42 U.S.C. § 7412 — Hazardous air pollutants

Page 7200 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 such regulations are proposed that, at a minimum, re- quire 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 [amending sections 7411 and 7479 of this title] prior to such revision. ‘‘(c) APPLICABILITY.—The provisions of subsections (a) [amending this section] and (b) apply only so long as the provisions of section 403(e) of the Clean Air Act [42 U.S.C. 7651b(e)] remain in effect.’’ 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 L. 95–95 [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub.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. Executive Documents TRANSFER OF FUNCTIONS Enforcement functions of Administrator or other offi- cial in Environmental Protection Agency related to compliance with new source performance standards under this section with respect to pre-construction, construction, and initial operation of transportation system for Canadian and Alaskan natural gas trans- ferred to Federal Inspector, Office of Federal Inspector for the Alaska Natural Gas Transportation System, until first anniversary of date of initial operation of Alaska Natural Gas Transportation System, see Reorg. Plan No. 1 of 1979, eff. July 1, 1979, §§ 102(a), 203(a), 44 F.R. 33663, 33666, 93 Stat. 1373, 1376, set out in the Ap- pendix to Title 5, Government Organization and Em- ployees. Office of Federal Inspector for the Alaska Nat- ural Gas Transportation System abolished and func- tions and authority vested in Inspector transferred to Secretary of Energy by section 3012(b) of Pub. L. 102–486, set out as an Abolition of Office of Federal In- spector note under section 719e of Title 15, Commerce and Trade. Functions and authority vested in Sec- retary of Energy subsequently transferred to Federal Coordinator for Alaska Natural Gas Transportation Projects by section 720d(f) of Title 15. POWER SECTOR CARBON POLLUTION STANDARDS Memorandum of President of the United States, June 25, 2013, 78 F.R. 39535, which related to carbon pollution standards for power plants, was revoked by Ex. Ord. No. 13783, § 3(a)(ii), Mar. 28, 2017, 82 F.R. 16094, formerly set out as a note under section 13201 of this title. § 7412. Hazardous air pollutants (a) Definitions For purposes of this section, except subsection (r)— (1) Major source The term ‘‘major source’’ means any sta- tionary source or group of stationary sources located within a contiguous area and under common control that emits or has the poten- tial to emit considering controls, in the aggre- gate, 10 tons per year or more of any haz- ardous air pollutant or 25 tons per year or more of any combination of hazardous air pol- lutants. 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, persist- ence, potential for bioaccumulation, 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’’ shall not include motor vehicles or nonroad vehicles subject to regulation under subchapter II. (3) Stationary source The term ‘‘stationary source’’ shall have the same meaning as such term has under section 7411(a) of this title. (4) New source The term ‘‘new source’’ means a stationary 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 phys- ical change in, or change in the method of op- eration of, a major source which increases the actual emissions of any hazardous air pollut- ant emitted by such source by more than a de minimis amount or which results in the emis- sion of any hazardous air pollutant not pre- viously emitted by more than a de minimis amount. (6) Hazardous air pollutant The term ‘‘hazardous air pollutant’’ means any air pollutant listed pursuant to subsection (b). (7) Adverse environmental effect The term ‘‘adverse environmental effect’’ means any significant and widespread adverse effect, which may reasonably be anticipated, to wildlife, aquatic life, or other natural re- sources, including adverse impacts on popu- lations of endangered or threatened species or significant degradation of environmental qual- ity 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 cogenerates steam and electricity and supplies more than one-third of its poten- tial electric output capacity and more than 25 Page 7201 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 1 See References in Text note below. megawatts electrical output to any utility power distribution system for sale shall be considered an electric utility steam gener- ating unit. (9) Owner or operator The term ‘‘owner or operator’’ means any person who owns, leases, operates, controls, or supervises a stationary source. (10) Existing source The term ‘‘existing source’’ means any sta- tionary source other than a new source. (11) Carcinogenic effect Unless revised, the term ‘‘carcinogenic ef- fect’’ shall have the meaning provided by the Administrator under Guidelines for Carcino- genic Risk Assessment as of the date of enact- ment.1 Any revisions in the existing Guide- lines shall be subject to notice and oppor- tunity 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: 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 CAS number Chemical name 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 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 Page 7202 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 2 So in original. Probably should be ‘‘effects’’. CAS number Chemical name 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) 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 ar- sine) 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 ap- plies: Unless otherwise specified, these listings are de- fined as including any unique chemical substance that contains the named chemical (i.e., antimony, arsenic, etc.) as part of that chemical’s infrastructure. 1 X′CN where X = H′ or any other group where a for- mal 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 ra- dioactive decay. (2) Revision of the list The Administrator shall periodically review the list established by this subsection and pub- lish the results thereof and, where appro- priate, revise such list by rule, adding pollut- ants which present, or may present, through inhalation or other routes of exposure, a threat of adverse human health effects (in- cluding, but not limited to, substances which are known to be, or may reasonably be antici- pated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproduc- tive dysfunction, or which are acutely or chronically toxic) or adverse environmental effects whether through ambient concentra- tions, bioaccumulation, deposition, or other- wise, but not including releases subject to reg- ulation under subsection (r) as a result of emissions to the air. No air pollutant which is listed under section 7408(a) of this title 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 list- ed under section 7408(a) of this title or to any pollutant which is in a class of pollutants list- ed under such section. No substance, practice, process or activity regulated under subchapter VI of this chapter shall be subject to regula- tion under this section solely due to its ad- verse effects on the environment. (3) Petitions to modify the list (A) Beginning at any time after 6 months after November 15, 1990, any person may peti- tion the Administrator to modify the list of hazardous air pollutants under this subsection by adding or deleting a substance or, in case of listed pollutants without CAS numbers (other than coke oven emissions, mineral fibers, or polycyclic organic matter) removing certain unique substances. Within 18 months after re- ceipt of a petition, the Administrator shall ei- ther grant or deny the petition by publishing a written explanation of the reasons for the Administrator’s decision. Any such petition shall include a showing by the petitioner that there is adequate data on the health or envi- ronmental defects 2 of the pollutant or other evidence adequate to support the petition. The Administrator may not deny a petition solely Page 7203 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 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 and that emissions, ambient concentrations, bio- accumulation or deposition of the substance are known to cause or may reasonably be an- ticipated to cause adverse effects to human health or adverse environmental effects. (C) The Administrator shall delete a sub- stance from the list upon a showing by the pe- titioner or on the Administrator’s own deter- mination that there is adequate data on the health and environmental effects of the sub- stance to determine that emissions, ambient concentrations, bioaccumulation or deposition of the substance may not reasonably be antici- pated to cause any adverse effects to the human health or adverse environmental ef- fects. (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 Ad- ministrator’s own determination that such unique chemical substances that contain the named chemical of such listed hazardous air pollutant meet the deletion requirements of subparagraph (C). The Administrator must grant or deny a deletion petition prior to pro- mulgating 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 November 15, 1990. (4) Further information If the Administrator determines that infor- mation on the health or environmental effects of a substance is not sufficient to make a de- termination required by this subsection, the Administrator may use any authority avail- able to the Administrator to acquire such in- formation. (5) Test methods The Administrator may establish, by rule, test measures and other analytic procedures for monitoring and measuring emissions, am- bient concentrations, deposition, and bio- accumulation of hazardous air pollutants. (6) Prevention of significant deterioration The provisions of part C (prevention of sig- nificant deterioration) shall not apply to pol- lutants 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 November 15, 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 categories and subcategories of major sources and area sources (listed under paragraph (3)) of the air pollutants listed pur- suant to subsection (b). To the extent prac- ticable, the categories and subcategories listed under this subsection shall be consistent with the list of source categories established pursu- ant to section 7411 of this title and part C. Nothing in the preceding sentence limits the Administrator’s authority to establish subcat- egories under this section, as appropriate. (2) Requirement for emissions standards For the categories and subcategories the Ad- ministrator lists, the Administrator shall es- tablish emissions standards under subsection (d), according to the schedule in this sub- section and subsection (e). (3) Area sources The Administrator shall list under this sub- section each category or subcategory of area sources which the Administrator finds pre- sents a threat of adverse effects to human health or the environment (by such sources in- dividually or in the aggregate) warranting reg- ulation under this section. The Administrator shall, not later than 5 years after November 15, 1990, and pursuant to subsection (k)(3)(B), list, based on actual or estimated aggregate emissions of a listed pollutant or pollutants, sufficient categories or subcategories of area sources to ensure that area sources rep- resenting 90 percent of the area source emis- sions 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 section. Such regula- tions shall be promulgated not later than 10 years after November 15, 1990. (4) Previously regulated categories The Administrator may, in the Administra- tor’s discretion, list any category or sub- category of sources previously regulated under this section as in effect before November 15, 1990. (5) Additional categories In addition to those categories and subcat- egories of sources listed for regulation pursu- ant to paragraphs (1) and (3), the Adminis- trator may at any time list additional cat- egories and subcategories of sources of haz- ardous air pollutants according to the same criteria for listing applicable under such para- graphs. In the case of source categories and subcategories listed after publication of the initial list required under paragraph (1) or (3), emission standards under subsection (d) for the category or subcategory shall be promul- gated within 10 years after November 15, 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, mercury, polychlorinated biphenyls, 2,3,7,8- Page 7204 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 tetrachlorodibenzofurans and 2,3,7,8- tetrachlorodibenzo-p-dioxin, the Adminis- trator shall, not later than 5 years after No- vember 15, 1990, list categories and subcat- egories of sources assuring that sources ac- counting for not less than 90 per centum of the aggregate emissions of each such pollutant are subject to standards under subsection (d)(2) or (d)(4). Such standards shall be promulgated not later than 10 years after November 15, 1990. This paragraph shall not be construed to re- quire the Administrator to promulgate stand- ards for such pollutants emitted by electric utility steam generating units. (7) Research facilities The Administrator shall establish a separate category covering research or laboratory fa- cilities, as necessary to assure the equitable treatment of such facilities. For purposes of this section, ‘‘research or laboratory facility’’ means any stationary source whose primary purpose is to conduct research and develop- ment 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 manufacturing as a separate subcategory un- less the Administrator finds that such listing would be inconsistent with the goals and re- quirements of this chapter. (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 Administrator shall delete the source category from the list if it is appropriate because of action taken under ei- ther subparagraphs (C) or (D) of subsection (b)(3). (B) The Administrator may delete any source category from the list under this sub- section, on petition of any person or on the Administrator’s own motion, whenever the Administrator makes the following determina- tion or determinations, 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 category (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 indi- vidual 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 envi- ronmental effects, a determination that emissions from no source in the category or subcategory concerned (or group of sources in the case of area sources) exceed a level which is adequate to protect public health with an ample margin of safety and no ad- verse environmental effect will result from emissions from any source (or from a group of sources in the case of area sources). The Administrator shall grant or deny a peti- tion under this paragraph within 1 year after the petition is filed. (d) Emission standards (1) In general The Administrator shall promulgate regula- tions establishing emission standards for each category or 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 sub- sections (c) and (e). The Administrator may distinguish among classes, types, and sizes of sources within a category or subcategory in establishing 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 promulgated under this subsection and applicable to new or existing sources of hazardous air pollutants shall re- quire the maximum degree of reduction in emissions of the hazardous air pollutants sub- ject to this section (including a prohibition on such emissions, where achievable) that the Ad- ministrator, 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 sources in the category or subcategory to which such emis- sion standard applies, through application of measures, processes, methods, systems or techniques including, but not limited to, measures which— (A) reduce the volume of, or eliminate emissions of, such pollutants through proc- ess changes, substitution of materials or other modifications, (B) enclose systems or processes to elimi- nate emissions, (C) collect, capture or treat such pollut- ants when released from a process, stack, storage or fugitive emissions point, (D) are design, equipment, work practice, or operational standards (including require- ments for operator training or certification) as provided in subsection (h), or (E) are a combination of the above. None of the measures described in subpara- graphs (A) through (D) shall, consistent with the provisions of section 7414(c) of this title, in any way compromise any United States patent or United States trademark right, or any con- fidential business information, or any trade secret or any other intellectual property right. (3) New and existing sources The maximum degree of reduction in emis- sions that is deemed achievable for new sources in a category or subcategory shall not Page 7205 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 be less stringent than the emission control that is achieved in practice by the best con- trolled similar source, as determined by the Administrator. Emission standards promul- gated 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 strin- gent than— (A) the average emission limitation achieved by the best performing 12 percent of the existing sources (for which the Ad- ministrator has emissions information), ex- cluding those sources that have, within 18 months before the emission standard is pro- posed or within 30 months