42 U.S.C. § 7503 — Permit requirements

Page 7276 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7503 1 See References in Text note below. 2 So in original. The word ‘‘and’’ probably should not appear. quirements of section 406(d)(2) [set out as an Effective Date of 1977 Amendment note under section 7401 of this title] (relating to date required for submission of cer- tain implementation plan revisions), for purposes of section 110(a)(2) of the Clean Air Act [section 7410(a)(2) of this title] each State in which there is any non- attainment area (as defined in part D of title I of the Clean Air Act) [this part] shall adopt and submit an im- plementation plan revision which meets the require- ments of section 110(a)(2)(I) [section 7410(a)(2)(I) of this title] and part D of title I of the Clean Air Act [this part] not later than January 1, 1979. In the case of any State for which a plan revision adopted and submitted before such date has made the demonstration required under section 172(a)(2) of the Clean Air Act [subsec. (a)(2) of this section] (respecting impossibility of at- tainment before 1983), such State shall adopt and sub- mit to the Administrator a plan revision before July 1, 1982, which meets the requirements of section 172(b) and (c) of such Act [subsecs. (b) and (c) of this sec- tion].’’ § 7503. Permit requirements (a) In general The permit program required by section 7502(b)(6) 1 of this title shall provide that permits to construct and operate may be issued if— (1) in accordance with regulations issued by the Administrator for the determination of baseline emissions in a manner consistent with the assumptions underlying the applica- ble implementation plan approved under sec- tion 7410 of this title and this part, the permit- ting agency determines that— (A) by the time the source is to commence operation, sufficient offsetting emissions re- ductions have been obtained, such that total allowable emissions from existing sources in the region, from new or modified sources which are not major emitting facilities, and from the proposed source will be sufficiently less than total emissions from existing sources (as determined in accordance with the regulations under this paragraph) prior to the application for such permit to con- struct or modify so as to represent (when considered together with the plan provisions required under section 7502 of this title) rea- sonable further progress (as defined in sec- tion 7501 of this title); or (B) in the case of a new or modified major stationary source which is located in a zone (within the nonattainment area) identified by the Administrator, in consultation with the Secretary of Housing and Urban Devel- opment, as a zone to which economic devel- opment should be targeted, that emissions of such pollutant resulting from the proposed new or modified major stationary source will not cause or contribute to emissions levels which exceed the allowance permitted for such pollutant for such area from new or modified major stationary sources under section 7502(c) of this title; (2) the proposed source is required to comply with the lowest achievable emission rate; (3) the owner or operator of the proposed new or modified source has demonstrated that all major stationary sources owned or oper- ated by such person (or by any entity control- ling, controlled by, or under common control with such person) in such State are subject to emission limitations and are in compliance, or on a schedule for compliance, with all applica- ble emission limitations and standards under this chapter; and 2 (4) the Administrator has not determined that the applicable implementation plan is not being adequately implemented for the non- attainment area in which the proposed source is to be constructed or modified in accordance with the requirements of this part; and (5) an analysis of alternative sites, sizes, production processes, and environmental con- trol techniques for such proposed source dem- onstrates that benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification. Any emission reductions required as a pre- condition of the issuance of a permit under para- graph (1) shall be federally enforceable before such permit may be issued. (b) Prohibition on use of old growth allowances Any growth allowance included in an applica- ble implementation plan to meet the require- ments of section 7502(b)(5) of this title (as in ef- fect immediately before November 15, 1990) shall not be valid for use in any area that received or receives a notice under section 7410(a)(2)(H)(ii) of this title (as in effect immediately before No- vember 15, 1990) or under section 7410(k)(1) of this title that its applicable implementation plan containing such allowance is substantially