that the Administrator’s action approving, disapproving, or promulgating any plan or Page 7192 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410 2 So in original. Probably should be followed by a comma. plan revision (or part thereof), area designa- tion, redesignation, classification, or reclassi- fication was in error, the Administrator may in the same manner as the approval, dis- approval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determina- tion and the basis thereof shall be provided to the State and public. (l) Plan revisions Each revision to an implementation plan sub- mitted by a State under this chapter 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 con- cerning attainment and reasonable further progress (as defined in section 7501 of this title), or any other applicable requirement of this chapter. (m) Sanctions The Administrator may apply any of the sanc- tions listed in section 7509(b) of this title at any time (or at any time after) the Administrator makes a finding, disapproval, or determination under paragraphs (1) through (4), respectively, of section 7509(a) of this title in relation to any plan or plan item (as that term is defined by the Administrator) required under this chapter, with respect to any portion of the State the Ad- ministrator determines reasonable and appro- priate, for the purpose of ensuring that the re- quirements of this chapter relating to such plan or plan item are met. The Administrator shall, by rule, establish criteria for exercising his au- thority under the previous sentence with respect to any deficiency referred to in section 7509(a) of this title to ensure that, during the 24-month pe- riod following the finding, disapproval, or deter- mination referred to in section 7509(a) of this title, such sanctions are not applied on a state- wide basis where one or more political subdivi- sions covered by the applicable implementation plan are principally responsible for such defi- ciency. (n) Savings clauses (1) Existing plan provisions Any provision of any applicable implementa- tion plan that was approved or promulgated by the Administrator pursuant to this section as in effect before November 15, 1990, shall re- main in effect as part of such applicable im- plementation plan, except to the extent that a revision to such provision is approved or pro- mulgated by the Administrator pursuant to this chapter. (2) Attainment dates For any area not designated nonattainment, any plan or plan revision submitted or re- quired to be submitted by a State— (A) in response to the promulgation or re- vision of a national primary ambient air quality standard in effect on November 15, 1990, or (B) in response to a finding of substantial inadequacy under subsection (a)(2) (as in ef- fect immediately before November 15, 1990), shall provide for attainment of the national primary ambient air quality standards within 3 years of November 15, 1990, or within 5 years of issuance of such finding of substantial inad- equacy, whichever is later. (3) Retention of construction moratorium in certain areas In the case of an area to which, immediately before November 15, 1990, the prohibition on construction or modification of major sta- tionary sources prescribed in subsection (a)(2)(I) (as in effect immediately before No- vember 15, 1990) applied by virtue of a finding of the Administrator that the State con- taining such area had not submitted an imple- mentation plan meeting the requirements of section 7502(b)(6) of this title (relating to es- tablishment of a permit program) (as in effect immediately before November 15, 1990) or 7502(a)(1) of this title (to the extent such re- quirements 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 November 15, 1990, no major stationary source of the rel- evant air pollutant or pollutants shall be con- structed or modified in such area until the Ad- ministrator finds that the plan for such area meets the applicable requirements of section 7502(c)(5) of this title (relating to permit pro- grams) or subpart 5 of part D (relating to at- tainment of the primary national ambient air quality standard for sulfur dioxide), respec- tively. (o) Indian tribes If an Indian tribe submits an implementation plan