42 U.S.C. § 7475 — Preconstruction requirements

Page 7265 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7475 2 So in original. Probably should be ‘‘with’’. (c) Indian reservations Lands within the exterior boundaries of res- ervations of federally recognized Indian tribes may be redesignated only by the appropriate In- dian governing body. Such Indian governing body shall be subject in all respect to the provi- sions of subsection (e). (d) Review of national monuments, primitive areas, and national preserves The Federal Land Manager shall review all na- tional monuments, primitive areas, and national preserves, and shall recommend any appropriate areas for redesignation as class I where air qual- ity related values are important attributes of the area. The Federal Land Manager shall report such recommendations, within 2 supporting anal- ysis, to the Congress and the affected States within one year after August 7, 1977. The Federal Land Manager shall consult with the appro- priate States before making such recommenda- tions. (e) Resolution of disputes between State and In- dian tribes If any State affected by the redesignation of an area by an Indian tribe or any Indian tribe af- fected by the redesignation of an area by a State disagrees with such redesignation of any area, or if a permit is proposed to be issued for any new major emitting facility proposed for construc- tion in any State which the Governor of an af- fected State or governing body of an affected In- dian tribe determines will cause or contribute to a cumulative change in air quality in excess of that allowed in this part within the affected State or tribal reservation, the Governor or In- dian ruling body may request the Administrator to enter into negotiations with the parties in- volved to resolve such dispute. If requested by any State or Indian tribe involved, the Adminis- trator shall make a recommendation to resolve the dispute and protect the air quality related values of the lands involved. If the parties in- volved do not reach agreement, the Adminis- trator shall resolve the dispute and his deter- mination, or the results of agreements reached through other means, shall become part of the applicable plan and shall be enforceable as part of such plan. In resolving such disputes relating to area redesignation, the Administrator shall consider the extent to which the lands involved are of sufficient size to allow effective air qual- ity management or have air quality related val- ues of such an area. (July 14, 1955, ch. 360, title I, § 164, as added Pub. L. 95–95, title I, § 127(a), Aug. 7, 1977, 91 Stat. 733; amended Pub. L. 95–190, § 14(a)(42), (43), Nov. 16, 1977, 91 Stat. 1402; Pub. L. 101–549, title I, § 108(n), Nov. 15, 1990, 104 Stat. 2469.) Editorial Notes AMENDMENTS 1990—Subsec. (a). Pub. L. 101–549, which directed the insertion of ‘‘The extent of the areas referred to in paragraph (1) and (2) shall conform to any changes in the boundaries of such areas which have occurred sub- sequent to August 7, 1977, or which may occur subse- quent to November 15, 1990.’’ before ‘‘Any area (other than an area referred to in paragraph (1) or (2))’’, was executed by making the insertion before ‘‘Any area (other than an area referred to in paragraph (1) or (2)’’, to reflect the probable intent of Congress. 1977—Subsec. (b)(2). Pub. L. 95–190, § 14(a)(42), inserted ‘‘or is inconsistent with the requirements of section 7472(a) of this title or of subsection (a) of this section’’ after ‘‘this section’’. Subsec. (e). Pub. L. 95–190, § 14(a)(43), inserted ‘‘an’’ after ‘‘If any State affected by the redesignation of’’. § 7475. Preconstruction requirements (a) Major emitting facilities on which construc- tion is commenced No major emitting facility on which construc- tion is commenced after August 7, 1977, may be constructed in any area to which this part ap- plies unless— (1) a permit has been issued for such pro- posed facility in accordance with this part set- ting forth emission limitations for such facil- ity which conform to the requirements of this part; (2) the proposed permit has been subject to a review in accordance with this section, the re- quired analysis has been conducted in accord- ance with regulations promulgated by the Ad- ministrator, and a public hearing has been held with opportunity for interested persons including representatives of the Administrator to appear and submit written or oral presen- tations on the air quality impact of such source, alternatives thereto, control tech- nology requirements, and other appropriate considerations; (3) the owner or operator of such facility demonstrates, as required pursuant to section 7410(j) of this title, that emissions from con- struction or operation of such facility will not cause, or contribute to, air pollution in excess of any (A) maximum allowable increase or maximum allowable concentration for any pollutant in any area to which this part ap- plies more than one time per year, (B) na- tional ambient air quality standard in any air quality control region, or (C) any other appli- cable emission standard or standard of per- formance under this chapter; (4) the proposed facility is subject to the best available control technology for each pol- lutant subject to regulation under this chapter emitted from, or which results from, such fa- cility; (5) the provisions of subsection (d) with re- spect to protection of class I areas have been complied with for such facility; (6) there has been an analysis of any air quality impacts projected for the area as a re- sult of growth associated with such facility; (7) the person who owns or operates, or pro- poses to own or operate, a major emitting fa- cility for which a permit is required under this part agrees to conduct such monitoring as may be necessary to determine the effect which emissions from any such facility may have, or is having, on air quality in any area which may be affected by emissions from such source; and (8) in the case of a source which proposes to construct in a class III area, emissions from which would cause or contribute to exceeding Page 7266 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7475 