before such stand- ard 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 subject to such standard, with the lowest achievable emission rate (as defined by section 7501 of this title) applica- ble to the source category and prevailing at the time, in the category or subcategory 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 Ad- ministrator may consider such threshold level, with an ample margin of safety, when estab- lishing emission standards under this sub- section. (5) Alternative standard for area sources With respect only to categories and subcat- egories of area sources listed pursuant to sub- section (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 tech- nologies or management practices by such sources to reduce emissions of hazardous air pollutants. (6) Review and revision The Administrator shall review, and revise as necessary (taking into account develop- ments in practices, processes, and control technologies), emission standards promulgated under this section no less often than every 8 years. (7) Other requirements preserved No emission standard or other requirement promulgated under this section shall be inter- preted, construed or applied to diminish or re- place the requirements of a more stringent emission limitation or other applicable re- quirement established pursuant to section 7411 of this title, part C or D, or other authority of this chapter or a standard issued under State authority. (8) Coke ovens (A) Not later than December 31, 1992, the Ad- ministrator shall promulgate regulations es- tablishing emission standards under para- graphs (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 equiva- lent) luting compounds to prevent door leaks, and other operating practices and technologies for their effectiveness in reduc- ing coke oven emissions, and their suit- ability for use on new and existing coke oven batteries, taking into account costs and reasonable commercial door warranties; and (ii) as a basis for emission standards under this subsection for new coke oven batteries that begin construction 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 produc- tion 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 sec- onds visible emissions per charge, with no ex- clusion for emissions during the period after the closing of self-sealing oven doors. Notwith- standing 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 sub- section for coke oven batteries requiring, as appropriate— (i) the use of sodium silicate (or equiva- lent) 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 compli- ance date for such work practice regulations for coke oven batteries shall be not later than the date 3 years after November 15, 1990. (C) For coke oven batteries electing to qual- ify for an extension of the compliance date for standards promulgated under subsection (f) in accordance with subsection (i)(8), the emission standards under this subsection for coke oven batteries shall require that coke oven bat- teries not exceed 8 per centum leaking doors, 1 per centum leaking lids, 5 per centum leak- ing offtakes, and 16 seconds visible emissions per charge, with no exclusion for emissions during the period after the closing of self-seal- ing doors. Notwithstanding subsection (i), the compliance date for such emission standards for existing coke oven batteries seeking an ex- tension shall be not later than the date 3 years after November 15, 1990. Page 7206 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 (9) Sources licensed by the Nuclear Regulatory Commission No standard for radionuclide emissions from any category or subcategory of facilities li- censed by the Nuclear Regulatory Commission (or an Agreement State) is required to be pro- mulgated under this section if the Adminis- trator determines, by rule, and after consulta- tion with the Nuclear Regulatory Commission, that the regulatory program established by the Nuclear Regulatory Commission pursuant to the Atomic Energy Act [42 U.S.C. 2011 et seq.] for such category or subcategory pro- vides an ample 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 emis- sions of radionuclides which is more stringent than the standard or limitation in effect under section 7411 of this title or this section. (10) Effective date Emission standards or other regulations pro- mulgated under this subsection shall be effec- tive upon promulgation. (e) Schedule for standards and review (1) In general The Administrator shall promulgate regula- tions establishing emission standards for cat- egories 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 November 15, 1990; (B) emission standards for coke oven bat- teries 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 November 15, 1990; (D) emission standards for an additional 25 per centum of the listed categories and sub- categories shall be promulgated not later than 7 years after November 15, 1990; and (E) emission standards for all categories and subcategories shall be promulgated not later than 10 years after November 15, 1990. (2) Priorities In determining priorities for promulgating standards under subsection (d), the Adminis- trator shall consider— (A) the known or anticipated adverse ef- fects of such pollutants on public health and the environment; (B) the quantity and location of emissions or reasonably anticipated emissions of haz- ardous air pollutants that each category or subcategory will emit; and (C) the efficiency of grouping categories or subcategories according to the pollutants emitted, or the processes or technologies used. (3) Published schedule Not later than 24 months after November 15, 1990, and after opportunity for comment, the Administrator shall publish a schedule estab- lishing a date for the promulgation of emis- sion standards for each category and sub- category of sources listed pursuant to sub- section (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 by this paragraph shall be subject to review under section 7604 of this title. (4) Judicial review Notwithstanding section 7607 of this title, no action of the Administrator adding a pollutant to the list under subsection (b) or listing a source category or subcategory under sub- section (c) shall be a final agency action sub- ject to judicial review, except that any such action may be reviewed under such section 7607 of this title when the Administrator issues emission standards for such pollutant or category. (5) Publicly owned treatment works The Administrator shall promulgate stand- ards pursuant to subsection (d) applicable to publicly owned treatment works (as defined in title II of the Federal Water Pollution Control Act [33 U.S.C. 1281 et seq.]) not later than 5 years after November 15, 1990. (f) Standard to protect health and environment (1) Report Not later than 6 years after November 15, 1990, the Administrator shall investigate and report, after consultation with the Surgeon General and after opportunity for public com- ment, to Congress on— (A) methods of calculating the risk to pub- lic health remaining, or likely to remain, from sources subject to regulation under this section after the application of stand- ards under subsection (d); (B) the public health significance of such estimated remaining risk and the techno- logically and commercially available meth- ods and costs of reducing such risks; (C) the actual health effects with respect to persons living in the vicinity of sources, any available epidemiological or other health studies, risks presented by back- ground concentrations of hazardous air pol- lutants, any uncertainties in risk assess- ment methodology or other health assess- ment technique, and any negative health or environmental consequences to the commu- nity of efforts to reduce such risks; and (D) recommendations as to legislation re- garding such remaining risk. (2) Emission standards (A) If Congress does not act on any rec- ommendation submitted under paragraph (1), the Administrator shall, within 8 years after promulgation of standards for each category or subcategory of sources pursuant to sub- section (d), promulgate standards for such cat- egory or subcategory if promulgation of such Page 7207 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 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 November 15, 1990) or to prevent, taking into consideration costs, energy, safe- ty, and other relevant factors, an adverse envi- ronmental effect. Emission standards promul- gated under this subsection shall provide an ample margin of safety to protect public health in accordance with this section (as in effect before November 15, 1990), unless the Ad- ministrator determines that a more stringent standard is necessary to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental ef- fect. If standards promulgated 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 pro- mulgate standards under this subsection for such source category. (B) Nothing in subparagraph (A) or in any other provision of this section shall be con- strued as affecting, or applying to the Admin- istrator’s interpretation of this section, as in effect before November 15, 1990, and set forth in the Federal Register of September 14, 1989 (54 Federal Register 38044). (C) The Administrator shall determine whether or not to promulgate such standards and, if the Administrator decides to promul- gate such standards, shall promulgate the standards 8 years after promulgation of the standards under subsection (d) for each source category or subcategory concerned. In the case of categories or subcategories for which standards under subsection (d) are required to be promulgated within 2 years after November 15, 1990, the Administrator shall have 9 years after promulgation of the standards under sub- section (d) to make the determination under the preceding sentence and, if required, to pro- mulgate the standards under this paragraph. (3) Effective date Any emission standard established pursuant to this subsection shall become effective upon promulgation. (4) Prohibition No air pollutant to which a standard under this subsection applies may be emitted from any stationary 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 Adminis- trator finds that such period is necessary for the installation of controls and that steps will be taken during the period of the waiver to assure that the health of persons will be protected from imminent endangerment. (5) Area sources The Administrator shall not be required to conduct any review under this subsection or promulgate emission limitations under this subsection for any category or subcategory of area sources that is listed pursuant to sub- section (c)(3) and for which an emission stand- ard is promulgated pursuant to subsection (d)(5). (6) Unique chemical substances In establishing standards for the control of unique chemical substances of listed pollut- ants without CAS numbers under this sub- section, the Administrator shall establish such standards with respect to the health and environmental effects of the substances actu- ally emitted by sources and direct trans- formation 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 hazardous air pollut- ant shall not be considered a modification, if such increase in the quantity of actual emis- sions of any hazardous air pollutant from such source will be offset by an equal or greater de- crease 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 Adminis- trator under subparagraph (B). The owner or operator of such source shall submit a showing to the Administrator (or the State) that such increase has been offset under the preceding sentence. (B) The Administrator shall, after notice and opportunity for comment and not later than 18 months after November 15, 1990, pub- lish guidance with respect to implementation of this subsection. Such guidance shall include an identification, 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) suf- ficient to facilitate the offset showing author- ized by subparagraph (A). Such guidance shall not authorize offsets between pollutants where the increased pollutant (or more than one pol- lutant in a stream of pollutants) causes ad- verse effects to human health for which no safety threshold for exposure can be deter- mined unless there are corresponding de- creases in such types of pollutant(s). (2) Construction, reconstruction and modifica- tions (A) After the effective date of a permit pro- gram under subchapter V in any State, no per- son 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 emis- sion limitation under this section for existing sources will be met. Such determination shall be made on a case-by-case basis where no ap- plicable emissions limitations have been es- tablished by the Administrator. Page 7208 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 (B) After the effective date of a permit pro- gram under subchapter V in any State, no per- son may construct or reconstruct any major source of hazardous air pollutants, unless the Administrator (or the State) determines that the maximum achievable control technology emission limitation under this section for new sources will be met. Such determination shall be made on a case-by-case basis where no ap- plicable emission limitations have been estab- lished by the Administrator. (3) Procedures for modifications The Administrator (or the State) shall es- tablish reasonable procedures for assuring that the requirements applying to modifica- tions under this section are reflected in the permit. (h) Work practice standards and other require- ments (1) In general For purposes of this section, if it is not fea- sible in the judgment of the Administrator to prescribe or enforce an emission standard for control of a hazardous air pollutant or pollut- ants, the Administrator may, in lieu thereof, promulgate a design, equipment, work prac- tice, or operational standard, or combination thereof, which in the Administrator’s judg- ment is consistent with the provisions of sub- section (d) or (f). In the event the Adminis- trator promulgates a design or equipment standard under this subsection, the Adminis- trator shall include as part of such standard such requirements as will assure the proper operation and maintenance of any such ele- ment of design or equipment. (2) Definition For the purpose of this subsection, the phrase ‘‘not feasible to prescribe or enforce an emission standard’’ means any situation in which the Administrator determines that— (A) a hazardous air pollutant or pollutants cannot be emitted through a conveyance de- signed and constructed to emit or capture such pollutant, or that any requirement for, or use of, such a conveyance would be incon- sistent with any Federal, State or local law, or (B) the application of measurement meth- odology to a particular class of sources is not practicable due to technological and eco- nomic limitations. (3) Alternative standard If after notice and opportunity for comment, the owner or operator of any source estab- lishes to the satisfaction of the Administrator that an alternative means of emission limita- tion will achieve a reduction in emissions of any air pollutant at least equivalent to the re- duction in emissions of such pollutant achieved under the requirements 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 promulgated under paragraph (1) shall be promulgated in terms of an emis- sion standard whenever it is feasible to pro- mulgate and enforce a standard in such terms. (i) Schedule for compliance (1) Preconstruction and operating require- ments After the effective date of any emission standard, limitation, or regulation under sub- section (d), (f) or (h), no person may construct any new major source or reconstruct any ex- isting major source subject to such emission standard, regulation or limitation unless the Administrator (or a State with a permit pro- gram approved under subchapter V) deter- mines that such source, if properly con- structed, reconstructed and operated, will comply with the standard, regulation or limi- tation. (2) Special rule Notwithstanding the requirements of para- graph (1), a new source which commences con- struction or reconstruction after a standard, limitation or regulation applicable to such source is proposed and before such standard, limitation or regulation is promulgated shall not be required to comply with such promul- gated 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 regulation proposed; and (B) the source complies with the standard, limitation, or regulation as proposed during the 3-year period immediately after promul- gation. (3) Compliance schedule for existing sources (A) After the effective date of any emissions standard, limitation or regulation promul- gated under this section and applicable to a source, no person may operate such source in violation of such standard, limitation or regu- lation except, in the case of an existing source, the Administrator 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, ex- cept as provided in subparagraph (B) and para- graphs (4) through (8). (B) The Administrator (or a State with a program approved under subchapter V) may issue a permit that grants an extension per- mitting an existing source up to 1 additional year to comply with standards under sub- section (d) if such additional period is nec- essary for the installation of controls. An ad- ditional extension of up to 3 years may be added for mining