to the Administrator pursuant to section 7601(d) of this title, 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 7601(d)(2) of this title. When such plan becomes effective in accordance with the regulations promulgated under section 7601(d) of this title, the plan shall become appli- cable to all areas (except as expressly provided otherwise in the plan) located within the exte- rior boundaries of the reservation, notwith- standing the issuance of any patent and includ- ing rights-of-way running through the reserva- tion. (p) Reports Any State shall submit, according to such schedule as the Administrator may prescribe, such reports as the Administrator may require relating to emission reductions, vehicle miles traveled, congestion levels, and any other infor- mation the Administrator may deem necessary to assess the development 2 effectiveness, need for revision, or implementation of any plan or plan revision required under this chapter. (July 14, 1955, ch. 360, title I, § 110, as added Pub. L. 91–604, § 4(a), Dec. 31, 1970, 84 Stat. 1680; amended Pub. L. 93–319, § 4, June 22, 1974, 88 Stat. 256; Pub. L. 95–95, title I, §§ 107, 108, Aug. 7, 1977, 91 Stat. 691, 693; Pub. L. 95–190, § 14(a)(1)–(6), Nov. 16, 1977, 91 Stat. 1399; Pub. L. 97–23, § 3, July 17, 1981, 95 Stat. 142; Pub. L. 101–549, title I, Page 7193 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410 §§ 101(b)–(d), 102(h), 107(c), 108(d), title IV, § 412, Nov. 15, 1990, 104 Stat. 2404–2408, 2422, 2464, 2466, 2634.) Editorial Notes REFERENCES IN TEXT The Energy Supply and Environmental Coordination Act of 1974, referred to in subsec. (a)(3)(B), is Pub. L. 93–319, June 22, 1974, 88 Stat. 246, which is classified principally to chapter 16C (§ 791 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 791 of Title 15 and Tables. Section 7413 of this title, referred to in subsecs. (a)(3)(C), (6), (f)(5), (g)(3), and (i), was amended gen- erally by Pub. L. 101–549, title VII, § 701, Nov. 15, 1990, 104 Stat. 2672, and, as so amended, subsecs. (d) and (e) of section 7413 no longer relates to final compliance or- ders and steel industry compliance extension, respec- tively. Section 1857c–10 of this title, as in effect before Au- gust 7, 1977, referred to in subsecs. (f)(5) and (g)(3), was in the original ‘‘section 119, as in effect before the date of the enactment of this paragraph’’, meaning section 119 of act July 14, 1955, ch. 360, title I, as added June 22, 1974, Pub. L. 93–319, § 3, 88 Stat. 248, (which was classi- fied to section 1857c–10 of this title) as in effect prior to the enactment of subsecs. (f)(5) and (g)(3) of this section by Pub. L. 95–95, § 107, Aug. 7, 1977, 91 Stat. 691, effective Aug. 7, 1977. Section 112(b)(1) of Pub. L. 95–95 repealed section 119 of act July 14, 1955, ch. 360, title I, as added by Pub. L. 93–319, and provided that all references to such section 119 in any subsequent enactment which su- persedes Pub. L. 93–319 shall be construed to refer to section 113(d) of the Clean Air Act and to paragraph (5) thereof in particular which is classified to section 7413(d)(5) of this title. Section 7413 of this title was sub- sequently amended generally by Pub. L. 101–549, title VII, § 701, Nov. 15, 1990, 104 Stat. 2672, see note above. Section 117(b) of Pub. L. 95–95 added a new section 119 of act July 14, 1955, which is classified to section 7419 of this title. CODIFICATION Section was formerly classified to section 1857c–5 of this title. PRIOR PROVISIONS A prior section 110 of act July 14, 1955, was renum- bered section 117 by Pub. L. 91–604 and is classified to section 7417 of this title. AMENDMENTS 1990—Subsec. (a)(1). Pub. L. 101–549, § 101(d)(8), sub- stituted ‘‘3 years (or such shorter period as the Admin- istrator may prescribe)’’ for ‘‘nine months’’ in two places. Subsec. (a)(2). Pub. L. 101–549, § 101(b), amended par. (2) generally, substituting present provisions for provi- sions setting the time within which the Administrator was to approve or disapprove a plan or portion thereof and listing the conditions under which the plan or por- tion thereof was to be approved after reasonable notice and hearing. Subsec. (a)(3)(A). Pub. L. 101–549, § 101(d)(1), struck out subpar. (A) which