the maximum allowable increments applicable in a class II area and where no standard under section 7411 of this title has been promulgated subsequent to August 7, 1977, for such source category, the Administrator has approved the determination of best available technology as set forth in the permit. (b) Exception The demonstration pertaining to maximum al- lowable increases required under subsection (a)(3) shall not apply to maximum allowable in- creases for class II areas in the case of an expan- sion or modification of a major emitting facility which is in existence on August 7, 1977, whose al- lowable emissions of air pollutants, after com- pliance with subsection (a)(4), will be less than fifty tons per year and for which the owner or operator of such facility demonstrates that emissions of particulate matter and sulfur ox- ides will not cause or contribute to ambient air quality levels in excess of the national sec- ondary ambient air quality standard for either of such pollutants. (c) Permit applications Any completed permit application under sec- tion 7410 of this title for a major emitting facil- ity in any area to which this part applies shall be granted or denied not later than one year after the date of filing of such completed appli- cation. (d) Action taken on permit applications; notice; adverse impact on air quality related values; variance; emission limitations (1) Each State shall transmit to the Adminis- trator a copy of each permit application relating to a major emitting facility received by such State and provide notice to the Administrator of every action related to the consideration of such permit. (2)(A) The Administrator shall provide notice of the permit application to the Federal Land Manager and the Federal official charged with direct responsibility for management of any lands within a class I area which may be af- fected by emissions from the proposed facility. (B) The Federal Land Manager and the Federal official charged with direct responsibility for management of such lands shall have an affirm- ative responsibility to protect the air quality re- lated values (including visibility) of any such lands within a class I area and to consider, in consultation with the Administrator, whether a proposed major emitting facility will have an adverse impact on such values. (C)(i) In any case where the Federal official charged with direct responsibility for manage- ment of any lands within a class I area or the Federal Land Manager of such lands, or the Ad- ministrator, or the Governor of an adjacent State containing such a class I area files a no- tice alleging that emissions from a proposed major emitting facility may cause or contribute to a change in the air quality in such area and identifying the potential adverse impact of such change, a permit shall not be issued unless the owner or operator of such facility demonstrates that emissions of particulate matter and sulfur dioxide will not cause or contribute to con- centrations which exceed the maximum allow- able increases for a class I area. (ii) In any case where the Federal Land Man- ager demonstrates to the satisfaction of the State that the emissions from such facility will have an adverse impact on the air quality-re- lated values (including visibility) of such lands, notwithstanding the fact that the change in air quality resulting from emissions from such fa- cility will not cause or contribute to concentra- tions which exceed the maximum allowable in- creases for a class I area, a permit shall not be issued. (iii) In any case where the owner or operator of such facility demonstrates to the satisfaction of the Federal Land Manager, and the Federal Land Manager so certifies, that the emissions from such facility will have no adverse impact on the air quality-related values of such lands (including visibility), notwithstanding the fact that the change in air quality resulting from emissions from such facility will cause or con- tribute to concentrations which exceed the max- imum allowable increases for class I areas, the State may issue a permit. (iv) In the case of a permit issued pursuant to clause (iii), such facility shall comply with such emission limitations under such permit as may be necessary to assure that emissions of sulfur oxides and particulates from such facility will not cause or contribute to concentrations of such pollutant which exceed the following max- imum allowable increases over the baseline con- centration for such pollutants: Maximum al- lowable in- crease (in micrograms per cubic meter) Particulate matter: Annual geometric mean .................... 19 Twenty-four-hour maximum ............. 37 Sulfur dioxide: Annual arithmetic mean ................... 20 Twenty-four-hour maximum ............. 91 Three-hour maximum ........................ 325 (D)(i) In any case where the owner or operator of a proposed major emitting facility who has been denied a certification under subparagraph (C)(iii) demonstrates to the satisfaction of the Governor, after notice and public hearing, and the Governor finds, that the facility cannot be constructed by reason of any maximum allow- able increase for sulfur dioxide for periods of twenty-four hours or less applicable to any class I area and, in the case of Federal mandatory class I areas, that a variance under this clause will not adversely affect the air quality related values of the area (including visibility), the Gov- ernor, after consideration of the Federal Land Manager’s recommendation (if any) and subject to his concurrence, may grant a variance from such maximum allowable increase. If such vari- ance is granted, a permit may be issued to such source pursuant to the requirements of this sub- paragraph. (ii) In any case in which the Governor rec- ommends a variance under this subparagraph in which the Federal Land Manager does not con- cur, the recommendations of the Governor and the Federal Land Manager shall be transmitted to the President. The President may approve the Governor’s recommendation if he finds that Page 7267 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7476 such variance is in the