42 U.S.C. § 7502 — Nonattainment plan provisions in general

Page 7273 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7502 shall require affected States to revise within 12 months their implementation plans under sec- tion 7410 of this title to contain such emission limits, schedules of compliance, and other meas- ures as may be necessary to carry out regula- tions promulgated pursuant to this subsection. (f) Grand Canyon visibility transport commission The Administrator pursuant to subsection (c)(1) shall, within 12 months, establish a visi- bility transport commission for the region af- fecting the visibility of the Grand Canyon Na- tional Park. (July 14, 1955, ch. 360, title I, § 169B, as added Pub. L. 101–549, title VIII, § 816, Nov. 15, 1990, 104 Stat. 2695; amended Pub. L. 117–286, § 4(a)(269), Dec. 27, 2022, 136 Stat. 4335.) Editorial Notes REFERENCES IN TEXT The Clean Air Act Amendments of 1990, referred to in subsec. (b), 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 sec- tion 7401 of this title and Tables. AMENDMENTS 2022—Subsec. (c)(4). Pub. L. 117–286 substituted ‘‘chap- ter 10 of title 5.’’ for ‘‘the Federal Advisory Committee Act.’’ PART D—PLAN REQUIREMENTS FOR NONATTAINMENT AREAS SUBPART 1—NONATTAINMENT AREAS IN GENERAL § 7501. Definitions For the purpose of this part— (1) REASONABLE FURTHER PROGRESS.—The term ‘‘reasonable further progress’’ means such annual incremental reductions in emis- sions of the relevant air pollutant as are re- quired by this part or may reasonably be re- quired by the Administrator for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date. (2) NONATTAINMENT AREA.—The term ‘‘non- attainment area’’ means, for any air pollut- ant, an area which is designated ‘‘nonattain- ment’’ with respect to that pollutant within the meaning of section 7407(d) of this title. (3) The term ‘‘lowest achievable emission rate’’ means for any source, that rate of emis- sions which reflects— (A) the most stringent emission limitation which is contained in the implementation plan of any State for such class or category of source, unless the owner or operator of the proposed source demonstrates that such limitations are not achievable, or (B) the most stringent emission limitation which is achieved in practice by such class or category of source, whichever is more stringent. In no event shall the application of this term permit a proposed new or modified source to emit any pollutant in excess of the amount al- lowable under applicable new source standards of performance. (4) The terms ‘‘modifications’’ and ‘‘modi- fied’’ mean the same as the term ‘‘modifica- tion’’ as used in section 7411(a)(4) of this title. (July 14, 1955, ch. 360, title I, § 171, as added Pub. L. 95–95, title I, § 129(b), Aug. 7, 1977, 91 Stat. 745; amended Pub. L. 101–549, title I, § 102(a)(2), Nov. 15, 1990, 104 Stat. 2412.) Editorial Notes AMENDMENTS 1990—Pub. L. 101–549, § 102(a)(2)(A), struck out ‘‘and section 7410(a)(2)(I) of this title’’ after ‘‘purpose of this part’’. Pars. (1), (2). Pub. L. 101–549, § 102(a)(2)(B), (C), amend- ed pars. (1) and (2) generally. Prior to amendment, pars. (1) and (2) read as follows: ‘‘(1) The term ‘reasonable further progress’ means an- nual incremental reductions in emissions of the appli- cable air pollutant (including substantial reductions in the early years following approval or promulgation of plan provisions under this part and section 7410(a)(2)(I) of this title and regular reductions thereafter) which are sufficient in the judgment of the Administrator, to provide for attainment of the applicable national ambi- ent air quality standard by the date required in section 7502(a) of this title. ‘‘(2) The term ‘nonattainment area’ means, for any air pollutant an area which is shown by monitored data or which is calculated by air quality modeling (or other methods determined by the Administrator to be reli- able) to exceed any national ambient air quality stand- ard for such pollutant. Such term includes any area identified under subparagraphs (A) through (C) of sec- tion 7407(d)(1) of this title.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE Part effective Aug. 7, 1977, except as otherwise ex- pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7502. Nonattainment plan provisions in general (a) Classifications and attainment dates (1) Classifications (A) On or after the date the Administrator promulgates the designation of an area as a nonattainment area pursuant to section 7407(d) of this title with respect to any na- tional ambient air quality standard (or any re- vised standard, including a revision of any standard in effect on November 15, 1990), the Administrator may classify the area for the purpose of applying an attainment date pursu- ant to paragraph (2), and for other purposes. In determining the appropriate classification, if any, for a nonattainment area, the Adminis- trator may consider such factors as the sever- ity of nonattainment in such area and the availability and feasibility of the pollution control measures that the Administrator be- lieves may be necessary to provide for attain- ment of such standard in such area. (B) The Administrator shall publish a notice in the Federal Register announcing each clas- sification under subparagraph (A), except the Administrator shall provide an opportunity for at least 30 days for written comment. Such classification shall not be subject to the provi- sions of sections 553 through 557 of title 5 (con- cerning notice and comment) and shall not be Page 7274 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7502 subject to judicial review until the Adminis- trator takes final action under subsection (k) or (l) of section 7410 of this title (concerning action on plan submissions) or section 7509 of this title (concerning sanctions) with respect to any plan submissions required by virtue of such classification. (C) This paragraph shall not apply with re- spect to nonattainment