directed Administrator to ap- prove any revision of an implementation plan if it met certain requirements and had been adopted by the State after reasonable notice and public hearings. Subsec. (a)(3)(D). Pub. L. 101–549, § 101(d)(1), struck out subpar. (D) which directed that certain implemen- tation plans be revised to include comprehensive meas- ures and requirements. Subsec. (a)(4). Pub. L. 101–549, § 101(d)(2), struck out par. (4) which set forth requirements for review proce- dure. Subsec. (c)(1). Pub. L. 101–549, § 102(h), amended par. (1) generally, substituting present provisions for provi- sions relating to preparation and publication of regula- tions setting forth an implementation plan, after op- portunity for a hearing, upon failure of a State to make required submission or revision. Subsec. (c)(2)(A). Pub. L. 101–549, § 101(d)(3)(A), struck out subpar. (A) which required a study and report on necessity of parking surcharge, management of parking supply, and preferential bus/carpool lane regulations to achieve and maintain national primary ambient air quality standards. Subsec. (c)(2)(C). Pub. L. 101–549, § 101(d)(3)(B), struck out subpar. (C) which authorized suspension of certain regulations and requirements relating to management of parking supply. Subsec. (c)(4). Pub. L. 101–549, § 101(d)(3)(C), struck out par. (4) which permitted Governors to temporarily sus- pend measures in implementation plans relating to ret- rofits, gas rationing, and reduction of on-street park- ing. Subsec. (c)(5)(B). Pub. L. 101–549, § 101(d)(3)(D), struck out ‘‘(including the written evidence required by part D),’’ after ‘‘include comprehensive measures’’. Subsec. (d). Pub. L. 101–549, § 101(d)(4), struck out sub- sec. (d) which defined an applicable implementation plan for purposes of this chapter. Subsec. (e). Pub. L. 101–549, § 101(d)(5), struck out sub- sec. (e) which permitted an extension of time for at- tainment of a national primary ambient air quality standard. Subsec. (f)(1). Pub. L. 101–549, § 412, inserted ‘‘or of any requirement under section 7651j of this title (con- cerning excess emissions penalties or offsets)’’ in sub- par. (A) and in last sentence. Subsec. (g)(1). Pub. L. 101–549, § 101(d)(6), substituted ‘‘12 months of submission of the proposed plan revi- sion’’ for ‘‘the required four month period’’ in closing provisions. Subsec. (h)(1). Pub. L. 101–549, § 101(d)(7), substituted ‘‘5 years after November 15, 1990, and every three years thereafter’’ for ‘‘one year after August 7, 1977, and an- nually thereafter’’ and struck out at end ‘‘Each such document shall be revised as frequently as practicable but not less often than annually.’’ Subsecs. (k) to (n). Pub. L. 101–549, § 101(c), added sub- secs. (k) to (n). Subsec. (o). Pub. L. 101–549, § 107(c), added subsec. (o). Subsec. (p). Pub. L. 101–549, § 108(d), added subsec. (p). 1981—Subsec. (a)(3)(C). Pub. L. 97–23 inserted ref- erence to extensions of compliance in decrees entered under section 7413(e) of this title (relating to iron- and steel-producing operations). 1977—Subsec. (a)(2)(A). Pub. L. 95–95, § 108(a)(1), sub- stituted ‘‘(A) except as may be provided in subpara- graph (I)(i) in the case of a plan’’ for ‘‘(A)(i) in the case of a plan’’. Subsec. (a)(2)(B). Pub. L. 95–95, § 108(a)(2), substituted ‘‘transportation controls, air quality maintenance plans, and preconstruction review of direct sources of air pollution as provided in subparagraph (D)’’ for ‘‘land use and transportation controls’’. Subsec. (a)(2)(D). Pub. L. 95–95, § 108(a)(3), substituted ‘‘it includes a program to provide for the enforcement of emission limitations and regulation of the modifica- tion, construction, and operation of any stationary source, including a permit program as required in parts C and D and a permit or equivalent program for any major emitting facility, within such region as nec- essary to assure (i) that national ambient air quality standards are achieved and maintained, and (ii) a pro- cedure’’ for ‘‘it includes a procedure’’. Subsec. (a)(2)(E). Pub. L. 95–95, § 108(a)(4), substituted ‘‘it contains adequate provisions (i) prohibiting any stationary source within the State from emitting any air pollutant in amounts