waste operations, if the 4- year compliance time is insufficient to dry and cover mining waste in order to reduce emissions of any pollutant listed under sub- section (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 deter- Page 7209 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 mines that the technology to implement such standard is not available and that it is in the national security interests of the United States to do so. An exemption under this para- graph may be extended for 1 or more addi- tional periods, each period not to exceed 2 years. The President shall report to Congress with respect to each exemption (or extension thereof) made under this paragraph. (5) Early reduction (A) The Administrator (or a State acting pursuant to a permit program approved under subchapter V) shall issue a permit allowing an existing source, for which the owner or oper- ator demonstrates that the source has achieved a reduction of 90 per centum or more in emissions of hazardous air pollutants (95 per centum in the case of hazardous air pollutants which are particulates) from the source, to meet an alternative emission limitation re- flecting such reduction in lieu of an emission limitation promulgated under subsection (d) for a period of 6 years from the compliance date for the otherwise applicable standard, provided that such reduction is achieved be- fore the otherwise applicable standard under subsection (d) is first proposed. Nothing in this paragraph shall preclude a State from requir- ing reductions in excess of those specified in this subparagraph as a condition of granting the extension authorized by the previous sen- tence. (B) An existing source which achieves the re- duction referred to in subparagraph (A) after the proposal of an applicable standard but be- fore January 1, 1994, may qualify under sub- paragraph (A), if the source makes an enforce- able commitment to achieve such reduction before the proposal of the standard. Such com- mitment shall be enforceable to the same ex- tent as a regulation under this section. (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 evidence that emis- sions in the base year are artificially or sub- stantially greater than emissions in other years prior to implementation of emissions re- duction 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 information for such source, received by the Administrator prior to November 15, 1990, pursuant to an information request issued under section 7414 of this title. (D) For each source granted an alternative emission limitation under this paragraph there shall be established by a permit issued pursuant to subchapter 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 require- ments promulgated pursuant to subsection (f) and the Administrator shall, for the purpose of determining whether a standard under sub- section (f) is necessary, review emissions from sources granted an alternative emission limi- tation under this paragraph at the same time that other sources in the category or sub- category are reviewed. (E) With respect to pollutants for which high risks of adverse public health effects may be associated with exposure to small quantities including, but not limited to, chlorinated dioxins and furans, the Administrator shall by regulation limit the use of offsetting reduc- tions in emissions of other hazardous air pol- lutants from the source as counting toward the 90 per centum reduction in such high-risk pollutants qualifying for an alternative emis- sions limitation under this paragraph. (6) Other reductions Notwithstanding the requirements of this section, no existing source that has installed— (A) best available control technology (as defined in section 7479(3) of this title), or (B) technology required to meet a lowest achievable emission rate (as defined in sec- tion 7501 of this title), prior to the promulgation of a standard under this section applicable to such source and the same pollutant (or stream of pollutants) con- trolled pursuant to an action described in sub- paragraph (A) or (B) shall be required to com- ply 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 construction or recon- struction is commenced after the date an emission standard applicable to such source is proposed pursuant 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 construction 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 pro- mulgated under subsection (f) until January 1, 2020. (B)(i) Not later than December 31, 1992, the Administrator shall promulgate emission limi- tations for coke oven emissions from coke oven batteries. Notwithstanding paragraph (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 7501 of this title 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— Page 7210 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 (I) 3 per centum leaking doors (5 per cen- tum leaking 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 pe- riod after the closing of self-sealing oven doors (or the total mass emissions equivalent). The rulemaking in which such emission limita- tions are promulgated shall also establish an appropriate measurement methodology for de- termining compliance with such emission lim- itations, and shall establish such emission limitations in terms of an equivalent level of mass emissions reduction from a coke oven battery, unless 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 alter- native test methods that reflect the best tech- nology and practices actually applied in the affected industries, and shall assure that the final test methods are consistent with the per- formance of such best technology and prac- tices. (ii) If the Administrator fails to promulgate such emission limitations under this subpara- graph prior to the effective date of such emis- sion limitations, the emission limitations ap- plicable to coke oven batteries under this sub- paragraph shall be— (I) 3 per centum leaking doors (5 per cen- tum leaking 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 ex- clusion for emissions during the period after the closing of self-sealing oven doors. (C) Not later than January 1, 2007, the Ad- ministrator shall review the emission limita- tions promulgated under subparagraph (B) and revise, as necessary, such emission limitations to reflect the lowest achievable emission rate as defined in section 7501 of this title at the time for a coke oven battery that is rebuilt or a replacement at a coke oven plant for an ex- isting battery. Such emission limitations shall be no less stringent than the emission limita- tion promulgated under subparagraph (B). Notwithstanding paragraph (2) of this sub- section, the compliance date for such emission limitations 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 subparagraphs (B) and (C) of this paragraph. Any such owner or operator shall be legally bound to comply with such emission limitations promulgated under sub- section (f) with respect to such coke oven bat- tery as of January 1, 2003. If no such emission limitations have been promulgated for such coke oven battery, the Administrator shall promulgate such emission limitations in ac- cordance with subsection (f) for such coke oven battery. (E) Coke oven batteries qualifying for an ex- tension 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 standard established by the Ad- ministrator pursuant to subsection (f). (F) Notwithstanding the provisions of this section, reconstruction of any source of coke oven emissions qualifying for an extension under this paragraph shall not subject such source to emission limitations under sub- section (f) more stringent than those estab- lished under subparagraphs (B) and (C) until January 1, 2020. For the purposes of this sub- paragraph, the term ‘‘reconstruction’’ includes the replacement of existing coke oven battery capacity with new coke oven batteries of com- parable or lower capacity 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 subchapter V in such State, but not prior to the date 42 months after November 15, 1990. (2) Failure to promulgate a standard In the event that the Administrator fails to promulgate a standard for a category or sub- category 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 pro- gram under subchapter V), the owner or oper- ator of any major source in such category or subcategory shall submit a permit application under paragraph (3) and such owner or oper- ator 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 subsection shall file an application for a permit. If the owner or operator of a source has submitted a timely and complete applica- tion for a permit required by this subsection, any failure to have a permit shall not be a vio- lation of paragraph (2), unless 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 Ad- ministrator shall not later than 18 months after November 15, 1990, and after notice and opportunity for comment, establish require- ments for applications under this subsection including a standard application form and cri- teria for determining in a timely manner the completeness of applications. (4) Review and approval Permit applications submitted under this subsection shall be reviewed and approved or Page 7211 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 disapproved according to the provisions of sec- tion 7661d of this title. In the event that the Administrator (or the State) disapproves a permit application submitted under this sub- section 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 pursuant to sub- chapter V and shall contain emission limita- tions for the hazardous air pollutants subject to regulation under this section and emitted by the source that the Administrator (or the 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 subsection (d). In the alternative, if the applicable criteria are met, the permit may contain an emissions limitation established according to the provisions of subsection (i)(5). For purposes of the preceding sentence, the re- duction 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 emit- ted in amounts exceeding an emission limita- tion contained in a permit immediately for new sources and, as expeditiously as prac- ticable, 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 Administrator promulgates an emis- sion standard that is applicable 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 emission limitation determined pursuant to paragraph (5), pro- vided that the source shall have the compli- ance period provided under subsection (i). If the Administrator promulgates a standard 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 permit upon the next renewal to reflect the standard promulgated by the Ad- ministrator providing such source a reason- able 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 established by paragraph (5), which- ever is earlier. (k) Area source program (1) Findings and purpose The Congress finds that emissions of haz- ardous air pollutants from area sources may individually, or in the aggregate, present sig- nificant risks to public health in urban areas. Considering the large number of persons ex- posed and the risks of carcinogenic and other adverse health effects from hazardous air pol- lutants, ambient concentrations char- acteristic of large urban areas should be re- duced to levels substantially below those cur- rently experienced. It is the purpose of this subsection to achieve a substantial reduction 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 at- tributable to emissions from such sources. (2) Research program The Administrator shall, after consultation with State and local air pollution control offi- cials, conduct a program of research with re- spect to sources of hazardous air pollutants in urban areas and shall include within such pro- gram— (A) ambient monitoring for a broad range of hazardous air pollutants (including, but not limited to, volatile organic compounds, metals, pesticides and products of incom- plete combustion) in a representative num- ber of urban locations; (B) analysis to characterize the sources of such pollution 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 trans- formation and other factors which can ele- vate public health risks from such pollut- ants. Health effects considered under this program shall include, but not be limited to, carcino- genicity, mutagenicity, teratogenicity, neurotoxicity, reproductive dysfunction and other acute and chronic effects including the role of such pollutants as precursors of ozone or acid aerosol formation. The Administrator shall report the preliminary results of such re- search not later than 3 years after November 15, 1990. (3) National strategy (A) Considering information collected pursu- ant to the monitoring program authorized by paragraph (2), the Administrator shall, not later than 5 years after November 15, 1990, and after notice and opportunity for public com- ment, 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 pollutants which, as the result of emissions from area sources, present the greatest threat to public health in the largest num- ber of urban areas and that are or will be listed pursuant to subsection (b), and (ii) identify the source categories or sub- categories emitting such pollutants that are or will be listed pursuant to subsection (c). When identifying categories and subcat- egories 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 identi- fied hazardous air pollutants are subject to standards pursuant to subsection (d). Page 7212 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 (C) The strategy shall include a schedule of specific actions to substantially reduce the public health risks posed by the release of haz- ardous air pollutants from area sources that will be implemented by the Administrator under the authority of this or other laws (in- cluding, but not limited to, the Toxic Sub- stances Control Act [15 U.S.C. 2601 et seq.], the Federal Insecticide, Fungicide and Rodenticide Act [7 U.S.C. 136 et seq.] and the Resource Conservation and Recovery Act [42 U.S.C. 6901 et seq.]) or by the States. The strategy shall achieve a reduction in the inci- dence of cancer attributable to exposure to hazardous air pollutants emitted by sta- tionary sources of not less than 75 per centum, considering control of emissions of hazardous air pollutants from all stationary sources and resulting 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 subsection. (E) Nothing in this subsection shall be inter- preted to preclude or delay implementation of actions with respect to area sources of haz- ardous air pollutants under consideration pur- suant 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 assur- ing that all sources are in compliance with all requirements not later than 9 years after No- vember 15, 1990. (G) As part of such strategy the Adminis- trator shall provide for ambient monitoring and emissions modeling in urban areas as ap- propriate 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 strategies 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 available for grants under this section, the Administrator shall set aside not less than 10 per centum to support areawide strategies 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 con- trol officials, the Administrator shall prepare guidelines for control technologies or manage- ment practices which may be applicable to various categories 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 November 15, 1990, on actions taken under this subsection and other parts of this chapter to reduce the risk to public health posed by the release of hazardous air pollut- ants from area sources. The reports shall also identify specific metropolitan areas that con- tinue 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 implementation and enforcement (including a review of enforcement delegations previously granted) of emission standards and other re- quirements for air pollutants subject to this section or requirements 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 delegation of the Adminis- trator’s authorities and responsibilities to im- plement and enforce emissions standards and prevention requirements but shall not include authority to set standards less stringent than those promulgated by the Administrator under this chapter. (2) Guidance Not later than 12 months after November 15, 1990, the Administrator shall publish guidance that would be useful to the States in devel- oping programs for submittal under this sub- section. The guidance shall also provide for the registration of all facilities producing, processing, handling or storing any substance listed pursuant to subsection (r) in amounts greater than the threshold quantity. The Ad- ministrator 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 establish and main- tain an air toxics clearinghouse and center to provide technical information and assistance to State and local agencies and, on a cost re- covery basis, to others on control technology, health and ecological risk assessment, risk analysis, ambient monitoring and modeling, and emissions measurement and monitoring. The Administrator shall use the authority of section 7403 of this title to examine methods for preventing, measuring, and controlling emissions and evaluating associated health and ecological risks. Where appropriate, such activity shall be conducted with not-for-profit