inadequate. (c) Offsets (1) The owner or operator of a new or modified major stationary source may comply with any offset requirement in effect under this part for increased emissions of any air pollutant only by obtaining emission reductions of such air pollut- ant from the same source or other sources in the same nonattainment area, except that the State may allow the owner or operator of a source to obtain such emission reductions in another non- attainment area if (A) the other area has an equal or higher nonattainment classification than the area in which the source is located and (B) emissions from such other area contribute to a violation of the national ambient air quality standard in the nonattainment area in which the source is located. Such emission reductions shall be, by the time a new or modified source commences operation, in effect and enforceable and shall assure that the total tonnage of in- creased emissions of the air pollutant from the new or modified source shall be offset by an equal or greater reduction, as applicable, in the actual emissions of such air pollutant from the same or other sources in the area. (2) Emission reductions otherwise required by this chapter shall not be creditable as emissions reductions for purposes of any such offset re- quirement. Incidental emission reductions which are not otherwise required by this chapter shall be creditable as emission reductions for such purposes if such emission reductions meet the requirements of paragraph (1). Page 7277 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7503 (d) Control technology information The State shall provide that control tech- nology information from permits issued under this section will be promptly submitted to the Administrator for purposes of making such in- formation available through the RACT/BACT/ LAER clearinghouse to other States and to the general public. (e) Rocket engines or motors The permitting authority of a State shall allow a source to offset by alternative or inno- vative means emission increases from rocket en- gine and motor firing, and cleaning related to such firing, at an existing or modified major source that tests rocket engines or motors under the following conditions: (1) Any modification proposed is solely for the purpose of expanding the testing of rocket engines or motors at an existing source that is permitted to test such engines on November 15, 1990. (2) The source demonstrates to the satisfac- tion of the permitting authority of the State that it has used all reasonable means to obtain and utilize offsets, as determined on an annual basis, for the emissions increases beyond al- lowable levels, that all available offsets are being used, and that sufficient offsets are not available to the source. (3) The source has obtained a written finding from the Department of Defense, Department of Transportation, National Aeronautics and Space Administration or other appropriate Federal agency, that the testing of rocket mo- tors or engines at the facility is required for a program essential to the national security. (4) The source will comply with an alter- native measure, imposed by the permitting au- thority, designed to offset any emission in- creases beyond permitted levels not directly offset by the source. In lieu of imposing any alternative offset measures, the permitting authority may impose an emissions fee to be paid to such authority of a State which shall be an amount no greater than 1.5 times the av- erage cost of stationary source control meas- ures adopted in that area during the previous 3 years. The permitting authority shall utilize the fees in a manner that maximizes the emis- sions reductions in that area. (July 14, 1955, ch. 360, title I, § 173, as added Pub. L. 95–95, title I, § 129(b), Aug. 7, 1977, 91 Stat. 748; amended Pub. L. 95–190, § 14(a)(57), (58), Nov. 16, 1977, 91 Stat. 1403; Pub. L. 101–549, title I, § 102(c), Nov. 15, 1990, 104 Stat. 2415.) Editorial Notes REFERENCES IN TEXT Section 7502(b) of this title, referred to in subsec. (a), was amended generally by Pub. L. 101–549, title I, § 102(b), Nov. 15, 1990, 104 Stat. 2412, and, as so amended, does not contain a par. (6). See section 7502(c)(5) of this title. AMENDMENTS 1990—Pub. L. 101–549, § 102(c)(1), made technical amendment to section catchline. Pub. L. 101–549, § 102(c)(2), (8), designated existing pro- visions as subsec. (a), inserted heading, and substituted ‘‘(1) shall be federally enforceable’’ for ‘‘(1)(A) shall be legally binding’’ in last sentence. Subsec. (a)(1). Pub. L. 101–549, § 102(c)(3), inserted at beginning ‘‘in accordance with regulations issued by the Administrator for the determination of baseline emissions in a manner consistent with the assumptions underlying the applicable