national interest. No Presidential finding shall be reviewable in any court. The variance shall take effect if the President approves the Governor’s recommenda- tions. The President shall approve or disapprove such recommendation within ninety days after his receipt of the recommendations of the Gov- ernor and the Federal Land Manager. (iii) In the case of a permit issued pursuant to this subparagraph, such facility shall comply with such emission limitations under such per- mit as may be necessary to assure that emis- sions of sulfur oxides from such facility will not (during any day on which the otherwise applica- ble maximum allowable increases are exceeded) cause or contribute to concentrations which ex- ceed the following maximum allowable increases for such areas over the baseline concentration for such pollutant and to assure that such emis- sions will not cause or contribute to concentra- tions which exceed the otherwise applicable maximum allowable increases for periods of ex- posure of 24 hours or less on more than 18 days during any annual period: MAXIMUM ALLOWABLE INCREASE (In micrograms per cubic meter) Period of exposure Low terrain areas High terrain areas 24-hr maximum ......................................... 36 62 3-hr maximum .......................................... 130 221 (iv) For purposes of clause (iii), the term ‘‘high terrain area’’ means with respect to any facil- ity, any area having an elevation of 900 feet or more above the base of the stack of such facil- ity, and the term ‘‘low terrain area’’ means any area other than a high terrain area. (e) Analysis; continuous air quality monitoring data; regulations; model adjustments (1) The review provided for in subsection (a) shall be preceded by an analysis in accordance with regulations of the Administrator, promul- gated under this subsection, which may be con- ducted by the State (or any general purpose unit of local government) or by the major emitting facility applying for such permit, of the ambient air quality at the proposed site and in areas which may be affected by emissions from such facility for each pollutant subject to regulation under this chapter which will be emitted from such facility. (2) Effective one year after August 7, 1977, the analysis required by this subsection shall in- clude continuous air quality monitoring data gathered for purposes of determining whether emissions from such facility will exceed the maximum allowable increases or the maximum allowable concentration permitted under this part. Such data shall be gathered over a period of one calendar year preceding the date of appli- cation for a permit under this part unless the State, in accordance with regulations promul- gated by the Administrator, determines that a complete and adequate analysis for such pur- poses may be accomplished in a shorter period. The results of such analysis shall be available at the time of the public hearing on the application for such permit. (3) The Administrator shall within six months after August 7, 1977, promulgate regulations re- specting the analysis required under this sub- section which regulations— (A) shall not require the use of any auto- matic or uniform buffer zone or zones, (B) shall require an analysis of the ambient air quality, climate and meteorology, terrain, soils and vegetation, and visibility at the site of the proposed major emitting facility and in the area potentially affected by the emissions from such facility for each pollutant regulated under this chapter which will be emitted from, or which results from the construction or op- eration of, such facility, the size and nature of the proposed facility, the degree of continuous emission reduction which could be achieved by such facility, and such other factors as may be relevant in determining the effect of emissions from a proposed facility on any air quality control region, (C) shall require the results of such analysis shall be available at the time of the public hearing on the application for such permit, and (D) shall specify with reasonable particu- larity each air quality model or models to be used under specified sets of conditions for pur- poses of this part. Any model or models designated under such reg- ulations may be adjusted upon a determination, after notice and opportunity for public hearing, by the Administrator that such adjustment is necessary to take into account unique terrain or meteorological characteristics of an area poten- tially affected by emissions from a source apply- ing for a permit required under this part. (July 14, 1955, ch. 360, title I, § 165, as added Pub. L. 95–95, title I, § 127(a), Aug. 7, 1977, 91 Stat. 735; amended Pub. L. 95–190, § 14(a)(44)–(51), Nov. 16, 1977, 91 Stat. 1402.) Editorial Notes AMENDMENTS 1977—Subsec. (a)(1). Pub. L. 95–190, § 14(a)(44), sub- stituted ‘‘part;’’ for ‘‘part:’’. Subsec. (a)(3). Pub. L. 95–190, § 14(a)(45), inserted pro- vision making applicable requirement of section 7410(j) of this title. Subsec. (b). Pub. L. 95–190, § 14(a)(46), inserted ‘‘cause or’’ before ‘‘contribute’’ and struck out ‘‘actual’’ before ‘‘allowable emissions’’. Subsec. (d)(2)(C). Pub. L. 95–190, § 14(a)(47)–(49), in cl. (ii) substituted ‘‘contribute’’ for ‘‘contrbute’’, in cl. (iii) substituted ‘‘quality-related’’ for ‘‘quality related’’ and ‘‘concentrations which’’ for ‘‘concentrations, which’’, and in cl. (iv) substituted ‘‘such facility’’ for ‘‘such sources’’ and ‘‘will not cause or contribute to con- centrations of such pollutant which exceed’’ for ‘‘to- gether with all other sources, will not exceed’’. Subsec. (d)(2)(D). Pub. L. 95–190, § 14(a)(50), (51), in cl. (iii) substituted provisions relating to determinations of amounts of emissions of sulfur oxides from facilities, for provisions relating to determinations of amounts of emissions of sulfur oxides from sources operating under permits issued pursuant to this subpar., together with all other sources, and added cl. (iv). § 7476. Other pollutants (a) Hydrocarbons, carbon monoxide, petro- chemical oxidants, and nitrogen oxides In the case of the pollutants hydrocarbons, carbon monoxide, photochemical oxidants, and