which will (I) prevent attain- ment or maintenance by any other State of any such national primary or secondary ambient air quality standard, or (II) interfere with measures required to be included in the applicable implementation plan for any other State under part C to prevent significant deterio- ration of air quality or to protect visibility, and (ii) in- Page 7194 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7410 suring compliance with the requirements of section 7426 of this title, relating to interstate pollution abate- ment’’ for ‘‘it contains adequate provisions for inter- governmental cooperation, including measures nec- essary to insure that emissions of air pollutants from sources located in any air quality control region will not interfere with the attainment or maintenance of such primary or secondary standard in any portion of such region outside of such State or in any other air quality control region’’. Subsec. (a)(2)(F). Pub. L. 95–95, § 108(a)(5), added cl. (vi). Subsec. (a)(2)(H). Pub. L. 95–190, § 14(a)(1), substituted ‘‘1977;’’ for ‘‘1977’’. Pub. L. 95–95, § 108(a)(6), inserted ‘‘except as provided in paragraph (3)(C),’’ after ‘‘or (ii)’’ and ‘‘or to other- wise comply with any additional requirements estab- lished under the Clean Air Act Amendments of 1977’’ after ‘‘to achieve the national ambient air quality pri- mary or secondary standard which it implements’’. Subsec. (a)(2)(I). Pub. L. 95–95, § 108(b), added subpar. (I). Subsec. (a)(2)(J). Pub. L. 95–190, § 14(a)(2), substituted ‘‘; and’’ for ‘‘, and’’. Pub. L. 95–95, § 108(b), added subpar. (J). Subsec. (a)(2)(K). Pub. L. 95–95, § 108(b) added subpar. (K). Subsec. (a)(3)(C). Pub. L. 95–95, § 108(c), added subpar. (C). Subsec. (a)(3)(D). Pub. L. 95–190, § 14(a)(4), added sub- par. (D). Subsec. (a)(5). Pub. L. 95–95, § 108(e), added par. (5). Subsec. (a)(5)(D). Pub. L. 95–190, § 14(a)(3), struck out ‘‘preconstruction or premodification’’ before ‘‘review’’. Subsec. (a)(6). Pub. L. 95–95, § 108(e), added par. (6). Subsec. (c)(1). Pub. L. 95–95, § 108(d)(1), (2), substituted ‘‘plan which meets the requirements of this section’’ for ‘‘plan for any national ambient air quality primary or secondary standard within the time prescribed’’ in subpar. (A) and, in provisions following subpar. (C), di- rected that any portion of a plan relating to any meas- ure described in first sentence of 7421 of this title (re- lating to consultation) or the consultation process re- quired under such section 7421 of this title not be re- quired to be promulgated before the date eight months after such date required for submission. Subsec. (c)(3) to (5). Pub. L. 95–95, § 108(d)(3), added pars. (3) to (5). Subsec. (d). Pub. L. 95–95, § 108(f), substituted ‘‘and which implements the requirements of this section’’ for ‘‘and which implements a national primary or sec- ondary ambient air quality standard in a State’’. Subsec. (f). Pub. L. 95–95, § 107(a), substituted provi- sions relating to the handling of national or regional energy emergencies for provisions relating to the post- ponement of compliance by stationary sources or class- es of moving sources with any requirement of applica- ble implementation plans. Subsec. (g). Pub. L. 95–95, § 108(g), added subsec. (g) re- lating to publication of comprehensive document. Pub. L. 95–95, § 107(b), added subsec. (g) relating to Governor’s authority to issue temporary emergency suspensions. Subsec. (h). Pub. L. 95–190, § 14(a)(5), redesignated sub- sec. (g), added by Pub. L. 95–95, § 108(g), as (h). Former subsec. (h) redesignated (i). Subsec. (i). Pub. L. 95–190, § 14(a)(5), redesignated sub- sec. (h), added by Pub. L. 95–95, § 108(g), as (i). Former subsec. (i) redesignated (j) and amended. Subsec. (j). Pub. L. 95–190 § 14(a)(5), (6), redesignated subsec. (i), added by Pub. L. 95–95, § 108(g), as (j) and in subsec. (j) as so redesignated, substituted ‘‘will enable such source’’ for ‘‘at such source will enable it’’. 