organizations. The Administrator may con- duct research on methods for preventing, measuring and controlling emissions and eval- uating associated health and environment risks. All information collected 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 ap- propriate, to such State for the purpose of as- sisting the State in developing and imple- menting a program for submittal and approval Page 7213 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 under this subsection. Programs assisted under this paragraph may include program elements addressing air pollutants or ex- tremely hazardous substances other than those specifically subject to this section. Grants under this paragraph may include sup- port for high-risk point source review as pro- vided in paragraph (2) and support for the de- velopment and implementation of areawide area source programs pursuant to subsection (k). (5) Approval or disapproval Not later than 180 days after receiving a pro- gram submitted by a State, and after notice and opportunity for public comment, the Ad- ministrator shall either approve or disapprove such program. The Administrator shall dis- approve any program submitted by a State, if the Administrator determines that— (A) the authorities contained in the pro- gram are not adequate to assure compliance by all sources within the State with each ap- plicable standard, regulation or requirement established by the Administrator under this section; (B) adequate authority does not exist, or adequate resources are not available, to im- plement the program; (C) the schedule for implementing the pro- gram and assuring compliance by affected sources is not sufficiently expeditious; or (D) the program is otherwise not in com- pliance with the guidance issued by the Ad- ministrator under paragraph (2) or is not likely to satisfy, in whole or in part, the ob- jectives of this chapter. If the Administrator disapproves a State pro- gram, the Administrator shall notify the State of any revisions or modifications necessary to obtain approval. The State may revise and re- submit the proposed program for review and approval pursuant to the provisions of this subsection. (6) Withdrawal Whenever the Administrator determines, after public hearing, that a State is not ad- ministering and enforcing a program approved pursuant to this subsection in accordance with the guidance published pursuant to paragraph (2) or the requirements of paragraph (5), the Administrator shall so notify the State and, if action which will assure prompt compliance is not taken within 90 days, the Administrator shall withdraw approval of the program. The Administrator 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 op- portunity for public comment, approve a pro- gram developed and submitted by a local air pollution control agency (after consultation with the State) pursuant to this subsection and any such agency implementing an ap- proved program may take any action author- ized to be taken by a State under this section. (9) Permit authority Nothing in this subsection shall affect the authorities and obligations of the Adminis- trator or the State under subchapter V. (m) Atmospheric deposition to Great Lakes and coastal waters (1) Deposition assessment The Administrator, in cooperation with the Under Secretary of Commerce for Oceans and Atmosphere, shall conduct a program to iden- tify and assess the extent of atmospheric depo- sition of hazardous air pollutants (and in the discretion of the Administrator, other air pol- lutants) to the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters. As part of such program, the Administrator shall— (A) monitor the Great Lakes, the Chesa- peake Bay, Lake Champlain and coastal wa- ters, including monitoring of the Great Lakes through the monitoring network es- tablished pursuant to paragraph (2) of this subsection and designing and deploying an atmospheric monitoring network for coastal waters pursuant to paragraph (4); (B) investigate the sources and deposition rates of atmospheric deposition of air pollut- ants (and their atmospheric transformation precursors); (C) conduct research to develop and im- prove monitoring methods and to determine the relative contribution of atmospheric pol- lutants 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 quality standards established pur- suant to the Federal Water Pollution Con- trol Act [33 U.S.C. 1251 et seq.] and drinking water standards established pursuant to the Safe Drinking Water Act [42 U.S.C. 300f et seq.]; and (E) sample for such pollutants in biota, fish, and wildlife of the Great Lakes, the Chesapeake Bay, Lake Champlain and coast- al waters and characterize the sources of such pollutants. (2) Great Lakes monitoring network The Administrator shall oversee, in accord- ance with Annex 15 of the Great Lakes Water Quality Agreement, the establishment and op- eration of a Great Lakes atmospheric deposi- tion network to monitor atmospheric deposi- tion of hazardous air pollutants (and in the Administrator’s discretion, other air pollut- ants) to the Great Lakes. (A) As part of the network provided for in this paragraph, and not later than December 31, 1991, the Administrator shall establish in each of the 5 Great Lakes at least 1 facility capable of monitoring the atmospheric depo- Page 7214 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 sition of hazardous air pollutants in both dry and wet conditions. (B) The Administrator shall use the data provided by the network to identify and track the movement of hazardous air pollut- ants through the Great Lakes, to determine the portion of water pollution loadings at- tributable 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 collected by the Great Lakes at- mospheric deposition monitoring network is in a format compatible with databases spon- sored by the International Joint Commis- sion, 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 Chesapeake Bay and Lake Champlain atmos- pheric deposition stations to monitor deposi- tion of hazardous air pollutants (and in the Administrator’s discretion, other air pollut- ants) within the Chesapeake Bay and Lake Champlain watersheds. The Administrator shall determine the role of air deposition in the pollutant loadings of the Chesapeake Bay and Lake Champlain, investigate the sources of air pollutants deposited in the watersheds, 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 networks 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 conduct research to develop and improve deposition monitoring methods, and to determine the rel- ative contribution of atmospheric pollutants to pollutant loadings. For purposes of this sub- section, ‘‘coastal waters’’ shall mean estuaries selected pursuant to section 320(a)(2)(A) of the Federal Water Pollution Control Act [33 U.S.C. 1330(a)(2)(A)] or listed pursuant to section 320(a)(2)(B) of such Act [33 U.S.C. 1330(a)(2)(B)] or estuarine research reserves designated pur- suant to section 1461 of title 16. (5) Report Within 3 years of November 15, 1990, and bi- ennially thereafter, the Administrator, in co- operation with the Under Secretary of Com- merce for Oceans and Atmosphere, shall sub- mit to the Congress a report on the results of any monitoring, studies, and investigations conducted pursuant to this subsection. Such report shall include, at a minimum, an assess- ment of— (A) the contribution of atmospheric depo- sition to pollution 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 con- tribute to exceedances of drinking water standards pursuant to the Safe Drinking Water Act [42 U.S.C. 300f et seq.] or water quality standards pursuant to the Federal Water Pollution Control Act [33 U.S.C. 1251 et seq.] or, with respect to the Great Lakes, exceedances of the specific objectives of the Great Lakes Water Quality Agreement; and (E) a description of any revisions of the re- quirements, standards, and limitations pur- suant to this chapter and other applicable Federal laws as are necessary to assure pro- tection of human health and the environ- ment. (6) Additional regulation As part of the report to Congress, the Ad- ministrator shall determine whether the other provisions of this section are adequate to pre- vent serious adverse effects to public health and serious or widespread environmental ef- fects, including such effects resulting from in- direct exposure pathways, associated with at- mospheric deposition to the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters of hazardous air pollutants (and their atmospheric transformation products). The Administrator shall take into consideration the tendency of such pollutants to bioaccumu- late. Within 5 years after November 15, 1990, the Administrator shall, based on such report and determination, promulgate, in accordance with this section, such further emission stand- ards or control measures as may be necessary and appropriate to prevent such effects, in- cluding effects due to bioaccumulation and in- direct exposure pathways. Any requirements promulgated pursuant to this paragraph with respect to coastal waters shall only apply to the coastal waters of the States which are sub- ject to section 7627(a) of this title. (n) Other provisions (1) Electric utility steam generating units (A) The Administrator shall perform a study of the hazards to public health reasonably an- ticipated to occur as a result of emissions by electric utility steam generating units of pol- lutants listed under subsection (b) after impo- sition of the requirements of this chapter. The Administrator shall report the results of this study to the Congress within 3 years after No- vember 15, 1990. The Administrator shall de- velop and describe in the Administrator’s re- port to Congress alternative control strategies for emissions which may warrant regulation under this section. The Administrator shall regulate electric utility steam generating units under this section, if the Administrator Page 7215 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 3 So in original. Probably should be ‘‘section’’. finds such regulation is appropriate and nec- essary 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 November 15, 1990, a study of mer- cury 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 en- vironmental effects of such emissions, tech- nologies 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 November 15, 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 (includ- ing consumption by sensitive populations) without adverse effects to public health. (2) Coke oven production technology study (A) The Secretary of the Department of En- ergy and the Administrator shall jointly un- dertake a 6-year study to assess coke oven pro- duction emission control technologies and to assist in the development and commercializa- tion of technically practicable and economi- cally viable control technologies which have the potential to significantly reduce emissions of hazardous air pollutants from coke oven production facilities. In identifying control technologies, the Secretary and the Adminis- trator 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 ex- isting coke oven production design. (B) The Secretary and the Administrator are authorized to enter into agreements with per- sons who propose to develop, install and oper- ate coke production emission control tech- nologies which have the potential for signifi- cant 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) On completion of the study, the Sec- retary shall submit to Congress a report on the results of the study and shall make rec- ommendations to the Administrator identi- fying practicable and economically viable con- trol technologies for coke oven production fa- cilities to reduce residual risks remaining after implementation 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 author- ized by this paragraph. (3) Publicly owned treatment works The Administrator may conduct, in coopera- tion with the owners and operators of publicly owned treatment works, studies to charac- terize emissions of hazardous air pollutants emitted by such facilities, to identify indus- trial, commercial and residential discharges that contribute to such emissions and to dem- onstrate 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 measures that include pretreatment of discharges causing emissions of hazardous air pollutants and process or product substitutions or limitations that may be effective in reducing such emissions. The Administrator may prescribe uniform sam- pling, modeling and risk assessment methods for use in implementing this subsection. (4) Oil and gas wells; pipeline facilities (A) Notwithstanding the provisions of sub- section (a), emissions from any oil or gas ex- ploration or production well (with its associ- ated equipment) and emissions from any pipe- line compressor or pump station shall not be aggregated with emissions from other similar units, whether or not such units are in a con- tiguous area or under common control, to de- termine whether such units or stations are major sources, and in the case of any oil or gas exploration or production well (with its asso- ciated equipment), such emissions shall not be aggregated for any purpose under this section. (B) The Administrator shall not list oil and gas production wells (with its associated equipment) as an area source category under subsection (c), except that the Administrator may establish an area source category for oil and gas production wells located in any metro- politan statistical area or consolidated metro- politan statistical area with a population in excess of 1 million, if the Administrator deter- mines that emissions of hazardous air pollut- ants from such wells present more than a neg- ligible risk of adverse effects to public health. (5) Hydrogen sulfide The Administrator is directed to assess the hazards to public health and the environment resulting from the emission of hydrogen sul- fide associated with the extraction of oil and natural gas resources. To the extent prac- ticable, the assessment shall build upon and not duplicate work conducted for an assess- ment pursuant to section 8002(m) of the Solid Waste Disposal Act [42 U.S.C. 6982(m)] and shall reflect consultation with the States. The assessment shall include a review of existing State and industry control standards, tech- niques and enforcement. The Administrator shall report to the Congress within 24 months after November 15, 1990, with the findings of such assessment, together with any rec- ommendations, and shall, as appropriate, de- velop and implement a control strategy for emissions of hydrogen sulfide to protect human health and the environment, based on the findings of such assessment, using authori- ties under this chapter including sections 3 7411 of this title and this section. (6) Hydrofluoric acid Not later than 2 years after November 15, 1990, the Administrator shall, for those regions Page 7216 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 of the country which do not have comprehen- sive 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 appro- priate. (7) RCRA facilities In the case of any category or subcategory of sources the air emissions of which are regu- lated under subtitle C of the Solid Waste Dis- posal Act [42 U.S.C. 6921 et seq.], 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 re- quirements of such subtitle and this section are consistent. (o) National Academy of Sciences study (1) Request of the Academy Within 3 months of November 15, 1990, the Administrator shall enter into appropriate ar- rangements with the National Academy of Sciences to conduct a review of— (A) risk assessment methodology used by the Environmental Protection Agency to de- termine the carcinogenic risk associated with exposure to hazardous air pollutants from source categories and subcategories subject to the requirements 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 hu- mans of hazardous air pollutants; and (B) the techniques used for estimating ex- posure to hazardous air pollutants (for hypo- thetical and actual maximally exposed indi- viduals as well as other exposed individuals). (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 effects other than cancer for which safe thresholds of exposure may not exist, includ- ing, 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 En- vironment and Public Works, the House Com- mittee on Energy and Commerce, the Risk As- sessment and Management Commission estab- lished by section 303 of the Clean Air Act Amendments of 1990 and the Administrator not later than 30 months after November 15, 1990. (5) Assistance The Administrator shall assist the Academy in gathering any information the Academy deems necessary to carry out this subsection. The Administrator may use any authority under this chapter to obtain information from any person, and to require any person to con- duct tests, keep and produce records, and make reports respecting research or other ac- tivities conducted by such person as necessary to carry out this subsection. (6) Authorization Of the funds authorized to be appropriated to the Administrator by this chapter, 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 recommendations contained in the report of the National Academy of Sciences prepared pursuant to this subsection and the views of the Science Advisory Board, with respect to such