areas for which classi- fications are specifically provided under other provisions of this part. (2) Attainment dates for nonattainment areas (A) The attainment date for an area des- ignated nonattainment with respect to a na- tional primary ambient air quality standard shall be the date by which attainment can be achieved as expeditiously as practicable, but no later than 5 years from the date such area was designated nonattainment under section 7407(d) of this title, except that the Adminis- trator may extend the attainment date to the extent the Administrator determines appro- priate, for a period no greater than 10 years from the date of designation as nonattain- ment, considering the severity of nonattain- ment and the availability and feasibility of pollution control measures. (B) The attainment date for an area des- ignated nonattainment with respect to a sec- ondary national ambient air quality standard shall be the date by which attainment can be achieved as expeditiously as practicable after the date such area was designated nonattain- ment under section 7407(d) of this title. (C) Upon application by any State, the Ad- ministrator may extend for 1 additional year (hereinafter referred to as the ‘‘Extension Year’’) the attainment date determined by the Administrator under subparagraph (A) or (B) if— (i) the State has complied with all require- ments and commitments pertaining to the area in the applicable implementation plan, and (ii) in accordance with guidance published by the Administrator, no more than a mini- mal number of exceedances of the relevant national ambient air quality standard has occurred in the area in the year preceding the Extension Year. No more than 2 one-year extensions may be issued under this subparagraph for a single nonattainment area. (D) This paragraph shall not apply with re- spect to nonattainment areas for which at- tainment dates are specifically provided under other provisions of this part. (b) Schedule for plan submissions At the time the Administrator promulgates the designation of an area as nonattainment with respect to a national ambient air quality standard under section 7407(d) of this title, the Administrator shall establish a schedule accord- ing to which the State containing such area shall submit a plan or plan revision (including the plan items) meeting the applicable require- ments of subsection (c) and section 7410(a)(2) of this title. Such schedule shall at a minimum, in- clude a date or dates, extending no later than 3 years from the date of the nonattainment des- ignation, for the submission of a plan or plan re- vision (including the plan items) meeting the applicable requirements of subsection (c) and section 7410(a)(2) of this title. (c) Nonattainment plan provisions The plan provisions (including plan items) re- quired to be submitted under this part shall comply with each of the following: (1) In general Such plan provisions shall provide for the implementation of all reasonably available control measures as expeditiously as prac- ticable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment of the na- tional primary ambient air quality standards. (2) RFP Such plan provisions shall require reason- able further progress. (3) Inventory Such plan provisions shall include a com- prehensive, accurate, current inventory of ac- tual emissions from all sources of the relevant pollutant or pollutants in such area, including such periodic revisions as the Administrator may determine necessary to assure that the requirements of this part are met. (4) Identification and quantification Such plan provisions shall expressly identify and quantify the emissions, if any, of any such pollutant or pollutants which will be allowed, in accordance with section 7503(a)(1)(B) of this title, from the construction and operation of major new or modified stationary sources in each such area. The plan shall demonstrate to the satisfaction of the Administrator that the emissions quantified for this purpose will be consistent with the achievement of reasonable further progress and will not interfere with at- tainment of the applicable national ambient air quality standard by the applicable attain- ment date. (5) Permits for new and modified major sta- tionary sources Such plan provisions shall require permits for the construction and operation of new or modified major stationary sources anywhere in the nonattainment area, in accordance with section 7503 of this title. (6) Other measures Such plan provisions shall include enforce- able emission limitations, and such other con- trol measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emission rights), as well as schedules and timetables for compli- ance, as may be necessary or appropriate to provide for attainment of such standard in such area by the applicable attainment date specified in this part. (7) Compliance with section 7410(a)(2) Such plan provisions shall also meet the ap- plicable provisions of section 7410(a)(2) of this title. Page 7275 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7502 (8) Equivalent techniques Upon application by any State, the Adminis- trator may allow the use of equivalent mod- eling, emission inventory, and planning proce- dures, unless the Administrator determines that the proposed techniques are, in the aggre- gate, less effective than the methods specified by the Administrator. (9) Contingency measures Such plan shall provide for the implementa- tion of specific measures to be undertaken if the area fails to make reasonable further progress, or to attain the national primary ambient air quality standard by the attain- ment date applicable under this part. Such measures shall be included in the plan revision as contingency measures to take effect in any such case without further action by the State or the Administrator. (d) Plan revisions required in response to find- ing of plan inadequacy Any plan revision for a nonattainment area which is required