implementation plan ap- proved under section 7410 of this title and this part,’’. Subsec. (a)(1)(A). Pub. L. 101–549, § 102(c)(4), inserted ‘‘sufficient offsetting emissions reductions have been obtained, such that’’ after ‘‘to commence operation,’’ and substituted ‘‘(as determined in accordance with the regulations under this paragraph)’’ for ‘‘allowed under the applicable implementation plan’’. Subsec. (a)(1)(B). Pub. L. 101–549, § 102(c)(5), inserted at beginning ‘‘in the case of a new or modified major stationary source which is located in a zone (within the nonattainment area) identified by the Administrator, in consultation with the Secretary of Housing and Urban Development, as a zone to which economic de- velopment should be targeted,’’ and substituted ‘‘7502(c)’’ for ‘‘7502(b)’’. Subsec. (a)(4). Pub. L. 101–549, § 102(c)(6), inserted at beginning ‘‘the Administrator has not determined that’’, substituted ‘‘not being adequately imple- mented’’ for ‘‘being carried out’’, and substituted ‘‘; and’’ for period at end. Subsec. (a)(5). Pub. L. 101–549, § 102(c)(7), added par. (5). Subsec. (b). Pub. L. 101–549, § 102(c)(9), added subsec. (b). Subsecs. (c) to (e). Pub. L. 101–549, § 102(c)(10), added subsecs. (c) to (e). 1977—Par. (1)(A). Pub. L. 95–190, § 14(a)(57), inserted ‘‘or modified’’ after ‘‘from new’’ and ‘‘applicable’’ be- fore ‘‘implementation plan’’, and substituted ‘‘source’’ for ‘‘facility’’ wherever appearing. Par. (4). Pub. L. 95–190, § 14(a)(58), added par. (4). Statutory Notes and Related Subsidiaries FAILURE TO ATTAIN NATIONAL PRIMARY AMBIENT AIR QUALITY STANDARDS UNDER CLEAN AIR ACT Pub. L. 100–202, § 101(f) [title II], Dec. 22, 1987, 101 Stat. 1329–187, 1329–199, provided that: ‘‘No restriction or pro- hibition on construction, permitting, or funding under sections 110(a)(2)(I), 173(4), 176(a), 176(b), or 316 of the Clean Air Act [sections 7410(a)(2)(I), 7503(4), 7506(a), (b), 7616 of this title] shall be imposed or take effect during the period prior to August 31, 1988, by reason of (1) the failure of any nonattainment area to attain the na- tional primary ambient air quality standard under the Clean Air Act [this chapter] for photochemical oxidants (ozone) or carbon monoxide (or both) by De- cember 31, 1987, (2) the failure of any State to adopt and submit to the Administrator of the Environmental Pro- tection Agency an implementation plan that meets the requirements of part D of title I of such Act [this part] and provides for attainment of such standards by De- cember 31, 1987, (3) the failure of any State or des- ignated local government to implement the applicable implementation plan, or (4) any combination of the foregoing. During such period and consistent with the preceding sentence, the issuance of a permit (including required offsets) under section 173 of such Act [this sec- tion] for the construction or modification of a source in a nonattainment area shall not be denied solely or par- tially by reason of the reference contained in section 171(l) of such Act [section 7501(1) of this title] to the ap- plicable date established in section 172(a) [section 7502(a) of this title]. This subsection [probably means the first 3 sentences of this note] shall not apply to any restriction or prohibition in effect under sections 110(a)(2)(I), 173(4), 176(a), 176(b), or 316 of such Act prior to the enactment of this section [Dec. 22, 1987]. Prior to August 31, 1988, the Administrator of the Environ- mental Protection Agency shall evaluate air quality data and make determinations with respect to which areas throughout the nation have attained, or failed to attain, either or both of the national primary ambient air quality standards referred to in subsection (a) Page 7278 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7504 [probably means the first 3 sentences of this note] and shall take appropriate steps to designate those areas failing to attain either or both of such standards as nonattainment areas within the meaning of part D of title I of the Clean Air Act.’’ § 7504. Planning procedures (a) In general For any ozone, carbon monoxide, or PM–10 nonattainment area, the State containing such area and elected officials of affected local gov- ernments shall, before the date required for sub- mittal of the inventory described under sections 7511a(a)(1) and 7512a(a)(1) of this title, jointly re- view and update as necessary the planning pro- cedures adopted pursuant to this subsection as in effect immediately before November 15, 1990, or develop new planning procedures pursuant to this subsection, as appropriate. In preparing such procedures the State and local elected offi- cials shall determine which elements of a re- vised implementation plan will be developed, adopted, and implemented (through means in- cluding enforcement) by the State and which by local governments or regional agencies, or any combination of local governments, regional agencies, or the State. The implementation plan required by this part shall be prepared by an or- ganization certified by the State, in consulta- tion with elected officials of local governments and in accordance with the determination under the second sentence of this subsection. Such or- ganization shall include elected officials of local governments in the affected area, and represent- atives of the State air quality planning agency, the State transportation planning agency, the metropolitan planning organization designated to conduct the continuing, cooperative and com- prehensive transportation planning process for the area under section 134 of title 23, the organi- zation responsible for the air quality mainte- nance planning process under regulations imple- menting this chapter, and any other organiza- tion with responsibilities for developing, sub- mitting, or implementing the plan required by this part. Such organization may be one that carried out these functions before November 15, 1990. (b) Coordination The preparation of implementation plan provi- sions and subsequent plan revisions under the continuing transportation-air quality planning process described in section 7408(e) of this title shall be coordinated with the continuing, coop- erative and comprehensive transportation plan- ning process required under section 134 of title 23, and such planning processes shall take into account the requirements of this part. (c) Joint planning In the case of a nonattainment area that is in- cluded within more than one State, the affected States may jointly, through interstate compact or otherwise, undertake and implement all or part of the planning procedures described in this section. (July 14, 1955, ch. 360, title I, § 174, as added Pub. L. 95–95, title I, § 129(b), Aug. 7, 1977, 91 Stat. 748; amended Pub. L. 101–549, title I, § 102(d), Nov. 15, 1990, 104 Stat. 2417.) Editorial Notes AMENDMENTS 1990—Pub. L. 101–549 amended section generally, sub- stituting present provisions for provisions which re- lated to: in subsec. (a), preparation of implementation plan by designated organization; and in subsec. (b), co- ordination of plan preparation. § 7505. Environmental Protection Agency grants (a) Plan revision development costs The Administrator shall make grants to any organization of local elected officials with transportation or air quality maintenance plan- ning responsibilities recognized by the State under section 7504(a) of this title for payment of the reasonable costs of developing a plan revi- sion under this part. (b) Uses of grant funds The amount granted to any organization under subsection (a) shall be 100 percent of any additional costs of developing a plan revision under this part for the first two fiscal years fol- lowing receipt of the grant under this para- graph, and shall supplement any funds available under Federal law to such organization for transportation or air quality maintenance plan- ning. Grants under this section shall not be used for construction. (July 14, 1955, ch. 360, title I, § 175, as added Pub. L. 95–95, title I, § 129(b), Aug. 7, 1977, 91 Stat. 749.) § 7505a. Maintenance plans (a) Plan revision Each State which submits a request under sec- tion 7407(d) of this title for redesignation of a nonattainment area for any air pollutant as an area which has attained the national primary ambient air quality standard for that air pollut- ant shall also submit a revision of the applicable State implementation plan to provide for the maintenance of the national primary ambient air quality standard for such air pollutant in the area concerned for at least 10 years after the re- designation. The plan shall contain such addi- tional measures, if any, as may be necessary to ensure such maintenance. (b) Subsequent plan revisions 8 years after redesignation of any area as an attainment area under section 7407(d) of this title, the State shall submit to the Adminis- trator an additional revision of the applicable State implementation plan for maintaining the national primary ambient air quality standard for 10 years after the expiration of the 10-year period referred to in subsection (a). (c) Nonattainment requirements applicable pending plan approval Until such plan revision is approved and an area is redesignated as attainment for any area designated as a nonattainment area, the re- quirements of this part shall continue in force and effect with respect to such area. (d) Contingency provisions Each plan revision submitted under this sec- tion shall contain such contingency provisions as the Administrator deems necessary to assure