report. Prior to the pro- mulgation of any standard under subsection (f), and after notice and opportunity for com- ment, the Administrator shall publish revised Guidelines for Carcinogenic Risk Assessment or a detailed explanation of the reasons that any recommendations contained in the report of the National Academy of Sciences will not be implemented. The publication of such re- vised Guidelines shall be a final Agency action for purposes of section 7607 of this title. (p) Mickey Leland National Urban Air Toxics Re- search Center (1) Establishment The Administrator shall oversee the estab- lishment of a National Urban Air Toxics Re- search Center, to be located at a university, a hospital, or other facility capable of under- taking and maintaining similar research capa- bilities in the areas of epidemiology, oncology, toxicology, pulmonary medicine, pathology, and biostatistics. The center shall be known as the Mickey Leland National Urban Air Toxics Research 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 developed scientific community presence on-site at the Texas Medical Center as well as the extensive data previously compiled 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 Direc- tors to be comprised of 9 members, the ap- pointment of which shall be allocated pro rata among the Speaker of the House, the Majority Leader of the Senate and the President. The members of the Board of Directors shall be se- lected based on their respective academic and professional backgrounds and expertise in matters relating to public health, environ- mental pollution and industrial hygiene. The duties of the Board of Directors shall be to de- termine policy and research guidelines, submit Page 7217 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 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 members 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 experi- ence from the National Institute of Environ- mental Health Sciences, the Center for Dis- ease Control, the Environmental Protection Agency, the National Cancer Institute, and others, and the Panel shall conduct peer re- view and evaluate research results. The Panel shall assist the Board in developing the re- search agenda, reviewing proposals and appli- cations, and advise on the awarding of re- search 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 be- fore the date of enactment of the Clean Air Act Amendments of 1990 [November 15, 1990] shall remain in force and effect after such date unless modified as provided in this section be- fore the date of enactment of such Amend- ments 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 by such Amendments unless modi- fied as provided in this section before such date or under such Amendments. Each such standard shall be reviewed and, if appropriate, revised, to comply 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 7607 of this title is pending on such date of enactment, the stand- ard shall be upheld if it complies with this sec- tion 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 ef- fect 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) ele- mental phosphorous plants, (B) grate calci- nation 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 [November 15, 1990], shall remain in effect for radionuclide emis- sions 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 [No- vember 15, 1990], shall remain in effect for radionuclide emissions from non-Department of Energy Federal facilities that are not li- censed by the Nuclear Regulatory Commis- sion, coal-fired utility and industrial boilers, underground uranium mines, surface uranium mines, and disposal of uranium mill tailings piles, unless the Administrator, in the Admin- istrator’s discretion, applies the requirements of this section 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 No- vember 15, 1990, with respect to medical re- search or treatment facilities shall take effect for two years following November 15, 1990, un- less the Administrator makes a determination pursuant to a rulemaking under subsection (d)(9). If the Administrator determines that the regulatory program established by the Nu- clear Regulatory Commission for such facili- ties does not provide an ample margin of safe- ty to protect public health, the requirements of this section shall fully apply to such facili- ties. If the Administrator determines that such regulatory program does provide an ample margin of safety to protect the public health, the Administrator is not required to promulgate a standard under this section for such facilities, as provided in subsection (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 subsection to prevent the accidental release and to mini- mize the consequences of any such release of any substance listed pursuant to paragraph (3) or any other extremely hazardous substance. The owners and operators of stationary sources producing, processing, handling or storing such substances have a general duty in the same manner and to the same extent as section 654 of title 29 to identify hazards which may result from such releases using appro- priate 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 re- leases which do occur. For purposes of this paragraph, the provisions of section 7604 of this title 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 unanticipated emission of a regulated sub- stance or other extremely hazardous substance into the ambient air from a stationary source. (B) The term ‘‘regulated substance’’ means a substance listed under paragraph (3). Page 7218 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 4 So in original. Probably should be ‘‘Right-To-Know’’. (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 re- lease may occur. (D) The term ‘‘retail facility’’ means a sta- tionary source at which more than one-half of the income is obtained 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 promulgate not later than 24 months after November 15, 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 serious adverse effects to human health or the environment. For pur- poses of promulgating such list, the Adminis- trator shall use, but is not limited to, the list of extremely hazardous substances published under the Emergency Planning and Commu- nity Right-to-Know 4 Act of 1986 [42 U.S.C. 11001 et seq.], with such modifications as the Administrator deems appropriate. The initial list shall include chlorine, anhydrous ammo- nia, methyl chloride, ethylene oxide, vinyl chloride, methyl isocyanate, hydrogen cya- nide, ammonia, hydrogen sulfide, toluene diisocyanate, phosgene, bromine, anhydrous hydrogen chloride, hydrogen fluoride, anhy- drous sulfur dioxide, and sulfur trioxide. The initial list shall include at least 100 substances which pose the greatest risk of causing death, injury, or serious adverse effects to human health or the environment from accidental re- leases. 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 Ad- ministrator’s own motion or by petition and shall be reviewed at least every 5 years. No air pollutant for which a national primary ambi- ent air quality standard has been established shall be included on any such list. No sub- stance, practice, process, or activity regulated under subchapter VI shall be subject to regula- tions under this subsection. The Adminis- trator shall establish procedures for the addi- tion and deletion of substances from the list established under this paragraph 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 substance; and (iii) the potential magnitude of human exposure to accidental releases of the sub- stance; 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 flammable properties of the substance, unless a fire or explosion caused by the substance will result in acute adverse health effects from human exposure to the substance, including the un- burned 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, combus- tibility, or flammability of the substance and the amount of the substance which, as a result of an accidental release, 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 authorized to establish a greater threshold quantity for, or to exempt entirely, any substance that is a nutrient used in agriculture when held by a farmer. (6) Chemical Safety Board (A) There is hereby established an inde- pendent safety board to be known as the Chemical Safety and Hazard Investigation Board. (B) The Board shall consist of 5 members, in- cluding 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 dem- onstrated knowledge in the fields of accident reconstruction, safety engineering, human fac- tors, toxicology, or air pollution regulation. The terms of office of members of the Board shall be 5 years. Any member of the Board, in- cluding 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 exer- cise the executive and administrative func- tions of the Board. (C) The Board shall— (i) investigate (or cause to be inves- tigated), determine and report to the public in writing the facts, conditions, and cir- cumstances and the cause or probable cause of any accidental release resulting in a fatal- ity, 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 Admin- istration, concerned with the safety of chemical production, processing, handling and storage, and other interested persons recommending measures to reduce the like- lihood or the consequences of accidental re- Page 7219 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 5 So in original. Probably should be paragraph ‘‘(7)(B)’’. 6 So in original. The word ‘‘or’’ probably should appear. 7 So in original. The word ‘‘Administrator’’ probably should be ‘‘Secretary’’. leases and proposing corrective steps to make chemical production, processing, han- dling 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 Sec- retary of Labor under the Occupational Safety and Health Act [29 U.S.C. 651 et seq.] to prevent or minimize the consequences of any release of substances that may cause death, injury or other serious adverse effects on human health or substantial property damage as the result of an accidental re- lease; and (iii) establish by regulation requirements binding on persons for reporting accidental releases into the ambient air subject to the Board’s investigatory jurisdiction. Report- ing releases to the National Response Cen- ter, in lieu of the Board directly, shall sat- isfy such regulations. The National Response Center shall promptly notify the Board of any releases which are within the Board’s ju- risdiction. (D) The Board may utilize the expertise and experience of other agencies. (E) The Board shall coordinate its activities with investigations 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 Transportation Safety Board to assure coordi- nation of functions and to limit duplication of activities which shall designate the National Transportation Safety Board as the lead agen- cy for the investigation of releases which are transportation 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 under- standing with the Occupational Safety and Health Administration so as to limit duplica- tion of activities. In no event shall the Board forego an investigation where an accidental release causes a fatality 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 gen- eral public. (F) The Board is authorized to conduct re- search and studies with respect to the poten- tial for accidental releases, whether or not an accidental release has occurred, where there is evidence which indicates the presence of a po- tential hazard or hazards. To the extent prac- ticable, the Board shall conduct such studies in cooperation with other Federal agencies having emergency response authorities, State and local governmental agencies and associa- tions and organizations from the industrial, commercial, and nonprofit sectors. (G) No part of the conclusions, findings, or recommendations of the Board relating to any accidental release or the investigation thereof shall be admitted as evidence 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 November 15, 1990, the Board shall publish a report ac- companied by recommendations to the Admin- istrator on the use of hazard assessments in preventing the occurrence and minimizing the consequences of accidental releases of ex- tremely hazardous substances. The rec- ommendations shall include a list of ex- tremely hazardous substances which are not regulated substances (including threshold quantities for such substances) and categories of stationary sources for which hazard assess- ments would be an appropriate measure to aid in the prevention of accidental releases and to minimize the consequences of those releases that do occur. The recommendations shall also include a description of the information 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 re- quired by paragraph (8)(B) 5 in preventing acci- dental releases. The Board may from time to time review and revise its recommendations under this subparagraph. (I) Whenever the Board submits a rec- ommendation with respect to accidental re- leases to the Administrator, the Adminis- trator shall respond to such recommendation formally and in writing not later than 180 days after receipt thereof. The response to the Board’s recommendation by the Administrator shall indicate whether the Administrator will— (i) initiate a rulemaking or issue such or- ders as are necessary to implement the rec- ommendation in full or in part, pursuant to any timetable contained in the recommenda- tion; 6 (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 recommendation only in part, including any variation from the sched- ule contained in the recommendation, shall be accompanied by a statement from the Admin- istrator setting forth the reasons for such de- termination. (J) The Board may make recommendations with respect to accidental releases to the Sec- retary of Labor. Whenever the Board submits such recommendation, the Secretary shall re- spond to such recommendation formally and in writing not later than 180 days after receipt thereof. The response to the Board’s rec- ommendation by the Administrator 7 shall in- dicate whether the Secretary will— (i) initiate a rulemaking or issue such or- ders as are necessary to implement the rec- ommendation in full or in part, pursuant to any timetable contained in the recommenda- tion; 6 (ii) decline to initiate a rulemaking or issue orders as recommended. Any determination by the Secretary not to implement a recommendation or to implement Page 7220 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 8 So in original. Probably should be ‘‘subparagraph’’. a recommendation only in part, including any variation from the schedule contained in the recommendation, shall be accompanied by a statement from the Secretary setting forth the reasons for such determination. (K) Within 2 years after November 15, 1990, the Board shall issue a report to the Adminis- trator of the Environmental Protection Agen- cy and to the Administrator of the Occupa- tional Safety and Health Administration rec- ommending the adoption of regulations for the preparation of risk management plans and general requirements for the prevention of ac- cidental releases of regulated substances into the ambient air (including recommendations for listing substances under paragraph (3)) and for the mitigation of the potential adverse ef- fect on human health or the environment as a result of accidental releases which should be applicable to any stationary source handling any regulated substance in more than thresh- old amounts. The Board may include proposed rules or orders which should be issued by the Administrator under authority of this sub- section or by the Secretary of Labor under the Occupational Safety and Health Act [29 U.S.C. 651 et seq.]. Any such recommendations shall be specific and shall identify the regulated substance or class of regulated substances (or other substances) to which the recommenda- tions apply. The Administrator shall consider such recommendations before promulgating regulations required by paragraph (7)(B). (L) The Board, or upon authority of the Board, any member thereof, any administra- tive law judge employed by or assigned to the Board, or any officer or employee duly des- ignated by the Board, may for the purpose of carrying out duties authorized by subpara- graph (C)— (i) hold such hearings, sit and act at such times and places, administer such oaths, and require by subpoena or otherwise attendance and testimony of such witnesses and the pro- duction of evidence and may require by order that any person engaged in the produc- tion, processing, handling, or storage of ex- tremely hazardous substances submit writ- ten reports and responses to requests and questions within such time and in such form as the Board may require; and (ii) upon presenting appropriate creden- tials and a written notice of inspection au- thority, enter any property where an acci- dental release causing a fatality, serious in- jury or substantial property damage has oc- curred and do all things therein necessary for a proper investigation pursuant to sub- paragraph (C) and inspect at reasonable times records, files, papers, processes, con- trols, and facilities and take such samples as are relevant to such investigation. Whenever the Administrator or the Board con- ducts an inspection of a facility pursuant to this subsection, employees and their rep- resentatives shall have the same rights to par- ticipate in such inspections as provided in the Occupational Safety and Health Act [29 U.S.C. 651 et seq.]