to be submitted in response to a finding by the Administrator pursuant to sec- tion 7410(k)(5) of this title (relating to calls for plan revisions) must correct the plan deficiency (or deficiencies) specified by the Administrator and meet all other applicable plan requirements of section 7410 of this title and this part. The Administrator may reasonably adjust the dates otherwise applicable under such requirements to such revision (except for attainment dates that have not yet elapsed), to the extent necessary to achieve a consistent application of such require- ments. In order to facilitate submittal by the States of adequate and approvable plans con- sistent with the applicable requirements of this chapter, the Administrator shall, as appropriate and from time to time, issue written guidelines, interpretations, and information to the States which shall be available to the public, taking into consideration any such guidelines, interpre- tations, or information provided before Novem- ber 15, 1990. (e) Future modification of standard If the Administrator relaxes a national pri- mary ambient air quality standard after Novem- ber 15, 1990, the Administrator shall, within 12 months after the relaxation, promulgate re- quirements applicable to all areas which have not attained that standard as of the date of such relaxation. Such requirements shall provide for controls which are not less stringent than the controls applicable to areas designated non- attainment before such relaxation. (July 14, 1955, ch. 360, title I, § 172, as added Pub. L. 95–95, title I, § 129(b), Aug. 7, 1977, 91 Stat. 746; amended Pub. L. 95–190, § 14(a)(55), (56), Nov. 16, 1977, 91 Stat. 1402; Pub. L. 101–549, title I, § 102(b), Nov. 15, 1990, 104 Stat. 2412.) Editorial Notes AMENDMENTS 1990—Pub. L. 101–549 amended section generally, sub- stituting present provisions for provisions which re- lated to: in subsec. (a), expeditious attainment of na- tional ambient air quality standards; in subsec. (b), requisite provisions of plan; and in subsec. (c), attain- ment of applicable standard not later than July 1, 1987. 1977—Subsec. (b)(4). Pub. L. 95–190, § 14(a)(55), sub- stituted ‘‘subsection (a)’’ for ‘‘paragraph (1)’’. Subsec. (c). Pub. L. 95–190, § 14(a)(56), substituted ‘‘De- cember 31’’ for ‘‘July 1’’. Statutory Notes and Related Subsidiaries NONATTAINMENT AREAS Pub. L. 95–95, title I, § 129(a), Aug. 7, 1977, 91 Stat. 745, as amended by Pub. L. 95–190, § 14(b)(2), (3), Nov. 16, 1977, 91 Stat. 1404, provided that: ‘‘(1) Before July 1, 1979, the interpretative regulation of the Administrator of the Environmental Protection Agency published in 41 Federal Register 55524–30, De- cember 21, 1976, as may be modified by rule of the Ad- ministrator, shall apply except that the baseline to be used for determination of appropriate emission offsets under such regulation shall be the applicable imple- mentation plan of the State in effect at the time of ap- plication for a permit by a proposed major stationary source (within the meaning of section 302 of the Clean Air Act) [section 7602 of this title]. ‘‘(2) Before July 1, 1979, the requirements of the regu- lation referred to in paragraph (1) shall be waived by the Administrator with respect to any pollutant if he determines that the State has— ‘‘(A) an inventory of emissions of the applicable pollutant for each nonattainment area (as defined in section 171 of the Clean Air Act [section 7501 of this title]) that identifies the type, quantity, and source of such pollutant so as to provide information suffi- cient to demonstrate that the requirements of sub- paragraph (C) are being met; ‘‘(B) an enforceable permit program which— ‘‘(i) requires new or modified major stationary sources to meet emission limitations at least as stringent as required under the permit require- ments referred to in paragraphs (2) and (3) of sec- tion 173 of the Clean Air Act [section 7503 of this title] (relating to lowest achievable emission rate and compliance by other sources) and which assures compliance with the annual reduction requirements of subparagraph (C); and ‘‘(ii) requires existing sources to achieve such re- duction in emissions in the area as may be obtained through the adoption, at a minimum of reasonably available control technology, and ‘‘(C) a program which requires reductions in total allowable emissions in the area prior to July 1, 1979, so as to provide for the same level of emission reduc- tion as would result from the application of the regu- lation referred to in paragraph (1). The Administrator shall terminate such waiver if in his judgment the reduction in emissions actually being at- tained is less than the reduction on which the waiver was conditioned pursuant to subparagraph (C), or if the Administrator determines that the State is no longer in compliance with any requirement of this paragraph. Upon application by the State, the Administrator may reinstate a waiver terminated under the preceding sen- tence if he is satisfied that such State is in compliance with all requirements of this subsection. ‘‘(3) Operating permits may be issued to those appli- cants who were properly granted construction permits, in accordance with the law and applicable regulations in effect at the time granted, for construction of a new or modified source in areas exceeding national primary air quality standards on or before the date of the enact- ment of this Act [Aug. 7, 1977] if such construction per- mits were granted prior to the date of the enactment of this Act and the person issued any such permit is able to demonstrate that the emissions from the source will be within the limitations set forth in such construction permit.’’ STATE IMPLEMENTATION PLAN REVISION Pub. L. 95–95, title I, § 129(c), Aug. 7, 1977, 91 Stat. 750, as amended by Pub. L. 95–190, § 14(b)(4), Nov. 16, 1977, 91 Stat. 1405, provided that: ‘‘Notwithstanding the re- 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).