42 U.S.C. § 7511d — Enforcement for Severe and Extreme

Page 7303 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7511e applies, a finding under section 7410(k)(5) of this title that the implementation plan for such State is inadequate to meet the require- ments of section 7410(a)(2)(D) of this title. Such finding shall require each such State to revise its implementation plan to include the approved additional control measures within one year after the finding is issued. (d) Best available air quality monitoring and modeling For purposes of this section, not later than 6 months after November 15, 1990, the Adminis- trator shall promulgate criteria for purposes of determining the contribution of sources in one area to concentrations of ozone in another area which is a nonattainment area for ozone. Such criteria shall require that the best available air quality monitoring and modeling techniques be used for purposes of making such determina- tions. (July 14, 1955, ch. 360, title I, § 184, as added Pub. L. 101–549, title I, § 103, Nov. 15, 1990, 104 Stat. 2448.) § 7511d. Enforcement for Severe and Extreme ozone nonattainment areas for failure to at- tain (a) General rule Each implementation plan revision required under section 7511a(d) and (e) of this title (relat- ing to the attainment plan for Severe and Ex- treme ozone nonattainment areas) shall provide that, if the area to which such plan revision ap- plies has failed to attain the national primary ambient air quality standard for ozone by the applicable attainment date, each major sta- tionary source of VOCs located in the area shall, except as otherwise provided under subsection (c), pay a fee to the State as a penalty for such failure, computed in accordance with subsection (b), for each calendar year beginning after the attainment date, until the area is redesignated as an attainment area for ozone. Each such plan revision should include procedures for assess- ment and collection of such fees. (b) Computation of fee (1) Fee amount The fee shall equal $5,000, adjusted in accord- ance with paragraph (3), per ton of VOC emit- ted by the source during the calendar year in excess of 80 percent of the baseline amount, computed under paragraph (2). (2) Baseline amount For purposes of this section, the baseline amount shall be computed, in accordance with such guidance as the Administrator may pro- vide, as the lower of the amount of actual VOC emissions (‘‘actuals’’) or VOC emissions al- lowed under the permit applicable to the source (or, if no such permit has been issued for the attainment year, the amount of VOC emissions allowed under the applicable imple- mentation plan (‘‘allowables’’)) during the at- tainment year. Notwithstanding the preceding sentence, the Administrator may issue guid- ance authorizing the baseline amount to be de- termined in accordance with the lower of aver- age actuals or average allowables, determined over a period of more than one calendar year. Such guidance may provide that such average calculation for a specific source may be used if that source’s emissions are irregular, cyclical, or otherwise vary significantly from year to year. (3) Annual adjustment The fee amount under paragraph (1) shall be adjusted annually, beginning in the year be- ginning after 1990, in accordance with section 7661a(b)(3)(B)(v) of this title (relating to infla- tion adjustment). (c) Exception Notwithstanding any provision of this section, no source shall be required to pay any fee under subsection (a) with respect to emissions during any year that is treated as an Extension Year under section 7511(a)(5) of this title. (d) Fee collection by Administrator If the Administrator has found that the fee provisions of the implementation plan do not meet the requirements of this section, or if the Administrator makes a finding that the State is not administering and enforcing the fee required under this section, the Administrator shall, in addition to any other action authorized under this subchapter, collect, in accordance with pro- cedures promulgated by the Administrator, the unpaid fees required under subsection (a). If the Administrator makes such a finding under sec- tion 7509(a)(4) of this title, the Administrator may collect fees for periods before the deter- mination, plus interest computed in accordance with section 6621(a)(2) of title 26 (relating to computation of interest on underpayment of Federal taxes), to the extent the Administrator finds such fees have not been paid to the State. The provisions of clauses (ii) through (iii) of sec- tion 7661a(b)(3)(C) of this title (relating to pen- alties and use of the funds, respectively) shall apply with respect to fees collected under this subsection. (e) Exemptions for certain small areas For areas with a total population under 200,000 which fail to attain the standard by the applica- ble attainment date, no sanction under this sec- tion or under any other provision of this chapter shall apply if the area can demonstrate, con- sistent with guidance issued by the Adminis- trator, that attainment in the area is prevented because of ozone or ozone precursors transported from other areas. The prohibition applies only in cases in which the area has met all require- ments and implemented all measures applicable to the area under this chapter. (July 14, 1955, ch. 360, title I, § 185, as added Pub. L. 101–549, title I, § 103, Nov. 15, 1990, 104 Stat. 2450.) § 7511e. Transitional areas If an area designated as an ozone nonattain- ment area as of November 15, 1990, has not vio- lated the national primary ambient air quality standard for ozone for the 36-month period com- mencing on January 1, 1987, and ending on De- cember 31, 1989, the Administrator shall suspend the application of the requirements of this sub- part to such area until December 31, 1991. By