. (M) In addition to that described in subpara- graph (L), the Board may use any information gathering authority of the Administrator under this chapter, including the subpoena power provided in section 7607(a)(1) of this title. (N) The Board is authorized to establish such procedural and administrative rules as are necessary to the exercise of its functions and duties. The Board is authorized without regard to section 6101 of title 41 to enter into con- tracts, leases, cooperative agreements or other transactions as may be necessary in the con- duct of the duties and functions of the Board with any other agency, institution, or person. (O) After the effective date of any reporting requirement promulgated pursuant to sub- paragraph (C)(iii) it shall be unlawful for any person to fail to report any release of any ex- tremely hazardous substance as required by such subparagraph. The Administrator is au- thorized to enforce any regulation or require- ments established by the Board pursuant to subparagraph (C)(iii) using the authorities of sections 7413 and 7414 of this title. 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 be treated, for purposes of sections 7413, 7414, 7416, 7420, 7603, 7604 and 7607 of this title and any other enforcement provisions of this chap- ter, as a request made by the Administrator under section 7414 of this title and may be en- forced 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 8 (G) and sec- tion 7414(c) of this title 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 infor- mation, 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 sec- tion 1905 of title 18, except that such record, report, or information may be disclosed to other officers, employees, and authorized rep- resentatives of the United States concerned with carrying out this chapter or when rel- evant under any proceeding under this chap- ter. This subparagraph does not constitute au- thority to withhold records, reports, or infor- mation from the Congress. (R) Whenever the Board submits or trans- mits any budget estimate, budget request, supplemental budget request, or other budget information, legislative recommendation, pre- pared testimony for congressional hearings, recommendation or study to the President, the Secretary 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 Page 7221 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 Board shall be subject to review by the Admin- istrator or any Federal agency or to judicial review in any court. No officer or agency of the United States shall have authority to re- quire the Board to submit its budget requests or estimates, legislative recommendations, prepared testimony, comments, recommenda- tions or reports to any officer or agency of the United States for approval or review prior to the submission of such recommendations, tes- timony, comments or reports to the Congress. In the performance of their functions as estab- lished by this chapter, the members, officers and employees of the Board shall not be re- sponsible to or subject to supervision or direc- tion, in carrying out any duties under this subsection, of any officer or employee 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 sec- tion shall affect the application of title 5 to of- ficers 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, informa- tion on accidental releases which have been investigated by or reported to the Board dur- ing the previous year, recommendations for legislative or administrative action which the Board has made, the actions which have been taken by the Administrator or the Secretary of Labor or the heads of other agencies to im- plement such recommendations, an identifica- tion of priorities for study and investigation in the succeeding year, progress in the devel- opment of risk-reduction technologies and the response to and implementation of significant research findings on chemical safety in the public and private sector. (7) Accident prevention (A) In order to prevent accidental releases of regulated substances, the Administrator is au- thorized to promulgate release prevention, de- tection, and correction requirements which may include monitoring, record-keeping, re- porting, training, vapor recovery, secondary containment, and other design, equipment, work practice, and operational requirements. Regulations promulgated under this paragraph may make distinctions between various types, classes, and kinds of facilities, devices and systems taking into consideration factors in- cluding, but not limited to, the size, location, process, process controls, quantity of sub- stances handled, potency of substances, and response capabilities present at any sta- tionary source. Regulations promulgated pur- suant to this subparagraph shall have an effec- tive date, as determined by the Administrator, assuring compliance as expeditiously as prac- ticable. (B)(i) Within 3 years after November 15, 1990, the Administrator shall promulgate reason- able regulations and appropriate guidance to provide, to the greatest extent practicable, for the prevention and detection of accidental re- leases of regulated substances and for response to such releases by the owners or operators of the sources of such releases. The Adminis- trator shall utilize the expertise of the Secre- taries of Transportation and Labor in promul- gating such regulations. As appropriate, such regulations shall cover the use, operation, re- pair, 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 inspections. The regulations shall include procedures and meas- ures for emergency response after an acci- dental release of a regulated substance in order to protect human health and the envi- ronment. The regulations shall cover storage, as well as operations. The regulations shall, as appropriate, recognize differences in size, oper- ations, processes, class and categories of sources and the voluntary actions of such sources to prevent such releases and respond to such releases. The regulations shall be ap- plicable to a stationary 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 require the owner or operator of sta- tionary sources at which a regulated sub- stance 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 sub- stances from the stationary source, and to provide 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 po- tential effects of an accidental release of any regulated substance. 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, moni- toring and employee training measures to be used at the source; and (III) a response program providing for spe- cific actions to be taken in response to an accidental release of a regulated substance so as to protect human health and the envi- ronment, including procedures for informing the public and local agencies responsible for responding to accidental releases, emer- gency health care, and employee training measures. At the time regulations are promulgated under this subparagraph, the Administrator shall promulgate guidelines to assist sta- Page 7222 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 tionary sources in the preparation of risk management plans. The guidelines shall, to the extent practicable, include model risk management plans. (iii) The owner or operator of each sta- tionary source covered by clause (ii) shall reg- ister a risk management plan prepared under this subparagraph with the Administrator be- fore the effective date of regulations under clause (i) in such form and manner as the Ad- ministrator shall, by rule, require. Plans pre- pared pursuant to this subparagraph shall also be submitted to the Chemical Safety and Haz- ard Investigation Board, to the State in which the stationary source is located, and to any local agency or entity having responsibility for planning for or responding to accidental releases which may occur at such source, and shall be available to the public under section 7414(c) of this title. The Administrator shall establish, by rule, an auditing system to regu- larly 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 re- quired by the Administrator, by rule. (C) Any regulations promulgated pursuant to this subsection shall to the maximum ex- tent practicable, consistent with this sub- section, be consistent with the recommenda- tions and standards established by the Amer- ican Society of Mechanical Engineers (ASME), the American National Standards Institute (ANSI) or the American Society 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 coordinate any re- quirements under this paragraph with any re- quirements established for comparable pur- poses by the Occupational Safety and Health Administration or the Department of Trans- portation. Nothing in this subsection shall be interpreted, construed or applied to impose re- quirements affecting, or to grant the Adminis- trator, the Chemical Safety and Hazard Inves- tigation Board, or any other agency any au- thority to regulate (including requirements for hazard assessment), the accidental release of radionuclides arising from the construction and operation of facilities licensed by the Nu- clear Regulatory Commission. (E) After the effective date of any regulation or requirement imposed under this subsection, it shall be unlawful for any person to operate any stationary source subject to such regula- tion or requirement in violation of such regu- lation or requirement. Each regulation or re- quirement under this subsection shall for pur- poses of sections 7413, 7414, 7416, 7420, 7604, and 7607 of this title and other enforcement provi- sions of this chapter, be treated as a standard in effect under subsection (d). (F) Notwithstanding the provisions of sub- chapter V or this section, no stationary source shall be required to apply for, or operate pur- suant to, a permit issued under such sub- chapter solely because such source is subject to regulations or requirements under this sub- section. (G) In exercising any authority under this subsection, the Administrator shall not, for purposes of section 653(b)(1) of title 29, be deemed to be exercising statutory authority to prescribe or enforce standards or regula- tions affecting occupational safety and health. (H) PUBLIC ACCESS TO OFF-SITE CONSEQUENCE ANALYSIS INFORMATION.— (i) DEFINITIONS.—In this subparagraph: (I) COVERED PERSON.—The term ‘‘covered person’’ means— (aa) an officer or employee of the United States; (bb) an officer or employee of an agent or contractor of the Federal Govern- ment; (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 govern- ment; (ee) an individual affiliated with an en- tity that has been given, by a State or local government, responsibility for pre- venting, planning 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 government agency or an entity referred to in subclause (I)(ee) intended to carry out a function relevant to pre- venting, planning for, or responding to ac- cidental releases. (III) OFF-SITE CONSEQUENCE ANALYSIS IN- FORMATION.—The term ‘‘off-site con- sequence analysis information’’ means those portions of a risk management plan, excluding the executive summary of the plan, consisting of an evaluation of 1 or more worst-case release scenarios or alter- native release scenarios, and any elec- tronic data base created by the Adminis- trator from those portions. (IV) RISK MANAGEMENT PLAN.—The term ‘‘risk management plan’’ means a risk management plan submitted to the Ad- ministrator by an owner or operator of a stationary source under subparagraph (B)(iii). (ii) REGULATIONS.—Not later than 1 year after August 5, 1999, the President shall— (I) assess— (aa) the increased risk of terrorist and other criminal activity associated with the posting of off-site consequence anal- ysis information on the Internet; and (bb) the incentives created by public disclosure of off-site consequence anal- ysis information for reduction in the risk of accidental releases; and (II) based on the assessment under sub- clause (I), promulgate regulations gov- Page 7223 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 9 So in original. Probably should be ‘‘(i)(II)’’. erning the distribution of off-site con- sequence analysis information in a manner that, in the opinion of the President, mini- mizes 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 con- sequence analysis information for a lim- ited number of stationary sources lo- cated anywhere in the United States, without any geographical restriction; (bb) allows other public access to off- site consequence analysis information as appropriate; (cc) allows access for official use by a covered 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 sta- tionary 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 re- quest to the Administrator, off-site con- sequence analysis information that is not available to the person under item (cc). (iii) AVAILABILITY UNDER FREEDOM OF IN- FORMATION ACT.— (I) FIRST YEAR.—Off-site consequence analysis information, and any ranking of stationary sources derived from the infor- mation, shall not be made available under section 552 of title 5 during the 1-year pe- riod beginning on August 5, 1999. (II) AFTER FIRST YEAR.—If the regula- tions 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 de- rived from the information, shall not be made available under section 552 of title 5 after the end of that period. (III) APPLICABILITY.—Subclauses (I) and (II) apply to off-site consequence analysis information submitted to the Adminis- trator before, on, or after August 5, 1999. (iv) AVAILABILITY OF INFORMATION DURING TRANSITION PERIOD.—The Administrator shall make off-site consequence analysis in- formation available to covered 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 available any informa- tion concerning the identity or location of stationary sources, during the period— (I) beginning on August 5, 1999; and (II) ending on the earlier of the date of promulgation of the regulations under clause (ii) or the date that is 1 year after August 5, 1999. (v) PROHIBITION ON UNAUTHORIZED DISCLO- SURE OF INFORMATION BY COVERED PERSONS.— (I) IN GENERAL.—Beginning on August 5, 1999, a covered person shall not disclose to the public off-site consequence analysis in- formation in any form, or any statewide or national ranking of identified stationary sources derived from such information, ex- cept as authorized by this subparagraph (including the regulations promulgated under clause (ii)). After the end of the 1- year period beginning on August 5, 1999, if regulations have not been promulgated under clause (ii), the preceding sentence shall not apply. (II) CRIMINAL PENALTIES.—Notwith- standing section 7413 of this title, a cov- ered person that willfully violates a re- striction or prohibition established by this subparagraph (including the regulations promulgated under clause (ii)) shall, upon conviction, be fined for an infraction under section 3571 of title 18 (but shall not be subject to imprisonment) for each unau- thorized disclosure of off-site consequence analysis information, except that sub- section (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 dis- closure of off-site consequence analysis in- formation for each specific stationary source shall be considered a separate of- fense. The total of all penalties that may be imposed on a single person or organiza- tion under this item shall not exceed $1,000,000 for violations committed during any 1 calendar year. (III) APPLICABILITY.—If the owner or op- erator of a stationary source makes off- site consequence analysis information re- lating 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 avail- ability of the information. (IV) LIST.—The Administrator shall maintain and make publicly available a list of all stationary sources that have pro- vided notification under subclause (III)(bb). (vi) NOTICE.—The Administrator shall pro- vide notice of the definition of official use as provided in clause (i)(III) 9 and examples of actions that would and would not meet that definition, and notice of the restrictions on further dissemination and the penalties es- tablished by this chapter to each covered person who receives off-site consequence analysis information under clause (iv) and each covered person who receives off-site consequence analysis information for an of- Page 7224 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 ficial use under the regulations promulgated under clause (ii). (vii) QUALIFIED RESEARCHERS.— (I) IN GENERAL.—Not later than 180 days after August 5, 1999, the Administrator, in consultation with the Attorney General, shall develop and implement a system for providing off-site consequence analysis in- formation, including facility identifica- tion, to any qualified researcher, including a qualified researcher from industry or any public interest group. (II) LIMITATION ON DISSEMINATION.—The system shall not allow the researcher to disseminate, or make available on the Internet, the off-site consequence analysis information, or any portion of the off-site consequence analysis information, re- ceived under this clause. (viii) READ-ONLY INFORMATION TECHNOLOGY SYSTEM.