1974—Subsec. (a)(3). Pub. L. 93–319, § 4(a), designated existing provisions as subpar. (A) and added subpar. (B). Subsec. (c). Pub. L. 93–319, § 4(b), designated existing provisions as par. (1) and existing pars. (1), (2), and (3) as subpars. (A), (B), and (C), respectively, of such redes- ignated par. (1), and added par. (2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95–95 effective Aug. 7, 1977, ex- cept as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as a note under section 7401 of this title. PENDING ACTIONS AND PROCEEDINGS Suits, actions, and other proceedings lawfully com- menced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95–95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95–95, see section 406(a) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. MODIFICATION OR RESCISSION OF RULES, REGULATIONS, ORDERS, DETERMINATIONS, CONTRACTS, CERTIFI- CATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER ACTIONS All rules, regulations, orders, determinations, con- tracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or pursu- ant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 95–95 [this chapter], see section 406(b) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. MODIFICATION OR RESCISSION OF IMPLEMENTATION PLANS APPROVED AND IN EFFECT PRIOR TO AUG. 7, 1977 Nothing in the Clean Air Act Amendments of 1977 [Pub. L. 95–95] to affect any requirement of an approved implementation plan under this section or any other provision in effect under this chapter before Aug. 7, 1977, until modified or rescinded in accordance with this chapter as amended by the Clean Air Act Amend- ments of 1977, see section 406(c) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under sec- tion 7401 of this title. SAVINGS PROVISION Pub. L. 91–604, § 16, Dec. 31, 1970, 84 Stat. 1713, provided that: ‘‘(a)(1) Any implementation plan adopted by any State and submitted to the Secretary of Health, Edu- cation, and Welfare, or to the Administrator pursuant to the Clean Air Act [this chapter] prior to enactment of this Act [Dec. 31, 1970] may be approved under sec- tion 110 of the Clean Air Act [this section] (as amended by this Act) [Pub. L. 91–604] and shall remain in effect, unless the Administrator determines that such imple- mentation plan, or any portion thereof, is not con- sistent with applicable requirements of the Clean Air Act [this chapter] (as amended by this Act) and will not provide for the attainment of national primary ambi- ent air quality standards in the time required by such Act. If the Administrator so determines, he shall, with- in 90 days after promulgation of any national ambient air quality standards pursuant to section 109(a) of the Clean Air Act [section 7409(a) of this title], notify the State and specify in what respects changes are needed to meet the additional requirements of such Act, in- cluding requirements to implement national secondary ambient air quality standards. If such changes are not adopted by the State after public hearings and within six months after such notification, the Administrator shall promulgate such changes pursuant to section 110(c) of such Act [subsec. (c) of this section]. ‘‘(2) The amendments made by section 4(b) [amending sections 7403 and 7415 of this title] shall not be con- Page 7195 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7411 1 See References in Text note below. strued as repealing or modifying the powers of the Ad- ministrator with respect to any conference convened under section 108(d) of the Clean Air Act [section 7415 of this title] before the date of enactment of this Act [Dec. 31, 1970]. ‘‘(b) Regulations or standards issued under this title II of the Clean Air Act [subchapter II of this chapter] prior to the enactment of this Act [Dec. 31, 1970] shall continue in effect until revised by the Administrator consistent with the purposes of such Act [this chap- ter].’’ FEDERAL ENERGY ADMINISTRATOR ‘‘Federal Energy Administrator’’, for purposes of this chapter, to mean Administrator of Federal Energy Ad- ministration established by Pub. L. 93–275, May 7, 1974, 88 Stat. 97, which is classified to section 761 et seq. of Title 15, Commerce and Trade, but with the term to mean any officer of the United States designated as such by the President until Federal Energy Adminis- trator takes office and after Federal Energy Adminis- tration ceases to exist, see section 798 of Title 15, Com- merce and Trade. Federal Energy Administration terminated and func- tions vested by law in Administrator thereof trans- ferred to Secretary of Energy (unless otherwise specifi- cally provided) by sections 7151(a) and 7293 of this title. § 7411. Standards of performance for new sta- tionary sources (a) Definitions For purposes of this section: (1) The term ‘‘standard of performance’’ means a standard for emissions of air pollut- ants which reflects the degree of emission lim- itation 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 require- ments) the Administrator determines has been adequately demonstrated. (2) The term ‘‘new source’’ means any sta- tionary source, the construction or modifica- tion of which is commenced after the publica- tion of regulations (or, if earlier, proposed reg- ulations) prescribing a standard of perform- ance under this section which will be applica- ble 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 subchapter II of this chapter relat- ing to nonroad engines shall be construed to apply to stationary internal combustion en- gines. (4) The term ‘‘modification’’ means any physical change in, or change in the method of operation of, a stationary source which in- creases the amount of any air pollutant emit- ted by such source or which results in the emission of any air pollutant 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 con- tinuous emission reduction’’ means— (A) a technological process for production or operation by any source which is inher- ently low-polluting or nonpolluting, 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 Coordination Act of 1974 [15 U.S.C. 792(a)] or any amendment thereto, or any subsequent enactment which super- sedes such Act [15 U.S.C. 791 et seq.], or (B) which qualifies under section 7413(d)(5)(A)(ii) 1 of this title, shall not be deemed to be a modi- fication for purposes of paragraphs (2) and (4) of this subsection. (b) List of categories of stationary sources; standards of performance; information on pollution control techniques; sources owned or operated by United States; particular sys- tems; revised standards (1)(A) The Administrator shall, within 90 days after December 31, 1970, publish (and from time to time thereafter shall revise) a list of cat- egories of stationary sources. He shall include a category of sources in such list if in his judg- ment it causes, or contributes significantly to, air pollution which may reasonably be antici- pated to endanger public health or welfare. (B) Within one year after the inclusion of a category of stationary sources in a list under subparagraph (A), the Administrator shall pub- lish proposed regulations, establishing Federal standards of performance for new sources within such category. The Administrator shall afford interested persons an opportunity for written comment on such proposed regulations. After considering such comments, he shall promul- gate, within one year after such publication, such standards with such modifications as he deems appropriate. The Administrator shall, at least every 8 years, review and, if appropriate, revise such standards following the procedure required by this subsection for promulgation of such standards. Notwithstanding the require- ments of the previous sentence, the Adminis- trator need not review any such standard if the Administrator determines that such review is not appropriate in light of readily available in- formation on the efficacy of such standard. Standards of performance or revisions thereof shall become effective upon promulgation. When implementation and enforcement of any require- ment of this chapter indicate that emission lim- itations and percent reductions beyond those re- quired by the standards promulgated under this section are achieved in practice, the Adminis- trator shall, when revising standards promul- gated under this section, consider the emission limitations and percent reductions achieved in practice. (2) The Administrator may distinguish among classes, types, and sizes within categories of new sources for the purpose of establishing such standards. (3) The Administrator shall, from time to time, issue information on pollution control techniques for categories of new sources and air pollutants subject to the provisions of this sec- tion.