—In consultation with the Attorney General and the heads of other appropriate Federal agencies, the Administrator shall establish an information technology system that provides for the availability to the pub- lic of off-site consequence analysis informa- tion 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 infor- mation may be made. (ix) VOLUNTARY INDUSTRY ACCIDENT PRE- VENTION STANDARDS.—The Environmental Protection Agency, the Department of Jus- tice, and other appropriate agencies may provide technical assistance to owners and operators of stationary sources and partici- pate in the development of voluntary indus- try standards that will help achieve the ob- jectives set forth in paragraph (1). (x) EFFECT ON STATE OR LOCAL LAW.— (I) IN GENERAL.—Subject to subclause (II), this subparagraph (including the regu- lations promulgated under this subpara- graph) shall supersede any provision of State or local law that is inconsistent with this subparagraph (including the regula- tions). (II) AVAILABILITY OF INFORMATION UNDER STATE LAW.—Nothing in this subparagraph precludes a State from making available data on the off-site consequences of chem- ical releases collected in accordance with State law. (xi) REPORT.— (I) IN GENERAL.—Not later than 3 years after August 5, 1999, the Attorney General, in consultation with appropriate State, local, and Federal Government agencies, affected industry, and the public, shall submit to Congress a report that describes the extent to which regulations promul- gated under this paragraph have resulted in actions, including the design and main- tenance of safe facilities, that are effective in detecting, preventing, and minimizing the consequences of releases of regulated substances that may be caused by criminal activity. As part of this report, the Attor- ney General, using available data to the extent possible, and a sampling of covered stationary sources selected at the discre- tion of the Attorney General, and in con- sultation with appropriate State, local, and Federal governmental agencies, af- fected industry, and the public, shall re- view the vulnerability of covered sta- tionary sources to criminal and terrorist activity, current industry practices re- garding site security, and security of transportation of regulated substances. The Attorney General shall submit this re- port, containing the results of the review, together with recommendations, if any, for reducing vulnerability of covered sta- tionary sources to criminal and terrorist activity, to the Committee on Commerce of the United States House of Representa- tives 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 August 5, 1999, the Attorney General shall submit to the Committee on Commerce of the United States House of Representatives and the Committee on En- vironment and Public Works of the United States Senate, and other relevant commit- tees of Congress, an interim report that in- cludes, at a minimum— (aa) the preliminary findings under subclause (I); (bb) the methods used to develop the findings; and (cc) an explanation of the activities ex- pected to occur that could cause the findings of the report under subclause (I) to be different than the preliminary find- ings. (III) AVAILABILITY OF INFORMATION.—In- formation that is developed by the Attor- ney General or requested by the Attorney General and received from a covered sta- tionary source for the purpose of con- ducting the review under subclauses (I) and (II) shall be exempt from disclosure under section 552 of title 5 if such informa- tion would pose a threat to national secu- rity. (xii) SCOPE.—This subparagraph— (I) applies only to covered persons; and (II) does not restrict the dissemination of off-site consequence analysis informa- tion by any covered person in any manner or form except in the form of a risk man- agement 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 regulations pro- mulgated under clause (ii)), to remain avail- able until expended. (8) Research on hazard assessments The Administrator may collect and publish information on accident scenarios and con- Page 7225 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 sequences 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 disseminate information on methods and techniques for hazard assessment which may be useful in im- proving and validating the procedures em- ployed 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 threatened accidental release of a regulated substance, the Administrator may secure such relief as may be necessary to abate such dan- ger 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 interest and the equi- ties of the case may require. The Adminis- trator 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 orders as may be necessary to protect human health. The Ad- ministrator shall take action under section 7603 of this title rather than this paragraph whenever the authority of such section is ade- quate to protect human health and the envi- ronment. (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 section 7603 of this title. (C) Within 180 days after November 15, 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 para- graph with other emergency powers authorized by section 9606 of this title, sections 311(c), 308, 309 and 504(a) of the Federal Water Pollution Control Act [33 U.S.C. 1321(c), 1318, 1319, 1364(a)], sections 3007, 3008, 3013, and 7003 of the Solid Waste Disposal Act [42 U.S.C. 6927, 6928, 6934, 6973], sections 1445 and 1431 of the Safe Drinking Water Act [42 U.S.C. 300j–4, 300i], sec- tions 5 and 7 of the Toxic Substances Control Act [15 U.S.C. 2604, 2606], and sections 7413, 7414, and 7603 of this title. (10) Presidential review The President shall conduct a review of re- lease prevention, mitigation and response au- thorities of the various Federal agencies and shall clarify and coordinate agency respon- sibilities to assure the most effective and effi- cient implementation of such authorities and to identify any deficiencies in authority or re- sources which may exist. The President may utilize the resources and solicit the rec- ommendations of the Chemical Safety and Hazard Investigation Board in conducting such review. At the conclusion of such review, but not later than 24 months after November 15, 1990, the President shall transmit a message to the Congress on the release prevention, miti- gation and response activities of the Federal Government making such recommendations for change in law as the President may deem appropriate. Nothing in this paragraph shall be interpreted, construed or applied to author- ize the President to modify or reassign release prevention, mitigation 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 subdivision thereof to adopt or enforce any regulation, requirement, limitation or stand- ard (including any procedural requirement) that is more stringent than a regulation, re- quirement, limitation or standard in effect under this subsection or that applies to a sub- stance not subject to this subsection. (s) Periodic report Not later than January 15, 1993 and every 3 years thereafter, the Administrator shall pre- pare and transmit to the Congress a comprehen- sive report on the measures taken by the Agen- cy and by the States to implement the provi- sions 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 annual report. The report shall include, but not be limited to— (1) a status report on standard-setting under subsections (d) and (f); (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 mitigation of accidental releases. (July 14, 1955, ch. 360, title I, § 112, as added Pub. L. 91–604, § 4(a), Dec. 31, 1970, 84 Stat. 1685; amended Pub. L. 95–95, title I, §§ 109(d)(2), 110, title IV, § 401(c), Aug. 7, 1977, 91 Stat. 701, 703, 791; Pub. L. 95–623, § 13(b), Nov. 9, 1978, 92 Stat. 3458; Pub. L. 101–549, title III, § 301, Nov. 15, 1990, 104 Stat. 2531; Pub. L. 102–187, Dec. 4, 1991, 105 Stat. 1285; Pub. L. 105–362, title IV, § 402(b), Nov. 10, 1998, 112 Stat. 3283; Pub. L. 106–40, §§ 2, 3(a), Aug. 5, 1999, 113 Stat. 207, 208.) Editorial Notes REFERENCES IN TEXT The date of enactment, referred to in subsec. (a)(11), probably means the date of enactment of Pub. L. 101–549, which amended this section generally and was approved Nov. 15, 1990. The Atomic Energy Act, referred to in subsec. (d)(9), probably means the Atomic Energy Act of 1954, act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, which is classified principally to chapter 23 (§ 2011 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. The Federal Water Pollution Control Act, referred to in subsecs. (e)(5) and (m)(1)(D), (5)(D), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 816, which is classified generally Page 7226 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 to chapter 26 (§ 1251 et seq.) of Title 33, Navigation and Navigable Waters. Title II of the Act is classified gen- erally to subchapter II (§ 1281 et seq.) of chapter 26 of Title 33. For complete classification of this Act to the Code, see Short Title note set out under section 1251 of Title 33 and Tables. The Toxic Substances Control Act, referred to in sub- sec. (k)(3)(C), is Pub. L. 94–469, Oct. 11, 1976, 90 Stat. 2003, which is classified generally to chapter 53 (§ 2601 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 2601 of Title 15 and Tables. The Federal Insecticide, Fungicide and Rodenticide Act, referred to in subsec. (k)(3)(C), probably means the Federal Insecticide, Fungicide, and Rodenticide Act, act June 25, 1947, ch. 125, as amended generally by Pub. L. 92–516, Oct. 21, 1972, 86 Stat. 973, which is classified generally to subchapter II (§ 136 et seq.) of chapter 6 of Title 7, Agriculture. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 136 of Title 7 and Tables. The Resource Conservation and Recovery Act, re- ferred to in subsec. (k)(3)(C), probably means the Re- source Conservation and Recovery Act of 1976, Pub. L. 94–580, Oct. 21, 1976, 90 Stat. 2796, which is classified generally to chapter 82 (§ 6901 et seq.) of this title. For complete classification of this Act to the Code, see Short Title of 1976 Amendment note set out under sec- tion 6901 of this title and Tables. The Safe Drinking Water Act, referred to in subsec. (m)(1)(D), (5)(D), is title XIV of act July 1, 1944, as added Dec. 16, 1974, Pub. L. 93–523, § 2(a), 88 Stat. 1660, which is classified generally to subchapter XII (§ 300f et seq.) of chapter 6A of this title. For complete classifica- tion of this Act to the Code, see Short Title note set out under section 201 of this title and Tables. The Solid Waste Disposal Act, referred to in subsec. (n)(7), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2795. Subtitle C of the Act is classified generally to subchapter III (§ 6921 et seq.) of chapter 82 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables. Section 303 of the Clean Air Act Amendments of 1990, referred to in subsec. (o)(4), probably means section 303 of Pub. L. 101–549, which is set out below. The Clean Air Act Amendments of 1990, referred to in subsec. (q)(1)–(3), probably means Pub. L. 101–549, Nov. 15, 1990, 104 Stat. 2399. For complete classification of this Act to the Code, see Short Title note set out under section 7401 of this title and Tables. The Emergency Planning and Community Right-To- Know Act of 1986, referred to in subsec. (r)(3), is title III of Pub. L. 99–499, Oct. 17, 1986, 100 Stat. 1728, which is classified generally to chapter 116 (§ 11001 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 11001 of this title and Tables. The Occupational Safety and Health Act, referred to in subsec. (r)(6)(C)(ii), (K), (L), probably means the Oc- cupational Safety and Health Act of 1970, Pub. L. 91–596, Dec. 29, 1970, 84 Stat. 1590, which is classified principally to chapter 15 (§ 651 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 651 of Title 29 and Tables. CODIFICATION In subsec. (r)(6)(N), ‘‘section 6101 of title 41’’ sub- stituted for ‘‘section 5 of title 41 of the United States Code’’ on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Con- tracts. Section was formerly classified to section 1857c–7 of this title. AMENDMENTS 1999—Subsec. (r)(2)(D). Pub. L. 106–40, § 2(5), added subpar. (D). Subsec. (r)(4). Pub. L. 106–40, § 2, substituted ‘‘Admin- istrator— ‘‘(A) shall consider—’’ for ‘‘Administrator shall consider each of the following criteria—’’ in introductory provisions, redesignated subpars. (A) to (C) as cls. (i) to (iii), respectively, of subpar. (A) and added subpar. (B). Subsec. (r)(7)(H). Pub. L. 106–40, § 3(a), added subpar. (H). 1998—Subsec. (n)(2)(C). Pub. L. 105–362 substituted ‘‘On completion of the study, the Secretary shall sub- mit to Congress a report on the results of the study and’’ for ‘‘The Secretary shall prepare annual reports to Congress on the status of the research program and at the completion of the study’’. 1991—Subsec. (b)(1). Pub. L. 102–187 struck out ‘‘7783064 Hydrogen sulfide’’ from list of pollutants. 1990—Pub. L. 101–549 amended section generally, sub- stituting present provisions for provisions which re- lated to: in subsec. (a), definitions; in subsec. (b), list of hazardous air pollutants, emission standards, and pol- lution control techniques; in subsec. (c), prohibited acts and exemption; in subsec. (d), State implementation and enforcement; and in subsec. (e), design, equipment, work practice, and operational standards. 1978—Subsec. (e)(5). Pub. L. 95–623 added par. (5). 1977—Subsec. (a)(1). Pub. L. 95–95, § 401(c), substituted ‘‘causes, or contributes to, air pollution which may rea- sonably be anticipated to result in an increase in mor- tality or an increase in serious irreversible, or inca- pacitating reversible, illness’’ for ‘‘may cause, or con- tribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, ill- ness’’. Subsec. (d)(1). Pub. L. 95–95, § 109(d)(2), struck out ‘‘(except with respect to stationary sources owned or operated by the United States)’’ after ‘‘implement and enforce such standards’’. Subsec. (e). Pub. L. 95–95, § 110, added subsec. (e). Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Energy and Commerce of House of Representatives treated as referring to Committee on Commerce of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Commerce of House of Representatives changed to Committee on En- ergy and Commerce of House of Representatives, and jurisdiction over matters relating to securities and ex- changes and insurance generally transferred to Com- mittee on Financial Services of House of Representa- tives by House Resolution No. 5, One Hundred Seventh Congress, Jan. 3, 2001. 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. TERMINATION OF REPORTING REQUIREMENTS For termination, effective May 15, 2000, of provisions of law requiring submittal to Congress of any annual, semiannual, or other regular periodic report listed in House Document No. 103–7 (in which reports required under subsecs. (m)(5), (r)(6)(C)(ii), and (s) of this section are listed, respectively, as the 8th item on page 162, the 9th item on page 198, and the 9th item on page 162), see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance. 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 Page 7227 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 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. REPORTS Pub. L. 106–40, § 3(b), Aug. 5, 1999, 113 Stat. 213, pro- vided that: ‘‘(1) DEFINITION OF ACCIDENTAL RELEASE.—In this sub- section, the term ‘accidental release’ has the meaning given the term in section 112(r)(2) of the Clean Air Act (42 U.S.C. 7412(r)(2)). ‘‘(2) REPORT ON STATUS OF CERTAIN AMENDMENTS.—Not later than 2 years after the date of enactment of this Act [Aug. 5, 1999], the Comptroller General of the United States shall submit to Congress a report on the status of the development of amendments to the Na- tional Fire Protection Association Code for Liquefied Petroleum Gas that will result in the provision of in- formation to local emergency response personnel con- cerning the off-site effects of accidental releases of sub- stances exempted from listing under section 112(r)(4)(B) of the Clean Air Act (as added by section 3). ‘‘(3) REPORT ON COMPLIANCE WITH CERTAIN INFORMA- TION SUBMISSION REQUIREMENTS.—Not later than 3 years after the date of enactment of this Act, the Comp- troller General of the United States shall submit to Congress a report that— ‘‘(A) describes the level of compliance with Federal and State requirements relating to the submission to local emergency response personnel of information intended to help the local emergency response per- sonnel respond to chemical accidents or related envi- ronmental or public health threats; and ‘‘(B) contains an analysis of the adequacy of the in- formation required to be submitted and the efficacy of the methods for delivering the information to local emergency response personnel.’’ REEVALUATION OF REGULATIONS Pub. L. 106–40, § 3(c), Aug. 5, 1999, 113 Stat. 213, pro- vided that: ‘‘The President shall reevaluate the regula- tions promulgated under this section within 6 years after the enactment of this Act [Aug. 5, 1999]. If the President determines not to modify such regulations, the President shall publish a notice in the Federal Reg- ister stating that such reevaluation has been completed and that a determination has been made not to modify the regulations. Such notice shall include an expla- nation of the basis of such decision.’’ PUBLIC MEETING DURING MORATORIUM PERIOD Pub. L. 106–40, § 4, Aug. 5, 1999, 113 Stat. 214, provided that: ‘‘(a) IN GENERAL.—Not later than 180 days after the date of enactment of this Act [Aug. 5, 1999], each owner or operator of a stationary source covered by section 112(r)(7)(B)(ii) of the Clean Air Act [42 U.S.C. 7412(r)(7)(B)(ii)] shall convene a public meeting, after reasonable public notice, in order to describe and dis- cuss the local implications of the risk management plan submitted by the stationary source pursuant to section 112(r)(7)(B)(iii) of the Clean Air Act, including a summary of the off-site consequence analysis portion of the plan. Two or more stationary sources may con- duct a joint meeting. In lieu of conducting such a meet- ing, small business stationary sources as defined in sec- tion 507(c)(1) of the Clean Air Act [42 U.S.C. 7661f(c)(1)] may comply with this section by publicly posting a summary of the off-site consequence analysis informa- tion for their facility not later than 180 days after the enactment of this Act. Not later than 10 months after the date of enactment of this Act, each such owner or operator shall send a certification to the director of the Federal Bureau of Investigation stating that such meeting has been held, or that such summary has been posted, within 1 year prior to, or within 6 months after, the date of the enactment of this Act. This section shall not apply to sources that employ only Program 1 processes within the meaning of regulations promul- gated under section 112(r)(7)(B)(i) of the Clean Air Act. ‘‘(b) ENFORCEMENT.—The Administrator of the Envi- ronmental Protection Agency may bring an action in the appropriate United States district court against any person who fails or refuses to comply with the re- quirements of this section, and such court may issue such orders, and take such other actions, as may be necessary to require compliance with such require- ments.’’ RISK ASSESSMENT AND MANAGEMENT COMMISSION Pub. L. 101–549, title III, § 303, Nov. 15, 1990, 104 Stat. 2574, provided that: ‘‘(a) ESTABLISHMENT.—There is hereby established a Risk Assessment and Management Commission (here- after referred to in this section as the ‘Commission’), which shall commence proceedings not later than 18 months after the date of enactment of the Clean Air Act Amendments of 1990 [Nov. 15, 1990] and which shall make a full investigation of the policy implications and appropriate uses of risk assessment and risk man- agement 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 authorized by section 112(o) of the Clean Air Act [42 U.S.C. 7412(o)], the use and limitations of risk assess- ment in establishing emission or effluent standards, ambient standards, exposure standards, acceptable concentration levels, tolerances or other environ- mental criteria for hazardous substances that present a risk of carcinogenic effects or other chronic health effects and the suitability of risk assessment for such purposes; ‘‘(2) the most appropriate methods for measuring and describing cancer risks or risks of other chronic health effects from exposure to hazardous substances considering such alternative approaches as the life- time 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, efflu- ent standards, ambient standards, exposures stand- ards, acceptable concentration levels, tolerances 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 measure- ment and estimation techniques, the existence of synergistic or antagonistic effects among hazardous substances, the accuracy of extrapolating human health risks from animal exposure data, and the ex- istence of unquantified direct or indirect effects on human health in risk assessment studies; ‘‘(4) risk management policy issues including the use of lifetime cancer risks to individuals most ex- posed, incidence of cancer, the cost and technical fea- sibility of exposure reduction measures and the use of site-specific actual exposure information in setting Page 7228 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7412 emissions standards and other limitations applicable to sources of exposure to hazardous substances; and ‘‘(5) and comment on the degree to which it is pos- sible or desirable to develop a consistent risk assess- ment methodology, or a consistent standard of ac- ceptable risk, among various Federal programs. ‘‘(c) MEMBERSHIP.—Such Commission shall be com- posed of ten members who shall have knowledge or ex- perience in fields of risk assessment or risk manage- ment, including three members to be appointed 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 Rep- resentatives, two members to be appointed by the Ma- jority Leader of the Senate, one member to be ap- pointed by the Minority Leader of the Senate, and one member to be appointed by the President of the Na- tional Academy of Sciences. Appointments shall be made not later than 18 months after the date of enact- ment of the Clean Air Act Amendments of 1990 [Nov. 15, 1990]. ‘‘(d) ASSISTANCE FROM AGENCIES.—The Administrator of the Environmental Protection Agency and the heads of all other departments, agencies, and instrumental- ities of the executive branch of the Federal Govern- ment shall, to the maximum extent practicable, assist the Commission in gathering such information as the Commission 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 Federal contract law) with non- governmental entities that are competent to perform research or investigations within the Commission’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 Environmental Protection Agency or other Federal agencies. ‘‘(3) The members of the Commission who are not officers or employees of the United States, while at- tending conferences or meetings of the Commission or while otherwise serving at the request of the Chair, shall be entitled to receive compensation at a rate not in excess of the maximum rate of pay for Grade GS–18, as provided in the General Schedule under section 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 al- lowed travel expenses, including per 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 sec- tion, together with any appropriate legislative rec- ommendations or administrative recommendations, 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 [Nov. 15, 1990] and shall be submitted to the President and to the Congress not later than 48 months after such date of enactment. In the report, the Commission shall make recommenda- tions with respect to the appropriate use of risk assess- ment and risk management in Federal regulatory pro- grams to prevent cancer or other chronic health effects which may result from exposure to hazardous sub- stances. 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 ap- propriated such sums as are necessary to carry out the activities of the Commission established by this sec- tion.’’ [References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organi- zation and Employees, see section 529 [title I, § 101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of Title 5.] Executive Documents DELEGATION OF AUTHORITY Memorandum of President of the United States, Aug. 19, 1993, 58 F.R. 52397, provided: Memorandum for the Administrator of the Environ- mental Protection Agency WHEREAS, the Environmental Protection Agency, the agencies and departments that are members of the National Response Team (authorized under Executive Order No. 12580, 52 Fed. Reg. 2923 (1987) [42 U.S.C. 9615 note]), and other Federal agencies and departments un- dertake emergency release prevention, mitigation, and response activities pursuant to various authorities; By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 112(r)(10) of the Clean Air Act (the ‘‘Act’’) (section 7412(r)(10) of title 42 of the United States Code) and section 301 of title 3 of the United States Code, and in order to provide for the del- egation of certain functions under the Act [42 U.S.C. 7401 et seq.], I hereby: (1) Authorize you, in coordination with agencies and departments that are members of the National Re- sponse Team and other appropriate agencies and de- partments, to conduct a review of release prevention, mitigation, and response authorities of Federal agen- cies in order to assure the most effective and efficient implementation of such authorities and to identify any deficiencies in authority or resources that may exist, to the extent such review is required by section 112(r)(10) of the Act; and (2) Authorize you, in coordination with agencies and departments that are members of the National Re- sponse Team and other appropriate agencies and de- partments, to prepare and transmit a message to the Congress concerning the release prevention, mitiga- tion, and response activities of the Federal Government with such recommendations for change in law as you deem appropriate, to the extent such message is re- quired by section 112(r)(10) of the Act. The authority delegated by this memorandum may be further redelegated within the Environmental Protec- tion Agency. You are hereby authorized and directed to publish this memorandum in the Federal Register. WILLIAM J. CLINTON. Memorandum of President of the United States, Jan. 27, 2000, 65 F.R. 8631, provided: Memorandum for the Attorney General[, ] the Admin- istrator of the Environmental Protection Agency[, and] the Director of the Office of Management and Budget By the authority vested in me as President by the Constitution and laws of the United States of America, including section 112(r)(7)(H) of the Clean Air Act (‘‘Act’’) (42 U.S.C. 7412(r)(7)(H)), as added by section 3 of the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (Public Law 106–40), and section 301 of title 3, United States Code, I hereby dele- gate to: (1) the Attorney General the authority vested in the President under section 112(r)(7)(H)(ii)(I)(aa) of the Act to assess the increased risk of terrorist and other criminal activity associated with the posting of off-site consequence analysis information on the Internet; (2) the Administrator of the Environmental Protec- tion Agency (EPA) the authority vested in the Presi- dent under section 112(r)(7)(H)(ii)(I)(bb) of the Act to assess the incentives created by public disclosure of off- site consequence analysis information for reduction in the risk of accidental releases; and (3) the Attorney General and the Administrator of EPA, jointly, the authority vested in the President under section 112(r)(7)(H)(ii)(II) of the Act to promul- Page 7229 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7413 gate regulations, based on these assessments, gov- erning the distribution of off-site consequence analysis information. These regulations, in proposed and final form, shall be subject to review and approval by the Di- rector of the Office of Management and Budget. The Administrator of EPA is authorized and directed to publish this memorandum in the Federal Register. WILLIAM J. CLINTON. FLEXIBLE IMPLEMENTATION OF THE MERCURY AND AIR TOXICS STANDARDS RULE Memorandum of President of the United States, Dec. 21, 2011, 76 F.R. 80727, provided: Memorandum for the Administrator of the Environ- mental Protection Agency Today’s issuance, by the Environmental Protection Agency (EPA), of the final Mercury and Air Toxics Standards rule for power plants (the ‘‘MATS Rule’’) represents a major step forward in my Administration’s efforts to protect public health and the environment. This rule, issued after careful consideration of public comments, prescribes standards under section 112 of the Clean Air Act to control emissions of mercury and other toxic air pollutants from power plants, which col- lectively are among the largest sources of such pollu- tion in the United States. The EPA estimates that by substantially reducing emissions of pollutants that contribute to neurological damage, cancer, respiratory illnesses, and other health risks, the MATS Rule will produce major health benefits for millions of Ameri- cans—including children, older Americans, and other vulnerable populations. Consistent with Executive Order 13563 (Improving Regulation and Regulatory Re- view), the estimated benefits of the MATS Rule far ex- ceed the estimated costs. The MATS Rule can be implemented through the use of demonstrated, existing pollution control tech- nologies. The United States is a global market leader in the design and manufacture of these technologies, and it is anticipated that U.S. firms and workers will provide much of the equipment and labor needed to meet the substantial investments in pollution control that the standards are expected to spur. These new standards will promote the transition to a cleaner and more efficient U.S. electric power system. This system as a whole is critical infrastructure that plays a key role in the functioning of all facets of the U.S. economy, and maintaining its stability and reli- ability is of critical importance. It is therefore crucial that implementation of the MATS Rule proceed in a cost-effective manner that ensures electric reliability. Analyses conducted by the EPA and the Department of Energy (DOE) indicate that the MATS Rule is not anticipated to compromise electric generating resource adequacy in any region of the country. The Clean Air Act offers a number of implementation flexibilities, and the EPA has a long and successful history of using those flexibilities to ensure a smooth transition to cleaner technologies. The Clean Air Act provides 3 years from the effective date of the MATS Rule for sources to comply with its requirements. In addition, section 112(i)(3)(B) of the Act allows the issuance of a permit granting a source up to one additional year where necessary for the installa- tion of controls. As you stated in the preamble to the MATS Rule, this additional fourth year should be broadly available to sources, consistent with the re- quirements of the law. The EPA has concluded that 4 years should generally be sufficient to install the necessary emission control equipment, and DOE has issued analysis consistent with that conclusion. While more time is generally not expected to be needed, the Clean Air Act offers other important flexibilities as well. For example, section 113(a) of the Act provides the EPA with flexibility to bring sources into compliance over the course of an ad- ditional year, should unusual circumstances arise that warrant such flexibility. To address any concerns with respect to electric reli- ability while assuring MATS’ public health benefits, I direct you to take the following actions: 1. Building on the information and guidance that you have provided to the public, relevant stakeholders, and permitting authorities in the preamble of the MATS Rule, work with State and local permitting authorities to make the additional year for compliance with the MATS Rule provided under section 112(i)(3)(B) of the Clean Air Act broadly available to sources, consistent with law, and to invoke this flexibility expeditiously where justified. 2. Promote early, coordinated, and orderly planning and execution of the measures needed to implement the MATS Rule while maintaining the reliability of the electric power system. Consistent with Executive Order 13563, this process should be designed to ‘‘promote pre- dictability and reduce uncertainty,’’ and should include engagement and coordination with DOE, the Federal Energy Regulatory Commission, State utility regu- lators, Regional Transmission Organizations, the North American Electric Reliability Corporation and regional electric reliability organizations, other grid planning authorities, electric utilities, and other stakeholders, as appropriate. 3. Make available to the public, including relevant stakeholders, information concerning any anticipated use of authorities: (a) under section 112(i)(3)(B) of the Clean Air Act in the event that additional time to com- ply with the MATS Rule is necessary for the installa- tion of technology; and (b) under section 113(a) of the Clean Air Act in the event that additional time to com- ply with the MATS Rule is necessary to address a spe- cific and documented electric reliability issue. This in- formation should describe the process for working with entities with relevant expertise to identify cir- cumstances where electric reliability concerns might justify allowing additional time to comply. This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or enti- ties, its officers, employees, or agents, or any other person. You are hereby authorized and directed to publish this memorandum in the Federal Register. BARACK OBAMA. § 7413. Federal enforcement (a) In general (1) Order to comply with SIP 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 requirement or prohibition of an applicable implementation plan or per- mit, 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 section 2462 of title 28)— (A) issue an order requiring such person to comply with the requirements or prohibi- tions of such plan or permit, (B) issue an administrative penalty order in accordance with subsection (d), or (C) bring a civil action in accordance with subsection (b). (2) State failure to enforce SIP or permit pro- gram Whenever, on the basis of information avail- able to the Administrator, the Administrator finds that violations of an applicable imple- mentation plan or an approved permit pro- gram under subchapter V are so widespread